Background

In a previous post on these decisions, “Does the Punishment Fit the Crime?”, I outlined the facts of these two cases, and what was at stake constitutionally. In Hills, the offence was the reckless discharging of a firearm into a place, namely a home, for which the mandatory minimum punishment was four years in jail. The majority of the Supreme Court of Canada, under the authorship of Justice Sheilah Martin, overturned the Alberta Court of Appeal’s finding that the punishment was constitutional, reinstating the three-and-a-half-year sentence imposed by the sentencing judge. In Hilbach, the nineteen-year-old Indigenous offender was sentenced on a charge of robbery using a prohibited firearm, which carried a mandatory minimum of five years imprisonment. In the companion case of Zowdesky, jointly decided with Hilbach, the charge was robbery while using a firearm, which attracted a of minimum four years incarceration. The majority of the Supreme Court of Canada, again as authored by Justice Martin, found the mandatory minimums to be constitutional and not contrary to s 12 of the Charter.

In the Hills decision, Justice Martin, writing in her usual clear and accessible manner, clarifies, but does not modify, the s 12 analysis. In doing so, she provides a stage-by-stage analytical framework for front-line judges to apply in considering s 12 challenges. She also confronts the many criticisms around s 12 principles, firmly dismissing such commentary. When applying the framework to the mandatory minimum of four years for reckless discharge of a firearm into a home, she finds the mandatory minimum sentence to be grossly disproportionate and contrary to s 12 of the Charter. In Hilbach, Justice Martin also comments on the overlay of mandatory minimums in cases involving sentencing of Indigenous offenders. Although this direction was needed, Ocean Hilbach’s Indigeneity coupled with his individual circumstances were not enough to render the 5-year minimum sentence unconstitutional under s 12.

Introduction to the Analytical Framework

To appreciate the novelty of Justice Martin’s approach to s 12, the analytical framework must be understood. To be clear, the novelty is not found in the framework itself, but in the placement of that framework into the sentencing hearing in such a singular way that the Charter analysis seems to flow effortlessly from that hearing. This is unique. Typically, when a Charter right has been violated, it involves an extraordinary event (such as an illegal detention) or a concern with the enabling law, which would not otherwise attract courtroom attention. Often, there is a trial within the trial (voir dire) to re-focus the trial on the Charter breaches alleged. Many times, the evidence heard on a Charter voir dire is different than the evidence that would usually be proffered at the trial proper. For instance, in a s 8 search and seizure challenge, the voir dire would elicit evidence of the reasonableness of the officer’s suspicion for a protective search, which would not be relevant to whether the substantive offence has been proven. However, in examining the constitutionality of the mandatory minimum sentence under s 12, both the offender and the reasonably foreseeable offender come into sharp focus, both in terms of who they are and what the fit and appropriate sentence should be for them. This activity is the essence of the sentencing hearing using sentencing tools. In this way, the s 12 analysis is not just injected into the hearing with its own parameters and reflections but seems to be a seamless part of the sentencing hearing proper.

There is a two-stage contextual inquiry under s 12 that considers whether the severity of the punishment produces a grossly disproportionate effect in comparison with the appropriate punishment (Hills at paras 35 and 40; R v Bissonnette, 2022 SCC 23 (CanLII) at para 62). The “animating purpose” of s 12 is to safeguard, protect, and respect human dignity and each individual’s “intrinsic worth” (Hills at paras 32 and 35). The right does not preclude punishment, but it does set tolerable societal parameters around such punishment. The sentencing hearing is not just concerned with punishing an offender but also with an appropriate punishment that is just, fair, and consistent with legal principles. Section 12, as a prohibition against grossly disproportionate sentences, may not always be engaged in every sentencing hearing but it is continually at work during such hearings to keep the sentencing process focused on both content and outcome. Unlike the other Charter rights in the trial context, s 12 is an appropriate companion to the sentencing process.

The First Stage of the Analytical Framework

The first stage in the s 12 inquiry is the sentencing hearing itself. The judge assesses what the fit and appropriate sentence would be in accordance with sentencing principles and objectives (Hills at para 40). In other words, the judge must do what they are required to do in sentencing an offender. Indeed, “no sentencing objective should be applied to the exclusion of others” (Hills at para 54). This requires the court to review all the objectives of sentencing such as deterrence and denunciation as well as rehabilitation. Proportionality is also a key aspect of the sentencing determination. There is a direct and incontrovertible connection between the proportionality principle and a grossly disproportionate sentence. Proportionality is in place to “prevent unjust punishment” and serves an important “limiting function” (Hills at para 57). Proportionality tethers the sentencing concepts of gravity of the offence and the offender’s culpability to the sentence imposed. These concepts also form the foundation for the mandatory minimum sentence created by Parliamentary lawmakers, who would be attuned to the seriousness of the offence and the level of culpability required to commit it.

The inquiry may also involve a consideration of the reasonably foreseeable offender, and not just the offender before the court. This ability to anchor the Charter challenge to others outside of the court’s purview has been controversial, leading to critical debate on the efficacy of basing such a challenge on a “make believe” scenario as opposed to a real person truly impacted by the law (Hills at para 28). But Chief Justice Beverley McLachlin in R v Nur, 2015 SCC 15 (CanLII) , anticipating this controversy, explained, “[i]f the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely” (Nur at para 51). The reasonably foreseeable offender is not a disembodied creation but “rooted in the realities of people’s lives” (Hills at para 86). The scenario should reflect lived experiences, tangible impacts, and be reflective of the people who would be actually adversely captured by the imposition of the mandatory minimum sentence.

Here too, the sentencing judge must “sentence” the reasonably foreseeable offender in the first stage of the inquiry. This sentence acts as a bridge between stage one and stage two of the s 12 determination, carving out the boundaries of the scope of the constitutionality of the mandatory minimum sentence (Hills at para 95). To ensure this constitutional scope, the sentence used to compare with the mandatory minimum must be “the lowest fit sentence that is reasonably foreseeable” (Hills at para 95). The sentencing hearing may take on the ‘twelfth’ dimension in doing so but it remains firmly within the four walls of the courtroom.

Whether the judge is considering either the offender before them, the reasonably foreseeable offender or both, the task in the first stage of this Charter enhanced sentencing hearing is not to merely imagine the appropriate sentence but to clearly articulate one. The sentence must be precise, specific, and well-defined (Hills at para 65). To assist in this task when considering a reasonably foreseeable offender, Justice Martin offers a panoply of characteristics to consider in an effort to crystallize the image of this offender and to connect them to the specificities of the offence (Hills at paras 77, 83, and 85). The reasonably foreseeable offender, like any offender before the court, may have “legal” personal characteristics relating to “age, poverty, race, Indigeneity, mental health issues and addiction” (Hills at paras 86 – 87). Through these characteristics, the reasonably foreseeable offender is “rooted in the realities of people’s lives” to ensure that “the effects of a mandatory minimum be scrutinized based not only on the reach of the law and the length of the sentence selected, but also on the breadth of the population to which it is made to apply” (Hills at paras 86 and 89). But the reasonably foreseeable offender is only one part of the scenario, the other being the circumstances of the offence, which must also be reasonably depicted. In the end, the “scenario as a whole” must be reasonably foreseeable in its totality (Hills at para 92). As with any sentencing hearing, depending on the circumstances, the reasonably foreseeable scenario may require the calling of evidence (Hills at para 93).

The Second Stage of the Analytical Framework

The stage one determination fixes the context in which the comparative analysis is done under stage two. It is in this second stage where the impugned punishment is measured against the fit and appropriate one. The sentencing hearing of an offender, or of a reasonably foreseeable one, now encompasses the provision itself. This means all the sentencing principles and objectives utilized in stage one are revisited in the assessment of whether the mandated sentence is grossly disproportionate. By their nature, mandatory minimum sentences will depart from sentencing principles, including the fundamental principle of proportionality (Hills at para 46). The measurement requires a high standard to preserve parliamentary deference. It is only those punishments that are grossly disproportionate to the otherwise fit one that will render a punishment unconstitutional. The Charter does not demand perfection, but it does provide a baseline for comparison.

In the second stage of the inquiry, the Charter review within the sentencing context may produce a prism-like continuum of fit, tolerable, excessive, and grossly disproportionate sentences, which the sentencing judge would be familiar with and well-placed to consider. This expertise flows from the sentencing judge’s need to delicately balance circumstances, principles, objectives, norms, and other relevant sentencing indicators in creating a fit and appropriate sentence. The sentencing judge, by knowing how to sentence, knows a fit sentence when they see it, and understands the nuances of the potential sentencing continuum. Just as there is deference to parliamentary punishment decisions for offences, there is deference to the sentencing judge’s imposition of punishment on the offender within those parliamentary boundaries.

Similarities can be found between a sentencing hearing and the second stage of the s 12 inquiry. In a sentencing hearing, the court also pivots from the individual to a consideration of generalities, such as sentencing ranges and case comparators. This focus ensures parity of sentence, which is a dimension of the proportionality principle. So too, the stage two s 12 analysis scrutinizes parity’s flip side or the disparity between the fit sentence and the mandatory one (Hills at para 106). That disparity is then weighed through the lens of the effects caused by that disparity, keeping in mind the difference must be grossly disproportionate (Hills at para 107). This may be where the sentencing hearing and the s 12 inquiry part company. The court in a sentencing hearing is concerned with proportionality proper. Although the Charter standard of proportionality is a higher bar, the assessment draws parallels with a sentencing appeal in which the appellate standard involves “demonstrably unfit” sentences (Hills at paras 108 – 109).

The s 12 assessment is a familiar inquiry with which the sentencing judge is “comfortable” (Hills at para 108). What may seem unfamiliar is the animating constitutional concern with whether the mandatory minimum sentence is so grossly disproportionate that it ““outrage[s] standards of decency”, is abhorrent or intolerable, “shock[s] the conscience” or undermines human dignity” (Hills at para 110). Even so, in crafting the appropriate sentence, the sentencing judge is concerned with human dignity and societal values. According to Justice Martin, in the s 12 inquiry, the normative constitutional component is assessed “through the values and objectives that underlie” the sentencing regime as well as Charter principles (Hills at paras 110 – 113). Of course, the fundamental sentencing principle engaged here is proportionality as the yardstick for a fair and just sentence (Hills at paras 111 – 112). In this way, the s 12 inquiry is subsumed and folded into the sentencing hearing. We have come full circle.

The constitutional dimension expressed by a grossly disproportionate sentence is indeed a dimension of the sentencing hearing, but there is a gap between a fit and appropriate sentence that should be imposed on the offender and a grossly disproportionate one that would engage Charter scrutiny. The gap is filled by parliamentary deference in which lawmakers have the authority to signal the level of approbation for criminal behaviour through the sentencing regime (Hills at para 113). We will return to this gap later in this post in considering the personal circumstances of Ocean Hilbach and his Indigeneity.

Justice Martin also outlines the three factors to consider in assessing whether the mandatory minimum is grossly disproportionate (Hills at para 122). In her view, this is a “regrouping” of the components of that assessment based on a survey of the law (Hills at para 122). The three components, which either alone or in combination can ground the determination that the mandatory minimum is grossly disproportionate, involve the “scope and reach” of the offence, the effects on the offender, and the mandatory minimum itself (Hills at para 122).

This post will not discuss the specifics of each component other than to comment on the intersections with sentencing factors. For instance, in reviewing the scope and reach of the offence, the judge may look to sentencing ranges and starting points, analytical tools used in determining proportionality and parity (Hills at para 132). Again, the s 12 inquiry reaches into a sentencing hearing using its analytical framework to assist in measuring the features of what could be a grossly disparate mandatory sentence. In reviewing the effects the mandatory sentence has on the offender, the judge must also take note of the principle of proportionality (Hills at para 135). The harsher the effects of a sentence of imprisonment of the kind proposed, the more likely a lower sentence, below the minimum, may be required. The mandatory minimum is also scrutinized through the lens of sentencing principles and objectives like deterrence and rehabilitation (Hills at para 140). In the case of rehabilitation, which reflects the human capacity to change and overcome those obstacles that may lead to criminal behaviour, a mandatory minimum “excluding or completely disregarding” rehabilitation will be grossly disproportionate (Hills at para 142).

The Impact of Indigeneity

At paragraph 87 in Hills, Justice Martin connects the “mandatory” sentencing principle found under s 718.2(e) of the Criminal Code to consider “all available sanctions, other than imprisonment” for Indigenous offenders to the characteristics of the reasonably foreseeable offender. The provision was enacted to “address the overincarceration of Indigenous people” who are disproportionately represented in the justice system (Hills at para 87). This specific inclusion of what we now call the Gladue principle, engaging the systemic and historic discrimination impacting Indigenous peoples, is critically important when assessing the effects of the mandatory minimum sentence under stage two, where, as in Hills and Hilbach, the mandatory minimum is a significant jail sentence. In Justice Martin’s view, it is “an unfortunate truth” that an Indigenous offender is more than “theoretically possible” considering they are “vastly overrepresented” in the jails (Hills at para 87).

In light of this “unfortunate truth,” accounting for Indigeneity in the s 12 assessment applies to more than just the reasonably foreseeable offender and is also essential to stage two (Hilbach at paras 41 – 44). The focus of stage two, and really the entire inquiry, is whether the mandatory minimum sentence is grossly disproportionate. According to Justice Martin, the Gladue framework arising from s 718.2(e) is a “core part” of sentencing principles as much as parity and proportionality (Hilbach at para 44), and therefore is engaged in the assessment of gross disproportionality. Justice Martin referenced a previous Supreme Court ruling on s 12, R v Boudreault, 2018 SCC 58 (CanLII), as an example of how s 718.2(e) principles can “support striking down a sentencing measure under s 12” (Hilbach at para 44). Boudreault was a case involving the mandatory imposition of a victim fine surcharge upon conviction. Among several reasons, Justice Martin, writing for the majority, found the mandatory victim surcharge would “undermine” the ameliorative efforts to reduce the Indigenous overrepresentation in the jails (Boudreault at para 83). The sanction would disproportionately impact Indigenous people, who are disproportionately overrepresented in prisons, and would disproportionately default in payment of the fines, resulting in possible loss of liberty. In fact, Indigenous offenders are grossly disproportionately represented in the jails. According to the most recent reports of the Correctional Investigator, upwards of 50% of all women in federal penitentiaries are Indigenous. This dimension of gross disproportionality must be anchored together with the entire s 12 inquiry.

In the case of Hilbach, involving a youthful Indigenous offender, the s 12 inquiry truly is his sentencing hearing. This duality of gross disproportionality, involving Indigeneity and the s 12 inquiry, will have significant and lasting impact on his life. Justice Martin in Hills acknowledges the “ripple effect” that jail, as a total loss of liberty, can have on a person’s life including “physical and mental health, employability, children and community” (at para 101). These “heavy costs” and the “potentially devastating” impact on a person’s future adds a dimension to the s 12 inquiry that is particularly meaningful for an Indigenous youthful offender like Ocean Hilbach (Hills at para 102). Even though the Hills and Hilbach decisions are replete with references to the grossly disproportionate impact of the justice system on Indigenous peoples and the significant impact the sentence would have on Mr. Hilbach personally, this truth does not translate into gross disproportionality of the 5-year mandatory minimum sentence for use of a prohibited weapon in a robbery (Hilbach at para 51).

There is no doubt that in terms of the scope and reach of the offence, the lines are tightly drawn. The offence captures highly blameworthy and dangerous conduct requiring an elevated intention. On the other hand, the effects of a five year sentence on a youthful Indigenous person struggling with the historic, systemic, and personal effects of discrimination is severe and significant (Hilbach at paras 51 and 63). The “ripple effects” are evident in his future, his rehabilitative prospects, and on the Indigenous community itself. Even so, Justice Martin, in applying the principles to the five year mandatory minimum faced by Mr. Hilbach, finds the mandatory minimum “harsh and close to the line” but not grossly disproportionate (Hilbach at para 52). This “almost there” theme of the assessment of the s 12 inquiry in Mr. Hilbach’s case runs throughout the application paragraphs of the Hilbach decision. Justice Martin signals this through the moderate language she chooses in her assessment such as noting that Hilbach’s circumstances “attenuate his culpability somewhat” (at para 51), that the five-year minimum is “relatively more severe” (at para 62), and that the mandatory minimum “may” exceed what is necessary to achieve parliament’s objective considering the case of Mr. Hilbach (at para 74).

The decision also makes generous use of the negative. For example, Justice Martin finds that quantitatively the additional sentence beyond a fit and appropriate one, which the mandatory minimum represents, is “not negligible” and is “nottotally” out of sync with sentencing norms (Hilbach at paras 63, 51, and 76). Then, using language which suggests that the line of gross disproportionality in the case is difficult to discern, Justice Martin suggests that although the mandatory minimum “may not aid” rehabilitation, neither does it “completely disregard it” (Hilbach at para 79 and Hills at para 34). This language feels inconclusive. It gives the assessment an uncertain air without explaining to what extent this mandatory minimum is not grossly disproportionate. For example, if the mandatory minimum does not aid rehabilitation but neither does it totally disregard it, what exactly does it do towards fulfilling it? This language suggests that for a mandatory minimum to be unconstitutional there needs to be a total absence of the possibility of rehabilitation or a complete negation of human dignity in its imposition. If so, then that is a difficult bar to exceed.

This approach also seems inconsistent with Justice Martin’s position that one of the three components of gross disproportionality can render a mandatory minimum unconstitutional (at para 36). It is hard to understand in Hilbach how such a mandatory sentence, that has the potential of such negative impact on Indigenous life and community, is not unconstitutional, even with parliamentary deference and with scope and reach well-defined. Considering the outcome in Hills, it seems that what is needed is a combination of those components to overcome the high bar. The three component assessment will need to be tested further to see if the bar is actually pitched too high constitutionally.

Conclusion

What does this analysis say about the twelfth dimension of sentencing that the s 12 inquiry appears to be? It may suggest that there is a gap between sentencing the offender and concerns for a grossly disproportionate sentence that cannot be accounted for in the sentencing or appellate process. It confirms that proportionality, although it permeates the entire s 12 analysis and is fundamental to sentencing, has a very limited constitutional dimension that is beyond the reach of those offenders whose lives will be severely impacted by the mandatory minimum.

Mandatory minimum sentences can only be reviewed by challenging the constitutionality of the punishment. This Charter inquiry, although embedded in sentencing principles, cannot change a disparate sentence imposed by the mandatory minimum. The Hills and Hilbach decisions show that neither can the appellate courts. There are no other review mechanisms available to recover the loss of human dignity in such a process; ss 7 and 15 of the Charter were recently foreclosed in the Sharma decision (R v Sharma, 2022 SCC 39 (CanLII)). Indigenous offenders and other racialized and marginalized groups must simply live with a form of punishment that may be harsh and excessive when compared to non-racialized and non-Indigenous offenders.

The s 12 inquiry is another dimension hovering behind the scenes in a sentencing process. It reminds us of the core principles leading to a fit and appropriate sentence such as human dignity and proportionality. It also reminds us of the limits of the Charter and the rule of law in the sentencing process.

Factually, the Schneider case has an air of mystery as it grapples with what was said by the accused on the phone within the hearing of his brother, who was trying desperately not to hear while under “significant” stress and the influence of alcohol (at para 20). As per any good law school exam fact situation, the one-sided conversation was far from clear, which makes it unclear whether the evidence is admissible. Moreover, after cross-examination on the voir dire, and then even more cross-examination and impeachment at trial, the evidence is about as clear as mud. According to his brother, Mr. Schneider, who was ultimately charged and convicted of murder, may have said on the phone “I did it” or “I killed her” (at para 20), although the brother could not remember the exact words (at para 77). Justices Russell Brown and Andromache Karakatsanis, in dissent, find the evidence is even more tenuous than that, as the brother “did not even recall knowing the substance of what was said” (at para 90). To make matters worse, the words, which may or may not have been said, may have come “at the beginning, middle or end of a long sentence” (at para 90). To this scrap of evidence, the rules of evidence were applied by the trial judge (admitted) and the British Columbia Court of Appeal (excluded by the majority), and the ball, so to speak, is now in the Supreme Court’s court, which we turn to for the answer.

 Proposition 1: Legal principles matter, particularly when it comes to evidence

This is where the Schneider decision shines as Justice Malcolm Rowe, writing for the majority, gives a concise, cogent, and classic admissibility roadmap (at paras 1, 2, 35-62). He does this straight away in the first paragraph when he reminds us that admissibility of evidence is “governed by foundational legal principles”. Indeed, these foundational principles have been at work for hundreds of years, coming to us from English common law. Take for example, the hearsay rule, which is engaged by the admissibility of the “words” in Schneider. According to John Wigmore, the recognized authority on anything and everything that is evidence, in his aptly named article “The History of the Hearsay Rule” (1904) 17:7 Harv L Rev 437, the hearsay rule “as a distinct and living idea,” began “only in the 1500’s” but did not “gain a complete development and final precision until the 1700’s” (at 437). In other words, the hearsay rule is really old, as are the traditional exceptions to that rule, which are also engaged in the Schneider case.

The basic framework for admissibility, which Justice Rowe uses in deciding the case, reads like a law school CAN (Condensed Annotated Note). The first step is to determine whether the evidence is relevant and material, as only relevant and material evidence is admissible. However, relevancy and materiality are necessary but not sufficient conditions for admissibility. This is because relevant and material evidence is subject to common law and statutory exclusionary rules (of which the classic common law ones are the Opinion Rule, Hearsay Rule, Character Rule, Confessions Rule, Rule Against Oath-Helping, and Privilege). Consistent with the quip made by the non-legal cartoonist and humourist James Thurber that  “there is no exception to the rule that every rule has an exception” there are a multitude of exceptions to the exclusionary rules. For instance, I have counted at least 33 exceptions to the hearsay rule.

If the evidence is not excludable under the exclusionary rules, then the next step is to determine whether the otherwise admissible evidence is subject to judicial exclusionary discretion. This discretion to exclude is applied where the prejudicial effect of the evidence outweighs the probative value. Justice Rowe follows these foundational principles in determining whether the majority of the British Columbia Court of Appeal (BCCA) erred in finding the trial judge should not have admitted the evidence in Schneider. Like every framework, no matter how useful or workable, the proof is in the pudding, and the ingredients of that pudding. When it comes to evidence rules, as evidenced in the Schneider decision, context is everything. Which brings us to Proposition 2.

Proposition 2: Don’t skip the small stuff because relevancy matters

The Schneider decision is proof of the second proposition, as much of the case revolves around relevancy. Remember that the first step in the admissibility process is to determine whether the proposed evidence is relevant and material. Although we are “living in a material world[JK1] ,” materiality is usually not the real issue, relevancy is, or rather what Justice Rowe calls “logical relevance” (at para 38). Materiality is a legal question about whether the evidence to be admitted is related to the legal issues in the case. For instance, in a civil case, materiality is dictated by the legal issues arising from the pleadings. Evidence is material if it is proffered by a party to an action to prove or disprove a “live” legal issue (see R v Calnen, 2019 SCC 6 (CanLII) at para 109).

Materiality is usually not the concern when deciding on admissibility of evidence. The more difficult determination is materiality’s partner – relevancy, aka “logical relevance” (at para 38). As opposed to materiality, relevancy is anchored to the facts. The question being engaged with relevancy is whether the proffered fact, which lies outside of the trial evidence, tends to prove or disprove a fact in issue (at para 39). To answer this question, the judge must look inside, into the factual matrix of the case. This “outside-inside” glance represents the relationship that evidentiary rules have with each other and within the factual boundaries of a case. Referencing poet John Donne’s famous quote that no person is an island, so too evidence rules and pieces of evidence themselves gain meaning when viewed one with the other. It is on this issue where Schneider gets interesting. In Schneider the specific issue on appeal was “what evidentiary context can a trial judge use to determine whether the evidence is capable of meaning, such that it could be relevant?” (at para 40). In other words, does context matter, and if so, which context is it?

Proposition 3: Evidence needs context like a courtroom needs a judge

Without context, evidence is just data points. Without a judge, a courtroom is merely a room. Context rules when it comes to the rules of evidence. Or does it? Justice Rowe’s reasons in Schneider seems to approve of the contextual or “big picture” approach to determining relevancy.  In his view, when determining relevancy, all cards are on the table, meaning the entirety of the trial evidence. Such an approach is certainly consistent with the Supreme Court of Canada’s previous case law urging trial judges to make determinations in this “big picture” context. A classic example is found in the Court’s decision in R v Morin, 1988 CanLII 8, [1988] 2 SCR 345, where the majority disproved of a two-step application of the burden proof, eschewing the application of the standard of reasonable doubt to individual pieces of evidence. Rather, as the standard controlling the ultimate determination, reasonable doubt must be applied to the entirety of the evidence. This concept of the “whole” extends to where the evidence is a matter of credibility as expressed in the WD instruction to the jury (R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742). Although Justice Rowe appears to be on safe ground when it comes to this issue, there is a twist that depends on the actual context of the evidence heard at trial, resulting in a potential misstep in this search for context.

Prior to the phone call, there was a constellation of events “leading up” to the phone call, involving “several conversations” between the accused and his brother, a response by the accused to the brother’s questions about “the news release identifying a missing woman by saying ‘it’s true’”. The accused had also informed his brother of the location of the body and the accused “displayed a remorseful demeanour during interactions that he had with the brother leading up to the phone call” (at para 29). Justice Rowe finds that this evidence is available to “inform the meaning of the words the brother overheard” (at para 29). This finding was at the crux of the split decision at the BCCA on the admissibility of the brother’s evidence on the telephone conversation. The majority of the BCCA, in overruling the admission of the conversation, found the trial judge erred by not confining the admissibility question to the “micro-context”, being “the parts of something written or spoken that immediately precede and follow a word or passage and clarify its meaning” (R v Schneider, 2021 BCCA 41 (CanLII) at para 90). On the other hand, the dissenting justice in the BCCA found the trial judge was correct to review the other evidence or the “macro-context” available at trial, which may help shed light on the relevancy of the telephone conversation.

Justice Rowe agreed with the BCCA dissent that this “significant” evidence beyond the “micro” realm was the proper context in which admissibility must be determined. In fact, “there is no basis in law to differentiate between ‘micro’ and ‘macro’ context” as “all evidence is capable of informing the judge’s analysis” (at para 6). Even the Supreme Court dissent is on side with this latter suggestion, albeit Justices Karakatsanis and Brown would dismiss reference to these concepts as the controlling force behind the BCCA split decision (at para 93). To them, the concern is that when determining relevancy, caution is advised, or a judge may overstep the mark and use “irrelevant” evidence to bolster the relevancy of the proposed evidence in issue (at para 93). To take this further, the dissent is concerned that if the constellation of events is so broadly viewed, this will invite impermissible reasoning, such as a leap in logic, which would then inextricably lead to finding the words or “gist” or “tone” overheard by the brother as more relevant, probative, and meaningful than they really are. Indeed, I agree that one piece of this evidential context is troubling – that the accused told his brother where the victim’s body was located before the phone call. This could inform the meaning of the phone call in a very specific way, lending credence to the idea that the accused’s words were an admission of guilt. However, as the dissent points out (at paras 92, 94 and 96), this only fulfills relevancy (i.e., does the proffered fact tend to prove or disprove a fact in issue) if in fact the words heard were “I did it” or “I killed her.”

No doubt it is a matter for the jury to decide what in fact was overheard at the time of the phone call, but, as the dissent feared, the testimony of the brother did not provide an adequate factual basis for this kind of finding. In the dissent’s view, the constellation of evidence leading to the phone call was a red herring adding “nothing” to the assessment of the phone call (at para 92) because the brother’s evidence was devoid of meaning from the start. In fact, the brother had no recollection of what was said (at para 94). There was no content to assess and therefore the broad context relied upon created content that was simply never there. Therefore, using the broad context was highly prejudicial as it involved impermissible reasoning that because the accused knew where the body was located, he must have admitted that he killed the victim even if the brother could not recall what, if anything, was actually said on the phone.

This leads us to the next proposition, which acts to bind context and evidence together.

Proposition 4: Evidence needs purpose.

The fourth proposition also connects to proposition 1, which states that foundational legal principles matter and creates the framework for the approach to admissibility. The caveat to proposition 1, gleaned from proposition 4, imports a proto step to the framework. Before the legal framework is applied (i.e., relevancy and materiality), the judge needs to know the purpose of the evidence. This is best expressed by Justice Sheilah Martin in Calnen (at para 113), when she stated that “in addition to being aware of the general principles, it is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it.” Without this information, trial judges run the risk of error, as evidence without an articulated purpose may be used for an impermissible purpose, or worse yet, be admitted when it should not have been, considering the use to be made of it.

The difficulty in Schneider is that Justice Rowe seems to leave out this proto step or precursor to the relevancy step. His concern is that the majority decision of the BCCA wrongly used the purpose of the phone evidence, as an admission to the killing, in determining relevancy (at paras 78). In his view, at the relevancy step the evidence should not be “classified” as an admission (at para 42). Doing so too narrowly confines the other evidence at trial that would inform or assign meaning to the evidence in question (at para 42). This does not mean, Justice Rowe opines, “any and all evidence” can be used, but that the overarching question limiting the context is whether the evidence being used can give “non-speculative” meaning to the evidence being assessed (at para 44). Justice Rowe is correct in the sense that relevancy comes before an assessment of whether the otherwise admissible relevant evidence is excluded on the basis of an exclusionary rule. But, this position does not take in account the overarching concern with the purpose of that evidence, which the trial judge and counsel must always be mindful of when assessing the evidence at any step of the framework.

As Justice Martin explained in Calnen, being mindful of the purpose of the evidence “often requires counsel and the court to expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use” (at para 113). It is not just context that matters but the inferences to be drawn as well. That “chain of reasoning” that requires the judge to assess relevancy is built on linkages made from the purpose for the admissibility of that evidence. Without purpose, relevancy is aimless and can lead to weaknesses in that chain.

Proposition 5: The gatekeeper function rules!

This last proposition may not be wholly apparent in the Schneider decision, but it is one of my favourite evidence mantras. The last step in the legal framework, where the judge as gatekeeper has that final look at otherwise admissible evidence, is critical to the integrity of the justice system. In the balancing of the prejudicial effect of admitting the evidence against the probative value of the evidence, the objectives underlying the rules of evidence are given meaning and life. Truth-seeking and fairness come together and provide the appropriate backdrop to the admissibility question. This proposition concerns evidence that is admissible under all other rules of evidence, yet subjects it to concerns we as society should have with evidence that may lead to illogical and bad reasoning, resulting in unfairness, imbalance, and prejudice that erodes public confidence in the justice system. At the same time, this last look carefully calibrates these potential injustices with the probativeness or informativeness of the evidence, consistent with the societal desire that “truth will out.”

In an appeal, this discretionary judicial balancing is given great deference (at para 79). Moreover, in considering the application of discretion, the trial judge can find ways to ameliorate the possible prejudice to the accused through jury instructions (at para 82). Justice Rowe found that the trial judge fulfilled this function and limited the prejudicial use of the evidence (at para 83). The dissent, however, found the instructions were not explicit enough and did not covey to the jury the “impact” the words could have on trial fairness (at para 95). In their view, over and above the complete lack of relevancy of the phone call evidence, on balance, the judicial discretion to exclude should have been used (at para 96).

 Final observations

The difference between the majority and dissent in Schneider, is unsurprisingly the decidedly different view both decisions take from the evidence. The majority sees “threshold” value to the phone call evidence, preferring to use the entire context of the evidence to determine whether the brother’s testimony can make it over that low threshold to become a piece of evidence considered by the jury in coming to the ultimate determination of guilt or innocent. This is a position entirely consistent with the objective of the rules of evidence that enable the truth-seeking function of the court. Justice Rowe’s view is consistent with the reasoning behind the principled approach to the admission of hearsay that is more organic, less tethered to the archaic pigeon-holed rules of evidence, and therefore more meaningful. Similarly, the dissent, which sees no value in the phone call evidence, finds it cannot get over that low threshold (at para 96). The dissent too is concerned with another fundamental objective of the law of evidence, which is trial fairness. By letting in highly speculative non-evidence, there is a greater risk that the ultimate determination, which can change lives in such an elemental way, will result in a miscarriage of justice. Although the accused does not have a right to a perfect trial, an accused has a right to a fundamentally fair one (see R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716). In the dissent’s view, assessing the evidence on any level – be it macro or micro or low or even non-existent – is simply “an exercise in pure speculation” (at para 92). The law does not work with fiction, but with facts.

This leads to the case we all discuss in evidence class – R v Ferris, 1994 CanLII 31 (SCC), [1994] 3 SCR 756. The decision is one line, with Justice John Sopinka dismissing the Crown appeal:

… with respect to the evidence that the respondent was overheard to say “I killed David”, if it had any relevance, by reason of the circumstances fully outlined by Conrad J.A., its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.

The Alberta Court of Appeal decision in Ferris (R v Ferris, 1994 ABCA 20) lends fuller context. There, Justice Carole M. Conrad considered whether the trial judge erred in admitting “an incomplete verbal utterance” consisting of “… I Killed David …” (ABCA at paras 1-2). These words were overheard by the investigating officer while Ferris was on the telephone (at para 3). The officer heard “conversation before, after, and in between” the “I’ve been arrested” and “I killed David” but could not hear what was being said, at the time he was not trying to overhear, and he was in the process of leaving the area when he heard them (at para 4-5). Justice Conrad, as Justice Rowe did in Schneider, began her analysis with step one of the legal framework for admissibility, namely whether the evidence was relevant (at para 13). In her assessment, Justice Conrad (correctly in my view) states that “words do not become admissible merely because they are uttered out of the mouth of the accused” (at para 15). To be probative of some fact in issue, the party tendering the evidence must “prove the connection between the evidence offered and the fact” in issue (at para 15). In other words, they must articulate the purpose of that evidence, being an admission for the proof of their contents (at para 15). Whether the officer was truthful in his evidence is a matter of weight, but whether the utterance is relevant as an admission depends on the meaning ascribed to that utterance (at para 15). She found there was no context at all for the accused’s comments. The words uttered could have been as easily an admission as an explanation of what the police alleged the accused did. If admitted, the words would be a “highly prejudicial” (at para 22). Justice Conrad was clear that there was no question the words were spoken but the open question was meaning they could be given (at paras 26, 29). In her view, the words were not “logically probative of a fact in issue,” not relevant, and therefore not admissible (at para 31).

Factually, there are similarities and differences between Schneider and Ferris that are, as I said earlier in this post, at the heart of the disagreement between the majority and dissent in Schneider. Justice Rowe sees content to the phone conversation and the meaning of that content is informed by the larger context of the trial evidence. Justices Karakatsanis and Brown see no content and therefore there can be no context that could ever assist in discerning meaning. In any event, as correctly pointed out by Justice Rowe, Justice Sopinka in Ferris, in agreeing the words were inadmissible, did so by applying the last look judicial exclusionary discretion. This leaves a sense, as suggested by Justice Rowe, that Justice Sopinka thought the words were otherwise admissible and relevant (at para 69). Although it is difficult to make an argument based on one sentence, the decision by Sopinka J in Ferris must be read in the context of the case. In Ferris, the trial judge ruled the words admissible after a voir dire in which the judge found the statements were voluntary (Ferris, ABCA at para 10). The trial judge then considered “the next matter,” which was whether the words “should nevertheless be held inadmissible because of the prejudicial effect” (Ferris, ABCA at para 10). Immediately after this comment on the potential prejudicial effect of the statement,  the trial judge found the statement admissible based on a number of reasons including its relevancy (Ferris, ABCA at para 10). This review of the trial judge’s reasons suggests the consideration of relevancy was made in the context of the application of the discretionary exclusion by the trial judge. This may explain why Justice Sopinka emphasized the judicial discretion to exclude in the decision, rather than the relevancy point.

There is more I can see under the magnifying glass that is of interest. Front and centre for me, for instance, is the hair-line difference between the admissibility and weight of evidence, which is woven throughout the Schneider decision. I will leave that and other issues for another day and another evidence class discussion. Who knows, I might even add a proposition or two in doing so. In the end, the Schneider decision attempts to make sense of admissibility of evidence and provides insights that I will carry with me as a purveyor and, dare I say, a lover of the law of evidence.

I will start with my blog post from last year, “Let’s Not Stop Short of Truth and Reconciliation,” written in remembrance of our first National Day of Truth and Reconciliation. In that post, I talked about the continual process of reconciliation that requires us, on a daily basis, to remember, acknowledge, and act on our own role in the harms done to Indigenous peoples. In that article, I also found a “slow but perceptible movement” towards the implementation of the principles behind truth and reconciliation in case law and legal principles. I mentioned 5 different decisions impacting Indigenous justice in the legal system. In these decisions, the judges recognized the Calls to Action and attempted to implement the spirit of reconciliation into their decision making. The cases spanned criminal, civil and administrative law.

This year in case law, I see willingness to embrace hard truths about the devastating impact the legal system has on Indigenous peoples. Implementation of change is important but without acknowledging the pain, which inevitably goes with reconciliation, the path forward will lack momentum and credibility. Overrepresentation of Indigenous peoples in the criminal legal system, specifically in our jails, is one of those hard truths. A simple CANLII database search, reveals 122 cases since 2016 mentioning this hard truth. A broader search for “overrepresentation” and “Aboriginal” offers 457 cases with the oldest being the 1995 Federal Court decision in Sauvé v Canada (Chief Electoral Officer), 1995 CanLII 3565, which is the trial decision on the constitutionality of the then voting disqualification of inmates of correctional institutions in federal elections. The voting prohibition was challenged under ss. 3 and 15. Of great importance was the overrepresentation of Indigenous offenders in the jails, meaning the law differentially and unequally impacted Indigenous peoples, virtually excising their voice them from the democratic process.

The trial court in Sauvé struck down the section on the basis of s. 3 and, as is unfortunately so common, left the s. 15 argument for another day. Before doing so, the court did comment on the s. 15 argument, dismissing it on the basis that the provision did not “operate more harshly” in relation to “poor and aboriginal inmate groups” and therefore the law did not operate in a “more burdensome manner” (at para 157). The Supreme Court of Canada will be reviewing the law surrounding s. 15 in R v Sharma, hopefully releasing the decision in the fall. In that case, the majority of the Ontario Court of Appeal found the conditional sentencing order regime, restricting access to that form of disposition to offences carrying a maximum sentence of 14 years or more, unconstitutional based on ss. 7 and 15. Cheyenne Sharma, who was 20 years of age at the time of her offence of importing cocaine into Canada, was a member of the Saugeen First Nation. She also carried with her a life story replete with abuse, tragedy and oppression (see the trial decision of Justice Hill in R v Sharma, 2018 ONSC 1141 at paras 10 to 17). Yet, Cheyenne had no access to this potentially ameliorative sentence. In the Court of Appeal decision, the majority written by Justice Feldman, starts unusually with an epigraph from paragraph 65 of the Gladue decision, which is worth repeating:

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

This acknowledgement, even before the case judgment starts, frames the decision, and marks out the mindset, the path, on which the decision is based. This alone shows an ability to strike a path towards reconciliation through legal principle. Statements of intent and commitments to the future while recognizing the past are enormously important in law.

Returning to the criminal cases in 2022 that leave me with a sense of hopefulness for the future are decisions like R c Fireman-Cox, 2022 QCCQ 5382, in which Judge Jacques Ladouceur, in determining the appropriate sentence, reminded himself that “in addition to recognizing the Gladue factors, it is necessary to give tangible and full effect to them by seeking alternative sanctions to imprisonment” (emphasis from original judgment at para 54). The Judge also referenced the hard truth that “Correctional Service Canada has failed to identify and eliminate systemic barriers that persistently disadvantage certain groups of offenders” (at para 56). Due to the kind of offences in question, one being break, enter with intent to commit a sexual assault, a conditional sentence order was not available. But, in light of the offender’s background and efforts to change, a suspended sentence was imposed.

In R v LaFrance, 2022 SCC 32, the majority, authored by Justice Brown, applied the earlier Le decision in reviewing whether the trial court properly took into account the indigeneity of the accused in the objective analysis of whether the accused was detained at the time of the s. 10(b) breach. Justice Brown spoke of the need for trial judges to “always” be mindful of the ““relational aspect” between the police and Indigenous persons … characterized as it has been by an overwhelming power imbalance and history of discrimination; and … the resulting possibility that their interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate” (at paras 58 and 59).

I also take heart when I read the sentencing decision of Judge Patterson of the BC Provincial Court, sitting in Terrace, BC located in northwestern part of the province where the Indigenous peoples of the Kitselas and Kitsumkalum First Nations have lived for thousands of years. In that decision, R v Robinson, 2022 BCPC 57, the judge spoke of the “terrible injustice” of the hard truth of overrepresentation of Indigenous peoples in the jails, which was “contrary to the teachings” of the Supreme Court (at para 16). I particularly found the use of the word “teachings” a powerful description of the legal principles at the heart of Gladue. Judge Patterson used the word again when stating at paragraph 20 that overrepresentation is “unsettling, when one considers that it has been over 22 years since the Supreme Court of Canada's teaching in Gladue that we need to specifically address the problem of the over‑incarceration of Indigenous peoples.” In the context of the Indigenous perspective, Indigenous teaching includes ways of knowing, being and doing that are actively practiced or learned. I like to think Gladue and the Supreme Court cases that follow are a part of that knowledge pathway and the conduit we have to understanding Indigenous teachings.

Most recently, is the decision in R v King, 2022 ONCA 665, in which the court continues the extension of Gladue principles to principles of evidence, namely the Corbett application. The application, named for the 1988 Supreme Court of Canada decision, permitted the discretionary excising or editing of an accused’s criminal record at trial, particularly when conducted before a jury, where the accused testifies, and the prejudicial effect of those criminal convictions would outweigh its probative value. The prejudicial effect engages both moral and reasoning prejudice as the jury may place undue weight on an extensive criminal record in assessing the accused’s evidence and may draw the impermissible inference that because the accused committed crimes in the past, they were more likely to commit the crime in question. In the joint decision written by Justice George and Associate Chief Justice Fairburn, the Court carefully calibrated the Corbett application to reflect the accused’s indigeneity, recognizing the historical and personal discrimination involved in King’s accumulation of convictions (King at paras 175 to 201).

Notably, the Ontario Court of Appeal in King took the opportunity to reiterate once again the application of Gladue principles “whenever an Aboriginal person’s liberty is at stake” (at para 169 citing United States v Leonard, 2012 ONCA 622). Importantly, the court, at paragraph 170, of the decision, unpacks the meaning of the phrase “Gladue principles” by explaining the judicial responsibilities entailed in that phrase as well as the reasoning behind it. Judges “ought to be aware of the realities of the Indigenous people” before them. This requires judges to recognize, understand, and listen to the “historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination.” The principles are a continuing judicial obligation as failing to recognize the realities behind the principles “can lead to further discrimination … and undermine efforts to apply the law impartially and equitably.” This is a stark warning that reconciliation in the law requires work, intentionality, and proper application to all legal principles that may interfere upon an Indigenous person’s life journey.

Finally, I would like to mention the Alberta Court of Appeal decision in R v Natomagan, 2022 ABCA 48. I have written extensively on this decision in a blog article entitled “If Not Now, When?” In an effort not to repeat my comments, I encourage readers to look at this commentary on a bold decision from the ABCA, calling out the discriminatory effects of biased risk assessment tools used in both dangerous offender determinations and in parole decision making. The Court calls on “all criminal justice system participants … to address systemic biases against Indigenous people head on” (at para 122).

I cannot leave this issue without specifically discussing the treatment of Indigenous women in the criminal legal system. In R v JNB, 2022 ABPC 169, Judge Doyle, in deciding on the admissibility of the complainant’s hearsay statement to the police for the truth of its content, the court took an intersectional approach and considered the reason for the complainant’s non-attendance both as an Indigenous person and as a woman. The case involved serious allegations of domestic and sexual abuse where the complainant would be faced with “conflicting influences” in deciding whether to testify against a spouse (at para 77). Judge Doyle also accounted for the complainant’s position as an Indigenous woman pursuant to R v Barton, 2019 SCC 33 at para 198 to 200. She would also be faced with “historical biases, stereotypes and prejudices” and institutions that, according to the Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Volume 1a [Report], would blame Indigenous women “for the violence and difficulties they face, and/or see them as guilty of committing violence or other crimes themselves” (at page 627). The complainant would then be looking for justice in the same system “that established the reserve system, the residential school system, and continues the removal of children from their families” (as described by Kassandra Churcher, the national executive director of the Canadian Association of Elizabeth Fry Societies at p 627 of the Report). By accounting for the Indigenous experience, the Court was able to breath new relevance into an ancient evidentiary rule and to recalibrate it in accordance with the Indigenous perspective.

On this National Day of Truth and Reconciliation, it is vitally important we each do what we can to be part of the solution, not the problem. Admittedly, the legal system is part of the problem and I, as a lawyer in that system, am also. But we can make a difference. We can ensure that the path to Truth and Reconciliation moves forward in a timely way. We can ensure that legal principles remain relevant and impactful. We can create truth from reconciliation that will lead to hope and meaningful change.

First, a little history lesson compliments of Dennis Duncan. Indexing has ecclesiastical roots. This is unsurprising as law does as well. Indexing was used to sermonize by providing easily accessible connections on a particular topic within the theological commentary and biblical references. This early form of indexing was called distinctiones, a Latin term, meaning distinction, consisted of taking a topic and separating it into its various meanings through its usage in multiple documents. In the 1100s, the scholastic theologian, aptly named Peter the Chanter, compiled these distinctio into one index. It is not a dictionary, as the objective was not to define but to provide contextual snippets of word usage throughout various ecclesiastical references. A preacher would use these references as an aide-memoire, allowing them to dazzle the audience with a nuanced reflective piece encompassing an array of biblical and philosophical literature.

In some ways, these first indexes are very much like the legal research we did before the digital age. The subject index to the Canadian Criminal Cases for instance, could lead the researcher to the many cases on the chosen research topic, be it “confessions” or “theory of the defence.” Often these results gave you differing aspects of the word or phrase searched as seen through case law. There are other index-like research tools such as the Canadian Abridgment Digests, which includes summaries of caselaw. Our digital legal databases with their key word searches are also a form of indexing. Indeed, as discussed by Duncan, Google is premised on an indexing of all web pages.

Another legal index I use often, is the index found at the back of Martin’s Annotated Annual Criminal Code. When I teach 1Ls criminal law, the first concept we discuss is how to navigate the Criminal Code. I teach this through a narrated PowerPoint or Powercast, which the students interact with before classes start. In that Powercast, I insist the students have the Code on hand and use it. The only way to become comfortable with a statute is to become fluent in its language and to be able to easily unravel the interconnections between the sections. The index helps with this navigation and learning. Even in the digital world where the index is invisible, the courtroom is still a place venerating the written word. To have a “hard copy” of the Criminal Code is a must.

To make the learning fun, I gamify this search through the intricacies of the Code by playing Criminal Code Jeopardy. It’s challenging and competitive but also a vehicle for indexing. One Jeopardy question asks the students to find out which criminal offence is found under s. 368(1). Whichever team finds the answer first receives a point. The answer, per the heading of the section, is the offence of “use, trafficking, or possession of forged document.” Then, I ask them to find the offence by using the index, and this is when the game gets interesting. The key phrase is of course “forged document,” but that phrase is not indexed. What is indexed is “forgery.” Again, the sub-index under “forgery” does not contain document neither does it list “use” or “trafficking” or “possession.” But it has “uttering forged” and then listed under that phrase is “forged” with the pinpoint section as 368. Voila! The students are a little confused. The word “uttering” does not appear in s. 368. Instead of finding the section through the words, most of the students stumble on the answer because they know the section is 368.

This may seem like an index “error” or a broken link so to speak. Or is it? An index must speak not to just the newbies using the text but also to the old hands. An index is for generations. In my day (yes, I am of that generation), we spoke of use of a forged document as uttering.  The action of uttering required that the accused pass off the forged document as genuine. This was a common law concept, and in Canada was found in Article 516 Burbidges’s Digest of the Criminal Law of Canada, the original source of the Criminal Code. There, forgery of a document is a “felony” when committed by someone “who, for any purpose of fraud, deceit, forges or …  offers, utters, disposes or puts off” any forged document, knowing it is forged or altered. In the first Criminal Code of 1892, the offence is called uttering but the word itself does not appear in the section but the definition of utters does. If I was looking in the index for use of a forged document, the sub-index indicating “uttering” would speak to me (sorry for the pun as the other meaning of uttering is to speak). How about the newer user? Well, it seems this index has no other reference to forged document to lead the newer user to the section. Perhaps this is a relic of the past that has simply not been uncovered or it is a nod to the future as we start using digital versions of statutes that are searchable through a dynamic user-friendly index.

Indexes in any type of non-fiction book is common, and law is no exception but let’s do a thought experiment applying the distinctiones method of indexing to a legal term, with a limit of 5 different aspects or senses of the chosen term. I chose a seemingly ordinary word, which I know to have different usages in law. I chose the word “tree.” I did a simple CanLII search but pinpointed the word by searching for the exact word, not the various iterations of the word such as “trees” or “treed.” I also restricted the word to appeal decisions. The search provided 1,895 cases. I hope that is not an indication that we in law fail to see the forest for the trees. In any event, I found “tree” is used often in a case name, typically involving a company, such as “Interior Tree Fruit and Vegetable Committee of Direction,” a 1930 decision from the Supreme Court of Canada on whether the British Columbia legislation creating this Committee was ultra vires. The Court found it was a restriction against trade as the Committee exercised control over the marketing of all BC tree fruits and vegetables outside of the province. One entry for “tree” could therefore be part of a name.

Similarly, to the company name, “tree” could be any manner of a woody perennial plant with a single stem or trunk and branches that support leaves, such as oak (see Lee v Arthurs et al, 1919 CanLII 840 (NBCA) at p 488 “The “place of beginning” alluded to is a marked oak tree which has been well identified …”), elm (see Swinamer v Nova Scotia (Attorney General), 1992 CanLII 2569 (NSCA) where Justice Jones references both elm trees and tree diseases like Dutch elm disease) or maple (see Amos v New Brunswick Electric Power Commission, 1976 CanLII 160 (SCC) at p 504 “At the place where the accident occurred, a maple tree stood about five feet from a pole bearing line”).

A third entry is reference to a “decision tree,” this sense of the word “tree” uses the shape of a tree as an organizational concept to assist a jury in arriving at their decisions. For instance, this type of “tree” would include R v Herlichka, 2020 ONCA 307 discussing the error in instructing the jury on intoxication in a murder case where the jury received a decision tree on how to approach the legal requirements for murder and the included offence of manslaughter. In dismissing this ground of appeal, the court considered important that the jury “had the replacement decision tree in front of them,” and were alive to the intoxication issue and its impact on the accused’s state of mind (at para 73). Another, more helpful, reference to decision “tree” would be R v Foti, 2002 MBCA 122, where the court describes a decision tree as “ a written piece of paper that sets out for the jury the decisions that they must make and the order in which they must make them” (at para 46) but that “if a decision tree is used, it has to be correct” (at para 48). Already we can see that it may be useful to a lawyer preparing for a murder case to have these quick pinpoint references to a variety of cases if they were to argue for or against the use of a decision tree.

Another entry could be the use of the word in the phrase “palm tree justice” as found in a series of cases, such as Bhasin v Hrynew, 2014 SCC 71, a decision written by Justice Cromwell on breach of contract and the duty of good faith. In speaking of the principle of good faith in commercial enterprises, Justice Cromwell explained that good faith must be interpreted in light of “the freedom of contracting parties to pursue their individual self-interest” (at para 70). Therefore, even intentionally causing loss to another may be a legitimate action and not contrary to good faith principles. Justice Cromwell went on to caution that “the development of the principle of good faith must be clear not to veer into a form of ad hoc judicial moralism or “palm tree” justice” ( at para 70). In contrast, “palm tree justice” seemed to have been embraced and used in a concerningly gendered manner in 1950s Ontario when it came to spousal property rights (see Thompson v Thompson, 1959 CanLII 389 (ONCA)). Thankfully, but perhaps belatedly the Ontario Court of Appeal in Zavarella v Zavarella, 2013 ONCA 720, recognized that with the advent of the statutorily imposed marital equalization formula, “any remnants of “Palm Tree Justice” have now disappeared from Ontario” (at para 80).

The fifth usage of “tree” is found in the ubiquitous “living tree” metaphor found in constitutional law cases. This entry could refer to Edwards v Canada (Attorney General), 1929 CanLII 438 (UKJCPC), the oldest case on the database to use the metaphor, written by Lord High Chancellor, Lord Sankey, of the Judicial Committee of the Privy Council. There, Lord Sankey waxed eloquent on the British North America Act as the statute that “planted in Canada a living tree capable of growth and expansion within its natural limits.” Such indexing would also reference Attorney General of British Columbia v. Canada Trust Co. et al., 1980 CanLII 221 (SCC), where fifty years later Justice Dickson (soon to be Chief Justice), takes up the “living tree” metaphor with vigour refusing to agree that the categories of powers in the Constitution of Canada were merely of historic interest. The “living tree” created a “flexible and elastic constitution that was certainly not “static or frozen, narrow or technical” (at p 478).

But, it would also give us the newest commentary on “living tree,” from R v Kirkpatrick, 2022 SCC 33, a much different use of the metaphor as found in the dissent written by Justices Côté, Brown and Rowe with Wagner CJ concurring in the reasons. Here, the “living tree” is a “methodology” not to be used in statutory interpretation (at para 131). Using it as such is a “fundamental error” (at para 131). This admonishment is found twice in the dissent (see also at para 164). “Statutes are not “living trees,” that grow and expand. Rather, “statutory interpretation entails searching for original intent” (at para 164). This pointed commentary is aimed at the majority who, in the dissent’s view, is going beyond Parliamentary intent by using the “living tree” metaphor as a never-ending path to guide them anywhere.

This last example shows us how indexing can bring us developments we may not have seen previously and can guide us to other connections as well. For example, the Kirkpatrick case could send us to look at the distinctiones for “original intent” and we find usages of that phrase that will lead us to R v 974649 Ontario Inc, 2001 SCC 81, where Chief Justice McLachlin finds that “preserving the original intention of Parliament or the legislatures frequently requires a dynamicapproach to interpreting their enactments, sensitive to evolving social and material realities … the will of the legislature must be interpreted in light of prevailing, rather than historical, circumstances” (at para 38).

I have italicized the last quote as emphasis, which gives you some idea of how indexes can be commentary by highlighting certain terms and choosing certain references. In the end indexing, although bound by rules, is still a subjective expression of material. The content matters. A more colourful case will provide a more interesting index. I wonder what an index to a decision would look like. I imagine that Associate Chief Justice Rooke’s decisions on pseudo-law applicants (see e.g. Royal Bank of Canada v Anderson, 2022 ABQB 525 ) would be more engaging than a case on bankruptcy and insolvency. But perhaps not. Perhaps an index, in deft hands, can read however it wants – playful, pedantic, or just plain useful. Whichever way an index reveals itself, it is a piece of literature worth using and reading.

Douglas Germain entered a plea of guilty to voyeurism under s 162(1)(a) of the Criminal Code, involving over one hundred recordings taken over six years of women either going to the washroom or changing their clothing (at para 4). Mr. Germain captured these recordings in the course of his employment, working as a plumber (at para 5). At least two of the women were under eighteen years of age (at para 6). According to defence submissions, the offences were out of character. Mr. Germain attended psychological counselling prior to sentencing. The Crown requested a one-year jail term, while the defence submitted that a conditional sentence order was appropriate (at para 7). In support of the sentencing submissions, both counsel relied upon several sentencing decisions. The sentencing judge (Judge G.B. Lepp) imposed a 15-month conditional sentence order with conditions (at para 1).

In imposing sentence, the judge listed several aggravating and mitigating circumstances (at paras 20 –21). For example, the fact that Mr. Germain committed the offences in the course of his employment was an aggravating feature. The judge also relied on the sentencing objectives of denunciation, general deterrence, and rehabilitation (at para 23). The judge found Mr. Germain was not at a significant risk of reoffending (at para 23). The sentencing judge considered both similarities and differences in previous sentencing decisions in an effort to apply the principle of parity – that like offenders receive like sentences (at para 24). 

In this search for parity, the sentencing judge considered, among other cases, the decision in R v Weinheimer, 2007 ABPC 349 (CanLII), where the offender received a suspended sentence for taking photographs of men using the urinals on 15 occasions over 2 years (at para 25). The judge found the offences in Weinheimer caused less harm than the case at hand and the offender was less culpable than Germain (at para 25). Another decision considered was  R v Dekker, 2014 ABPC 61 (CanLII), where the offender received nine months conditional sentence after recording 77 videos of people, some of whom were minors, in washrooms over a lengthy period (at para 25). The sentencing judge found this case to be similar in facts and culpability to Germain’s case but there was no breach of trust (at para 25). Still another decision relied upon was R v Jarvis, 2019 ONSC 4938 (CanLII). This case involved a schoolteacher who made multiple videos of young people with a pen camera in a common area of a high school (at para 25). The sentencing judge found Jarvis to be “significantly” more culpable based on the age of the victims but found Germain caused more harm due to the number of victims and the substantial breach in privacy (at para 25). 

In using these previous sentencing decisions, the sentencing judge “calibrated” Germain’s sentence “up or down” to reflect the specific circumstances of the case (at para 24). Ultimately the sentencing judge found Germain’s culpability and the seriousness of the offence “high” (at para 27). The sentencing judge then took into account the principles surrounding the imposition of a conditional sentence order, as well as whether such a sentence would fulfill the primary sentencing objective of proportionality (at paras 28 – 31). The fundamental sentencing principle of proportionality, as found under s. 718.1 of the Criminal Code, requires a sentence to be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” 

The primary ground of appeal urged by the Crown was the sentencing judge’s misapplication of the parity principle (at para 32). In seven carefully written paragraphs (at paras 39 – 45), the Court (Justices Jo'Anne Strekaf, Ritu Khullar, and Kevin Feehan) defined the parity principle, starting with its statutory expression found under s 718.2(b) of the Criminal Code. Under that section, the sentencing judge “shall” consider the parity principle by imposing a sentence that “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” It is important to pause and examine the language used in this section. First, by using the word “shall,” the sentencing judge must consider parity, but in applying the principle, the judge “should”, not “must”, impose a similar sentence for like offenders and offences. This is a concession to the need for individualization in sentencing, allowing the judge to exercise their discretion by deviating from the principle. This “shall” versus “should” dichotomy leaves room for a debate on the centrality of parity as a principle and the proper emphasis and placement of that principle in the sentencing matrix. 

Perhaps recognizing this tension inherent in the consideration and then application of the principle, the Court in Germain noted parity can be viewed as both a “discrete sentencing requirement” and as a “necessary means” to achieving a proportionate sentence (at para 39). This duality puts parity in perspective as a stand-alone principle to be applied in the name of sentencing ranges or guidelines, and as a tool of individualization used in fulfilling the fundamental and overarching principle of proportionality. Parity thus becomes a secondary principle of sentencing, which must give way to proportionality when appropriate (see Lacasse at para 54 and Friesen at para 10). 

The Germain Court then provides helpful “how-to” instructions in applying parity as a principle and in using it to achieve proportionality. First, the sentencing judge must construct an accurate picture of the offender and the offence, with particular attention to those facts or factors which relate to proportionality, namely the gravity of the offence and the culpability of the offender (at para 40).  Although the Court suggests other facts not “directly” connected to proportionality may be relevant, other facts would be important to fulfill the individualization inherent in a fit and proper sentence such as the offender’s background, rehabilitative prospects, and community support. 

Once the factual basis is determined, the judge then turns to the case law “to comply with the parity principle” (at para 41). Here is where the decision becomes interesting. This case law review could be viewed as a compendium of relevant cases that speak to parity as a principle. The compendium could also be viewed as the “historical portraits”, subject to judicial discretion, as described by Chief Justice Richard Wagner, as he is now, in Lacasse when describing sentencing guidelines or sentencing starting points (Lacasse at para 54). But the Court in Germain views this differently, suggesting that such a review of past cases may be redundant or “unnecessary” where there is an established starting point or sentencing range (at para 41). This comment seems counter-intuitive, suggesting that the parity process is frozen in time when a sentencing starting point is enunciated. 

The suggestion that a case law review is unnecessary by-passes the need for individualization. Parity does rest on comparison; however, comparison requires some modicum of detail by looking for the specific similarities and peculiar differences arising in the offender’s case. Sentencing starting points are more general, using a broad-brush approach to generalize the “portrait” cases.  In these ranges and starting points we see patterns but not the details. Although ranges may be extremely useful in calibrating the sentencing approach, it must be filled in and supported by the sentencing judge to fulfill pertinent sentencing objectives and proportionality requirements. The Germain Court does acknowledge, as per Supreme Court of Canada authorities, that starting points and ranges are “not legally binding in theory or in practice” (at para 41). If this is so, instead of an either-or proposition, parity as a principle and as a tool of proportionality would be better fulfilled if sentencing starting points were a tool, and not an endpoint, to assist in the search for those similar cases. 

Notably, the Court of Appeal acknowledges the difficulty parity presents. No two cases will ever be the same. How similar or different they will be is “a matter of degree” (at para 43). There will always be “similarities and differences”, according to the Court, making the parity exercise an exercise in futility should the judge be searching for perfect parity (see also R v MacKinnon, 2022 NSPC 12 (CanLII) at para 44). Rather the judge should put parity in perspective by recognizing parity rests on individualization (Germain at para 44). It is the synergy between parity and individualization that promotes proportionality and ensures the sentence is a fit one. 

The Court did not discuss the role of discretion in the parity process, yet discretion and deference is the stuff of which parity is made. Parity requires discernment and the judicial lens of experience, as well as common-sense (see Friesen at para 33). Above all, parity requires a strong understanding of the human condition. The parity principle “preserves fairness in sentencing” (R v Pearce, 2021 ONCA 239 (CanLII) at para 17) and strengthens public confidence in the justice system. It guides and restrains discretion in arriving at a proportionate sentence (see Lacasse at para 2, and R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206 at para 44). 

The Crown also argued that in the Germain case, the principle of parity conflicted with the overarching need for proportionality with the judge focusing too much on parity to the detriment of proportionality (at para 54). In the Crown’s view, proportionality rules and, in the end, if after reaching a sentence consistent with parity, a higher sentence is needed to comply with proportionality, then a higher sentence a should be imposed. The Court disagreed with this position as a “general proposition” (at para 57). It is useful on this point to look at the Supreme Court’s discussion of the relationship between parity and proportionality in Friesen and Parranto. Notably, Justices Russell Brown and Sheilah Martin, in Parranto, call proportionality an “organizing” principle (Parranto at para 10) that “all sentencing starts with” (see also Friesen at para 30). It is difficult to see conflict between proportionality and parity when proportionality is the one principle that binds all sentencing principles and objectives and acts as the container in which these objectives and principles reside. But as we have gleaned, parity is not static. If proportionality is ever present in the sentencing determination, then conflict is impossible; proportionality begets parity as parity is an “expression” of proportionality (see Parranto at para 11 and Friesen at para 32). Chief Justice Wagner in Friesen succinctly puts parity in perspective by explaining how “parity gives meaning to proportionality” and is the proverbial glue, promoting consistency in sentencing (Friesen at para 33). This dynamic duo of proportionality and parity imparts relevancy to sentencing guidelines, ensuring sentencing decisions, as historical portraits and as present-day decisions, are part of the same fabric that is resilient, flexible, and wise enough to sustain future sentencing decisions. The Court in Germain views parity as an anchoring device, which frees the judge from an intuitive approach to sentencing in favour of a reasoned, sensitive, and equitable one (at paras 57 – 58).

There are two caveats to all of the above. First, the Court of Appeal reminds us of the concern raised in Friesen that parity is only workable when the sentencing guidelines are themselves responsive “to society’s current understanding and awareness” of what proportionality requires or “to the legislative initiatives of Parliament” (at paras 61 and 62, and see Friesen at para 35). To ensure this responsiveness, judges may deviate from the past. 

Second, as mentioned earlier in this post, parity is not perfect in the sense that the compendium of case law representing parity is often not complete. In Germain, the Court explains how past case law may be imperfectly inscribed, resulting in written decisions that are too brief and may miss or leave out essential details (at para 64). This methodological deficiency, coupled with a reliance on counsels’ curation of the case law, which may itself be incomplete, calls for “a degree of caution and the exercise of judgment” in using past decisions as a measure of parity (at para 65). Although the compendium offered to the sentencing judge may be incomplete, surely the sentencing judge has the tools to counterbalance these potential deficiencies, either through their own lens of judicial experience or through the ability to do further legal research prior to imposing sentence. A sentencing judge is not a silent partner in the sentencing process, but an active participant, who, with counsel’s input, has the responsibility to craft a fit and just sentence.  In any event, the point should be well-taken as an admonition to counsel to be duly diligent in presenting accurate and detailed case authority. 

In the end, the Court of Appeal applied their reasoning together with an application of deference to find the sentencing judge had properly and reasonably arrived at an appropriate sentence (at para 53). 

The Germain decision is a useful depiction of parity in practice. It helps us understand how parity and proportionality both strive together to produce a just sentencing outcome. Even so, the decision leaves us wanting more on the subject. The relationship between parity and proportionality still feels sketched out, needing more details to be truly understood and applied. Also, what is parity’s status constitutionally? Although proportionality is not a principle of fundamental justice enshrined in the constitution, a grossly disproportionate sentence does attract Charter treatment (see R vSafarzadeh‐Markhali, 2016 SCC 14 (CanLII) at para 70). Does this mean a grossly disparate sentence in terms of parity must be a grossly disproportionate one for Charter purposes? If so, is parity always a matter of perspective, and therefore magnified by other sentences, or is there an inherent aspect of parity that can be objectively assessed and measured? Can parity be completely equated with sentencing starting points and guidelines or is there more? Moreover, the concept that deviations from parity can occur and may actually be needed to ensure the past is relevant to the present and future is an area requiring further study. Finally, the professionalism aspect of parity – that parity is a sentencing presentation by counsel that requires due care and attention, is a particularly important concept needing a second look. All of these questions and more help put parity, and perhaps other sentencing concepts, into a larger perspective than we anticipated.

The Background

The Alberta trilogy of cases involve firearm offences with very different results. In Hills, released July 10, 2020, Justices Antonio, O’Ferrall, and Wakeling, each writing their own concurring decisions, allow the Crown appeal and find the mandatory minimum sentence of four years for an aggravated form of intentionally discharging a firearm under s 244.2(1)(a), constitutional, increasing the sentence of three and a half years by six months to that minimum sentence.

Jesse Hills entered pleas of guilty to four charges, including the charge under s 244.2(1)(a). While under the influence of drugs and alcohol, Jesse fired a round of four shots from his rifle into a home occupied by a family including two children. Multiple shots entered the home and bullets were found embedded in the wall and a bookcase. No one was physically injured but the psychological damage suffered by the family and the community was great (at paras 4-8, 16). A Gladue Report was filed on sentencing, which showed Jesse to be a first offender who had made “significant rehabilitation efforts” and maintained “steady employment, had support of family, friends, and co-workers and efforts at restitution” (at para 16).

Almost two months later, on September 18, 2020, Justices Feehan and Strekaf in the majority with Justice Wakeling in dissent, upheld the unconstitutionality of the mandatory minimum sentences found in Hilbach for the first offence of robbery while using a prohibited weapon under s 344(1)(a)(i), and in Zwozdesky for the offence of using a firearm in the course of a robbery as a party to that offence under s 344(1)(a.1).

Ocean Hilbach, who was a nineteen-year-old Indigenous offender whose sentencing was required to be viewed through Gladue principles. The sentencing judge imposed a sentence of two years less a day, which the Alberta Court of Appeal increased to three years, in contrast to the mandatory minimum sentence of five years.  The robbery committed by Ocean, with an accomplice, was on a commercial establishment with an unloaded sawed-off rifle (at paras 40-41).  Ocean’s life story was troubled. His parents abandoned him when he was a baby, and he was raised by his paternal grandparents who were traumatized by the residential school system (at paras 42-43). Ocean suffered from addiction, violence, poverty, and a life marked by anti-social behaviour (at paras 43-44). The judge, in sentencing Ocean, found that jail would have a “profound impact” on him (at para 44).

Curtis Zwozdesky was the driver of the “getaway car” for two robberies of convenience stores committed by his two accomplices (at para 19).  He was fifty-three years of age, had no prior criminal record, and was abused as a child (at para 20). Curtis was also addicted to pain medication after a serious motor vehicle accident (at para 20). At the time of the robberies, he was under the influence of drugs (at para 20). Curtis’s sentence of three years was upheld by the Alberta Court of Appeal in contrast to the mandatory minimum sentence of four years incarceration.

Why Sentencing Matters

Sentencing, more than any area of criminal law, reflects who we are as a society. Treating those we deem to be “criminals” with respect and dignity through a fair and just sentence is a key feature of our democracy. It shows the democratic process can protect society while encouraging those who have done wrong to choose to do right. Sentencing is unique in criminal law because the focus is not just on the offender. This differs from the trial process, where the continuing question is whether this accused committed this offence. Upon conviction, that focus shifts dramatically. Although individualization still matters, so does the harm caused to the victim and the impact on society.

Sentencing involves long-held principles, which were traditionally founded within a highly discretionary regime. In some ways, it is the judge who is front and centre in the sentencing court. It is to the judge that counsel makes submissions because it is the judge that fine tunes the sentence to respond to the offender’s background and the circumstances of the offence. The judge is on the front-line of justice and fulfills that democratic promise. The sentencing judge hears the unique life stories of each offender and assesses the impact their conduct has had on the victims and society at large. Sentencing is discretionary because it takes human effort and feeling by the judge to craft a just and appropriate sentence. Unsurprisingly, it is to the judge that the eye of society is fixed upon. The stakes are high in the sentencing court as liberty is in issue and public safety is a concern; all of which is magnified as the community lens of justice peers in.

The overarching fundamental principle of sentencing is proportionality (see s 718.1 of the Criminal Code). The principle requires that sentences are proportionate to the seriousness of the offence and the responsibility or culpability of the offender. This proportionality requirement is “fundamentally connected” (R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para 40) to the criminal offence itself through the fault element. It is this mental state that gives rise to the moral culpability of the accused, which is then worthy of approbation through just sanctioning (R v M(CA) at para 79). Indeed, according to the then Chief Justice Lamer, the “general principle of criminal liability” (and the Charter) requires that punishment only be imposed on those accused who are morally blameworthy (ibid at para 40). In a criminal trial, the mental state is either established beyond a reasonable doubt or it is not. But, once found, it is left to the sentencing court to determine the level of culpability. Conviction crystallizes the blameworthiness but sentencing weighs it to a nicety.

The proportionality principle is not applied in a vacuum. It is infused with the objectives or purpose of sentencing as enumerated under s 718 of the Code such as deterrence, rehabilitation, and condemnation. The principle is further animated by the many other principles engaged in the sentencing exercise, such as totality and parity, and filled in by the many aggravating and mitigating features of each particular case. Although a sentence must comply with these principles and objectives, the sentencing judge has the discretion to craft the fit and appropriate sentence within those principles. Sentencing is unique because it is applied in a singular fashion to unique circumstances of which not one case is the same. Yet, the principles themselves remain very much the same. Until, of course, the courts determine otherwise.

Why Mandatory Minimum Sentences Matter

But sometimes it is Parliament and our law makers that determine otherwise. Such is the case of mandatory minimum sentences, which are purely statutorily created. Mandatory minimum sentences constrain the discretionary nature of sentencing. They provide a ready-made starting point for sentences, signalling societal approbation of the offence through that constraint. This runs against the discretionary nature of sentences, binding the judge to impose the mandated minimum sentence even if otherwise unshackled the judge would impose a lower one. Mandatory minimum sentences raise the concern with whether the sentence subsequently imposed is fit and appropriate considering that fundamental principle of proportionality. But does it matter that the punishment does not fit the crime if the lawmakers deem it does? Or is the real question whether it matters only if the Charter deems it does?

It is important to note that mandatory minimum penalties pre-date the Charter. Indeed, in our first Criminal Code of 1892, there were 6 offences carrying mandatory minimum sentences. At their peak, there were over 100 mandatory minimum sentences found in the Criminal Code and other federal criminal law statutes. But it is not the number of mandatory minimum penalties that count, it is what kind of offences are garnering this kind of treatment. This is because mandatory minimum sentences send a societal message.

This message has many meanings. Mandatory minimum penalties signal that the offence deserves special condemnation that can only be found in a minimum sentence. The mandatory minimum penalty is also signalling which sentencing objectives require special emphasis such as deterrence, denunciation, protection of the public, and where that minimum penalty is jail, that the offender must be separated from society. These are all valid sentencing objectives under s 718 of the Criminal Code. Mandatory minimum sentences may also send a more subtle message, particularly when there are many mandatory minimums, as we have experienced in the past decade. By legislating a hard floor to sentencing, Parliament might be saying that we cannot trust the judges to impose the appropriate sentence – that they are too “soft” on crime. Whatever the message, we must all be concerned by the generous use of mandatory minimum sentences because their use may be the proverbial canary in the coal mine, potentially signalling a public loss of confidence in the justice system.

The ultimate question, with mandatory minimum sentences is: is that the message we want to send and if so, why? Is this who we are as a society? For instance, in 1892, the 6 mandatory minimum sentences were imposed for engaging in a prize fight (mandatory minimum three months with or without hard labour under s 94), fraud and corruption in governmental affairs (s133 and s 136), and three offences involving stealing mail or mail bags (s 326). Notably, stopping the mail with intent to rob or with the intent to search the mail garnered a five-year minimum sentence under s 401. This suggests that prize fighting, government frauds and interference in the post required specific condemnation. Fast forward to the present mandatory minimum sentences in the Code and for the most part they involve violent offences where firearms are used, drug offences, and sexual offences against children. This reveals changes in the kinds of behaviour society labels as so pressing, so noxious, and so reprehensible, that judges must attend to the seriousness of the conduct through a minimum sentence.

Why Mandatory Minimum Sentences are a Problem

Considering the reasons, the use of mandatory minimum sentences seems reasonable. It provides judges with guidance on sentencing by directing them to those offences that matter to society, create the most cause for public concern, and signal the need for deterrence and denunciation. But that is not the entire narrative. The main concern with mandatory minimum sentences is truly the reason why lawmakers feel they are needed. Many critics suggest that mandatory minimum sentences inappropriately constrain judicial discretion and run counter to sentencing principles. Chief Justice McLachlin, as she then was, in R v Nur, 2015 SCC 15, the decision setting the gold standard for the law surrounding s 12, called mandatory minimum sentences a “blunt instrument” that “deprive” the judge’s ability to individualize a proportionate sentence (at para 44).

As a result, the effect of mandatory minimum sentences is to cast a “wide net” by capturing those individuals whose circumstances and responsibility do not align with the minimum sentence (R v Morrison, 2019 SCC 15 at para 179). In this way, mandatory minimum sentences are overbroad by not providing a “safety valve” allowing the less blameworthy to receive a sentence less than the mandatory minimum (Morrison at para 148). By affecting the sentencing outcome, mandatory minimum sentences change the “normal judicial process of sentencing” (Nur at para 44), creating inequities, and potentially oppressive disproportionate sentences. But there is also a less than legal concern, which is when you constrain judicial discretion, when you step away from individualization and rehabilitation, then justice lacks the touch of humanity.

Moreover, mandatory minimum penalties can adversely affect the justice system by creating systemic delays (see Greg Lepp, "Injecting a sense of urgency." (2013)) and encourage improper guilty pleas (see Dianne L. Martin, "Distorting the Prosecution Process: Informers, mandatory minimum sentences, and wrongful convictions." Osgoode Hall LJ 39 (2001): 513;  and Alice Woolley, “Mandatory Minimums and Lawyers’ Ethics”). Those charged with mandatory minimum sentences have an incentive to fight the charge and go to trial. There is simply no benefit in entering a plea of guilty. This can clog up the courts and cause delays for other pressing cases. Conversely, an accused person, for fear of the unknown outcome at trial, may enter into plea negotiations, despite a judiciable issue at trial, in the hopes of entering a plea to a lesser offence that does not carry a mandatory minimum sentence. Either way the integrity of the justice system is at risk.

Why mandatory minimum sentences engage the Charter

All the concerns with mandatory minimum sentences are meaningless if there is no mechanism for change. In the sweeping 1953-54 amendments to the Criminal Code, the 6 mandatory minimum sentences from 1892 were repealed but no doubt, at the time, others were added. This kind of legislative change is driven by the creators of mandatory minimum sentences and is dependent on the lawmakers in power and their priorities in government. For instance, the present Liberal federal government is moving to repeal many mandatory minimum sentences in Bill C-5, which has received second reading on March 31, 2022. In fact, the three mandatory minimum sentences challenged under s 12 of the Charter in Hills, Hilbach, and Zwozdesky would be eliminated if Bill C-5 is enacted into law. Justice Minister Lametti in his responses before the House Justice and Human Rights Committee, defended the changes, explaining that mandatory minimum sentences simply don’t deter others from committing these crimes, don’t reduce crime, and don’t impact recidivism. Rather, the imposition of mandatory minimum sentences increases the incarceration of Indigenous and Black offenders. Mandatory minimum sentences are not a mechanism of social justice but of injustice by promoting racial discrimination.

These arguments against MMPs are compelling, and we see our government retrenching. So why should we still await these decisions? The reason is connected to the other way change can be affected, which is through the application of the Charter. The Charter can be a powerful ally to criminal law, engaging judicial scrutiny and ensuring our laws are normatively consistent with the values underlying the Charter. The Charter does not, however, have the same impact after an accused has been convicted and becomes an offender. At the sentencing stage there is no presumption of innocence and due process is less of a concern.

According to the Supreme Court of Canada in R v Safarzadeh-Markhali, 2016 SCC 16, the proportionality principle is not a principle of fundamental justice and is not protected by the Charter. The Court did find that proportionality does have constitutional dimensions by virtue of s 12 of the Charter  (at para 70). Section 12 protects everyone’s “right not to be subjected to cruel and unusual treatment or sentence.” Although the Charter does not guarantee a proportionate sentence, through s 12, it protects against grossly disproportionate ones. This constitutionalized protection then becomes a principle of fundamental justice under s 7. Mandatory minimum sentences have been challenged under ss 7 and 12 on this basis, although s 12 seems to be the most effective route.

The test under s 12 is a two-part analysis (Nur at para 46). First, the judge must determine what the fit and proportionate sentence should be for the offender in the circumstances of the offence. Then the judge must compare that sentence to the mandatory minimum sentence to determine if the effect of the mandatory minimum sentence is “grossly disproportionate” to that fit sentence. Grossly disproportionate means more than merely excessive and must be a sentence that “outrage the standards of decency and be ‘abhorrent or intolerable’ to society” when considering the role of the offender and the harm caused (Hilbach at para 17). The role of the offender can be viewed in two ways, the specific offender before the court, or whether the “reasonably foreseeable applications” on other offenders not before the court would impose a grossly disproportionate sentence (Morrison, at para 144). This second way to determine constitutionality has become to be known as “reasonable hypotheticals” (at para 170). Once a sentence violates s 12, it is difficult to justify it under s1.

In Hilbach, the mandatory minimum sentence of five years was grossly disproportionate for him personally as an Indigenous offender and for other reasonably foreseeable applications (at paras 53, 54, 56). In Hills and Zwozdesky, the constitutionality was determined based on the reasonable hypotheticals. Counsel in Zwozdesky, relied on five cases and five other scenarios to advance the position that other reasonably foreseeable applications of the mandatory minimum sentence produced grossly disproportionate sentence (at paras 58-70). The majority of the Alberta Court of Appeal found two of the cases and two of the proposed scenarios would create grossly disproportionate sentences (at para 68). 

In Hills, the court by “applying judicial experience and common sense,” found the mandatory minimum sentence constitutional (at para 85). Notably, expert evidence was advanced to support the “reasonable hypothetical” but the evidence failed to consider the “additional harm” being the “impact on the feeling of safety in communities” (at paras 70-83). Justice Antonio, in dismissing the scenario, relied on the Alberta Court of Appeal’s earlier decision in R v Arcand, 2010 ABCA 363, in finding that “harm to one member of the community affects the rights and security of others” (Arcand at para 179 and Hills at para 82). As the offence in Hills was intentionally discharging a firearm into an occupied home, the psychological effect on the occupants and the neighbourhood confirmed the Court’s view that the offence required an elevated minimum sentence (at paras 81-84). The mandatory minimum was reasonable.

Why These Cases Will Impact the Sentencing Generally and Charter Rights Specifically

Let us now return to the question of why these cases are important in the Charter landscape if the government is repealing so many mandatory minimums. The answer lies in the arguments raised on appeal before the Supreme Court of Canada and in those other cases heard during that week of sentencing appeals. The issues raised will impact the legal test under s 1, other Charter sections such as s 7, and the outcome of the Bissonnette case on the stacking of parole ineligibilities under s 745.51. These decisions will also have a broad impact on our sentencing principles and the weight we place on proportionality and individualization.

To highlight the importance of these cases, I have identified six issues the Court will be considering in writing their decision.

First is the use of reasonable hypotheticals in the analysis. This is an issue that will impact s 12 challenges and other Charter violations where hypotheticals are used, such as in s 7. The concern with why the Court should consider those offenders who are not before the Court as part of a constitutional challenge raised by a specific accused was discussed in the Nur decision. On that issue, Chief Justice McLachlin did not approve of the label “reasonable hypotheticals.” In her opinion, the descriptor “hypothetical” “overwhelmed the word ‘reasonable’” (Nur at para 57). Instead, the focus should be on the “reasonable reach of a law”, the kinds of conduct captured by that law, and the impact of it, rather than the potential offender themselves (at para 61).

It should be noted the word “hypothetical” does not even appear in Chief Justice McLachlin’s characterization of the s 12 test (at para 65). Yet, after the Nur decision in 2015, the phrase “reasonable hypothetical” has been used in 593 cases (based on a CanLII search) with the majority (395 cases) released after Nur. Indeed, “reasonable hypothetical” is used in the Hills decision, where the Alberta Court of Appeal found the mandatory minimum sentence constitutional, but in Hilbach, which upheld the unconstitutionality of the mandatory minimum sentence, the Court references “reasonably foreseeable applications”. In the Hills decision, Justices O’Ferrall and Wakeling suggest the use of reasonable hypotheticals needs to be revisited. For Justice O’Ferrall, it makes “no sense” to determine constitutionality based on an individual not before the court (at para 111). Justice Wakeling goes so far as to call them “make-believe” problems “that would never happen in real life” (at paras 140).

McLachlin, CJC disagreed. In her view,

refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books (at para 63).

This quote shows there is more at stake than just the parameters of a test. It is a question of reach and whether it is the law makers who are overreaching in their desire to control the sentencing process or is the Courts who are overreaching by hammering away at laws when a chisel would do.

The other concern with considering the impact of the sentence on other potential offenders is, how detailed should that consideration be? McLachlin, CJC did not want the potential other offender to overshadow the judge’s determination on the sentence, but without some details on the potential offender, the exercise becomes futile. Without that personal touch, the concern is whether the test adequately accounts for those who are overrepresented in the justice system such as Indigenous and Black offenders. In the end, the Court will need to clarify this issue and give some direction on how far counsel must go in constructing the less blameworthy person, short of creating “remote or far-fetched” scenarios (Nur at para 68).

A related issue will be defining the factors, other than those involving the potential offender, which should be considered in creating the reasonably foreseeable applications. In Hills, Justice Antonio went beyond the potential harm caused by the offence itself to the broad effects of such gun-related crime on the community. In Hilbach, the Court agreed to consider the “psychological effect on the victims and others nearby, the risk of a violent reaction from a target or bystander, and the impact on the feeling of safety in the community” when applying reasonably foreseeable applications involving “firearms involving violence” (at para 56). The Supreme Court of Canada will need to weigh in on how these potentially lasting effects on the community will impact the test under s 12.

This issue will be the one to watch in these decisions, particularly as Justices Moldaver and Wagner dissented in Nur and they tend to be the authors in those non-Charter sentencing decisions (see e.g. R v Suter, 2018 SCC 34 and R v Lacasse, 2015 SCC 64). Justice Karakatsanis is the only one left from the Nur majority.

The second issue raised in these appeals calls for clarification of the test and the concept of “gross disproportionality”. This latter concern is tied into the use of reasonable hypotheticals and whether the true meaning of the phrase “gross disproportionality” is being properly engaged. For instance, Justice Wakling in Hilbach suggests that a “cruel and unusual” sentence must be “barbaric” (at para 130).

In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, a case considering the constitutionality of hefty mandatory minimum fine for a corporation breaching regulatory requirements, Justice Abella, writing in a concurring judgment, commented on the historical “origins and values” of s 12 (at para 88). The protection comes from the English Bill of Rights of 1688 (1 Will. & Mar. Sess. 2, c. 2, which, in art. 10) which prohibited the infliction of “cruel and unusual punishment” along with “excessive bail” and “excessive fines” (at para 89). The same provision was incorporated into the American Constitution (Eighth Amendment) in 1791 where it was considered in a death penalty case of Furman v. Georgia, 408 U.S. 238 (1972). In that case, there was some debate on the meaning of the phrase, with Justice Marshall commenting on whether the provision was “properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or as both, there is no doubt whatever that in borrowing the language and in including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments” (Furman at page 319). In the same decision Justice Brennan preferred to look at what the provision was trying to protect as opposed to what it meant. In his opinion, the heart of the provision was the protection of human dignity requiring the state to “treat its members with respect for their intrinsic worth as human beings” (Quebec at para 91). This is the approach Justice Abella embraced whole-heartedly in interpreting the section (at para 93). Although Justice Abella’s position is the minority decision, this reasoning presages the kind of debate that might occur when the Alberta trilogy of cases are released, particularly as Justice Abella was joined by Justices Karakatsanis and Martin in the judgment, both of whom heard the Hills, Hilbach, and Zwozdesky appeals.

The third issue considers the intersection of s 12 and Gladue principles under s 718.2(e). The Hilbach court recognized and accounted for Gladue principles in deciding the mandatory minimum was grossly disproportionate to what Ocean Hilbach would have received considering his role in the offence and his personal circumstances. This is a timely issue and a pressing concern when applying mandatory minimum penalties.

The fourth issue considers the placement of the proportionality principle in our sentencing regime – is it still the fundamental organizing principle of sentencing? In Hills, Justices O’Ferrall and Wakeling seem to suggest that basing our sentencing regime on proportionality is misguided as our system can tolerate disproportionate sentences (see e.g. at para 116). The interesting discussion point is what the link is between “grossly disproportionate” and the proportionality principle. There is a constitutional gap between a proportionate sentence and a grossly disproportionate one. That gap should be closed by appellate review, as a disproportionate sentence should be unfit. But not every sentence is reviewed and there is no mechanism of ensuring perfect application of the proportionality principle. This issue may bring to the foreground the then Chief Justice McLachlin’s fear that mandatory minimum sentences change the “normal judicial process of sentencing” (Nur at para 44). But that does leave the question of what exactly is “normal” or, in the realm of mandatory minimum sentences is there a “new normal”?

This kind of discussion could open a review of the entire sentencing regime. For instance, in Hilbach, Justice O’Ferrall opined that rather than proportionality as the fundamental principle of sentencing, public safety is paramount (at para 45). It will remain to be seen how far the Supreme Court will go in delineating these issues.

The fifth issue, although connected to the proportionality principle discussion, is the extent to which individualization matters in sentencing, what a “tailored made” sentence truly requires, and how mandatory minimum sentences affect this concept. A proper consideration of the circumstances of the accused is non-negotiable when it comes to sentencing. Individualization identifies and operationalizes the specific sentencing principles and objectives, which may receive more or less weight. Yet, other than being mentioned as an important organizing principle, there is not much legal discussion how specifically the law ensures individualization is fulfilled.

The final issue, is the long-standing dialogue between lawmakers and the courts – who is overreaching when it comes to mandatory minimum sentences? Is it the lawmakers or the courts? Who deserves deference on these issues? Parliament, who presumably have the pulse of the people, or the Courts, as the guardians of the Constitution? That will be the ultimate question to answer, although as suggested by Chief Justice McLachlin in R v Lloyd, 2016 SCC 13, if the lawmakers narrowed the reach of mandatory minimum sentences and targeted only those situations and offenders that required such approbation, such sentences might survive constitutional scrutiny (at para 3). It appears Justice Minister Lametti is considering just that in the Bill C-5 amendments, as some mandatory minimums are retained for gang violence. Alternatively, McLachlin, CJC suggested building back in some amount of discretion, permitting a judge, in warranted circumstances, to go below the mandated minimum (at para 3). In the end, only discretion can account for the human factor.

Finally, we return to the societal message of mandatory minimum sentences. Perhaps the real message here is that the justice system does not do a good job at creating its own messaging about sentencing. We don’t take time to explain to the public what sentencing is in law, how it works, and why we think it works. The justice system needs to listen and hear what the public is saying to adequately respond to their fears, because sentencing does engage the community sense of justice in a very visceral and real way.

Analyzing the Tools & Enunciating the Principles

A good portion of the decision analyzes the record and the evidence heard at the sentencing hearing. According to the Court, the experts at trial agreed that the predictions made by these risk assessment tools were “somewhat less reliable when applied to Indigenous offenders” (at para 10). It must be noted that the sentencing judge, Justice Terry Clackson, acknowledged risk assessment tools can “overstate” risk when “not adjusted adequately” for Indigenous offenders (R v Natomagan, 2019 ABQB 943 (CanLII) at para 37). Despite this concern, Justice Clackson found the tools have predictive value (at para 37). Risk assessment tools consider several factors, such as “childhood instability, substance abuse, suicidal ideation, employment, and number of criminal convictions” (at para 10 ABCA), all of which are prevalent in the life experiences of Indigenous offenders. 

The tools score the offender based on these high-risk factors and then, based on actuarial data of previous offenders, give a percentage of offenders within that scoring category who are likely to re-offend (at para 10). These tools, with their predictive powers, do not account for the overrepresentation of Indigenous offenders with these high-risk factors, nor do the tools calibrate for “discriminatory effects in the input factors”, which produce biased results (at para 11). Moreover, although the discriminatory effects and inaccurate results of these tools have been recognized, according to the Court, the discriminatory effects have not been “corrected or quantified” (at para 11). The court conducted their own examination of the “actuarial assessment methodology” in finding it was deeply flawed by overestimating the risk posed by Indigenous offenders, failing to account for historical discrimination, and perpetuating systemic (at paras 13, 35 – 53, 102 - 104). Indeed, much of the predictive value of risk assessment tools as applied to Indigenous offenders is founded on statistical inflation by virtue of the disproportionate number of Indigenous people charged resulting from over-policing and over-charging. This in turn creates a disproportionate measure of recidivism rates by Indigenous people in comparison to non-Indigenous offenders (at para 110). 

Why use these tools at all? The assessments purport to ensure that the sentencing judge does not base the need to protect the public purely on past behaviour (at para 94). Moreover, these tools connect to the objective of the regime, which is to prevent future public harms. Additionally, both case law and statute have embedded the use of risk assessment tools into the dangerous offender hearing process (see e.g., R v Boutilier, 2017 SCC 64 (CanLII) at paras 39 to 44 and s 752.1 of the Criminal Code, RSC 1985, c C-46 (Code)). 

Consistent with the sentencing judge’s findings and statutory requirements, the Court did not suggest that the risk assessment tools are useless and ought not to be used when applied to Indigenous offenders. Rather, the Court views risk assessment tools as valid when used properly. That proper use, according to the Court, must recognize the discriminatory effects of such tools when applied to Indigenous offenders. This recognition requires the sentencing judge to make decisions informed by this finding. To be informed is to conduct a “thorough” “evidence-based inquiry” on the offender’s background and circumstances to determine prospective risk (at para 98 & 120). As part of that inquiry, the judge must understand any “inaccuracy flowing” from racialized discrimination in the assessment methodology and must “minimize” the impact (at paras 117, 122 & 124). But it is not just the judge’s task. Accordingly, “all criminal justice system participants should take reasonable steps to address systemic biases against Indigenous people head-on” (at para 122). This requires scrutiny of the “roles played and tools used by all decision-makers who influence the deprivation of Indigenous offenders through any means, including sentencing, placement and parole” (at para 123). 

Application to Ashton Natomagan

For Ashton, there was no real issue with the dangerous offender designation. His life reads like a nightmare full of abuse, suicide and imprisonment (at para 9). It also is a life harmed by racism both in and out of the justice system as he was subjected to “over-policing, over-charging” and onerous bail conditions (at para 9). His crimes are heinous and disturbing involving physical and sexual violence against women. Justice Clackson was aware of all of this and scrupulously applied the law in the area (see Natomagan, ABQB at paras 88 to 90). Even so, the Court found the sentencing judge erred in imposing an indeterminate sentence, considering the finding Ashton was a very high risk of offending (at para 88). But, Justice Clackson, in imposing a 20-year determinate sentence, found Ashton in an age range where “burnout” (a phenomenon wherein aging reduces risk, at para 84) could possibly affect his risk of re-offending (Natomagan, ABQB at para 93). Moreover, such a lengthy sentence might see a “new paradigm” for the treatment of Indigenous offenders (Natomagan, ABQB at para 93). Finally, Justice Clackson found Ashton personally “suffered a great deal as a result of Canada’s mistreatment of Indigenous persons”, and his “criminality is a product of those injustices” (Natomagan, ABQB at para 94). As Ashton did not willingly choose this path, “his moral culpability is, therefore not that of one who chooses the life of a violent recidivist” (Natomagan, ABQB at para 94). Taking his personal circumstances into account with the systemic over-representation of Indigenous people in jails, as well as the expert evidence that Ashton would have “real benefit from long-term isolation and gradual socialization under the direction and with the support of Elders,” a determinate sentence was appropriate (Natomagan, ABQB at paras 95 - 97).

For Justice Clackson, the reduced moral culpability was an important factor in imposing a determinate sentence. This aspect of Justice Clackson’s reasoning, specifically the moral culpability finding, was not directly discussed by the Court. What was directly discussed was the moral responsibility “non-indigenous Canadians had in creating” Ashton’s risk (Natomagan, ABQB at para 98 and Natomagan, ABCA at 90). The Court found Justice Clackson erred in taking this into account while acknowledging that “undeniably Canada’s legacy of colonialism contributed” to Ashton’s life experiences (at para 90). This acknowledgement did not change the fact Ashton was a risk to society and therefore ought not impact the sentencing decision (at para 90). It should be noted that in the context of historical and societal wrongs against Black Nova Scotian offenders, Justice Derrick in R v Anderson, 2021 NSCA 62, found sentencing principles should be “informed by society’s role in undermining the offender’s prospects as pro-social and law-abiding citizen” (at para 159). This powerful sentiment is one that has a place in sentencing an Indigenous offender, even a high-risk one like Ashton, who “we will never know … might have been … had his life experiences ­– including his experiences in the criminal justice system – been less harsh” (Natomagan, ABCA at para 139). 

The Court did however place reduced weight on the risk assessments due to its “lower predictive value” owing to the “social, economic, and historical factors” Indigenous offenders disproportionately experience (at para 134). The Court also commented on the lack of information emanating from Ashton himself as he refused to participate in clinical interviews (at para 133). There was no discussion as to whether this might have occurred because of discrimination and bias in the assessment process itself.

More Needs to be Done Now

No doubt it is vitally important that informed decision-making occurs in these contexts. It is equally important that the court give direction on this informed approach. But is that enough? If the court finds the tools, although “prone to overestimating the risk posed by Indigenous offenders by failing to consider or to account for past discrimination, thereby potentially contributing to custodial over-representation” must still be considered, then detailed guidelines  and integrative training on how to use such biased tools in assessing an Indigenous offender would give added weight and meaning to the direction (at para 13). This case was an opportunity for the court to not only call out bias and racism but also to put some appellate grit behind these concepts. 

The court does see the need for an evidence-based approach, meaning evidence on the inaccuracy or frailties of the assessment tool should be heard. Certainly, such factual knowledge will assist the judge. But evidence-based informed decision-making can only be useful if that evidence can really assist in understanding the impact of racial injustices on a person. In fact, the court emphasizes the difficulties in parsing what in these assessments are systemic racial discrimination and what can be attributed to an individual’s “countless complex experiences” (at para 118). The evidence may be there, but it is the interpretation of that evidence that requires more guidance and more structured responses from the court. A sentencing judge in a dangerous offender hearing faces an onerous and delicate task in ensuring the public is adequately protected while also ensuring the least restrictive sentence needed to provide that protection is imposed. Predictive sentencing is playing a high-stakes game of chance for both the public and the offender. The stakes are magnified when it is an Indigenous offender whose path has been impacted by societal wrongs.

Interestingly, the Court connects Parliament’s “instruction” in s 718.2(e) of the Code to “pay particular attention” to the circumstances of the Indigenous offender to the need for accurate risk assessments, which inform dangerous offender sentencing principles (at para 13). Considering the Court’s findings that risk assessment tools are prone to overestimate risk, then it is surprising that these tools, as they are presently used, are to be considered at all. The tools, as the Court suggests, are not infallible (at para 12), but in the case of Indigenous offenders, they are harmful and potentially wrong. To leave this to weight (the ultimate probative value of the evidence) seems to minimize the problems with the use of these tools. Rather than “limitations”, the reliability and relevancy of these tools are brought into question (at para 12). In R v Jones, 1994 CanLII 85, [1994] 2 SCR 229, the admissibility of psychiatric evidence at the dangerous offender hearing was in issue. According to the majority decision of Justice Charles Gonthier, at the sentencing stage strict rules of evidence do not apply even though the Crown must prove disputed facts beyond a reasonable doubt,. In a dangerous offender hearing, “if the sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information” (at 291, emphasis added). Although this suggests the risk assessment evidence is best left to the judge’s discretion and weight determinations, if accuracy is the goal, then the prejudicial effect of admitting evidence gleaned from discriminatory risk assessment tools could outweigh their probative value even at the sentencing stage.

Of course, the barrier to such an aggressive stance as suggested above is the statutory need for assessments. This can and should be remedied by amendments to the Code, similar to the recent amendments to the bail provisions under s 493.2 requiring “special attention” be given to the circumstances of Indigenous peoples in making a bail decision. Although s 718.2(e) requires Gladue and Ipeelee principles apply to the dangerous offender regime, there is an opportunity to make explicit in the dangerous and long-term offenders section of the Code (see Part XXVI) that risk assessments are biased against Indigenous people and must either be used with caution or be rejected if required. The new section could also permit other kinds of evidence to be accepted in place of such risk assessment tools, which are more tailored to the Indigenous experience and would reflect Indigenous culture and practices. This kind of modification can also inspire further opportunities for targeted and meaningful treatment of Indigenous offenders in carceral institutions and in the community. 

In the end, this decision is an important and vital step towards reconciliation, but it stops. Indigenous offenders need more programs and better tools to assist in their rehabilitation and to provide a better future outside of custody. Criminal justice participants, like lawyer and judges, need specific guidelines and training on how to account for indigenous historical wrongs and those wrongs that manifest themselves personally on the offender, as in Ashton’s case. This is a decision that comes close to a watershed moment in Indigenous overrepresentation in the justice system yet fails to provide any real solutions for Indigenous offenders like Ashton, who are caught inextricably in the system. The conclusionary paragraph on Ashton’s situation is telling. There, the Court connects systemic racism in the justice system to Ashton’s dire personal circumstances (at para 139). Equally telling is the sense of despair as the Court acknowledges “[w]e will never know who Mr. Natomagan might have been, or whether he would have committed the same offences, had his life experiences—including his experiences in the criminal justice system—been less harsh” (at para 139). Sadly, for the Court this connection cannot change the brutal truth that Ashton’s own personal circumstances divulge no “reasonable expectation that a determinate sentence will adequately protect the public” (at para 141). For Ashton the recognition of racism in risk assessment tools is a pyrrhic victory where everyone in society is the loser.

Although the Court in this decision makes a detailed analysis of the discriminatory potential of risk assessment tools and directs sentencing judges to heed the unjust application of such tools, the Court offers no solution to the situation posed by the Indigenous offender before them. As in R v Gladue, 1999 CanLII 679, [1999] 1 SCR 688 the principles enunciated, although enlightened and progressive, would not impact the sentence imposed. In Ashton Natomagan’s case, the risk he poses to society if released is significant and cannot be mitigated through historical wrongs, both collective and personal. Rather than the determinate sentence wrongly imposed, Ashton Natomagan must serve an indeterminate sentence, which may hold him in custody for life. This is not a solution to the problem of over-incarceration of Indigenous peoples, but it is the reality. 

The Natomagan decision raises the question of how systemic change can happen when legal principles and precedent can only bend so far. It also speaks a stark truth that for offenders like Ashton Natomagan, the future is bleak indeed without an overhaul of not just the way Indigenous offenders are sentenced but also in the way society treats Indigenous people. The result of this decision is that we need our government to implement better treatment options and stronger statutory directions. We also need our Judges to have the tools and training required to make real, concrete change. This involves a hard look at risk assessment tools, not just a recognition that they are inherently biased. More must be done now to break the cycle for Ashton and those like him. 

The appellate response has been as uneven as the initial line of Supreme Court cases on the issue. In Ontario, for instance, the majority of the Court of Appeal struck down the section in the Chan/Sullivan cases (see R v Sullivan, 2020 ONCA 333(CanLII); leave to SCC granted 2020 CanLII 102975 and to be argued on October 12, 2021). While in Brown all three justices of the Alberta Court of Appeal panel agreed the section was constitutional, each arrived at this finding separately, applying differing visions of what the law purports to do. Whatever the approach, the Brown decision effectively criminalizes extreme self-induced intoxication by reorienting the traditional concepts of mens rea and capacity. The decision on this issue is not so much as interesting in what it says – these perspectives have been expressed before – but in what it doesn’t say. What it doesn’t mention is the often unmentionable in our society – the reality of the addicted substance abuser who drinks to excess, not because they wish it but because they must. 

Extreme intoxication is considered a capacity issue, along with automatism and mental disorder. Capacity issues are proto-substantive criminal law issues. They arise before the elements of the offence are engaged. Capacity is concerned with the ability or capacity of the accused person, due to mental disorder, automatism or extreme intoxication, to formulate the required mens rea or criminal intent. Capacity issues occur before entering into the inquiry of whether an accused person has the required mens rea for an offence. Capacity issues do not arise in every case. In law, we presume people have capacity. We elide over questions concerning the accused person’s mental state unless the facts warrant deeper analysis. 

Capacity issues are not owned by the criminal law. These are public policy issues and personal ones. Mental health and addiction are societal concerns, but they also impact relationships, livelihood, and self-autonomy. It is no wonder then that the law is ill-equipped to deal with the panoply of issues connected to capacity. This likely explains why, in criminal law, capacity is treated very much like it was hundreds of years ago. There have been attempts to modernize the approach through the common law and the Charter, but the fact remains that old ideas take hold and cannot be redrawn to create an approach with which everyone, in law and out, can agree. But without legal clarity, capacity issues will continue to obscure and confuse and will continue to marginalize those caught within them.

I have previously written on the Brown decision for ABlawg (see “Does Criminal Law Have the Capacity to Respond to the Intoxicated Automaton?”) In that case commentary, the issue was not the constitutionality of s 33.1 but the application of the law relating to extreme intoxication and automatism, which were both in issue in the case. I have also previously written for my own blog website on the impact of s 33.1 on the law of intoxication and the mens rea or fault element concerns raised by the section (see “Section 33.1 & How Intoxication Became a Form of Mens Rea” (May 5, 2015), online: ideablawg.ca [How Intoxication]). I also teach these issues in my 1L criminal law class. I have pondered deeply the concerns raised with self-induced intoxication, and I still believe that there must be a better legal way to deal with them. But I am getting ahead of myself. Let me first outline the context, layout the controversies, and let the reader decide.

Moral Responsibility Provides the Context

The touchstone for this discussion is s 33.1 of the Criminal Code. As noted above, this section is the government’s response to the Supreme Court of Canada’s 1994 decision in R v Daviault, which found the rule against using intoxication as a defence for general intent offences unconstitutional to the extent that it prohibited the defence of extreme intoxication for those offences. The rule was an old one, arising from English common law, which received the Canadian stamp of approval in the earlier SCC decision of Leary v The Queen, 1977 CanLII 22 (SCC), [1988] 2 SCR 833. As discussed in my previous blog on the issue (see How Intoxication), intoxication as a defence sits uncomfortably within criminal law principles. On the one hand, there is the criminal responsibility of the person who willing becomes intoxicated and places themselves in a position where they run the risk of committing an offence. On the other, there is the foundational principle that only those individuals who act with the required fault element are criminally responsible for a crime. The point of contention between these duelling principles is the concept of moral responsibility. 

Criminal law is about deciding who is to blame for the prohibited actions and who, therefore, should be punished for them. In our morally based justice system, only those accused persons who have the required fault element or mens rea are liable. Professor H.L.A. Hart, in his seminal treatise Punishment and Responsibility (see HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1978)), extended this principle by suggesting that “punishments for different crimes should be proportionate to the relative wickedness or seriousness of the crime” (at 162). The more serious the crime, the greater the punishment. This principle can be refined further. A person who commits the crime intentionally is committing a more serious crime than the person who commits it unintentionally. But how about those who have no capacity to commit the crime? According to Prof. Hart, capacity involves “understanding, reasoning and control of one’s conduct” (at 227). A person who has capacity is responsible for their actions. They have made the reasoned choice to commit the crime. But the person who lacks capacity cannot be considered responsible. They are unable to understand, reason and control their conduct. They lack autonomy and cannot make the correct ‘legal’ decision to comply with the law. Such a person should not be punished as they cannot be held morally responsible for their conduct.

Moral Responsibility & the Capacity Conundrum

In this commentary, I will be focusing on extreme intoxication. However, capacity, as already mentioned, can be an issue when a person is suffering from a mental disorder, in a state of automatism, and when extremely intoxicated. For a more in-depth discussion of age and capacity, see my previous blog on the issue here. When a person is in these states, they are unable to make the correct legal choice to comply with the law. In law, they are not considered morally blameworthy because they cannot make the free and informed choice to comply. If punishment is to fit the crime and if our morally based justice system punishes those who intend to commit a crime more harshly than those who do not, then to punish a person who had no capacity to choose would be punishing the morally innocent. In capacity issues, the moral and the legal overlap.

Also, the legal and the physiological unite. Whether a person can understand, reason, and make the correct choice, are physiological or psychological determinations. They are bodily functions that are impaired by mental disorder or impaired consciousness brought about by automatism or extreme intoxication. Although the physicality of the state is open to scientific interpretations, whether a person is impaired to such an extent that they are no longer morally and legally responsible is solely a legal determination. Such a decision, according to Justice Dickson in the 1979 Cooper decision (see Cooper v The Queen, 1979 CanLII 63 (SCC), [1980] 1 SCR 1149), a case describing the legal meaning of mental disorder, necessarily has medical aspects to it (at 1153 to 1159). Yet, the ultimate finding of legal responsibility is wholly within the province of the trier of fact.

Responsibility is a slippery concept. Is a person who is suffering from a mental disorder responsible for their conduct if they refuse to take the medication that will give them capacity? Is the person who enters an automatic state, such as in an epileptic episode, responsible if they see the trigger signs for the episode but don’t take mitigating steps? Is the person who willingly consumes drugs or alcohol to such an extent that they are unable to control their actions responsible for their conduct? And how do all these concerns engage Charter principles? It is this last question, which is at the crux of the constitutionality of s 33.1.

Moral Responsibility and the Constitutional Dilemma

The common law principle requiring fault for criminal offences was elevated to Charter status through the application of s 7 of the Charter (see e.g. R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636 and R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633). Crimes require a minimum fault element of either objective or subjective mens rea. Some ‘true crimes’ required a minimum subjective form of mens rea to fulfill the proportionality requirement referenced by Prof. Hart. Again, moral responsibility, free choice, and control lay at the core of these fundamental principles. This same concept not only carved the contours of a crime but also impacted the individual’s ability to formulate that fault element. In this way, a person who was not morally responsible at the time of the commission of the offence could not commit it. 

In the case of s 33.1 both the minimum fault element requirement for a crime and an individual’s capacity to formulate that intent intersect when extremely intoxicated. Critics of s 33.1 maintain that the section substitutes the voluntary consumption of an intoxicant for the required fault element of the specific crime in question. Such substitution creates an artificial fault element that is untethered to the crime in question, creating a questionable kind of fault based on an action and intent that precedes the actual commission of the offence. The understanding, reasoning, and choice is not made in relation to the offence but in relation to the voluntary consumption of the drug and/or alcohol in question. 

As an aside, not only does s 33.1 raise fault element concerns, but this substitution also runs counter to another fundamental criminal law principle requiring that mens rea and actus reus of a crime coincide (see the seminal English decision in Fagan v Metropolitan Police Commissioner, [1969] 1 QB 439, [1968] EWHC 1 (QB). In applying s 33.1, the self-induced intoxication occurs before the doing of the prohibited act. Although the intoxication continues during the act, at the time of the act, the intention to become intoxicated does not exist as it is complete and therefore exhausted. In using self-induced intoxication as the fault element, the stale-dated past act of and intention to become intoxicated is used for present intention. When viewed this way, s 33.1 is not only legally suspect but is also contrary to logic and common sense. 

This skewed reasoning creates a constitutional dilemma. It can then be argued that the connection between self-induced intoxication as a form of mens rea and the fault element requirements as guaranteed by the Charter requires a legal leap in logic. To find a person has the capacity and required intent for the offence based on a consumption decision made before any offence is committed in which the person likely never considered the risks of committing a crime due to their voluntary ingestion stretches the Charter guarantee of a minimum level of mens rea for a crime to the breaking point. Not only is the voluntary consumption no longer a viable mens rea substitute, but it is an artificial one based on a purely legal construct. In reality, the crime no longer requires any fault element. The only viable foundation for this substitution cannot be found in a legal argument but in a public policy concern alone. 

The supporters of s 33.1 find no issue with this mens rea substitution. There is a clear causal connection morally and legally between the extreme intoxication and the commission of the crime. In Justice Michael Moldaver’s Tatton decision (see R v Tatton, 2015 SCC 33 (CanLII) at para 43) and in Justice Frans Slatter’s decision in Brown (at paras 37 to 45), they reference the established connection between crime and intoxicants, which liberate a person’s reason and affect their ability to make good legal choices. People who drink to such an extent that they no longer have the capacity are making a choice to drink knowing that drink can lead to illegal conduct. Such people are not morally or legally innocent and are responsible for their crimes. This position is deeply based in morality. It is also anchored in public policy. To find someone not criminally responsible for a heinous crime such as murder or sexual assault based on their own moral weakness incentivizes the wrong message and diminishes the seriousness or wickedness, as Prof. Hart deemed it, of the crime. One should not escape criminal responsibility through the recreational use of alcohol or drugs.

 Section 33.1 & Addiction

This brings us to the real concern with s 33.1, which is the potential criminalization of addiction. Moral responsibility employs the blame game. It requires us to decide who will carry the burden of the dire effects of the conduct. But, as we have seen, determining responsibility is not a precise science. Rather, it is nuanced as we follow the thread of choice to the time and place of when an individual decides to consume intoxicants or not. Superimposed on this individual choice are criminal law principles, which are fundamental to our sense of justice. These are concepts that engage the protection of the morally innocent, the need for control and choice over one’s actions and, ultimately, the presumption of innocence. 

The matter of who gets caught in the golden web of criminal law is important as the criminal justice system impacts a person’s life, changing it in a way that cannot be defined or quantified. As the Law Reform Commission of Canada described in its Report: Our Criminal Law of 1976, the criminal law is a blunt instrument “because it cannot have the human sensitivity of institutions like family, the school, the church or the community” (at 27). The law and its institutions cannot substitute for the human touch, the concession to human frailty that is so needed when we are faced with addiction and mental health issues.

Section 33.1 and the case law on its constitutionality misses this human touch. There is no responsibility taken for the societal need to protect the vulnerable in our society. The accused person who drinks to such an extent that they can no longer make choices may do so because of childhood abuse, socio-economic pressures, or mental health challenges that can only be relieved by the consumption of alcohol. If we are prepared to use voluntary consumption of intoxicants as a substitute for fault, which then provides the basis for moral blameworthiness, then we must be open to giving legal relief to those who voluntarily consume intoxicants because their will is overcome by years of substance abuse. In asking who is responsible for extreme intoxication, we must include the possibility that no individual is responsible; rather, society may be.

Final Thoughts

Ultimately, the question for the Supreme Court of Canada will be whether public policy considerations can be the sole initiator of such a foundational change to traditional criminal law principles. This discussion will no doubt include the role of the lawmakers to enable public policy through law and the role of the courts to uphold only those laws that are consistent with the Charter. This discussion has already started in the Supreme Court in a different context (see Toronto (City) v Ontario (Attorney-General), 2021 SCC 34 (CanLII)), where the slim majority found unwritten constitutional principles, untethered by the Charter, did not have the independent and free-standing power to invalidate a law. 

Of course, with s 33.1, the violation engages s 7 of the Charter, which requires laws to conform with unwritten principles of fundamental justice. Importantly, these unwritten principles do not provide the background or context. Rather, they animate the permissible limitations to the deprivation of life, liberty and security of the person. Even so, principles of fundamental justice, although legal rules, originated through societal consensus. Public policy permeates the criminal law, providing the primordial normative basis for our principles of fundamental justice. It will remain to be seen how far that public policy reach is when it comes to our long-held fundamental criminal law principles. Hopefully, the Supreme Court will give us clear direction on who is responsible for the extreme intoxication.

To do this, I started my day by watching the Calgary Foundation Land Acknowledgement that can be found here. This first-person narrative from Elders representing the First Nations in Treaty 7 and the Metis Nation of Alberta Region 3 is a powerful reminder that life flows from the land. It reminds me of words spoken by Reg Crowshoe, an esteemed elder from the Piikuni First Nation, and a revered Indigenous voice in the University of Calgary community, when he said that “Our laws come from the land, and our practices of granting rights and privileges is a process we were born with, that ties us to this land.” As a lawyer, this connection between Indigenous laws and Indigenous land is very powerful indeed.

I will be watching events online to commemorate the day and gaining knowledge of the Indigenous peoples who cared for and lived on this land before I arrived. I am also doing what I can as a lawyer to understand how the law approaches Truth and Reconciliation. As a criminal lawyer and criminal law professor, I discuss these issues and keep up to date on the impact or lack of impact the law has on reducing the overrepresentation of Indigenous peoples in the criminal justice system. For instance, I have read and written on Jonathan Rudin’s outstanding Practitioner’s Handbook on Indigenous Peoples and the Criminal Justice System published by Emond publishers. I have also engaged in class conversations of the discriminatory practices embedded in our  justice system (see Tracing the Likeness of Coulten Boushie in the Law Classroom).

But, today, I have decided to look beyond the criminal justice system to see how other areas of law have implemented Truth and Reconciliation principles. I started by re-reading the 94 Calls to Action named by the Truth and Reconciliation Commission of Canada. Many of these Calls are law related and include specific ways that the government and our legal systems can support Indigenous peoples by integrating Indigenous perspectives and experiences into the decision-making process (e.g. the Child Welfare Calls to Action from 1 to 5). I also reviewed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which emphasized the self-autonomy and respect of Indigenous ways of doing and thinking. 

Finally, I re-read R v Gladue, 1999 CanLII 679 (SCC), and R v Ipeelee, 2012 SCC 13 (CanLII), to remind myself of the remedial effect of the law and the ability of the law to correct for past wrongs while preserving the practices and traditions of Indigenous peoples. Paragraph 65 of Gladue speaks most clearly of the adverse impact we have had on Indigenous dignity and autonomy. There, Justices Cory and Iacobucci called out bias and discrimination in the justice system. They also listed the many sources of the “drastic overrepresentation” (at para 64) of Indigenous peoples in the justice system as poverty, substance abuse, lack of education and lack of employment opportunities. All these sources are created by us. The court also emphasized the role of judges in “remedying injustice” as they have “the power to influence the treatment” of Indigenous peoples in the justice system (at para 65). Although, these comments and other similar ones were made in the context of sentencing and imprisonment, there is much to learn from Gladue and Ipeelee in the need to provide legal remedies outside of the criminal justice system. 

With all of this in mind, I looked at the case law and found a slow but perceptible movement toward implementing the principles behind Truth and Reconciliation. Many of the cases recognized and acknowledged the impact of the Calls to Action, yet the cases stopped short of directly applying these principles. This is perhaps unsurprising considering Gladue principles, which seemed clearly expressed some 22 years ago have not been consistently applied and have still been subject to debate. Even so, certainly in the area of criminal law, Gladue principles now animate bail and release from custody (see R v Zora, 2020 SCC 14), parole considerations, extradition (United States of America v. Leonard, 2012 ONCA 622 , leave to appeal ref’d [2012] S.C.C.A. No. 490 and related ), and even in the discretion exercised in a Corbett application (see R v MC, 2019 ONCA 502, Watt J). But these remedies are being applied to when an Indigenous person’s liberty is at risk. That is not the only are in which the law must apply and voice Gladue considerations.  

For instance, in the 2019 decision of Rhino Legal Finance Inc v Pappas, 2019 ABQB 525, Master Schlosser, in providing relief from an unconscionable loan entered into by a vulnerable and impecunious Indigenous woman, took into account the Calls to Action and the Final Report of the National inquiry into Missing and Murdered Indigenous Women and Girls (at para 22). In doing so, Master Schlosser acknowledged “that historical inequities or institutional racism may well have been the primary cause of Ms. Cardinal’s situation when the loans were taken out” (at para 22). Despite this, he declined to “view that status” as an additional fifth element of the legal test for unconscionability as outlined in the Cain v. Clarica Life Insurance Company, 2005 ABCA 437 decision (at para 22). Master Schlosser did not “see any specific recommendations” in those Reports that would require him to do so and was not asked by counsel to “provide a direct partial remedy for systemic discrimination in this area of law” (at para 22). 

Although recognition and acknowledgement in this case is a step forward in advancing reconciliation and the spirit behind Gladue, it is disappointing that the court did not directly implement the remedial power of justice as provided for in Gladue. As an aside, in the UNDRIP articles, there is a reference in Article 39 to “Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.” Although this may not be as specific a direction as Master Schlosser was hoping for, it certainly provides a basis for finding that access to financial assistance was not only denied but abused in the Defendant’s case.

In contrast, an area of law that is starting to embrace reconciliation efforts and implement Gladue outside of the criminal law, is in the area of discipline hearings, particularly the regulation of lawyers and conduct hearings under provincial law societies. Although here to, the application of Gladue factors was not nationally accepted by every jurisdiction, it appears that recent conduct decisions specifically apply Gladue principles when indigenous and racialized lawyers are being disciplined. Of course, there are definite similarities between criminal sanctioning and discipline sanctioning. Although a law society sanction will not deprive a person of their liberty, it will certainly impact their livelihood, their self-identity and dignity. The law in the area is of course not perfectly aligned to Gladue and Ipelee, as some decisions struggle with the level of connection needed between the misconduct and the Indigenous status. Again, this is a start that stops short of realizing the hope and promise of reconciliation. For a discussion of these issues in discipline cases see Law Society of Ontario v. Wilkins, 2021 ONLSTA 15.

 Today I entered into a few moments of self-discovery as I acknowledged my own part in the historic wrongs committed against indigenous peoples. I hope that these few moments will stay with me for a lifetime of recognition and action. Whatever you do today, I hope you too will find a way to remember, remedy, reconcile and honour the Indigenous peoples for whom we have much to thank for as we live and work on their lands.

It is the interplay of these two subsections, ss 45(3) and (4), which describe the Chief’s discretionary exercise of authority in sending complaints to a disciplinary hearing. The scope and nature of the Chief’s discretion in dismissing complaints by the public inevitably impacts the relationship between the police and the public. Too much discretion could erode public confidence in the police and undermine police legitimacy. Too little discretion could diminish policing morale and undermine the ability of the police to keep the community safe. 

Public trust and engagement are crucial to the legitimacy of the police. This symbiotic relationship has been integrated into policing from its conception. Sir Robert Peel, twice UK Prime Minister and known as the founder of modern policing, ensured this was so when he established the London Metropolitan Police Force on September 29, 1829. The creation of this police organization was not particularly novel; Glasgow had its own police force since 1800. But Peel’s venture was different. In creating an organized police network, he provided the 1000 newly appointed police officers, or “Bobbies”, with the tools they needed to become a professional body. It provided the police with principled authority for effective, fair, and just community policing. It underlined the extraordinary powers the police wielded in fulfilling their duties and the dire need for police to use restraint in exercising those powers. Although the principles were by no means exhaustive, Peel created an ethical code of conduct still in use today. 

These “Peelian Principles” outline the role of the police and their relationship with their community. The most famous principle highlights the centrality of community by affirming “the police are the public, and the public the police.” This somewhat sparse statement encapsulates the concept of policing by consent whereby police power is effectively derived from the public. Additionally, the principle underscores the need for public support and legitimacy of the police through transparent and accountable use of police power that is based on integrity. It is this principle that continues to guide and define the police force, or as many organizations now self-describe, the police service. In the 129 years since the Bobbieswalked the streets, it is this one Peelian Principle that attracts the most commentary and reflection.

Although the public-policing relationship is engaged in many facets of policing and community safety, the more difficult conversation arises when police conduct, or misconduct, is considered. It is easier to understand the nature of the relationship when the public and police are working together to promote safety than when the police and public come into conflict. We have seen this problem firsthand as issues of racial profiling [R v Le, 2019 SCC 34 (CanLII)], use of force,and misuse of authority have spotlighted the tenuous and at times fractious relationship between the police and the public. However, it is those very areas of friction that highlight the crucial need for clarity and trust in that relationship. Although trust and clarity can come from understanding the statutory parameters, it also requires an honest and open discussion on public expectations and needs. If the police are there for the public, then the public must inform and enhance the statutory framework and the Peelian Principles. Indeed, the inclusion in the Police Act of the public complaints regime is a reflection of this need.

The Conlin decision partly clarifies those statutory parameters. In reviewing the discretion given to the Chief in disciplinary matters through ss 45(3), (4) and 47(4), the court of appeal found that together, these sections give the Chief “wide discretion” (at para 29) over a public complaint. As earlier mentioned, a wide discretion is not always welcome, particularly when it comes to public confidence. The court then clarifies the threshold standard for the Chief’s opinion under s 45(3). Although not the subject of this post, the court also clarifies the standard of review on appeal to the Law Enforcement Review Board (LERB). 

First, some context is needed before the legal principles are discussed. The Conlin style of cause is a misnomer. There is not one case but four appeals arising from 3 different factual situations (Conlin and Barton, Power, and Sharma) (at para 3). Each case engages different kinds of police behaviour and involve differing outcomes. All cases were assessed by the Chief pursuant to s 45(3) of the Police Act. In all cases, the Chief did not send some of the allegations to the hearing stage and the complainants appealed. The LERB allowed some appeals and dismissed others. The issue on appeal for all cases was whether the Chief properly exercised his threshold discretion in not finding “the actions of a police officer constitute a contravention” under s 45(3).

The Conlin and Barton appeal involved police conduct in the execution of a warrant. There were fifteen allegations, four of which were sent to a disciplinary hearing. The Chief, in fulfilling his screening function under s 45(3), dismissed the other allegations as having “no reasonable prospect of establishing the facts for conviction” (See Conlin and Barton v Edmonton (Police Service), 2018 ABLERB 30 (CanLII) at para 10). 

The Power appeals involved complaints against Constable Power and two other officers. The incident involved traffic stops, which resulted in Street Check Reports suggesting the occupants of the cars, Vuong and Shah, were known drug dealers. The Chief dismissed all the complaints as “there was no reasonable prospect of a conviction” (at para 12). The LERB, on appeal, found the Chief’s decision unreasonable and sent the matters back for hearing (at para 16). 

The final appeal involved an incident between Sharma, a corrections officer who was defending against a ticket received for distracted driving, and the investigating police officer. The incident occurred in the halls of the courthouse prior to trial. The Crown prosecutor asked the officer to “speak to the complainant about the charges, the court procedure, and the evidence” the officer would give in court (at para 20). According to Sharma, when the officer heard Sharma was fighting the ticket, the officer became overly aggressive, intimidating and threatened to complain to Sharma’s employer (at para 21). The officer disagreed with this version of events and recalled Sharma intimated that he would lie in court. The officer challenged Sharma on this and his ethical requirements as a corrections officer (at para 20). The Acting Chief of Police dismissed the complainant on the basis that “there was no reasonable prospect of establishing the facts necessary for conviction” (at para 22). On appeal, the LERB found the disposition was reasonable (at para 24). 

Although the factual underpinnings in all cases differ, the issue raised for all appeals considers “the test to be applied when the chief of police is forming ‘an opinion that the actions of a police officer constitute a contravention’ under s. 45(3) and deciding what ‘action. . . the chief of police . . . considers proper in the circumstances’ under s. 47(4)” (at para 31). However, the issue runs deeper and invokes the nature of s 45(4) as well. As noted above, s 45(4) permits the Chief to dismiss a complaint, even if the conduct amounts to a contravention, if the conduct is “not of a serious nature.” This suggests that conduct that is of a serious nature must go to hearing. How that descriptor – serious or not serious – impacts the nature of the conduct under s 45(3) is an important question. Indeed, the seriousness of the allegation is, according to Conlin, a factor the Chief may rely on in coming to the screening decision under that section. The two subsections are intertwined, and both need clarity to be properly applied.

Instead, Justice Frans Slatter, on behalf of the court in Conlin, focuses on the standard of the Chief’s review and how the Chief makes the assessment under s 45(3). It should be noted that the section requires the Chief to be “of the opinion” that the police actions contravened the regulations. In Conlin, the Court does not specifically discuss what is meant by this phrase but does comment on the need for the Chief to exercise authority under the section through the lens of policing (at para 49). This permits the Chief to approach the assessment through their own expertise and knowledge, almost like a subject matter expert. This view is consistent with tribunal decision-making in other areas (see e.g., Gould v Yukon Order of Pioneers, [1996] 1 SCR 571, 1996 CanLII 231 at para 104). This makes sense considering the assessment is being made in a specific context. But the policing perspective cannot be the only lens. The Chief’s opinion must also be viewed through the public lens to properly account for Peelian Principles and to fulfill the underlying objectives of the Police Act. That public interest lens is vitally important as recognized in the earlier court of appeal decision in Newton v Criminal Trial Lawyers’ Association, 2010 ABCA 399 (CanLII) at para 59. It is the basis for the relationship between the police and the public. The Chief’s assessment must also consider the public interest in police misconduct and in having public complaints of misconduct assessed through the disciplinary regime. 

The public trust and confidence is also at the core of the statutory regime. In the legislative debates of 2005, when the Alberta Police Act public complaint regime was revised, the then Solicitor-General, Harvey Cenaiko, spoke of the need for “fair, objective, and complete” public complaints to “enhance the credibility of the process” and to enable a “proper review” of complaints (see “Bill 36, Police Amendment Act, 2005”, 2nd reading, Alberta Hansard, 26-1, (7 April 2005) at 630). Five years later, when the Act was further amended to ensure timely complaint investigations, Frank Oberle Jr., the then Solicitor General, recognized the evolving public expectations of police accountability and that “public confidence in the police complaints system is of paramount importance” (see “Bill 27, Police Amendment Act, 2010”, 2nd reading,Alberta Hansard, 27-3, Issue 39 (4 November 2010) at 1133). These sentiments stress the importance of the public and police relationship.

In this context, the Conlin decision grapples with the standard of review, which the Chief in all cases applied as a “reasonable prospect of a conviction.” Two issues flow from this test. First, is the issue of the meaning of “prospect” and whether it is akin to “likelihood” or “probability” or, as the Court of appeal found in an earlier decision, is it a lower standard, closer to “reasonable basis” or “arguable merit” (at para 38). Second, what is the evidentiary threshold needed to fulfill the standard. This question raises the issue of sufficiency of the evidence and whether the threshold requires “some” evidence of misconduct or simply “evidence” of a contravention (at paras 45, 46 & 49(c). Moreover, previous case law tried to draw analogies between the standard of review and other standards of review for other threshold matters such as the preliminary inquiry and the law society’s threshold to send a matter for a conduct hearing.

In the end, the court found favour with a refined test from Land v Law Enforcement Review Board, 2013 ABCA 435 (CanLII) (Conlin at para 49). Generally, the test “is whether there is a ‘reasonable prospect of establishing the facts necessary for a conviction’” (at para 49(a)). Notably, this is the test used by the Chief in the cases on appeal. However, “reasonable prospect” is not to be equated with probability or likelihood. The test should not be articulated as “enough evidence, if believed.” That, according to the court, is “less helpful” and should be “avoided” at para 49(a)). Instead, the test requires “a reasonable basis in the evidence” (at para 49(a)). 

The “reasonable basis” is to be found in the totality of the evidence before the Chief including “direct and circumstantial” and “inculpatory and exculpatory” (at para 49(b)). Limited weighing of the evidence is appropriate but not to the extent of a final weighing of the evidence that would be required at the hearing level. At the threshold stage, the allegations need not be proven. Additionally, the Chief should refrain from comparing the reliability of the evidence. Conflicting or inconsistent evidence need not be resolved at the threshold stage. However, limited weighing of the evidence includes “an assessment of plausibility, reliability and credibility” of the evidence (at para 49(b)). In fulfilling their screening function, the Chief “is entitled to take a realistic view of the evidence using the lens of his experience with policing” (at para 49(c)). 

Finally, the court enumerates factors the Chief might consider in coming to the threshold opinion (at para 50) and in finding the reasonable basis for sending a matter to hearing. The foremost factor is the strength or cogency of the evidence, but the chief can consider “any other relevant” factors (at para 50). This includes the “seriousness of the allegation,” the “overall context” of the incident, the incident itself, the complainants, the officers, and an objective observer’s perceptions of what happened, and the “validity or appropriateness of an officer’s explanation” as well as the decisions made by the officer and the “pressures and limitations on the police officers inherent in the performance of their duties” (at para 50). All factors are to be viewed through the Chief’s experience as a police officer and their knowledge of the police service, policies and policing standards (at para 50). 

The seriousness of the incident factor may provide for the consideration of the public interest in sending the matter to hearing, and the factor involving the objective perception of the event may account for the public view of the incident. However, none of the factors listed by the court directly and clearly reference the public interest in fair, objective, and transparent policing. None of the factors truly express the prime Peelian Principle of public trust and confidence in policing nor do they account for the relationship between the public and the police. As these factors provide the reasonable basis in the evidence for the Chief’s threshold decision, the standard is necessarily filled in by these factors. 

Moreover, the “seriousness” factor begs the question of what exactly “serious” means. It is a descriptor also used to divert allegations from the disciplinary hearing regime even if the police conduct is, in the opinion of the Chief, a contravention of the regulations. Once diverted, the decision is final according to s 45(4.1). To be clear, diversion does not mean the police officer is not reprimanded. However, in the context of internal discipline as opposed to independent arms-length regulation of conduct, diversion should be used sparingly and only in the clearest of cases. 

Another concerning aspect of this refined test is how these factors are to be assessed by the Chief. Here the weighing is broadly based involving not only potential circumstantial evidence but also the “plausibility, reliability and credibility” of the evidence (at para 49(b)). Thus, all testimonial factors are open to scrutiny, which are notoriously difficult to gauge without hearing and seeing the evidence. Certainly, in other threshold tests, limited weighing is permissible, particularly where the evidence is circumstantial and therefore is subject to the drawing of inferences (see e.g. R v Arcuri, 2001 SCC 54 (CanLII) in the context of the preliminary hearing, and R v Pappas, 2013 SCC 56 (CanLII) in the context of the air of reality test). 

Also, in exercising the gatekeeper function at trial, the judge will engage in limited weighing to ensure the introduction of relevant evidence whose probative value does not outweigh its prejudicial effects, or in the case of defence-led evidence that the probative value does not substantially outweigh its prejudicial effects (see R v Grant, 2015 SCC 9 (CanLII) at para 44). This weighing is an integral aspect of assessing the costs and benefits of introducing the evidence with the goal of ensuring trial fairness and advancing the truth-seeking function of the trial. The weighing is done in the context of a balancing of factors, looking at the value and costs of using the evidence at trial. At paragraph 48 of Conlin, Justice Slatter describes the Chief’s role as performing “a gatekeeper function with respect to complaints.” If so, then the Chief’s limited weighing is limited indeed. In R v Humaid, 2006 CanLII 12287, 81 OR (3d) 456 (ON CA) an Ontario Court of Appeal decision endorsed by the Supreme Court in R v Blackman, 2008 SCC 37 (CanLII), Justice David Dohertypermitted limited weighing of credibility or reliability at the gatekeeper stage but in those circumstances where the evidence “is so deficient that it robs the out-of-court statement of any potential probative values” (Humaid at para 57). In other words, the weighing of reliability and credibility is a low bar, tied to the relevancy of the potential evidence. Evidence that is “so deficient” in value becomes irrelevant as it is unable even to tend to prove a fact in issue (see R v Hart, 2014 SCC 52 (CanLII) at para 94). The Chief’s function is therefore confined to determine whether the evidence is “worthy” to be considered at hearing. Although this may overlap with the hearing function, the Chief must not determine the “ultimate question” of whether the evidence will be accepted or rejected at the hearing stage (Hart at para 98).

Importantly, Justice Slatter does caution that in this weighing of “plausibility, reliability and credibility” the Chief must not “proceed on an assumption that complaints generally are not believable or that the evidence of the police officers will always be preferred” (at para 55). Notably, this cautionary tone is not tempered by a further admonishment that the Chief, because they are not arms-length independent decision-makers, must also be aware of their own potential bias as a police officer. Although the Chief is a subject matter expert and enjoys some deference in their decision-making, in weighing the evidence, the Chief’s decision must be informed by this commonsensical self-awareness.

This leads nicely to the court’s discussion of how the Chief is to approach inconsistent or contradictory evidence without independent corroboration as in the Sharma case. Justice Slatter properly reiterates a basic legal concept that “the law does not require proof based on uncontradicted evidence” (at para 54). The law also does not abide a “credibility contest” (see R v S (WD), [1994] 3 SCR 521, 1994 CanLII 76). Even so, there are difficulties in assessing such evidence at the screening stage, particularly as the weighing of evidence must be restricted. There should not be more weighing done in the face of inconsistent or contradictory evidence. According to Justice Slatter, where the complainant’s version is “capable of belief” the “overall” context must be reviewed including “the seriousness of the allegations, the context in which the events occurred, how an objective observer might perceive the events, the need to maintain confidence in the police discipline process, and the need for the chief of police to ensure that appropriate cases are sent to hearing” (at para 56). These factors seem to mirror the factors upon which the Chief may consider in coming to the threshold opinion (at para 50) and in finding the reasonable basis for sending a matter to hearing, but there is a key difference. In this review, the Chief does consider the public interest and the “public” part of the Peelian equation, while in considering the general threshold opinion, that dimension is not mentioned (at para 50). The only specific comment arises from Justice Slatter’s reference to the Cody decision and the “policy” proviso giving the Chief the discretion to refrain from sending a matter to hearing if it was not “in the public interest” (at para 51). Justice Slatter found this to be a rare event that could preclude a hearing, not a factor that would assist in sending a matter to hearing (at para 51). In any event, public trust and confidence should be clearly part of the entire screening function, not just when the evidence poses difficulty upon review.

Even with this direction on assessing inconsistent or contradictory evidence, Justice Slatter finds not all “difficult scenarios” should be sent to hearing (at para 56). The Sharma case is just such an example (at para 82). However, this fact scenario does seem questionable. In that instance, the LERB found the Chief’s decision not to send the matter to hearing reasonable “because the evidence was weak and unsatisfactory” (at para 82). Justice Slatter confirms this finding as also reasonable considering the “several possible interpretations” of the incident (at para 83), which seem to crystalize into one interpretation that the incident was merely an unfortunate “miscommunication, misunderstanding and misperception” (at para 83). Justice Slatter cautioned that such a finding “does not imply that the complainant’s evidence would not have been believed, simply that those involved in adversarial conversations or events can perceive those events quite differently” (at para 84) but that such concerns were a matter for hearing. However, as the standard of review is reasonableness, Justice Slatter found “no reviewable error in the Board’s decision” (para 84). There is no discussion in the Sharma case of the public perception and the public confidence in policing in assessing this scenario, even though it was one of conflicting evidence. The reality is that the appellate review of discretionary decision-making is limited and very much attached to principles of deference. 

The bottom-line of this decision is that an additional clarity about the use of s 45(4) and how that section impacts the screening function under s 45(3), as well as the clear inclusion of the public interest in that screening assessment would benefit the policing community. Policing is a difficult and often dangerous career. Police officers take pride in their integrity and their reputation in the community. The police need and want the support and trust of the public. For policing to be effective, police misconduct must be dealt with promptly and in a fair, objective, and transparent manner. When police misconduct is not taken seriously, public trust and confidence is at risk. The presence of public trust and confidence in policing creates a relationship that works towards the common goal of community safety. It is that relationship which must be nurtured and protected. To properly fulfill the principle that “the police are the public, and the public the police”,allegations of misconduct need to

First, let’s review the offences created under section 72; forcible entry under (1) and forcible detainer (2): 

72 (1) A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.

(2) A person commits forcible detainer when, being in actual possession of real property without colour of right, he detains it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person who is entitled by law to possession of it.

Although these offences are separate concepts, there are some similarities. Both offences can be temporally connected – one can commit forcible entry of real property in accordance with s. 72(1) and then, once on the property, detain that real property pursuant to s. 72(2). Both offences involve a “breach of the peace,” making these property crimes with a twist. In s. 72, we see the intersection of the public and private as the protection of property is not just a civil wrong or a purely personal concern but is also a public one. Overlaid on this intersection of public/private is the state’s concern for the potential for violent confrontation, which is at the core of these offences. This creates a criminal offence as opposed to a mere regulatory or trespass offence (See R v Czegledi, 1931 CanLII 246 (SK CA) at para 3). 

It is difficult not to view these offences as medieval throwbacks - the offences have a whiff of the ‘castle keep’ about them. At first blush, one wonders why they are still in the Criminal Code, with their archaic language and ye olde England perspective. Justice Doherty in R v D(J), 2002 CanLII 16805 (On CA), suggested the offence of forcible entry although “longstanding” is “seldom prosecuted” (See D(J) at para 1) yet there are several decisions on these offences (“forcible entry” search term on CanLII produced 589 mentions, albeit not all for the criminal offence and “forcible detainer” produced 85), spanning over a hundred years (oldest “forcible entry case is from 1889). Take the facts of the D(J) case as an example. Among other charges the accused was facing, the accused was convicted at trial of forcible entry for knocking at an acquaintance’s door and thereby getting entry into the house, purportedly to escape from the police who were investigating D(J) for break-ins. After a thorough analysis of the historical background of forcible entry and a superb comparison of the English and French versions of the offence by Justice Doherty, D(J) was acquitted on appeal. In the end, “the evidence offered by the Crown was incapable of proving the offence.” Simply gaining entrance into real property is not enough. The entry must be criminal and to be criminal must create an actual or potential confrontation or resistance. 

But we are getting ahead of this discussion! Let’s take a deeper look at some of the essential elements of the actus reus or prohibited act requirements of these sections. First, forcible entry occurs when a person “enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.” I will discuss the meaning of “enters,” “real property,” “actual and peaceable possession,” and “breach of the peace.” 

To understand these terms, it is helpful to step back and consider the roots of the offence and the underlying purpose of the section. The offence of forcible entry “was enacted in very early times in England” to deter vigilante justice (See R v Czegledi, 1931 CanLII 246 (SK CA). According to the earliest versions of the offence as found in statutes of Richard II (Forcible Entry Act, 1381 (U.K.) 5 Richard II, c. 7 – for a discussion of the statute see page 41 of this Law Commission Report from Australia), the law ensured entry onto property was done in “a peaceful and easy manner” rather than “with a strong hand” or “with a multitude of people” ( See R v D(J) at para 14). 

In section 72, the line between a civil wrong and a criminal offence can therefore be numeric - involving a crowd of potential rabble-rousers – turning the offence into a crime of violence. Or it can involve the strength of one single person, who in essence acts as many, using strong arm tactics to gain entry into a household. This violent aspect is underlined in the original pre-Criminal Code offence found in Burbidge’s Digest of the Criminal Law of Canada. In that version, the offence of forcible entry occurs when a person enters in a “violent manner” and therefore creates a “vis publica” subject to criminal prosecution under Roman Law. Sir Stephen Fitzjames Stephen, who wrote extensively on criminal law in the late 1800s and is considered the originator of criminal law codification, suggested in his 1883 “A History of the Criminal Law of England” that without crimes like “theft, forcible entry, malicious mischief, and the like, and if there were no means of forcing people to respect proprietary rights, there would be no such thing as property law.” Bold words indeed. This gives us insight into the historical gravity of these kind of offences, and the importance placed on property rights.

Justice Doherty in D(J) further explained the differences between the common law crime and the codified version. As stated earlier, the original form of the offence was directed toward the taking by force of real property from a person who was in actual possession of it, even if the person taking it had a legal right or claim to the property. This makes sense if the focus of the offence is to deter breaches of the public peace. It was a matter of preserving the status quo even if that stasis was wrong in law. The idea being of course that turning to peaceful means of retrieving possession of the property could be done within the law. Not so in the Criminal Code offence, which adds the phrase “peaceable possession.” In real property terms, “peaceable possession” means possession in which the possessor has rights to a legal claim over the property. This makes the Criminal Code offence not so much an offence preserving the status quo but one that protects legal rights as well (See R v Born With a Tooth, 1992 ABCA 244 at paras 26-31 for a discussion of the term “peaceable possession”).

Of course, forcible entry, requires the person enter real property. Although we all have a basic understanding of what it means to enter a space, the word still holds some surprises. For instance, “enters” in the French version of the Criminal Code, is “prend possession,” suggesting the entry is more than merely physical and imports a requirement for control over the property being physically entered (See D (J) at para 11). Indeed, possession as defined under s. 4(3) of the CriminalCode, contemplates this need for control. This is entry with a purpose and gives this offence a sinister air, particularly when viewed with the requirement that the entry is “likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.” 

The phrase “breach of the peace” has a particular meaning in the context of forcible entry and forcible detainer, which is coloured by the meaning of entry and of peaceable possession. In episode 36 of these podcasts, we reviewed one meaning of “breach of the peace” in the context of unlawful assembly and riots. The Supreme Court of Canada in Frey v Fedoruk, 1950 CanLII 24 (SCC), [1950] SCR 517, suggested the phrase in that context required some kind of actual violent action but opined that this more restrictive interpretation did not apply to s. 72 offences. There, according to the majority decision in Frey “isolated and temporary” acts of trespass is not the concern but entry “with the intention of taking possession” is the underlying issue (at p 525). 

Although this appears to import “an intention to take possession” as an “essential ingredient” of forcible entry (See R v Scribner, 1968 CanLII 163 (NB CA) at p 2), the offence section was amended in 1985, and s. 72(1.1) was added. That subsection makes it clear that whether the person entering has a claim or entitlement to enter the property is immaterial. The subsection also clarifies that it is immaterial whether the person entering intends to take possession of the property. This amendment seems to belie the true nature of this offence. In the French version of this subsection, the phrase used is “s’emparer définitivement” meaning “to seize” “for good” or “definitely” (See D(J) at para 12). This gives the immateriality a different spin. According to Justice Doherty in D(J), this imports a more subtle meaning. In the French version, it is immaterial that the accused intended to “take over” the property (at para 13), not merely that the person intended to take possession of the property “no matter how fleeting or qualified” (at para 13). Justice Doherty finds that the French version is “truer to the crime’s historical roots,” which, as mentioned earlier, tried to preserve the status quo, despite legal claims and rights to the property, without confrontation (D(J) at paras 14-15). This change from common law to statute shows the present crime to be more concerned with property rights than the potential for violence. 

The entry must be onto “real property.” In law, “real property” is land, including immovables on that land such as buildings, structures, improvements, and can also include an interest in the land such as a leasehold interest (See Federal Real Property and Federal Immoveables Act, S.C. 1991, c. 50). In Burbidge’s Digest of the Criminal Law of Canada, which was used as the basis for the first 1892 Criminal Code, forcible entry is onto “lands or tenements.” The phrase “lands or tenements” can be considered simply an archaic expression of real property with “tenements” including rents or other profits granted out of land. In the first Criminal Code of 1892 until amendments in 1955, forcible entry was onto “land” only. This change in language does not appear to have changed the scope of the property in question as most of the forcible entry offences during this time period related to entry into residential premises. As outlined earlier, the present version of the offence requires no violence but does require a breach of the peace, which is not necessarily a violent gathering. 

Section 72(2) outlines the offence of forcible detainer. I mentioned earlier that this offence appears to flow from forcible entry. The offence is also very much fixed on protecting property rights. Forcible detainer occurs when the accused is in “actual” possession of real property, without colour of right and that detention is in opposition to a person who is “entitled by law” to possess it. Such detention however must also attract the likelihood or “reasonable apprehension” of breach of the peace. Although property rights are front and centre, there is still an added concern for a violent confrontation as a result. If this additional, breach of the peace requirement was not in this offence, quite frankly, the offence would simply be viewed as theft.

Speaking of theft, taking something “without colour of right” is also a requirement of the crime of theft under s. 322. Often, “colour of right” is referred to as a defence and is characterized as an exception to the general rule that ignorance of the law is no excuse. Colour of right can be either a mistake of fact defence or mistake of law. Someone who acts with colour of right is acting either under an honest belief in a state of facts, which if true would provide a justification or excuse for their conduct or is acting under an honest but mistaken belief in a legal right or claim to a thing even if unfounded in law or in fact (See R v DeMarco, 1973 CanLII 1542 (On CA)). A moral claim is not enough. Moreover, the belief must be honestly held, although not necessarily reasonably held. This means that “self-help remedies” are precluded (See R v Manuel, 2008 BCCA 143 leave to SCC dismissed). Significantly, the legal rights can be based in aboriginal rights and title (Manuel at para 53). 

Over time, the punishment for these offences have changed. Originally, in the 1892 Code, these offences were considered the more serious indictable offence with a maximum of one year imprisonment. In 1953, the punishment maximum was increased to two years. In 1985, the offences became dual or hybrid offences, meaning the Crown could elect to proceed by summary conviction or by way of indictment.

Before ending this discussion, it is important to do a reality check. Thus far, we have discussed the history and essential elements of these old common law crimes but, other than referencing one case example, we have not analyzed the application of the law. Our concern should not only be with what the law is but what the law does. So, I ask these questions: In what circumstances are people convicted of these offences and why? Are these charges properly laid for these fact situations and what other alternatives are there? 

The answers to these questions are likely outside the scope of this discussion but let’s get the discussion started by reviewing two case decisions. I have already mentioned R v D(J), which notably was an appeal against conviction where the appellate court found no basis for the original conviction. This is in and of itself concerning and, a quick review of other forcible entry convictions, seem to suggest that this issue is not singular. For instance, in R v Budd, 2021 MBPC 13, the accused entered a plea of guilty to the offence of forcible entry. He was intoxicated at the he entered a home through an unlocked door looking for someone he knew, namely the mother of the family residing in the home. He entered a child’s bedroom and touched the child on the breast albeit for no sexual purpose but merely to wake the child up. The child was awake and ran out of the room. Although the accused was in a home without consent, the facts do not have fulfill the historical conception of forcible entry. There is no vigilante trying to take someone else’s property. Indeed, being in the home seems to be peripheral to the real concern. The concern is someone entering a home without permission, while intoxicated and with a questionable purpose. 

I would go further and suggest the accused did break and enter the premises while committing an indictable offence, namely assault on the child, pursuant to s. 348 of the Criminal Code. At best, the offence is being unlawfully in a dwelling house under s. 349. To consider instead that this is forcible entry, strains even the present conception of this offence. By this decision, we seem to be changing forcible entry into a new and different kind of offence in which the phrase breach of the peace has little no meaning. If these facts serve as the exemplar of this offence then the offence committed is entering a dwelling house without consent - an offence not found in the Criminal Code. Of course, this is a guilty plea and it may be that instead of entering a plea to the more serious offence of break and enter, the forcible entry plea was negotiated. But that signifies a problem with the punishment maximums for breaking and entering a dwelling house or being unlawfully in a dwelling house. To enter a plea of guilty may be practical but that does not make it right. These facts then become part of the crime’s narrative and a quick glance of the database reveals that there are in fact other convictions for similar fact situations. The case of D(J) is one of them (albeit in that case the accused had permission to enter, which differs from Budd) and it took an appeal court to rectify that error. Another concern is prevalence of these kind of convictions as many of the cases on forcible entry merely mention the offence as convictions found on criminal records and those convictions are being used to assess bail and sentence. Reading these cases, one wonders whether overincarceration in our jails is aggravated by this kind of chameleon-like charge, which seems to be over-used and readily found on criminal records.

This is not to say that all convictions are inappropriate. Despite this, it does raise the issue of why these offences are still in the Criminal Code. In 2018 many old common law offences were removed such as s. 71 duelling and s. 49 alarming the Queen. The main reason for doing so was because there are other offences in the criminal code that could be laid if necessary. Duelling, for instance, involved weapons and bodily harm. We have offences to cover that such as aggravated assault or assault with a weapon. As much as the offences under s. 72 are fascinating historically, we should wonder whether we need them at all. This is particularly so considering that these offences are labelled public disorder crimes, requiring a breach of the peace, and yet in application have lost that key characteristic. 

That completes our discussion of the ancient and “longstanding” offences of forcible entry and forcible detainer. In the next episode, we will stay back in time to look at the crime of piracy under s. 74. 

This blog article discusses one of these concerns relating to sentencing amidst COVID-19. Sentencing is uniquely criminal law and as such is the perfect exemplar for what works and what doesn’t in our criminal justice system. The pandemic has both shone a light on sentencing issues of pressing concern and muddied the waters when it comes to others. In this article I will discuss how COVID-19 has specifically impacted the issues surrounding enhanced credit for pre-sentence custody. First, I will discuss the historical and present-day approach to enhanced credit generally. Then, I will apply those principles to enhanced credit during the time of COVID-19. 

Historically, providing sentencing relief for pretrial custody was not a mathematical exercise but a “well-entrenched judicial discretion” with the ultimate goal of imposing a just and fit sentence (R v Wust, 2000 SCC 18 at para 44). But, as the SCC in Wurst  suggests, “dead time is real time,” meaning it restricts liberty interests of the individual as readily as an offender serving sentence and more so as that individual is presumed innocent. In R v Summers, 2014 SCC 26, the SCC perceived the dual effects of pretrial custody as quantitative and qualitative (at para 2). Presentence custody is quantitatively more burdensome than post sentence custody due to the lack of statutory remission through parole and early release initiatives. It is also qualitatively more difficult because remand centres are not suited to long-term incarceration and lack living, recreational, educational and treatment space. 

Even after the admonishment in Wurst not to “cost” pretrial time as a “rigid formula” (Wurst at para 45), the “generally accepted rule of thumb” of employing a “two for one” credit or “double credit” for time spent in pre-sentence custody continued until the federal government capped that credit in the 2009 amendments to the Criminal Code. Those amendments, called paradoxically the Truth in Sentencing Act, swept away both the “rule of thumb” and the “well-entrenched” judicial discretion. The new amendments were implemented “to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why” (Summers at para 4). With this objective in mind, the reality of “dead time” was extinguished in s. 719(3), requiring the court to limit credit to the 1 to 1 ratio. The new section 719 re-set the status quoresulting in no recognition for the differences between remand custody and post-sentence custody. Under s. 719(3.1), the government employed a sleight of hand strategy by permitting a maximum “enhanced” credit of 1.5 days for every day spent in pre-sentence custody should “circumstances justify it.” Contrary to previous case authority, credit for pre-sentence custody was given a fixed numeric value. Instead of transparency, the new amendments created an artificial separation between the equal credit given for the inherent differences between pre-sentence and post-sentence incarceration and the enhanced credit only given for extraordinary circumstances experienced in pre-sentence custody. 

Although Summers  tried to open the enhanced credit door by finding the circumstances that could justify the maximum credit of 1.5 as non-exhaustive, the decision could not erase the barrier created by the hard stop of 1.5 credit under s. 719(3.1). This change impacted front line justice where sentencing judges were neither able to recognize particularly harsh local custodial effects nor able to recognize extraordinary personal hardship through enhanced credit above the statutory maximum. Instead of providing clarity to sentencing, the cap created sentencing artifice by shifting credit from where it arose in pre-sentence custody to an unspecified space in the final determination of sentence as sentencing judges tried to recognize pre-sentence custody in the final sentence calculation. Rather than providing truth in sentencing, section 719(3) and (3.1) managed to fictionalize and quantify the realities of remand custody to the detriment of those individuals serving time there.

Relying on a comment made by Justice Karakatsanis in Summers that “particularly harsh treatment” can attract “other remedies, including under s. 24(1) of the Charter,” judges found a work around the cap (at para 73). Two years after Summers, the Ontario Court of Appeal broadly interpreted the s. 719(3.1) ultra-enhanced credit pathway in R v Duncan, 2016 ONCA 754. There, in the brief 11 paragraph endorsement, the court found “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit,” with no suggestion such relief depended on the Charter (at para 6). 

In this way, judges started imposing enhanced credit beyond 1.5, albeit on the basis of particularly harsh circumstances facing the offender. Not all judges and not all jurisdictions followed suit. This disconnect became noticeable as a result of COVID-19, which was deemed, by most courts, to produce exceptional circumstances to justify the enhanced credit under s. 719(3.1). By amending the Code and creating the fiction that pre-sentence custody is inherently equal to post-sentence custody unless circumstances justify unequal treatment, the government placed the burden on the offender to justify those special circumstances. As Summers explained, to preserve the difference between 719(3) and 719(3.1) credit, the time spent in pre-sentence custody must be qualitatively not just quantitatively harsher than post-sentence custody. An offender had to show something more than the fact they were serving “dead time,” otherwise, s. 719(3) was meaningless. To go beyond the 1.5 maximum, the offender had to prove those “particularly harsh circumstances” discussed in paragraph 6 of Summers. 

In COVID-19 terms, for some judges this required evidence that COVID-19 circumstances specifically imposed peculiarly harsh custody conditions upon the offender. There are differing decisions on the issue of whether and to what extent judicial notice can be taken of COVID-19 in remand institutions. For instance, can it be judicially noticed that COVID-19 is easily transmitted in the closed and confined spaces of remand custody? What, if any, is the impact of quarantine lockdowns? These are just some of the evidentiary issues faced by an offender who must justify the circumstances for enhanced credit and provide sufficient evidence to bring their personal situation outside of the cramped limitations of s. 719.

For the most part, courts do find that COVID-19 custody is qualitatively more onerous than post-sentence custody. Remand overcrowding means that inmates are more susceptible to virus outbreaks. Furthermore, remand as a transit space is not congruent with health and welfare concerns. These circumstances tend to justify 1.5 credit, but the question is whether it can justify more per Summers. On this issue, the courts are split, and the split does depend on whether the court finds they are able to give more than the maximum permitted under s. 719(3.1). In R v Joshua Barreira, 2020 ONSC 6558, Justice Arrell relied on Duncan as authority to give enhanced credit beyond the maximum of 1.5. However, Barreira filed an extensive affidavit outlining the personal impact COVID-19 measures had on his emotional, psychological and physical well-being while in custody (at para 35). Additionally, institutional records of the various lockdowns were filed. Moreover, the Crown conceded the judge could impose more than the maximum under 719(3.1) (at para 30). This decision stands opposite to Justice Pomerance in R v Hearns, 2020 ONSC 2365, in which she was “not at liberty to assign credit beyond that prescribed in the Code” (at para 22). Rather, Justice Pomerance found that COVID-19 called for a more flexible approach to sentencing principles including the conception of proportionality. In other words, rather than using pre-sentence credit to give “credit” to COVID-19, Justice Pomerance preferred to recognize COVID effects within the post-sentencing of the offender.

In Alberta, Justice Gates opined on the issue of COVID-19 and enhanced credit beyond the Code maximum in R v Gordey, 2020 ABQB 425. Although there was precedent for crediting beyond the maximum in R v Adams, 2016 ABQB 648, upheld on appeal, 2019 ABCA 149 (with specific reference to the availability of such enhanced credit at paras 16 to 19 of the ABCA decision in Adams), Justice Gates found he could not reconcile such a position with the clear statutory language of s. 719(3.1) unless a Charter  violation was evident (Gordeyat paras 59, 66 & 71). On this basis, the maximum he was prepared to allow was 1.5 credit. Although he did not find a s. 12 Charter violation, Justice Gates recognized “adverse prison conditions” were mitigating circumstances that would justify “a reduction in the sentence that would otherwise be appropriate” (at paras 66 & 71). It should be noted that the offender testified at the hearing and provided evidence on the COVID related measures in custody.

R v Cardinal, 2020 ABCA 376 and R v Sheppard, 2020 ABCA 455, strike a more cautionary tone. In Cardinal, the Alberta Court of Appeal upheld the sentencing judge’s decision not to give enhanced credit above the 1.5 maximum. In doing so, the ABCA found the judge was not satisfied that the appellant had “demonstrated exceptional circumstances” (at para 4). Indeed, the judge’s position cuts far deeper. Judge Tibbett found there were no Charter breaches or state misconduct, which would justify a further credit, thereby anchoring such enhanced credit to Charter  remedies. On the issue of COVID-19, Judge Tibbett considered the difficulties of COVID-19 quarantine in custody not unlike COVID-19 quarantine measures in the community (at para 4). Specifically, Judge Tibbett refused to judicially notice the increased risk of COVID-19 in custody. Although the ABCA in upholding Judge Tibbett’s finding did not specifically comment on this part of the decision, counsel should be alerted to Cardinal  in any application for enhanced credit under s. 719(3.1) and beyond. Building an evidentiary record, although burdensome, will at least preserve the record for any appellate review. 

Finally, the Sheppard decision appears to lean towards containing enhanced credit to the maximum statutorily allowed under s. 719(3.1) where there is no evidence of specific state misconduct (at paras 17 to 22). Although a split decision, Sheppard underlines the point made in Summers that the credit cap in s. 719(3.1) includes recognition of both qualitative and quantitative aspects of pre-sentence custody. This position may foreclose an argument for enhanced credit beyond 719(3.1) for COVID-19 related circumstances, again, short of a Charter remedy.

In the end, COVID-19 is a matter for consideration on sentencing where pre-sentence custody is an issue. COVID-19 measures and the prospect of transmission while in the close-quarters of remand justify the maximum credit permitted under 719(3.1). The issue of whether COVID-19 will result in credit beyond the statutory domain is a separate issue that is not clearly delineated in the case law. This inconsistency in treatment parallels the general issues surrounding enhanced credit beyond s. 719(3.1) and calls for an authoritative voice on the interpretation of Summers on the issue. 

Also in need of clarification is the justice system’s view of remand custody and how seriously we, as a society, perceive time spent in custody while the presumption of innocence is still in place. The issue also challenges us to see what has been hidden, which is the “real” time being served doing “dead” time in the confined, overcrowded remand centre, which sole purpose is to warehouse people until trial. 

The Law Commission of Ontario (LCO) recently released its Report on the use of artificial intelligence (AI) and algorithms in the Canadian criminal justice system. The Report, which is the first of three papers on the issue, is one of the most comprehensive discussions of the use of AI and algorithmic technologies in the criminal justice system to date. In Canada, AI use in the criminal justice system is limited and not easily subject to in-depth review. In the United States, however, AI and algorithms are used extensively throughout the justice system, particularly in pre-trial release decision-making. Not surprisingly, then, the Report draws from this American experience to arrive at a number of recommendations for application to the Canadian context. Based on those lessons learned, the LCO Report warns of “the risk of adopting unproven and under-evaluated technologies too quickly to address long-standing, complex and structural problems in the justice system” (at 7).  Yet, in the midst of this cautionary tone, the Report also recognizes that AI use in the criminal justice system will likely increase in the future. The Report proactively outlines a framework for such use by urging AI regulation, the application of legal protections to AI, and community involvement in developing AI best practices. All of these warnings and recommendations are extremely useful but the Report begs the basic question of whether the justice system should be using machine intelligence, with its embedded biases, in matters that can profoundly change people’s lives. Ultimately, the Report should stand as a timely reminder of the unharnessed power of technology and the realistic potential for injustice when it is used without restraint. 

Defining AI

Artificial intelligence is a term used to refer to broad range of technological methods and tools that “learn” from the performance of tasks, thus exhibiting intelligence similar to cognitive intelligence. These include machine learning, facial recognition, and natural language processing technologies. The Report adopts a definition that extends the concept of AI to include dominant social practices of individuals who design the technological system, and the industrial power that runs the system. Algorithm is defined as the mathematical logic that enables the system to perform tasks or make decisions (at 8). 

 The Extent of AI Use in Canada 

AI and algorithms have been used to automate decision-making process in public and private settings. The Report notes the increasing use of AI in government decision-making in the US. Unfortunately, there is no clear indication as to the extent of AI use by the government in Canada. The only information on AI use in Canada is contextual and case specific, arising from disclosure in litigation, access to information requests, or investigative news reports. For example, Canadians were unaware that Clearview AI facial recognition technology was being used by various police departments in Canada, including the RCMP, until it was made public by the Canadian press.

In the US criminal justice system, AI and algorithms have been used to automate decision-making in the context of risk assessment in bail, sentencing, inmate housing classification, and parole. These tools have been used in bail hearings to predict whether the accused would reoffend if released from custody pending trial; in sentencing, they have been used to recommend the appropriate sentence for a convict taking into consideration whether the convict has a low or high risk of re-offending; in the context of inmate housing classification, they have been used to recommend security classification of inmate e.g. high, medium, or low; and in the parole context, they have been used to determine whether an inmate should be released prior to the completion of their criminal sentence.

Report Themes

The Report identifies eleven themes in its review of AI use in the criminal justice system (at 3–4). The first theme sets the tone for the entire Report by describing the primary challenges with AI’s use as involving a “significant new frontier in human rights, due process and access to justice” (at 3). This theme focuses on the human issues engaged by this “new frontier” such as “equality, bias, access to justice and due process ... affecting fundamental rights.” This first theme should be the overarching one and should receive primary attention, considering that Charter rights and values lay at the core of these fundamental rights. 

The next ten themes identify the myriad of other concerns raised by AI and algorithms such as providing “simple solutions” for “complex problems” (at 3). Although predictive analytics appear “objective” and “evidence-based”, this veneer of neutrality may in fact hide the risks of using “unproven” technologies or even proven technologies that are based upon flawed and biased data. Compounding this concern is the use of the statistical data or AI output, which is subject to manipulation, by those making policy choices. This reveals the dark side of human interaction with machine intelligence; AI systems are merely data points requiring human interpretation. 

Another theme raises the continual problem of legal protections lagging behind the technology (at 3). This lag, the Report urges, must be acknowledged and gaps must be closed before AI is used or introduced – not after. Although the Report labels this concern as matters of “due process”, legal protections involving evidentiary rules and Charter protections are more than due process. Legal rights protect individuals in our system from the power of the state and are fundamental to our human dignity and self-autonomy. Applying constitutional and Charter protections as the oversight tool to ensure equality, fairness and justice in AI use is required but what is really at risk here is the violation of an individual’s human dignity, personal autonomy and self-worth. AI can be used to dehumanize and this must be acknowledged at the outset.

The last 4 themes identify other legitimate concerns with AI use while also framing it as an opportunity that the legal system should prepare for by developing best practices. This contention deserves a pause. It is not necessarily correct to assume that because we have technology and because it presents opportunities that we should use AI in the justice system. Even the call for “broad participation in the design, development and deployment” of AI assumes that society needs AI or should use AI to restrict a person’s liberty interests. Even “thoughtful, deliberate and incremental” reforms to the law to ensure protections are in place cannot take the place of thoughtful and deliberate conversations as to whether we should legally, morally and ethically use AI to determine if a person enters custody or leaves it. 

Lessons Learned and Identified Issues 

Traditionally, bail decisions are often made in summary proceedings by human judges. The Report noted that this process could be flawed as a result of reliance on intuition and personal preferences by human judges. While it might seem that reliance on AI to make these decisions could help overcome the inconsistency, human bias, and sometimes outright prejudice that can arise from intuitive human judgement, the Report is very critical of this automated process. The Report notes that these AI tools are trained on data that reflects structural racism and institutional inequity evident in our court system and law enforcement. The ability of these AI technologies to perpetuate the bias and inequity prevalent in the real world raises some serious concerns. In the light of this problem, the Report highlights some important issues that must be considered or addressed before the use of AI is embraced by the Canadian criminal justice system. Below, we highlight some of the issues identified.

Report Issue # 1: Bias In, Bias Out

Algorithmic tools are being used in criminal justice risk assessment to determine the likelihood that an offender in the criminal justice system will reoffend. This is an important determination, as it serves to balance public safety concern with the Charter rights of the offender. However, the Report notes that algorithmic risk assessment tools could also function as “a sophisticated form of racial profiling” (at 7 and see “Not In It For Justice”,  Human Rights Watch (11 April 2017)). David Robinson and Logan Keopke, in their article on Civil Rights and Pretrial Risk Assessment Instruments, raised similar concerns (see Civil Rights and Risk Assessments at 4 and the LCO Report at 20–21). In their view, this technology has inherent legitimacy issues as “the world of mass incarceration and racially inequitable criminal law” provide the data for the risk assessment. This is evident from the fact that the training data or inputs used to train the algorithmic tools are the product of racially disparate practices. Thus, the biased data fed into the system will inevitably result in biased output from the algorithmic system. 

Research confirms this bias. In Broward County, Florida, for example, the risk assessment AI tool for sentencing “proved remarkably unreliable” and “likely to falsely flag black defendants as future criminals” (at 12). The American Pretrial Justice Institute (PJI) recently remarked there is “no pretrial justice without racial justice” (at 13). The PJI has taken the position that AI risk assessment tools “can no longer be a part of our solution for building equitable pretrial justice systems” (at 13). Another important point noted in the Report is the fact that although race is not included as an explicit variable in these algorithms, this does not imply that the tool is race-neutral. Factors that may correlate heavily with an individual’s race as well as factors that disparately impact on race such as arrests and criminal records are not excluded from the algorithm. (at 21). This may result in some form of race-based discrimination arising from the assessments made by such tools. This possibility should give rise to serious concern in the Canadian criminal justice system, which is characterised by disproportionate representation of Black and Indigenous peoples. 

Thus, it appears that while the use of algorithmic risk assessment tools may result in consistent, “evidence-based” and efficient predictions, the Report noted that they could potentially result in data discrimination and a basis for section 7 and 15 Charter challenges. This is an important legal issue that will need to be comprehensively addressed before developing or implementing the use of AI and algorithmic tools in the Canadian criminal justice system. (at 22).

Report Issue #2: Data Transparency

The lack of transparency relating to how AI and algorithmic tools work is another significant issue identified by the Report. This is related to the “black box” concept associated with these tools. The lack of transparency here arises in three ways: the data used in the analysis by these tools, including data used to train the system; the weight attached to the data by the algorithm; and whether specific factors or combination of factors used in the analysis are proxies for problematic variables, e.g. race and poverty (at 23). 

There are many problems arising from the lack of transparency evident in these tools. First, it is difficult to test the tools for accuracy and bias, and second, it is difficult to legally challenge the use of these tools in the criminal justice context because an offender bears the burden of proof, which will be more difficult to discharge as a result of lack of transparency surrounding their operation. The Report argues that any introduction of these tools in the Canadian criminal justice system will inevitably raise important questions surrounding data transparency and accountability (at 24). 

Another important issue relating to transparency is the proprietary nature of these AI tools. If the AI tools used in the criminal justice system are developed by private corporations, there is the tendency to licence the tools for use to the relevant government departments. This license to use does not entitle the relevant department to any right of access to proprietary trade secrets. The implication is that the accused/offender, the prosecution, and the court have no ability to review how the tools work. This problem was evident in the 2016 Wisconsin state court decision in State v Loomis, 2016 WI 68. The offender challenged the use of COMPAS, an algorithmic risk assessment tool, in his criminal sentencing decision. In imposing the sentence, the judge relied on the COMPAS algorithmic risk assessment tool that suggested that the offender had an extremely high risk of reoffending. In challenging the length of the criminal sentence, the offender sought access to proprietary information in the COMPAS software. The software developer refused, which refusal was surprisingly upheld.

The Loomis decision is unique and has not been followed by any other court. Until similar case emerges again in any US jurisdiction, it would be difficult to predict whether other courts will follow the Loomis decision. In Canada, the position appears to be different, bearing in mind the Supreme Court of Canada’s decision in May v Ferndale Institution, 2005 SCC 82 (CanLII), confirming the right of an offender to access proprietary software information relevant to their Charter right challenge. Hence, in considering the adoption and implementation of AI-powered tools in the Canadian criminal justice system, it is important to note that offenders may have a Charter right to access proprietary information where it is relevant to their defence in the criminal proceeding. This would require that AI tools used in the Canadian criminal justice system be developed either by the relevant government department, by a private corporation that would be willing to grant access to their proprietary information, or developed on open source software. 

The right of access to this information is very important to an accused person. The Report notes that “a criminal accused confronting an algorithmic risk assessment faces even more difficulty in presenting a full answer and defence to the charges against them” (at 37). Depriving them access to proprietary information relevant to their criminal case will only present additional hurdles that “may actually compound the over-representation of low-income and racialized communities already present in the criminal justice system” (at 37).

Report Issue # 4: Data Accuracy, Reliability and Validity

This also goes to the legitimacy of AI and algorithmic tools. Development and implementation of these tools will require serious considerations of “choices, consequences, best practices and requirements inherent in data practices” (at 24). Considering the important practical and legal consequences that may arise from these issues, the Report suggests a public debate on these issues rather than leaving them up to developers or statisticians. 

Report Issue #5: Data Literacy: Risk Scores and Automation Bias

Another important issue related to the use of AI tools in the criminal justice system relates to the interpretation of the risk assessment made by the tools. Risk scoring could be misleading and prejudicial where the user lacks understanding of what the scores really mean and how they are determined. Kelly Hannah-Moffat has noted the tendency by lawyers and probation officers to interpret high risk score by individuals to mean high risk of offending rather than simply connoting that the individuals share similar characteristics with average members of the group with that score. She noted that “Instead of being understood as correlations, risk scores are misconstrued in court submissions, pre-sentence reports, and the range of institutional file narratives that ascribe the characteristics of a risk category to the individual” (Kelly Hannah-Moffat, “Actuarial Sentencing: An “Unsettled” Proposition” (2012) 30:2 Justice Q 270 at 12 -13).

Also related to this is the problem of automation bias, which arises from the human tendency to believe that any machine-processed information is inherently accurate, trustworthy and flawless. To address automation bias, AI tools deployed in the criminal justice system should be able to make predictions that leave the user knowledgeable as to how the predictions are made, and the results presented to judicial officers should be easily understandable and not misleading.

Issues # 6 to 10: Due Process, Public Participation and Law Reform

An important distinction was made in the Report between the statistical predictions made by the algorithmic tools and the policy decisions that transform these predictions into an “action directive”. The difference between the two is that the tools measure the risk while the policy decision determines how the risk is managed (at 27). Hence, it is important for policy makers to ensure that important policy goals are appropriately reflected in the design of these tools.

The rest of the issues shift from the AI as data producers to AI as an expression of policy. In this part of the Report, the LCO tackles issues of policy bias, transparency and accountability, legal rights and remedies as well as the creation of regulatory frameworks. 

The Report pointedly highlights the potential bias inherent in the policy choices flowing from the use and interpretation of the AI data. Risk assessments are composed of tolls that measure the risk and manage that risk (at 18). The measurement is based on algorithms created by a number of differing statistical measures that produce statistical data. That data is then used in another set of policy-driven frameworks to indicate how that risk can be managed. If the risk cannot be managed in the community in accordance with the policy framework, the accused person would not be a candidate for bail. This shows the intricate relationship between AI data and policy, which is often hidden behind and obscured by the concept of “evidence-based” predictions. 

Any one point in the risk assessment can create a flawed outcome (at 19). Avoiding this requires the measurement data, the measurement tool, the data from the accused person, the interpretation of the measurement, and then the subjective policy management tools to be relevant, unbiased and impartial toward the individual whose life may be altered by the decision (at 26). This means that racial neutrality is not enough to create a reliable assessment algorithm. We need to recognize the injustices perpetrated against Indigenous people and the Black community to ensure fair and just outcomes. The justice system has a duty to consult with those communities most at risk (at 30). Even the approach toward the assessment can make a difference in the outcome. For instance, risk assessments tend to focus on the individual’s failures while in the system as opposed to their successes. A tool geared toward failure creates an environment where personal failure is the expected norm (at 25 and see also R v Zora, 2020 SCC 14 (CanLII), Martin J at paras 26, 57, 79 & 87 making similar comments in the context of failure to comply with bail release offences).

The Report also raises legal capacity issues. Does the rule of law permit review of AI and algorithms and if so, what remedies are available? This is a pressing issue considering we do have AI use in Canada, yet, according to the Report, this use is not documented and therefore not open to scrutiny (at 10). The issues flowing from this question are innumerable, opening a virtual Pandora’s box of complex problems. The issues start with procedural and legal rights both in common law and the Charter and run through evidentiary rules before landing on remedies. 

In criminal law terms, these are legal rights issues ranging from investigation to punishment, which  challenge every point of contact between the individual and the criminal justice system. For instance, as raised in the Report, right to counsel under section 10(b) of the Charter may apply when risk assessments are used. In broader terms, the case law on informational privacy and section 8 of the Charter will impact AI use. Procedurally, disclosure questions will arise as they have with the use of simple technology such as breathalyzer devices. The admissibility of AI metrics will bring into question the presumptions for admissibility of electronic documents under the Canada Evidence Act, RSC 1985, c C-5(CEA) (at 31 and see sections 31.1 to 31.8 of the CEA). All of these legal issues require financial resources to ensure the accused person has means to raise these challenges (at 37). Access to justice is therefore a crucial component of AI use. Undeniably, AI will change our criminal law and, as the Report suggests, the legal community must  be prepared for it.  

In the end, the LCO response to the bias, policy, and legal rights concerns relies on the creation of best practices with the dual objectives of transparency and accountability. These are important values in implementing technology and parallel our societal expectations from our decision-makers. However, while transparency and accountability give people access to how decisions are made and why, this information does not protect people from the imposition of those decisions in the first instance. Transparency and accountability are oversight tools that apply while AI is being used or after use. Rather than a discussion predicated on its use, a broad-based discussion is needed on why we should use AI and predictive analytics at all. Transparency and accountability can inform the discussion but should not drive it. This preliminary discussion is vitally important considering predictive AI, as suggested earlier in this article, can be “a sophisticated form of racial profiling.”

Report Conclusion

In the final part of the Report, the LCO posits four preliminary questions in the use of AI and algorithms in the criminal justice system (at 41). The first, “should there be a moratorium on algorithmic risk assessments or similar tools in the Canadian criminal justice system?”, appears to question AI use in the first instance, albeit not as clearly as it should be framed. The real question is “why do we need AI?” In other words, it is not enough that the technology is available to do this, what we need to decide is whether we want/need to use it.  The second question, “what is the potential for algorithmic risk assessments?” should be framed more neutrally and requires a cost-benefit analysis. We often praise evidence-based inquiry but here we must ask the fundamental question of how that evidence is created. This question would then lend meaning to the third inquiry as to whether AI can “advance equity, access to justice and systemic efficiency.” Notably, missing in this third question is the overall question of whether AI can tangibly and measurably achieve justice. The final question is the most challenging one posed: “what is the path forward?” This is the ultimate question, the answer of which is not clear and will take all of our human acumen to answer.

Our Conclusion

As society considers the costs and benefits of AI in the criminal justice system, we must be cognizant that racial profiling, carding, and the over-incarceration of Indigenous people and members of the Black Community are embedded into the AI debate. Much of the Report critiques the heavy reliance on AI by the United States in pretrial custody decision-making. According to the Report, the United States implemented AI with good intentions, trying to find a bail release regime that was more objective and consistent than the judicial discretionary outcomes. Unfortunately, this false premise of neutrality, combined with a lack of regulation and oversight, resulted in a tool that amplified racism and bias. The LCO seems to suggest that knowing these errors is the first step to ensuring AI use and implementation is fair and just. This may be so but we must beware of our Canadian bias, which is based on a general attitude that what happens in the United States cannot happen in Canada. We must remember that history can indeed repeat itself no matter the country. The altruistic premise for the use of predictive analytics does not answer the question as to why the technology was not more carefully conceived and regulated in the United States. The lesson learned here is that good intentions cannot be a substitute for careful consideration. 

Whether it is by machine or humans, pre-trial custody interferes with a person’s life and liberty. It is a form of state sanctioned coercion. AI, used in this context, may prove to be “weapons of math destruction,” a term coined by Cathy O’Neil to illustrate the potential devastating effect of algorithmic decision-making. The use of AI in bail release runs contrary to recent Supreme Court case law in the area, which looks to an individualized approach to bail informed by Charter rights and values (See R v Antic, 2017 SCC 27 (CanLII) at para 67 and R v Zora, 2020 SCC 14 (CanLII) at paras 6, 22, 29, 46, 47, 52, 75, 80 & 100). Those decisions have brought the criminal justice system into a more mindful space in which every person in that system is worthy of just consideration. Review and restraint by decision-makers are the twin mantras of the bail system in the Criminal Code. To operationalize these tools, the bail system requires informed, impartial and unbiased decision makers. The use of AI might deflect from these key requirements and distract the decision makers from the real issues. As with sentences, bail is to be tailor-made for the individual. AI would not permit this or, even worse, may appear to be individualized when it is not. In these circumstances, justice would not be done nor would it be seen to be done.

There are also capacity issues with AI and whether our system can respond to the many valid concerns raised in the Report. For instance, if we live in a “scored society” (at 25) then everyone in the legal system must understand how that score is tallied. Training for lawyers and judges must be available to ensure data literacy but other principles may interfere with this response. Judicial independence, for instance, may run against mandatory training, leaving literacy up to the individual judge. In the courtroom, training may raise bias concerns and lead a judge to make decisions based on untested judicial knowledge. Sometimes, a little knowledge may go too far resulting in less scrutiny of the evidence as opposed to more vigilance. Similar to the expert witness experience, where the Supreme Court created an encompassing judicial oversight framework, the courts must embed into the AI legal framework a robust mechanism for judicial oversight. Our evidentiary rules must take notice of this form of unique technology to safeguard against potential miscarriages of justice. It will require fundamental changes to the way we perceive justice in Canada to adequately respond to all of these issues.

In conclusion, there are indeed many complex legal and policy issues that will arise from the adoption of AI and algorithmic tools in the Canadian criminal justice system. The existing legal framework does not adequately address these issues. Hence, the LCO Report demonstrates the urgency and importance of addressing these issues to ensure that our legal standards and rules are at pace with technological development in this area of our criminal justice system (at 38).

Based on their study of the use of AI and algorithmic tools in the US criminal justice system, as well as the analysis of the criminal justice system in Canada, the LCO Report concluded that a deployment of algorithmic risk assessment tools (which it referred to as “unproven and under-evaluated technologies” at 7) in the Canadian justice system at this point would be a mistake. Before we embrace AI technology and embed it into our system of justice, the various issues and concerns raised in the Report must be addressed. This will require all stakeholders in the justice system to work together to harness the power of AI technology to promote equity, fairness and justice. Until then, AI technology must be approached with caution and concern.

“Visual pollution” is a phenomenon experienced globally. According to Benjamin Richardson, in his article on corporate responsibility and aesthetics (see Benjamin J Richardson, Green Illusions: Governing CSR Aesthetics, 2019 36 Windsor Yearbook on Access to Justice 3, 2019 CanLIIDocs 3741), municipal legislation containing visual pollution assists in “restricting intrusive advertising” (at 34). Richardson references São Paulo, Brazil, and its “Clean City” law abolishing billboards, which obstructed the architecturally unique beauty of the City. According to the Mayor of São Paulo, the legislation’s impact was immediate and provided the community with “a great sense of relief” (See Andrew Downie’s article “São Paulo Sells Itself” from February 8, 2008 in Time magazine). 

Similarly, in Top, the legislation has a certain image to uphold. Through the law, the MD preserves an image of the community corresponding to its singular location and inviting natural environment (at paras 18 to 19). The law does not ban signs absolutely but permits the curation of those objects in accordance with municipal criteria such as size of signage and placement. But there is more at stake in Top beyond municipal control over an authorized vision of its own self. Justice Devlin, in discussing the pressing and substantial objective of the law under section 1, propounds the citizens’ “right to not be visually ‘shouted at’ by signs at every turn” (at para 45). The law is not just about aesthetics but is also about messaging or “volume (in all its meanings) of advertising” (at para 45). Volume, “in all of its meanings,” references both quantity and quality (see definition of volume at Merriam-Webster online) of the message. 

As with many free expression cases, the violation of the right is easily found. Justice Devlin identifies the importance of communication of ideas and the “very broad range of conduct” it can include (at para 30). Such conduct includes commercial expression such as advertising, which tends to attract “a lower level of protection in the overall balancing of rights and interests” being less directly connected to core values of personal or political expression (at para 32). Justice Devlin also recognized that signs can be include personal and commercial messaging (at para 33). For instance, the applicants, Gerrit and Jantje Top, placed trailer signage on their property with non-commercialized content relating to their deeply held religious beliefs on abortion and the right to life (at para 6). The other applicants had a clear financial purpose connected to the vehicle signage. The Bylaw restricts both kinds of messaging; personal and commercial. This is an important aspect to the challenge. Commercial expression may attract a lower level of protection under section 1, but here the Bylaw is also interfering with personal expressive activity, a core value.

Justice Devlin, before entering into the section 1 analysis, situated the infringement or contextualized it by defining the “exact nature, mechanism, and impact of the infringement on the core interests and values protected by the right” (at para 34). This “principled and contextual approach” to section 1 (R v Sharpe, 2001 SCC 2 (CanLII)) ensures the analysis is not conducted in a “vacuum” (Sharpe at para 154). A contextualized analysis delineates the scope of the Charter right, tethering it to the rights and values at risk from the infringement. It informs each stage of the Oakes analysis. In situating the infringement, Justice Devlin found the limit to be “content neutral” with no “express or oblique” intention to target any one individual or any one message (at para 35). 

By finding the restriction “content neutral,” Justice Devlin found the law did not restrict the content of the message, merely the form (at paras 35 to 36). Yet, quality or degree of visual loudness of the message requires more than a numeric counting; it is a subjective assessment that is informed by the message itself. The law depicted in the Top case may appear facially neutral but may in fact be prohibiting a form of messaging that is inextricably connected to content through the quality of that message. A visually loud message emblazoned on a trailer located 300 metres from the road could be viewed as an entire package of expression, communicating through words and image. The law, rather than burdening “expressive interests in a modest and content-neutral fashion,” may effectively deny “the right to communicate” as cautioned by the then Chief Justice Beverley McLachlin in Commonwealth of Canada v Canada, 1991 CanLII 119 (SCC), [1991] 1 SCR 139 (at para 26 and see Top at paras 36 to 37). 

In Justice Devlin’s view, contrary to Marshal McLuhan’s admonishment that the medium is the message, the medium is not the message in the Top case (at paras 100 to 101). There may be instances where the chosen medium is an integral part of the message, but in Top the vehicle sign ban does not “compromise” the message (at para 101). Freedom of expression in this case protects the message on the sign not the “parking of trailers, the strapping of vinyl onto steel, or the ability to make money off of one’s land (at para 101). This may be so for the commercial advertisers, but whether this can completely respond to the extent to which the ban interferes with “core values” protected by section 2(b), may not be so for the Tops, who are not expressing commercial messages (at para 101). In fact, Gerrit and Jantje Top have displayed pro-life signs on an “old trailer parked along the roadside” for 13 years before being advised of their non-compliance with the 2012 vehicle sign prohibition (at para 4 and 6). For them, the power of the communication and the effectiveness of the expression may depend upon the medium. 

It is in this context, both the commercial and personal, that the nature of the expressive activity and the impact of the infringement on the core right and values protected ought to be viewed. The Supreme Court of Canada confronted the issue of “visual pollution” and advertising in R v Guignard, 2002 SCC 14 (CanLII). Justice Devlin referenced this decision in finding “signs are an important and often used form of expression” (at para 33) and is protected under the Charter. In Guignard, the Court unanimously agreed Mr. Guignard’s right to “counter-advertise” his criticism of the services of an insurance company was protected expression under section 2(b) and the bylaw prohibiting the sign outside of an industrial zone was not saved by section 1. Mr. Guignard’s opinion was not commercial expression but was, like the Applicants in Top, messages of personal belief. As the then Chief Justice McLachlin explained in Guignard, “signs, which have been used for centuries to communicate political, artistic or economic information, sometimes convey forceful messages” (at para 25). Forceful messages on signs attached to unused trailers may be loud, ugly and unwanted but they provide “a public, accessible and effective” form of expressive activity (Guignard at para 25). A law that deprives a person “of the only means of expression that are truly accessible” to them, can have a “major impact” on the “ability” of the person “to engage in the expressive activity” (Guignard at para 26). 

In the proportionality section of the decision, Justice Devlin properly finds that contrary to the Bylaw in issue, the law in Guignard was clearly directed to content, being a ban on messages found on signs that included business names (at para 106). He specifically finds that the Tops are not precluded from displaying their beliefs on signs. Rather they simply must do so in line with the land use regime. Justice Devlin had no evidence before him that the Tops were precluded from personal messaging on the basis of cost barriers in that regime or that land use compliance would detract from the message (at para 107). 

This finding still leaves open the question of accessibility. The law bans trailer signs but requires a development permit for such approved signage. The Foothills County development permit regime involves an extensive application process including a fairly modest three hundred dollar fee. This application fee must be accompanied by a detailed site plan. The process also involves circulation of the application to area landowners and advertisement in local media. There are appeal processes as well. The sign permit regime, directed more toward commercial advertisement, is not compatible with the desire to communicate personal messages. The otherwise unusable trailers provided “simple means” of ‘do it yourself’ communication (Guinard at para 25) designed to “to convey a message, to inform, to influence, to convince” (RJR-MacDonald Inc. v Canada (Attorney General), 1991 CanLII 8218 (QC CS) at para 97). It is in this context that the balancing done under section 1 should be conducted.

Leaving aside this contextual concern, in determining whether the infringement is justified under section 1, Justice Devlin meticulously applies the Oakes test. An Oakes analysis focuses on two criteria that must be met for a limit on a Charter right to be justified under section 1. First is the threshold consideration of whether the objective of the restriction is “pressing and substantial” (Top at paras 40 to 48). Should the first criteria be established, the court then enters into a balancing assessment to determine whether the manner in which the objective is fulfilled is proportionate. There are three parts to the proportionality analysis; rational connection to the objective, minimal impairment of the right and proportionality between the effects of the measure and the objective. The proportionality criteria are “both normative and contextual” as it requires a balancing of societal interests with those of the individual (Frank v Canada, 2019 SCC 1 (CanLII) at para 38). It is the government who bears the onus under section 1 (Top at para 39).

As discussed earlier, the objective, which has been at the heart of many Charter-compliant municipal bylaws, is the protection of “the unique aesthetic appeal of the community” (at paras 40 to 44). Justice Devlin remarks on this right to regulate signage to protect the visual environment as “a near universally recognized norm” (at para 44). There are other municipal bylaws which support this contention. Take for instance littering laws or bans on graffiti. Of course, littering has no known artistic value and graffiti arguably does. Again, contextually, laws that “protect the visual environment” cannot be viewed as one homogeneous bundle of visual environment laws; each raises their own unique issues that may result in differing Charter outcomes. 

The Bylaw in Top flows from section 639 of the Municipal Government Act, RSA 2000, c M-26, providing for land use laws pertaining to “billboards, signboards or other advertising devices of any kind” (at para 20). This description strongly signals advertisement as the core regulated content. Section 9.24.1 of the Bylaw lists permissible signs, which all suggest mechanisms for advertising (at para 26). Moreover, Foothills County “welcomes appropriate proposals for commercial development” involving signage through applications for development permits (at para 26). All of this leads to a commercial purpose of the legislative scheme with the additional benefit of ensuring a consistent aesthetic appearance. 

Under the proportionality discussion, Justice Devlin reviewed whether the law is rationally connected to the objective. The Applicants advanced vigorous arguments on this prong of the analysis (at para 53). The one argument of interest is the MD’s inconsistent approach to trailers. There is no general prohibition against vehicle trailers, only a prohibition of a vehicle trailer with a sign. In terms of protecting the visual environment, a disused trailer and a disused trailer with a sign both interfere with the “pressing and substantial” objective of preserving the visual environment. Justice Devlin finds, however, that the two trailers are not equivalent (at para 64). A trailer with a sign is “a shout-out to passers-by” and on “the scale of visual pollution,” while a “lump of metal” is not as egregious visually as a loud message (at para 64). It is again the content of the sign which appears to be the difficulty. If that is so, the Bylaw is directly interfering with that content in both objective and effect.

This brings the argument to minimal impairment issues. Here, Justice Devlin frames the issue as follows: “the question is whether prohibiting this form of signage impairs the right of citizens to communicate with one another more than reasonably necessary in the broader overall context of available expression” (at para 73). The Bylaw impacts one form of expression (vehicle signs) but permits others as long as those other forms of sign expression is approved through the MD’s land use regime (at para 91). The question must take into account this scenario; that signage requires a land development process, for which the trailer signs did not previously require. In this broader overall context, personal use under the MD land use regime may be restricted through the Bylaw ban. 

In the final proportionality balancing of the costs and benefits of the Bylaw, Justice Devlin suggests the Bylaw holds the line between being “occasionally spoken to and constantly shouted at” (at para 99). The visual environment as a “resource” includes, according to Justice Devlin “visual peace” (at para 99). This concept, as attractive as it may be, engages a conversation beyond this decision. The concept suggests that community members have a right to visual “quiet” enjoyment of their pastoral environment. Certainly, we have and expect municipal bylaws on aural noise. There is nothing more irritating than being awoken in the early hours by a lawnmower. In Top, we experience a different kind of nuisance in the form of visual “noise” caused by ocular nuisance. Yet, societal norms praise the concept of “beauty” residing in the “eye of the beholder.” Freedom of expression includes the visual. We express our opinions and beliefs using words and images. Indeed, a catchy phrase can attract our eye. Similarly, a private interest message may repel. To what extent our Charter protects this and values “visual peace” is a conversation that does not end with the trailer signs in the Top decision.

The bottom-line is that Charter rights are not absolute and are subject to section 1 limits where justified. The reality is that what we see when we look out a window or walk through the park is controlled by the law. Urban dwellers are subject to a myriad of laws that control visual space. Municipalities dictate everything from building height restrictions to the cutting of our grass. In New York City (NYC), the skyline is carefully pruned to ensure the NYC image projects, even from the top of the Empire State Building. Condominium owners are often required by their own bylaws to project a neutral image to the outside world through monochrome window coverings. Neighborhoods often want to convey a “look” or a mark of distinction (see Cliff-Bungalow – Mission land use development in Calgary). It is a matter of community and a matter of good taste. 

In Top, the desire to project an image went beyond the neighbourhood. It encompassed, like the NYC skyline, a curated vision of what the foothills ought to be; a magical vista of mountains, rolling hills and big prairie sky. To achieve this image, to preserve this image and, most importantly, to enforce this image, the municipality created a law banning the ugly – rusty and unkempt trailers with loud messages. Whether the alternative, the land development regime, provides the perfect view and the perfect balance between the right to express and the right to be free from visual noise will be apparent in that application for signage driven by the personal desire to express. 

The panel bristled with energy as Josh theorized while Emily and Neil contextualized the realities of racist policing practices in Canada. Rather than a round table discussion, the panel was more akin to a kitchen table chat; where the viewer, coffee cup in hand, was emotionally and intellectually invited to participate, challenged to respond and inspired to think. The theme of the conference, Fight the Power, revealed itself throughout this discussion like an electronic banner unfurling in cyberspace. The panelists, weaving doctrine, theory, and practice into a cohesive strategy, urged us to raise the profile of racial profiling through our power as advocates in court. 

Joshua Sealy-Harrington in applying critical race theory to racial profiling described the pernicious nature of the activity as a form of “surveillance theatre” where Black males are forced to play a starring role in their own dehumanization resulting from the regressive and aggressive tactics of racist policing. As Josh points out, both in words and on paper (those attending the conference received access to Josh’s draft paper), the effects of such theatrics is significant. Turning lives into spectacle creates untold psychological harms by dismantling a Black person’s identity and by replacing it with one imposed by the power of the state. 

All of this brings to my mind law as image and law as a representation of power. An atmosphere of “surveillance theatre” reflects adversely on the law. The law becomes spectacle – a spectacle that reinforces racial tropes and stereotypes. The law is then theatre or entertainment for the powerful to view as a reaffirmation of their rights. Law as image is a rich area of academic inquiry, which magnifies a dimension of the law typically overlooked (see the scholarship of Peter Goodrich and Richard K. Sherwin). How we see the law, how law is represented and what image is projected, reveals what is hidden by the words used to describe the law. Josh Sealy-Harrington commented on the dire need to name racial profiling through an accurate accounting of what racial profiling means. By being accountable to that naming, racial profiling will be seen. No longer hidden, racist policing and racists practices will then be identifiable by the law. Flowing from that visual, the lawyers and the judges will recognize racial profiling as a truism – not as a concept waiting to be named but as a practice seen by all. Lawyers need this visual legal competency to inform their approach to racial profiling and to uncover the nuances of the spectacle created by the application of the law.

Law as spectacle resonates so clearly within the atmosphere of racial profiling because of the intersection with Charter rights and values. Another intriguing comment by the panel was on the societal dimension of the Grant test under section 24(2) when arguing Charter  violations arising from racist policing. Societal perception – i.e. what society sees when racial profiling is evident – may be key to the s. 24(2) argument. The normativeness of s. 24(2) is often hidden behind grand ideas delineating good faith from bad faith, for instance. Grand ideas tend to require the exercise of the imagination. What one sees as “good” vs. “bad” can reveal a pathway to exclusion or inclusion. Re-imagining that image and creating authentic meaning from the realities of racial profiling involving the effects racism has on the racialized person may re-energize the Grant test.

Racial profiling is a symptom of the failings in our legal system. Instead of allowing racist policing to depict the acceptable view of the discriminatory policing of Black bodies, the law must redraw the visual in all of its uncomfortable and unvarnished state. This is where lawyers enter the stage to turn the spectacle into a form of advocacy. Rather than speaking sotto voce, lawyers must shine a spotlight onto racial profiling but how to do this in the most effective manner depends on the case at hand. No two lives are the same and, in the end, law depicts life. It is within our power as advocates to change the racial power imbalance that racist policing provides. 

I thank the panelists and the CLA for raising the profile of racial profiling, for inspiring change, and for speaking out loud on issues in need of a strong voice.

The purpose of these discussions is to highlight past and present injustices and encourage law students to be conduits of change. I hope the students will reflect on their identity as lawyers because our profession is not immune to racist practices and ideas. I do not expect that what I am doing is nearly enough to eradicate those policies and ideas but it will, at the very least, reveal these issues as requiring attention by all of us who work within the system. 

Of course, I cannot discuss these issues without educating myself. Indeed, this commitment requires it. I have read books, reviewed online resources and watched panel presentations. I have also looked at the law through the lens of racism and what I have found is disturbing but also encouraging. In this article I will share with you this legal journey.

In law, particularly in criminal law, there are many case decisions involving BIPOC (Black, Indigenous and People of Colour). I know many of these cases and I have read many of them. But I have not viewed these cases as one. I have compartmentalized them; subject to subject and issue to issue. 

Until now.

I did a case law search – very simple – using the search term “racial” and restricting the search to criminal cases. I found 1619 decisions. Confining the search to Supreme Court of Canada decisions, I found 43 SCC criminal decisions. The oldest case was known to me – R v Quong Wong, 1914 SCC decision. I first read this case as a constitutional law, division of powers case. I now read it as a case involving racist laws, racist policies and racist stereotypes and myths. It is a disturbing case on every level of textual reading; in terms of the language used and the law as written. The opening sentence of the decision, written by the then Chief Justice Fitzpatrick, says it all: “The appellant, a Chinaman and a naturalized Canadian citizen, was convicted of employing white female servants contrary to the provisions of chapter 17 of the statutes of Saskatchewan, 1912.” Notably, the argument made on behalf of the appellant is that the law is unconstitutional as ultra viresprovincial legislation. The argument is not that the law is racist. In fact, the Chief Justice sees no difficulty with such a law that “is primarily directed to the protection of children and girls.”  

But let’s not stop the analysis there. Thirty-three cases, from 1914 to 1985 cite this decision. Why? Not as an example of racism in our legal systems but for its “precedential value” as a Supreme Court of Canada case. This is a case that is part of our legal history and part of the Supreme Court of Canada’s legacy. It must be seen, acknowledged and discussed for what it truly represents – racism in the justice system and in our laws, policies and ideas. There is a gap in our legal analytical tools when we fail to do so.

Earlier, I urged the need to look at these decisions as a whole and not as one case. Singularity suggests the decision is an outlier and not indicative of any problem within the justice system. I take another sample of these 1619 cases and my eye rests on Arthurs v R, 1972 CanLII 27 (SCC). 

I take note that I was eight years of age at the time the decision was released. The case involved a charge of criminal negligence causing bodily harm resulting from a motor vehicle incident. 

The headline of the decision, useful for quickly finding relevant case law, reads as follows: “Criminal Law—Charge to Jury—Motor vehicles—Criminal negligence causing bodily harm—Accident as a defence—Whether theory of defence outlined to jury—Criminal Code, 1953-54 (Can.), c. 51, ss. 191, 193.” There is nothing about race or racism. 

The grounds of appeal are equally neutral. Leave to appeal was granted on two questions, being whether the trial judge erred in dismissing an application for directed verdict at the end of the Crown’s case and whether the trial judge erred in failing to properly charge the jury on the theory of the defence. 

The facts of the case, also in the headnote, suggests differently. Mr. Baltiman Arthurs was in a restaurant in Toronto when a fight broke out between “a white man, and another person, a coloured man who was injured.” Mr. Arthurs, also a “coloured man”, took the injured man in his car to the hospital. While driving there, Mr. Arthurs hit with his car the man who had attacked the injured person. Mr. Arthurs gave a statement to the police explaining that when he glanced down at his injured passenger, his car mounted the curb and hit a pedestrian, not knowing it was the man from the restaurant. Mr. Arthurs did not testify at trial and was convicted after a jury trial. 

Thus far, there appears to be no connection between the appeal issues and race. Yet, my trial lawyer sensibilities tell me otherwise. I think of why the fight started and I think of why Mr. Arthurs did not testify – this all suggests to me that racism is at the core of the case.

Reading the decision further, I see that racism is directly engaged in the grounds of appeal. This is first seen in the brief decision of the then Chief Justice Fauteux. In concurring with the majority decision to dismiss the appeal, the Chief Justice renders a decidedly “colour blind” decision. In fact, the Chief Justice is surprised if not completely taken aback at the idea of racism at trial. In Chief Justice Fateaux’s opinion, “what would be a proper charge to the jury in a case in which there are no racial overtones does not become an improper charge in a case involving the same facts merely because such overtones exist.” This sanitized view of Mr. Arthurs’s trial and grounds of appeal is supported by the majority decision rendered by Justice Ritchie who makes no comment whatsoever about any possible “racial overtones” in the case. 

There are three separate dissenting decisions in this appeal. The first dissenting decision of Justice Hall tells us an important fact missing in the majority decisions – that Mr. Arthurs was being defended by a junior lawyer who was Black. The Crown, as well as the jurors, were white. As Justice Hall put it, “it must have been evident to everyone, and particularly to the presiding judge, that there could be racial overtones to the proceedings.” In Justice Hall’s view “here was a delicate situation but one ideally structured to demonstrate that the administration of justice in Toronto Could and would be carried out with impartiality and without regard to race, colour, creed or ethnic origin.” Instead, the trial judge in the charge to the jury “denigrated the defence” thereby denying Arthurs a fair trial.

Although Justice Hall confronts the racism in the case, his decision falls short. As explained by Justices L’Heureux-Dubé and McLachlin in RDS (also on the list of SCC cases) there is a crucial distinction between neutrality and impartiality. People, like judges and jurors have perspectives and opinions. They are not “neutral ciphers” (RDS at para 38) but they must be impartial. To be impartial and unbiased requires deliberate action. This requires the decision makers “recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave” (RDS at para 35). This means the trial judge must recognize and be aware of the “complicated reality” of the case before them (RDS at para 40). In the Arthurs case the trial judge committed the error of approaching the trial “without regard” to the overt racism permeating the case. In recognizing the case for what it is, the “racial overtones” become, clearly and plainly, racism.

Before leaving this decision, I want to acknowledge the racialized defence lawyer who represented their client to the best of their ability. There is no indication who the trial lawyer was other than his junior status. I did some investigating and although I cannot for certainty identify the lawyer, I do want to take the opportunity of highlighting the many racialized lawyers who have made a difference in the justice system in the past, present, and into the future.

But the journey through the SCC decisions continues as I note Smithers v R, [1978] 1 SCR 506. Smithers, as a case I still teach in 1L crime class, outlines the test for causation in those consequence-based criminal offences requiring such an analysis. But Paul Smithers, as the person tried and convicted, carries this case as a reminder of the racial insults, taunts and threats he experienced as a young Black man playing junior hockey. His recent interview on the impact the incident had on his life is now required reading for the 1Ls when they consider this decision.

The next case or set of SCC cases I encounter are the decisions in R v Strachan, [1988] 2 SCR 980 and R v Genest, [1989] 1 SCR 59. Ostensibly, these are search warrant cases considering the exclusion of evidence under s. 24(2) of the Charter. In both cases, the lower appellate courts reviewed the automatic exclusionary rule found in the United States, finding the rule inapplicable in Canada. In Strachan Justice Esson of the British Columbia Court of Appeal noted that the American rule “evolved from a society much different from Canada, a society of extreme racial prejudice and brutal police misconduct,” making an automatic rule necessary. A similar discussion occurred in Genest. There Justice Owen, for the Quebec Court of Appeal, considered the antecedents to s. 24(2) and rejected the American automatic exclusionary rule. In Justice Owen’s opinion, the American rule “evolved in a social atmosphere of police brutality and racial hatred,” unlike s. 24(2), which was ”not adopted in the same social atmosphere.” The SCC does not raise this issue in their analysis. Upon reading these cases I am struck by the finality of the comments of Justices Esson and Owen. There is no discussion about what is the social atmosphere in Canada, simply a finding of what it is not in comparison to the United States. Racism seems to only count when it is extreme and visible.

R v Ladouceur, [1990] 1 SCR 1257, considers the constitutionality of random routine traffic stops. In the discussion, the Court references the lower court’s decision and specifically the majority decision written by Justice Tarnopolsky then of the Ontario Court of Appeal. Justice Tarnapolsky suggested the authority wielded by the police in random stops for no articulable cause was too wide, permitting an officer to choose to stop a driver who is a visible minority over someone who identifies with the majority. Justice Sopinka, writing for the minority position in the case, took this potential situation further. He raises the further concern of the inability for anyone to know that racial profiling was behind the random stop if the officer need only justify the stop by stating it was for the purpose of investigating unlicensed drivers. This decision gingerly raises the real issue: if the law can permit race-based state sanctioned abuse of authority under the guise of safety and protection of the public, how can such pernicious conduct be found out and how then can the law ensure it won’t happen. These concerns are expressed in future SCC decisions on the exercise of police discretion and the meaning of reasonable suspicion in the decisions of R v Beaudry, 2007 SCC 5, R v AM, 2008 SCC 19, R v Kang-Brown, 2008 SCC 18 and R v Chehil, 2013 SCC 49. It is in the AM and Kang-Brown decisions that the SCC first uses the phrase “racial profiling.”

By the late 1990s and into the 2000s, the SCC was considering racism head on such as in the lines of decisions on jury partiality and racial bias (see R v Williams, [1998] 1 SCR 1128; R v Find, [2001] 1 SCR 863; R v Mankwe, [2001] 3 SCR 3; R v Spence, [2005] 3 SCR 458; and R v Kokopenace, 2015 SCC 28 on the issue of jury representativeness and racial bias against Indigenous people). As already mentioned by 2008, the SCC was specifically attuned to issues of racial profiling. In the SCC’s revisiting of s. 24(2) of the Charter in R v Grant, 2009 SCC 32, and the factors to consider in excluding evidence, the Court specifically mentions that the accused was not racially profiled or subject to other racist police practices. This comment belies the factual evidence, who was a young Black man, who was stopped and questioned by the police. For a further analysis of this decision in the context of racial profiling see Meryl Friedland’s blog posting on Supreme Court of Canada Finally Addresses Racial Profiling by Police. Even so, Justice Binnie in his concurring decision in Grant recognizes the “growing body of evidence and opinion ... that visible minorities and marginalized individuals are at particular risk from unjustified “low visibility” police interventions in their lives” (at para 154). Specifically, the Court acknowledges that visible minorities “may feel unable to choose to walk away” from the police (at para 155). 

It is the watershed years of 2019 and 2020 where the SCC not only recognizes and acknowledges racism in the criminal justice system but acknowledges the racism in the case before them – R v Barton, 2019 SCC 33, and R v Le, 2019 SCC 34 come to mind. The Court is no longer discussing hypotheticals or opinions and reports on racism but seeing it specifically in an individual case – calling it out and, in the case of Le and the 2020 decision of R v Ahmad, 2020 SCC 11, using the lived experience of the racialized individual in the legal test.  

I have chosen some decisions to discuss but there are many more. Each decision merits a discussion and must be read both individually and taken with all the other decisions as a whole body of textual conversations. Some decision mention race as an aside and then move onto the legal issue (R v Dunn, [1995] 1 SCR 226). Other decisions, like Williams and R v Pan, [2001] 2 SCR 344, consider racial bias, not in the context of the case but as the issue raised. Whether the discussion be squarely on racism or whether the context raises unanswered questions of racism, all of these case must be read in the continuum of racism in the criminal justice system. They must also be read for the racialized individuals whom these cases represent. Rules of law are not created in a vacuum nor do they reside there. Neither are they sacrosanct. Our legal principles must be scrutinized, analyzed and debated for this is the way new laws are created – laws that are anti-racist and that protect the rights of racialized individuals.

The McKnight Conviction

Mr. McKnight was charged with multiple counts of sexual assault on numerous women he met at various night clubs. The jury convicted McKnight of five of these counts involving sexual intercourse with five women (at para 17). 

 Establishing the Foundational Facts on Sentence

There are multiple sources from which the factual foundation at the sentencing hearing is established. Foundational facts may arise from an agreed statement of fact, documents (e.g. presentence report), testimonial evidence, or from submissions of counsel (see ss 723 and 724(1)). The sentencing judge can accept hearsay evidence for the truth of its contents (see s. 723(5)), providing those facts are not in dispute (see s. 724(3)). Where there is a trial, the sentencing judge may also rely on “any information disclosed at the trial” (see s 724(1)).  

 The foundational facts on sentence must be relevant to the purpose and objectives of sentencing, creating a synergy between the law and fact (R v Ferguson, 2008 SCC 6 (CanLII) at para 15. There are many sentencing principles found in both statutory (see ss 380.1, 716 to 761 of the Criminal Code, RSC 1985, c C-46) and common law. The law shapes the factual foundation requirements on sentence, making the sentencing process unique. This relationship between fact and law must be a balanced one; neither the law nor the facts should take over the sentencing process. 

The factual foundation on sentence is further refined for a jury trial (see s 724(2)). In those circumstances, the jury is the trier of fact, and the sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilt” (see s 724(2)(a)). There is no decision-making involved in the acceptance of the proven facts implicit in the jury’s verdict. Rather, the sentencing judge is elucidating “the facts the jury must have relied on to convict” (R v Punko, 2012 SCC 39 (CanLII) at para 12). This deference to the jury’s verdict is essential to the integrity of the jury system. It maintains and protects the jury’s verdict, ensuring the verdict will not be undermined or reviewed at the sentencing stage. 

There is room for judicial discretion under section 724(2)(b) where the jury’s verdict of implied facts or “factual implications” are ambiguous (Ferguson at para 18). The sentencing judge “may” make factual findings based on the trial evidence, if relevant to the proceedings, “or hear evidence” at the sentencing proceedings on those facts (see s 724(2)(b)). In this determination, the sentencing judge functions independent of the jury’s verdict (Ferguson at para 18). Despite this discretion, it is not a re-trial where the judge reviews the evidence ab initio to determine guilt or innocence. At all times, the judge must be firmly in the sentencing environment with the ultimate goal of crafting an appropriate sentence (Ferguson at para 16).

The sentencing judge, in establishing the factual foundation, must be cognizant of the defence and the prosecutor’s position. Section 724(3) outlines the procedure where counsel disputes “any fact that is relevant to the determination of a sentence.” Generally, where a fact is in dispute, the party relying on the fact must prove it on a balance of probabilities (see s 724(3)(d)). The exception is where the prosecutor relies on a disputed fact which may aggravate sentence; in those circumstances, the prosecutor must prove it beyond a reasonable doubt pursuant to section 724(3)(e). 

In McKnight, the prosecutor relied heavily on the trial evidence of the offender’s use of a date rape drug in the commission of the offences as an aggravating feature on sentence (at paras 22, 29, 41 and 47). This fact was disputed by the defence. Ultimately, Justice Sulyma found the fact was not proven to the requisite degree (at paras 22, 29, 41 and 47). Although the approach was correct, it is only disputed aggravating facts which must be proven beyond a reasonable doubt (see R v Gardiner, 1982 CanLII 30 (SCC), [1982] 2 SCR 368 and s 724(3)). At paragraph 20, the sentencing judge appears not to appreciate this difference when she finds “any” aggravating fact must be proved by the prosecutor beyond a reasonable doubt.  

The Basis of the Jury’s Verdict

The sentencing judge’s determination of the express or implied facts essential to the jury’s verdict is easier said than done and is often open to debate by counsel. Does disagreement on this issue amount to ambiguity, thereby engaging section 724(2)(b)? If that were so, then the jury’s verdict would be constantly open to independent determination by the sentencing judge. At some point, the sentencing judge is required to establish the factual foundation pursuant to the jury’s verdict. Keep in mind, this judicial determination occurs after the fact, looking back at the trial evidence. The judge at a jury trial is not hearing the evidence as the trier of fact and certainly not with a view to sentence. 

Justice Sulyma, in applying s. 724, found the express and implied facts essential to the jury verdict to be “straight forward” (at para 8). In her view, the “elements of the offence” of sexual assault are “not complex,” requiring “the physical elements and the presence of or lack of consent and intent” (at para 8).  On this premise, Justice Sulyma found the “essential elements” of the jury’s verdict (at para 8). This finding by Justice Sulyma equates the essential elements of the offence, in this case sexual assault, with the facts “essential” to the jury’s verdict. In doing so, Justice Sulyma is binding herself only to the barest of facts, express or implied, by the jury’s verdict, namely that Mr. McKnight intentionally applied force, of a sexual nature, without the consent of the victims. By so narrowly confining the factual basis of the jury’s verdict, Justice Sulyma is over-reaching her discretion, making all other factual implications open to her independent judicial determination.

Justice Sulyma’s approach to the factual basis of the jury’s verdict does not do the jury’s verdict justice nor is it consistent with the spirit of section 724(2)(a). Sexual assault is not legally simple, particularly on the issue of consent. A lack of consent can arise in a number of circumstances outlined under sections 273.1(2) and 265(3) of the Code. For instance, there is no consent where the victim was “incapable of consenting for any reason” (s 273.1(2)(b)). Alcohol or drugs can render a complainant incapable of consenting. Consent can also be vitiated – meaning that even if consent is given at the time, circumstances dictate that the consent is ineffective. Under section 273.1(2)(c), consent is vitiated where the consent is induced “by abusing a position of trust, power, or authority.” The purpose or aim of this subsection is to protect “the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity” (R v Snelgrove,2019 SCC 16 (CanLII) at para 3). The sentencing judge found alcohol, vulnerability and control to be factors in the offences (at para 21) but she did not find these facts pursuant to her obligation under s 724(2)(a). Rather, the sentencing judge made independent determinations as if the entire factual matrix of the offences were ambiguous, when in fact there was more to the jury’s verdict than the mere elements of the offence. What is “essential” to the jury’s verdict would include the elements of the offence but those elements would not be exhaustive. Although the averments of the charge is a starting point for determining the factual implications of the jury’s verdict, it is not the only consideration.

The Independent Determination of the Sentencing Judge

A sentencing judge only enters into an independent determination of the facts to “fill the void” where there is ambiguity in the factual implications of the jury’s verdict (R v Joseph, 2020 ONCA 73 (CanLII) at para 93). This issue brings us full circle to the problem of how section 724 is to be applied considering counsel will, no doubt, have their own interpretation or view of the factual implications of the jury’s verdict. Justice Sulyma’s restrictive view of the facts that she found bound to accept from the jury’s verdict compounded this problem. So much of the factual foundation on sentence was open to interpretation and determination that Justice Sulyma spent the better part of McKnight filling the factual void, and, in doing so was entirely guided by both counsels’ direction. Instead of developing the factual foundation needed to apply the sentencing principles, she filled the verdict’s factual void with the aggravating and mitigating facts relied upon by counsel.

The Factual Foundation as Aggravating and Mitigating Factors

Sentencing is a “judicial function” (R v Nur, 2015 SCC 15 (CanLII) at paras 87 and 89). Counsel may make submissions but it is the judge who is the ultimate arbiter of what is the fit sentence in the circumstances. This requires the sentencing judge to be fully apprised of sentencing principles, guidelines and statutory requirements. Even if counsel does not highlight or rely upon certain facts, the sentencing judge is bound to do so if those facts are relevant to sentencing objectives. Otherwise, the sentence imposed will not accurately reflect sentencing principles and objectives. This holds for aggravating and mitigating factors; it is the judge’s responsibility, independent of counsel, to review the factual foundation on sentence to determine the presence and absence of mitigating and aggravating features of that evidence. In McKnight, the sentencing judge did not look far beyond counsel’s submissions, permitting the adversarial positions of counsel to drive the finding of facts. 

The presence of aggravating or mitigating facts affects the quantum of sentence. According to section 718.2(a), a sentence “should be” increased or decreased to account for relevant aggravating or mitigating facts relating to the offence and the offender. The Code outlines a number of factual circumstances where such aggravation may be found. Justice Sulyma made a particular point, in her cursory review of the evidence, to indicate whether there were aggravating or mitigating features, which would increase or decrease the sentence from the “starting point” of three years incarceration for major sexual assaults (at para 12). 

Approaching this requirement mathematically, for each aggravating or mitigating feature found, Justice Sulyma mechanically deducted or added six months to a year from the three-year starting point. In count one, she added a year for the aggravating feature of no condom use (at paras 25 to 26). For count 6, she found no mitigating facts but failed to attend to any aggravating ones even though the victim was “young and inexperienced” (para 38). Justice Sulyma increased the sentence on count 7 by a year due to no condom use, but failed to take into account the violence used in the incident (at para 43 to 45). Finally, for count 12 she found a lack of condom use an aggravating feature (at para 42) and some evidence of lasting harm but declined to increase the sentence for these aggravating features (at paras 48-50). In fact, Justice Sulyma failed to appreciate the significance of the harm caused to all of the victims as an aggravating feature on sentence (at para 60 and see s 718.2 (a)(iii.1)). 

There were many other uncontroverted facts, all part of the factual foundation, which should have been considered in aggravation of sentence. For instance, sections 718.2(a)(ii) and 718.201 indicates that an aggravating circumstance is the abuse of an intimate partner, particularly female partners, in committing the offence. The Code defines “intimate partner” as including “dating partner” (s 2). In the factual circumstances of McKnight, the offender met the victims at night clubs. Arguably, the situation was a date or “a social engagement between two persons that often has a romantic character.” In fact, Justice Sulyma described count 3 as a “dinner date” yet reduced the sentence (para 32). Additionally, she finds the offences involved young vulnerable women under the control of the offender (at para 21) but does not mention these facts in aggravation of the sentence. Although the court does not find the presence of a drug, intoxication of the victim as another aggravating factor, was present in four of the cases. 

The McKnight decision reads as if the sentencing judge is parsing the facts for only those aggravating and mitigating features raised by counsel. For example, this undue focus on one aspect of sentencing principles leads Justice Sulyma to reduce the sentence on count 3 by six months without specifying any reason for the reduction (at para 32).  Similarly, she labels the offender “youthful,” as a mitigating factor, although Mr. McKnight is a savvy 33-year-old. Instead of mining the facts for the aggravating and mitigating features submitted by counsel, the judge ought to have created the factual foundation, informed by sentencing objectives, in determining the sentencing outcome. This would include reviewing all of the relevant aggravating and mitigating factors as required by law.

 Cumulative Effect on Other Sentencing Principles

The weakness in the foundational facts is a continuing issue throughout the McKnight decision, compounded by the application of the totality concept, and sentencing principles, such as the “starting point” for major sexual assaults. 

Recently, the Alberta Court of Appeal in R v Parranto, 2019 ABCA 457 (CanLII), commented on the “concept” of totality, which is concerned with the fitness of an aggregate sentence where there are convictions for multiple offences. In the decision, the five-member panel clarified totality as an overarching concept that may be used to achieve the objectives of sentencing principles but was not itself such a principle (Parranto at para 54). In other words, totality is not a standard by which an otherwise fit and proper sentence should be measured (at paras 57 and 59). Although in McKnight, the sentencing judge applied totality in conjunction with sentencing principles, she effectively articulated and used totality as a stand-alone “principle” (McKnight at paras 52 and 61) in “scrolling down” or reducing an otherwise fit sentence (Parranto at para 67). 

As part of totality discussion, Justice Sulyma also erroneously took into account the acquittals rendered by the jury on eight of the thirteen counts of sexual assault. Although the factual foundation used at the sentencing hearing must not be inconsistent with the jury’s verdict, including any verdict of acquittal, the sentencing judge has otherwise “no duty to elucidate or make findings with respect to the jury’s verdict of acquittal” (see Punko at para 12). In McKnight, the acquittals impacted Justice Sulyma’s view of the offender’s moral culpability, an important factor on sentence (see R v Friesen, 2020 SCC 9 (CanLII) and McKnight at para 55). It is difficult to see how an acquittal on one sexual assault diminishes the moral blameworthiness of McKnight on a conviction for another sexual assault, involving a different victim. As an aside, in finding the moral culpability of the offender was not “so grave,” Justice Sulyma improperly connected this personal blameworthiness to sentencing principles of general deterrence and denouncement (at para 55). 

Finally, a word on “starting points” in sentencing. I have written extensively on the issue in previous blogs (Sentencing to the Starting Point: The Alberta Debate and Binding The Courts: The Use of Precedent in Sentencing Starting Points). Recently, the Supreme Court of Canada in R v Friesen, raised concerns with Alberta’s use of “starting points” in sentencing, reiterating  that “starting points” are “guidelines, not hard and fast rules” (Friesen  at paras 36 to 41). Specifically, the Court disapproved of the approach in R v Arcand, 2010 ABCA 363 (CanLII), the very decision animating the sentencing in McKnight (McKnight at paras 3, 12 and 17). The sentencing judge in McKnight failed to heed the court’s warning in Friesen by using the three-year sentencing starting point in Arcand as a talisman from which the sentence pivoted either upward or downward. This mechanical movement in the sentence was inextricably connected to the erroneous factual foundation created by the sentencing judge and requires appellate review.

 Conclusion

Many of the problems identified in the McKnight sentencing arise from the lack of clarity in the law. In practice, it is difficult to delineate between the proven “express or implied” facts from the jury’s verdict and the factual gaps from circumstances of ambiguity. Further appellate clarity is needed on this issue including the role of counsel in this process. Without this clarity, the factual foundation for the sentencing of McKnight is suspect.

The McKnight sentencing is a lesson in the importance of the relationship between fact and law, so crucial in our justice system. Without a firm factual foundation, which is tethered to the purpose and objectives of sentencing, the sentence imposed will be suspect. A tenuous factual foundation, like the proverbial house of cards, cannot easily withstand scrutiny and may falter. When that happens, the law seems to be applied in a vacuum. 

There are a number of engaging voices heard throughout Just Mercy but the story most troubling revolves around Stevenson’s work to free Walter McMillan from death row. This narrative is also the focus of the subsequent feature film based on the book, released in 2019. McMillan was convicted of the 1986 murder of a white woman in Monroeville, Alabama, the birthplace of Harper Lee. Although Monroeville acted as the setting for To Kill A Mockingbird in the 1960s, over 20 years later it still bore an eerie resemblance to the unjust and white-centric setting of the novel.  Many of the same people who tell Stevenson to visit the Mockingbird museum end up being the very individuals who push back the most against his efforts to help McMillan. Stevenson discusses To Kill A Mockingbird throughout the memoir to highlight both the irony in the pride the residents of Monroeville feel for having such a significant piece of American culture, and to show the parallels between McMillan’s case and Tom Robinson’s in the novel. By using To Kill a Mockingbird as their touchstone, the residents of Monroeville hold on to their white-centric view of justice and their belief in the need for a “white saviour” in the form of Atticus Finch. Stevenson’s “retelling” of the story shows that the reality depicted in To Kill A Mockingbird does not exist.

Despite having a strong alibi, McMillan was convicted of a murder he did not commit based on fabricated State evidence. Stevenson highlights the lack of justice that was dispensed in McMillan’s trial case: attorneys on both sides were more focused on the illusion of justice than true justice being done. Enter Stevenson, young and inexperienced but ready to break that illusion and provide McMillan with hope and peace.

Throughout the narration of Stevenson’s six-year fight to free McMillan, he includes stories and names of other individuals he worked with, both on death row and in prison for life with no parole: Marsha Colbey, who was wrongfully convicted of murdering her stillborn child; Joe Sullivan, who was sentenced to life with no parole when he was 13 years old; and Ian Manuel, who was sentenced to life with no parole for a non-homicide offence at 13 and spent his 26 years in prison in solitary confinement. Many of the stories Stevenson emphasises also show that a vast number of those in prison today suffer from mental health issues and physical challenges that are exacerbated by inequity. Stevenson’s expertly crafted narration shows that “the opposite of poverty is not wealth; the opposite of poverty is justice.” In Ava DuVernay’s documentary 13th (referencing the 13th Amendment to the American Constitution) which explores the roots of Black American over-incarceration as an extension of slavery, Stevenson expressed similar sentiments: “We have a criminal justice system that treats you better if you’re rich and guilty than if you’re poor and innocent. Wealth, not culpability shapes outcomes.” Those who suffer in prison and on death row are often those who are already marginalized and abused in society. The criminal justice system does not act as a conduit for justice for either the victim or accused, it merely dispenses further abuse.

The memoir focuses on policies that are unique to America, such as the death penalty and LWOP, but the problems that Stevenson brings to the forefront are not. In a Canadian context, it has been recognized that Indigenous people are over-represented in our prisons. In 2017, Indigenous adults made up 30% of the provincial/territorial prison population and 29% of the federal prison population. In contrast, Indigenous adults made up only 4% of the Canadian population. Indigenous children are also vastly over-represented in the Canadian child welfare system. In 2016, 7.7% of all Indigenous children were under the age of 14. That same year, 52.2% of children in foster care under the age of 14 were Indigenous. Both the prison system and the child welfare system in Canada act to further perpetuate harm and control over Indigenous peoples, a control that originated with the colonial state. Although over-incarceration has been addressed in decisions such as R v Gladue [1999] 1 SCR 688 (CanLII) and R v Ipeelee 2012 SCC 13 (CanLII), these decisions have also been recognized as under-utilized, vague, and confusing for trial judges to implement consistently. These decisions were also limited to Indigenous over-representation, and do not specifically address over-incarceration of other racialized groups in Canada.

More recently, there have been several cases including R v Jackson 2018 ONSC 2527, R v Morris 2018 ONSC 5186, R v Ahmad 2020 SCC 11, and R v Zora 2020 SCC 14 which examine issues of racial profiling and sentencing in Canada. Both Jackson and Morris, presided over by Justice Nakatsuru, implemented a similar framework to Gladue in the sentencing of Black individuals. Specifically, Justice Nakatsuru advocated for judges to take judicial notice of discriminatory policies against Black Canadians and the impact these policies can have within the criminal justice system. 

Earlier this year, the Supreme Court took into consideration the impact that burdensome bail conditions can have on those already in the criminal justice system, especially those who come from marginalized communities as well as issues of racial profiling. In Zora, the SCC considered the fault element for the offence of failure to comply with bail conditions. By concluding that subjective mens rea was required, the court opened a pathway to allowing the individual circumstances of the accused person to be considered. This will avoid the criminalization of conduct that underlie breaches of bail conditions where those conditions are untethered to the original criminal offence and are unjustly enforced on those who are struggling with mental health and addiction issues. This decision will allow for a more tailored approach to bail conditions, which can help those in marginalized communities avoid falling into the feedback loop often created by breaches of bail conditions. In Ahmad, both the majority and minority decisions acknowledged the impact of racial profiling on policing and in cases of entrapment. The court held that an officer must have objective reasonable suspicion, and must be capable of articulating this suspicion clearly and without bias to a court. This case highlights the impact of racial profiling on marginalized communities, an issue which is widespread and has impacted Black communities disproportionately through controversial policies such as carding in Toronto.

Statistics regarding Indigenous overrepresentation have become even more concerning given the current pandemic. Living in prison has become a hazard and could even be considered a death sentence, an issue which provincial and federal governments have lacked creativity in remedying, leading to complaints and lawsuits from within prison walls. Furthermore, while the CDC has acknowledged that the COVID-19 virus has a disproportionate effect on minorities, Canada has been reluctant to conduct race-based research despite calls on provincial governments to do so, reflecting an unwillingness to reflect on our racist past and the way this past impacts our policies and laws.

Stevenson’s memoir calls on all of us, whether working in the legal profession or not, to examine our morals and our view of right and wrong. What are we willing to tolerate as a society and what are we willing to push out of sight to allow ourselves to feel more comfortable with our privilege? Stevenson’s reflections on the death penalty can easily be applied to incarceration in Canada: “The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?” We all must ask ourselves this question regarding our interaction with the Canadian criminal justice system.

In Canada, we have allowed ourselves to become complacent with the realities of inequity in our justice system by comparing ourselves to the burgeoning prisoner population in the United States and the continuing use of the death penalty. Documentaries such as 13th and books such as Just Mercy have become popular in Canada, but documentaries highlighting similar issues in Canada have not gained as much traction. It is easy to rely on comparisons and refuse to acknowledge Canada’s over-incarceration of Indigenous peoples, continued use of mandatory minimum sentences which disproportionately impact minority groups, and our ongoing history of police brutality against Indigenous, mentally ill, and racialized Canadians. It is also easier for those in positions of privilege to look the other way in order to maintain that privilege. However, we as a society must look for more just solutions, although these solutions may require creative thinking and new approaches. We must be willing to redistribute public funding which has been used for policing and imprisoning minority groups in Canada. We must invest more in social work, education, and mental health rather than policing. And we must be willing to pursue a more just mercy.

Both Ahmad and Williams were caught by “dial-a-dope” investigations. It involved police receiving an unsubstantiated tip that their phone numbers were associated with drug trafficking. In both instances, the police called the number to set up a drug transaction. The conversations between police and the two accused are transcribed below: 

Conversation with Ahmad: (Para 72)

Ahmad: Hello

Officer: Hey, It's Mike, Matt said I can give you a call, this is Romeo?

Ahmad: He did, did he?

Officer: Yeah, said you can help me out?

Ahmad: What do you need?

Officer: 2 soft

Ahmad: Hold on, I'll get back to you.

Officer: Alright.

Conversation with Williams:  (Para 78)

Williams: Hello.

Officer: Jay?

Williams: Yeah.

Officer: You around?

Williams: Who is this?

Officer: It's Vinny.

Williams: Vinny who?

Officer: Vinny. Jesse from Queen and Jarvis gave me your name ... your number. Said you could help me out. I need 80.

Williams: Okay. You have to come to me.

Officer: Okay. Where?

Williams: Queen and Dufferin.

Officer: Okay. It'll take me a few because I'm at Yonge & Bloor.

Williams: Okay, hurry up.

Officer: I'll call you when I get there.

Williams: Okay. What you want, soft or hard.

Officer: Hard. Hard buddy.

Williams: Okay.

Based on these conversations, Ahmad’s appeal was dismissed while the majority allowed Williams to claim a defence of entrapment. The key difference, as viewed by the majority, is that the officer in the conversation with Ahmad formed a reasonable suspicion that Ahmad was involved in drug dealing before offering him the opportunity to commit an offence while the officer in the conversation with Williams did not. In doing so, the majority endorses the first prong of entrapment from R v Mack: “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry.” The court determines if entrapment has occurred by examining what constitutes reasonable suspicion, what constitutes providing an opportunity, and if determining these two things is even a necessary exercise given the bona fide inquiry element from the first prong of entrapment. The following analysis will examine the majority’s characterization of reasonable suspicion in entrapment cases before moving to the dissents attack on the concept. 

Reasonable suspicion

The reasonable suspicion standard is one which has been endorsed by the court on multiple recent occasions, beyond entrapment cases. In Chehil, the court clarified what is meant by reasonable suspicion and endorsed the standard set forth by Sankoff and Perrault in “Suspicious searches: What’s so reasonable about them?” It holds that reasonable suspicion requires "factual elements which can be adduced in evidence and permit an independent judicial assessment.” This is a middle ground between mere suspicion and reasonable and probable grounds. Mere suspicion involves investigations where the police suspects criminal activity without any underlying evidence. In contrast, both reasonable suspicion and reasonable and probable grounds require objective evidence in support of criminal activity. However, reasonable suspicion need only require evidence of the possibility of criminal activity while reasonable and probable grounds requires evidence of the probability of criminal activity. This degree of belief is assessed by holistically considering everything known to police BEFORE the opportunity to commit a crime is presented. 

The opportunity to commit a crime

In order to assess whether reasonable suspicion is present at the time the police provide an opportunity to commit a crime, it is important to determine when that  “opportunity” occurs. In the majority’s view, an opportunity arises in a telephone conversation when “an affirmative response to the question posed by the officer could satisfy the material elements of an offence” (Para 63). The court further clarifies that the initial contact with a target is not enough to satisfy this standard (Para 64). Rather, the police officer provides an opportunity to Ahmad when he says “2 soft,” which refers to a specific quantity of a specific drug (cocaine). In the case of Williams, the opportunity is presented when the officer says, “I need 80.” Note that the officer in Ahmad’s call inquiring “can you help me out?” is not presenting an opportunity since saying “yes” does not satisfy the elements of a criminal offence. 

Distinguishing the calls

The majority, by determining that the officer needs reasonable suspicion before providing the “opportunity,” can then distinguish the two seemingly identical phone calls in Ahmad and Williams. In the case of Ahmad, who the court found was not entrapped, the officer confirms the suspect’s name and asks, “can you help me out.” Ahmad, by replying “what do you need?” provides objective evidence to support a reasonable suspicion of the commission of a criminal offence. His response not only confirms his awareness of drug lingo but by asking “what do you need?” Ahmad invites the officer to present him with an opportunity to sell drugs.  To ground their suspicion, the officers now have the tip giving them the phone number, the individual confirming their identity, and, critically, the individual responding positively to a phrase popular in drug sub-culture. By contrast, the officer in Williams’ case misses that last step and presents the offer before Williams confirms his suspicion. Williams responds to positively to drug language after the offer, but reasonable suspicion must be acquired before the offer is made. Once the suspects identify is confirmed, the officer proceeds directly to requesting a specific amount of a specific drug. For the majority, simply confirming the identity of the suspect falls short of establishing reasonable suspicion, thus Williams is entrapped unless the police can show they were acting within a bona fide inquiry as discussed in the first prong of entrapment. 

Bona fide inquiry

Even though reasonable suspicion has not been formed in the case of Williams, the Crown may still obtain a conviction if they can prove the police were acting within the scope of a bona fide inquiry. Previous jurisprudence (R v Barnes) restricted this inquiry to geographical areas. In Barnes, the police acted within the scope of a bona fide inquiry when they presented opportunities to commit crimes to people located near the Granville Mall in Vancouver, a spot known to be popular for drug trafficking. However, in Ahmad, the court is not dealing with geography but with digital space and therefore must decide if a cell phone number can be a “place” under the Barnes definition. In finding that a phone number is a place, the court emphasizes the strong link between a phone number and an individual. This link differentiates a phone number from a physical location like Granville Mall, which may be accessed by any member of the public. Therefore, reasonable suspicion over a phone number looks much more like individualized suspicion than suspicion over a physical location (Para 42). The majority clarifies as much when it states, “Reasonable suspicion is also individualized, in the sense that it picks an individual target -- whether a person, an intersection or a phone number -- out of a group of persons or places.” (Para 48). 

By individualizing suspicion, even where the space is digital, the majority in Ahmad reflects the court’s earlier decision in Marakah and their concerns with protecting the privacy interests found in digital space from the overreach of law enforcement. Similarly, the majority in Ahmad notes the “increasing prominence of technology as a means by which individuals conduct their personal lives.” (Para 36) Privacy is a main consideration of the court and police must have reasonable suspicion over a “well-defined virtual space” which is tied to an individual before they are able to present an opportunity to offend (Para 40). The court stresses “well-defined” in order to prevent random virtue testing over a broad swath of virtual landscapes and digital communications. They go on to state a number of factors which must be considered in determining if a digital space is able to be sufficiently tied to an individual (Para 41). It is interesting to imagine how this may be applied in other virtual spaces such as social media accounts and chat rooms. While the court states that entire websites or social media platforms will likely not be sufficiently particularized, their reasoning supports personal social media profiles meeting that standard. The question remains: are police actions targeting an individual of which they have reasonable suspicion has committed an offence?  

Conclusion

The reasoning of the majority affirms the entrapment doctrine established in Mack and provides guidance on how reasonable suspicion is to be treated over virtual “places” like phone lines. This ruling tightly prescribes the methods in which police must conduct investigations to avoid “random virtue testing.” As we will discuss in the next section, the dissent identifies problems with this framework and advocates for a broader police ability to conduct investigation by focusing on the founding principles of entrapment: abuse of process. 

Dissent

Moldaver J takes a much different approach to the entrapment issue and seeks to limit the offence to the most flagrant of cases. Moldaver J emphasizes the core philosophical underpinnings of the Mack and Barnesdecisions that police must be given substantial leeway to investigate crime. Therefore, doctrines like entrapment should only be used to protect individuals from "intolerable”  law enforcement techniques which would be viewed as intolerable to society (Para 89). In short, entrapment should only apply in the clearest cases of police abuse of process. Moldaver J emphasizes this point stating that the remedy of entrapment, a stay of proceedings, is the most drastic remedy a criminal court can order and should be reserved for clear instances of police misconduct (Para 113).

Building from the above analysis, Moldaver J states that the police conduct in these dial-a-dope investigations does not rise to an abuse of process even though the officer may not possess individualized reasonable suspicion at the time an opportunity is presented. In doing so, his reasoning avoids the exercise undertaken by the majority to parse the phone conversations. Distinguishing between investigative steps and the presenting of an opportunity in these conversations is viewed by Moldaver J as be unprincipled and impractical (Para 123). Further, Moldaver J makes a point of stating that the police conduct in question did not come with the risk of innocent people being driven to commit crimes they would not have otherwise. This point will be discussed later.

Dissent & reasonable suspicion and bona fide inquiries

Moldaver J continues his analysis with examining the nature of suspicion. He highlights what he views as inconsistencies between the Court’s rulings in Chehil and Barnes. In Barnes, the physical location was enough to ground a bona fide inquiry on police suspicion that crime was taking place in a particular well-defined physical location. However, in Chehil, the generalized suspicion based on the physical location of the Vancouver International Airport was not enough to ground a bona fide inquiry. Instead, the police were required to have individualized suspicion. The seemingly inconsistent rulings on the bona fide inquiry prong would appear to have ramifications for deciding on the nature of a phone number as the basis of a bona fide inquiry. Rather than resolve this issue, Moldaver J side-steps it to argue that individualized reasonable suspicion should not be required for these type of police inquiries. Citing British, American, and Australian jurisprudence, he finds that simply providing the opportunity to commit a crime is not enough to ground an abuse of process. The police must manufacture crime by inducing an individual who is not already predisposed to committing the type of offence in question (Para 152).

On this analysis, a new framework for the bona fide inquiry prong is proposed: 

·       Their investigation was motivated by genuine law enforcement purposes;

·       They had a factually-grounded basis for their investigation; and

·       Their investigation was directed at investigating a specific type of crime within a tightly circumscribed location (whether physical or virtual).

The final point of the framework mirrors the well-defined location requirement put forth by the majority. While the majority requires such a location come with individualized reasonable suspicion, Moldaver J has a lower standard of police conduct motivated by “genuine law enforcement principles” which is “factually-grounded” (Para 155). In his clarifying remarks, we see that “genuine law enforcement principles” excludes bad faith practices such as racial profiling and targeting vulnerable individuals (Para 157). While this principle is important, the majority is clear that entrapment cases are breeding grounds for racial profiling and evidence to support bad faith conduct is often difficult to find. The majority stresses that marginalized individuals will bear the burden of proving bad faith conduct with minimal resources. By holding the police to a standard of reasonable suspicion, the majority decision shifts the burden to law enforcement to provide the evidence, which better protects vulnerable people from police misconduct. Finally, the “factually-grounded” basis for investigation means police must have more than a mere hunch. There must be some reason, less than reasonable suspicion, for using the phone number in question as a basis of the investigation.

In applying this framework, Moldaver J is satisfied that all elements are met in the cases of both Ahmad and Williams. The investigation was motivated by the genuine law enforcement purpose of investigating a potential drug dealer, the bare tip was satisfactory for a factually-grounded investigation and the cell phone number formed the basis for the tightly circumscribed location. The low bar set by Moldaver J was easily cleared for both Ahmad and Williams. 

 Professor Penney’s Approach

Steven Penney, cited by both the majority and the dissent, takes a similar approach to Moldaver J. Penney views the reasonable suspicion standard as dubious and not providing a bright line between legitimate police tactics and entrapment. He splits entrapment into two categories. In Entrapment category 1, the police provide an opportunity to commit a crime without reasonable suspicion or as part of a bona fide inquiry. While in Entrapment category 2, police go beyond providing an opportunity and induce an offence. Penney argues that Entrapment 1 should be folded into the Charter’s abuse of process doctrine (Para 2). 

By doing away with Entrapment 1, the court will no longer need to parse conversations and investigations to find the moment that police form reasonable suspicion. Penney expresses some concern that innocent people will be caught up in police investigations but minimizes the intrusiveness of the police conduct. In a case like Ahmad’s, Penney would find that the police calling a bare tip is not an abuse of process as the risk of innocent individuals being caught up in the investigation is minimal. As he states, the innocent person would simply decline the offer and hang up. To bolster the point, Penney notes that some overlap exists between Entrapment 1 and Entrapment 2. He mentions two cases in which small quantities of drugs were exchanged for no financial gain, one for a toque and the other motivated by the accused’s desire to make friends. In these cases, the individuals were not pre-disposed to trafficking drugs and the offers by police could be seen as inducing the offences. Penney holds that these situations should result in a stay of proceedings as an abuse of process. 

What the future holds

In his dissent, Moldaver J depicts the majority position as providing less protection to privacy interests rather than affording more protection (Para 181). Although the majority strongly encourages the police to do more to substantiate a tip before calling the number, they do fall short of forbidding it, preferring to “call out” the police on this type of behaviour by suggesting that “police must be aware that in placing the call without reasonable suspicion, they are walking on thin ice, having already intruded upon the private life of their interlocutor” (Para 54). With the majority as concerned as they are with innocent people being caught up in police investigations, it is somewhat surprising to not see more forceful language. While the dissent minimizes the intrusion of the phone call, the majority emphasizes the intrusion while still permitting it. Rather than mandate something along the lines of the “Swan sheet” in which police officers are required to document the steps taken to establish reasonable suspicion, the majority is content with deferring to police discretion in conducting investigations (See R v Swan).

Without constraints on the ability of police to investigate these bald tips, innocent people will be exposed to police investigatory tactics putting them at risk of offending. Suppose the police receive a phone number in a tip about someone involved in drug trafficking. This individual lives in a high-drug area and is impoverished. Upon receiving the call from police, the individual, while not involved in drug dealing, sees a potential avenue to earn fast money and inquires into the opportunity. This conversation could follow a similar path as Ahmad’s, forming reasonable suspicion, and once the agreement is made, the individual procures drugs from someone in his neighbourhood to sell to police at a higher price. The police have just investigated a tip and formed reasonable suspicion, yet an offence has taken place which would not have occurred if not for police involvement. Penney’s example cases are quite similar with the key difference that the offences were committed for non-financial reasons. He emphasizes this as a reason for staying proceedings, but I am not convinced that this is a salient difference. In this example, we have a vulnerable individual caught up in a police investigation because his number was provided in a bald tip. While the police are on “thin ice,” they are still permitted to try and establish reasonable suspicion during the phone call. In my view, protecting the innocent and vulnerable requires forcing slightly more work on the police to corroborate tips before the phone call is made. By doing so, the risk of ensnaring the innocent is minimized and the parsing of phone calls, a main concern of the dissent, is eliminated. R v Ahmad encourages police to be more thorough in their investigations while missing an opportunity to demand it. 

 No. 1 – Pure Humanity

The number one reason to add Zora to the must-read list is the pure humanity of the decision. Justice Martin reminds us that bail principles are integral to Chaycen Zora’s personal story. But at the same time, Chaycen is mirrored in the many similar failure to comply narratives, scattered throughout the bail system. This means the Zora decision is centred on the individual. Bail is an individualized process. The conditions must be tailored to the individual (at paras 22, 25, 47 & 88) and to the particular charges faced by that individual subject to those conditions specifically required to ensure attendance in court, protection of the public, and maintaining confidence in the administration of justice (see s 515(10) and at paras 21 & 25). No two people are alike and therefore no two bail releases are alike (at para 47). Sentencing too is an individualized process, performed at the last stage of a criminal case, and requiring a delicate balancing of principles. Bail, as the first contact an accused person has with the criminal justice system, requires this same dexterous balancing. But, unlike sentencing, bail occurs in the pre-trial stage where other rights and principles come into play, and that makes all the difference.

Chaycen’s story starts in September 2015, when he was charged with allegedly being in possession of drugs for the purposes of trafficking. I say “allegedly” because Chaycen, like any accused person, is presumed innocent until found guilty by an independent and impartial court of law. Let’s be clear, this charge is not for dealing in drugs. Possession for the purpose of trafficking is usually laid when a person is in possession of an amount of drugs beyond mere personal possession, and the purpose can be a matter of contention. 

After being charged, Chaycen had to wait before his charges were heard in court. An out-of-custody accused person will wait longer for trial than an in-custody accused. Someone in pre-trial custody is “doing time” without the benefit of trial, at a time when they are presumed innocent of doing any crime, and certainly before sentence is imposed. Even though Chaycen was not inside a jail, he was also “doing time” while waiting for trial. Chaycen may not have been sitting in jail but his life and liberty was on hold until, sometime down the road to justice, his trial was heard. 

In the meantime, Chaycen was placed on a form of release from custody called a recognizance. A recognizance, according to the now Justice Gary Trotter in The Law of Bail in Canada (Scarborough: Carswell, 1999) at 450, is a “foundational document,” recording the acknowledgement by the accused person to follow the conditions and obligations outlined in that document as a basis for his freedom. That freedom comes with a cost. In the case of Chaycen, his recognizance included 12 conditions of his release (at para 8). Most of the conditions were not enumerated in the Criminal Code and were imposed because the bail judge considered them “desirable” (see s 515(4) of the Code). One such condition placed Chaycen under “house arrest,” which was further enforced through another condition that he “present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm compliance” (at para 8). Justice Martin has much to say about these many and varied “questionable” non-enumerated conditions (at para 5) and the adverse impact they can have on an accused person’s life, particularly the vulnerable and marginalized (including those who are poor, have addictions or mental illnesses, and /or are Indigenous (see paras 5, 79 & 97)).

The police regularly attended Chaycen’s home for a house arrest compliance check and Chaycen dutifully presented himself at the door of his home as required. However, twice, over a long weekend, the police attended and Chaycen did not present himself at the door. Chaycen was a drug user and was doing methadone treatments. These treatments made him tired and he did not hear the officers at his door. For this, he was charged with four counts of failure to comply with his release conditions pursuant to section 145(3) of the Criminal Code (breach sections have since been amended as discussed at para 18); two charges of failure to comply with the house arrest and two charges for failing to attend at the door as required. At trial, Chaycen was acquitted of failure to comply with the house arrest condition due to a lack of evidence, but convicted of two counts of failure to comply with the condition that he present himself at the door when required. 

Chaycen Zora’s story confirms why bail conditions must be customized to each person’s personal story.  Bail conditions should “attenuate risks that would otherwise prevent the accused’s release without that condition” (at para 85) and not become a “personal source of criminal liability” (at para 6). This potential liability, Justice Martin suggests, may have “profound implications” on an individual’s life (at para 54). A person convicted of failure to comply faces up to two years imprisonment and a criminal record “with the associated stigma and difficulties this can bring in respect of employment, housing, and family responsibilities” (at para 54). 

One of Chaycen’s bail conditions specifically can serve as an example of how precarious life on bail can be where the conditions are not crafted with care and thought to the person’s ability to comply. Chaycen was required to “obey all rules and regulations” of his home (at para 8). We do not know what those house rules would be in Chaycen’s situation, but we can imagine that there may be trivial rules, wholly unconnected with the drug offences and bail objectives, such as keeping his room neat and tidy. Should Chaycen fail to comply with this rule, he could face a criminal charge. Justice Martin considers this an improper delegation of the judicial officer’s authority. To ground a criminal charge on the basis of amorphous rules stretches the boundaries of criminal law too far. This is just one example of many such bail conditions that set people up for failure in a system that has little room for second chances.

Another example referenced in I offers a further glimpse into the potential oppressive effects of bail conditions (at paras 87 & 96). In R v Omeasoo, 2013 ABPC 328 (CanLII), Jennifer Omeasoo called the police to protect her from domestic abuse, but instead was charged with failure to comply with her bail as she was in breach of the non-enumerated condition requiring her to refrain from the consumption of alcohol. Not only did the bail condition set her up for failure as a person struggling with an addiction, but it also punished her for relying on the authorities for help. Bail conditions, imposed without individualization, can adversely impact vulnerable people like Jennifer and those racialized groups who are continually overrepresented in the justice system (Zora at paras 26 & 79).

No. 2 – Restraint and Review

Justice Martin gives those of us involved in the criminal justice system another reason to read Zora, and that is the easily referenced credo that must guide all actions in the pre-trial phase: restraint and review (at para 6). The principle of restraint and the need for continual review throughout the pre-trial phase is the foundation of the bail system. Restraint requires judges and lawyers to start with liberty and then fine-tune release dependent on bail principles. The goal of minimal state interference in the accused person’s life pending trial and the use of review throughout the process ensures that non-criminal responses are the first step when the minimal requirements are not enough. 

Review must be meaningful. Everyone involved in bail must “carefully scrutinize” (at para 6) release conditions. There are many points of entry into the statutory regime that allow for judicial review of bail release. For instance, should the accused reoffend while on bail, the Crown can apply for a revocation of that bail (see ss 521 & 523). An accused who wishes to dispense of a condition can apply for a bail variation (see s 520). For instance, bail variations have recently responded to the material change of circumstances triggered by COVID-19 (see a discussion in R v Ledesma, 2020 ABCA 194 (CanLII)).  Review acknowledges that bail court is “an expediated process,” which “is often based on limited information” (Zora at para 59). It also acts as the “risk management” system of the administration of justice (at para 65) and is an immediate means to “curtail the statutorily identified risks posed by the particular person” (at para 25). Criminal charges for failure to comply with bail conditions, due to their punitive nature, should be used as “means of last resort” (at para 69).

A focus on restraint and review requires vigilance of all members of the justice system – lawyers and judges, police, and bail supervisors alike. It provides a reasonable alternative to the piling on of failure to comply charges and serves to break the “vicious cycle” (at paras 5 & 57) of re-offending and incarceration. It brings about the desired result without further stigmatizing the accused person through criminal charges. It ends the revolving door syndrome, symbolized in the ‘catch and release’ attitude of the justice system (at para 57). 

Although Justice Martin gives us the phrase “restraint and review” to capture, in an abbreviated form, the essence of the bail system, these principles are now firmly imbedded into the statutory bail sections in the Criminal Code (see e.g. s 493.1). Even so, it is essential to the sustainability of the bail system that Zora emphasizes these twin principles. 

No. 3 – The Charter Rules!

This leads me to the third reason why Zora will be on my criminal law syllabus – because the Charter rules! The Court brings Charter rights and values into sharp focus in Zora. The decision is about reasonable bail, which is protected under  section 11(e) of the Charter (the right “not to be denied reasonable bail without just cause”). But section 11(e), like so many Charter rights, does not stand alone. It is animated by the presumption of innocence, which is a Charter right under section 11(d), but also a principle of fundamental justice under section 7 of the Charter. The presumption of innocence is the golden thread that runs throughout the criminal justice system and it must not be set aside, misplaced, or hidden. Zora revels in the presumption of innocence, referencing this core value 20 times throughout the decision. 

But that’s not all; the presumption of innocence is inextricably tied to liberty interests. The freedom to go about our daily lives and to make decisions on how we will conduct our lives is a core Charter right and value. Bail, innocence, and liberty all come together in Zora. Reasonable bail requires reasonable conditions. Reasonable conditions must be carefully imposed in light of the presumption of innocence. Bail conditions are neither punishment nor treatment (at para 85). They can restrict otherwise legitimate activities we freely engage in such as travel, enjoying a drink with friends, or simply speaking on the phone (at para 2). One’s self-autonomy is constantly challenged through bail conditions that impinge upon liberty interests. 

In reading Zora, we see how the Charter can apply on the micro-level. It suggests a Charter in action as Charter rights and values merge together in all phases of the Court’s decision. For example, the Oakes test (R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103) for determining whether violation of a Charter right is saved under section 1, is applied in Zora as a set of organic principles, bringing home the need for clearly articulated bail conditions that stay within the objectives of the bail regime as found under the Criminal Code and as interpreted by case law. Bail conditions violate liberty and there must be built-in justifications for interfering in this right to truly create a bail system that is fair, just, and unbiased. Thus, the liberty interest can only be protected if bail conditions are minimally intrusive, logically connected, and proportional to the three objectives of conditional release: to ensure the accused attends for trial, to protect the public and safety, and to promote confidence in the administration of justice (at paras 70, 81-89 & 90).

Moreover, all of these bail release values are held together by the principle of restraint, with all of its constitutional dimensions (at para 26). The criminal justice system is founded on this principle of restraint because without it, we will no longer be a free and democratic society. Rather, if we imposed punishment before conviction, if we imposed conditions unconnected to the charges facing the accused person, we would be empowering a system based on arbitrariness, vagueness and promoting grossly disproportionate legal rules. A justice system that permits this cannot call itself a justice system at all.

No. 4 – Re-bottling the Ink on Fault

Academically and judicially speaking, “more ink has been spilled” on the fault element than any other criminal law concept (see R v ADH, 2013 SCC 28 (CanLII) at para 94). It is a tricky concept, requiring the trier of fact to construct the mindset of an individual out of what at times seems like thin air in an effort to determine what they were thinking at the time of their actions. This form of liability, called subjective mens rea, is presumed to be required for crimes to ensure that only those who are morally blameworthy are subject to criminal sanctions. The other form of criminal liability, objective mens rea, lies outside of the inner thoughts of the accused and is based on the reasonable person. In determining objective mens rea, the trier of fact compares the accused’s actions to the expected actions of the reasonable person. Should the accused depart from the standard of the reasonable person to a criminal degree, objective mens rea is established. Objective mens rea can capture the morally innocent or those accused who did not subjectively intend to commit the offence (at para 33). It is a harsh standard, which does not account for human frailties. Subjective mens rea is personalized, while objective mens rea is merely contextualized to place the reasonable person in the factual circumstances of the accused. Justice Martin does a masterful job of describing subjective and objective mens rea in Zora (at paras 29-31). In doing so, she demystifies and clarifies these core criminal law concepts.

In Zora, the court was called upon to determine whether the offence of failure to comply required objective or subjective mens rea. To do so, Justice Martin applied the presumption that Parliament intends to create crimes with subjective mens rea (at para 32). This presumption is only displaced by clear intention by Parliament to do otherwise. It is a matter of statutory interpretation to determine whether there is such a contrary intention by looking at the words used in the section, the context of the section, and the objectives of the offence. 

The Crown argued the bail offence in Zora required objective mens rea, which would capture inadvertent or criminally negligent conduct. The argument was based on the words used to describe the offence as a “failure” in a duty, which would require an objective form of liability. This approach was soundly rejected by Justice Martin. In her view, failure to comply is not a duty-based offence as described in the ADH decision. The word ‘fail’ should be read in simple terms, as an omission or failure to act, and merely indicating the actus reus requirement of the offence. Moreover, the duty, as suggested by the Crown, is even less defined. The word ‘duty’ does not even appear in the section. The concept of the accused person having a ‘duty’ to comply is written in general terms, not in specifics like those found in the true duty-based offences such as failing to provide the necessaries of life under section 215(2) (at paras 35 to 49). 

Section 145(3) does not provide any hint of a standard of conduct, which typically suggests an objective mens rea offence. There is no standard from which the accused person’s conduct can be measured. Bail conditions are “intended to be particularized standards of behaviour” (at para 25), not uniform standards of care. With no discernible criminal standard, should the offence require an objective standard of liability, there would be a “risk that the objective fault standard slips into absolute liability,” requiring no fault element at all (at para 47).

But Justice Martin’s analysis does not stop there. In her view, the offence is firmly rooted in the subjective mens rea realm because it “reaches back” (at para 5) to the animating principles of the bail system. The substance of the offence is the individualized process of bail contextualized by the principles of restraint and review (at para 82). The failure to comply offence creates a “direct link” (at para 19) and an “inexorable connection” (at para 73) between bail conditions and the breach of those conditions as a criminal offence. Only subjective mens rea will fulfill all of the principles entrenched in the bail system.

As a law professor who revels in the objective/subjective, Justice Martin’s passages on mens rea are magical to me. They are not mystical reasons but clear-eyed and grounded in criminal law principles that are fully engaged in the purpose of the offence. It is a classic analysis but with the modernity we have come to expect from the Supreme Court of Canada. Justice Martin in Zora has finally put the stopper in the ink bottle, and with her clarification of objective mens rea in the Chung decision, the ink can now dry (see R v Chung, 2020 SCC 8 (CanLII) and my previous blog article on the issue here).

As I will discuss in my next reason for putting Zora on my course syllabus, Justice Martin does not just explicate the legal principles, she provides guidance and direction on how to use these principles in court. In paragraphs 108 to 122 for instance, Justice Martin gives explicit direction on the two components of the subjective mens rea required for failure to comply. Notably, Justice Martin touches upon an unexplored dimension of recklessness, which is when the accused is aware of the risk their behaviour will bring about the undesired consequence but proceeds despite that risk (at para 117).Typically, there is no determination of what kind of risk is needed to fulfill that subjective fault element. But in Zora, because bail conditions “can operate to criminalize otherwise lawful day-to-day behaviour,” the accused must be aware that their “continued conduct creates a substantial and unjustified risk” of failure to comply with conditions (at para 118). 

Without this form of recklessness requiring the accused to be aware of a “substantial and unjustified risk,” the failure to comply offence could capture conduct we would not deem morally blameworthy. Returning to Chaycen’s particular failure to comply offence, Justice Martin offers an example of an accused who may have missed the knock while taking the “minimal and justified” risk of taking a shower (at para 119). In those circumstances, the subjective mens rea would not be fulfilled when applying the special form of recklessness. This differentiation between the general form of recklessness and a higher form, fills the gap between recklessness and the higher level of subjective mens rea involving certainty that one’s conduct will produce the undesirable result and intending it to occur. Although Justice Martin’s comments are specific to this offence (at paras 118-119, but see also R v Hamilton, 2005 SCC 47 (CanLII) where Justice Morris Fish applies it to counselling offences at paras 26-33), in my view, Justice Martin has moved the needle in the spectrum of criminal fault elements. In this way, Zora may have profound and lasting effects on the fault element of a crime.

No. 5 – Practically Speaking

Above all Zora is a practical decision. It provides guidance to lawyers and judges who, on a daily basis, work within the bail system. Justice Martin reminds lawyers and judges alike of their duty to fulfill the principles of restraint, to collaborate in fulfilling the objectives of the bail system, and to breathe life into the presumption of innocence through an approach to release from custody that minimally interferes in a person’s liberty. The bail judge is reminded of their gatekeeper role in the broadest sense: to protect the accused from untoward prejudice, to promote pre-trial fairness, to fulfill the ethos of restraint and to provide the judicial scrutiny needed to ensure the proper workings of the bail system. 

To that end, Justice Martin provides a check list for all lawyers and judges conducting bail hearings (at para 89). It is a check list straight out of R v Antic, 2017 SCC 27 (CanLII) and it meaningfully reinvigorates that decision. We look to our highest court to pronounce on legal principles but we also look to it for direction and guidance. Zora educates, instructs, and shares practice-ready details. The bail court need not sift through this decision to find the principles. The principles are written in a digestible and understandable manner for the purpose of effecting immediate change. Reading the decision, we no longer see the Supreme Court ensconced in Ottawa, wrapped in the robes of office, but sitting in courtroom 305 or 306 in Calgary, watching the Crown call the bail list.

Finally, Zora calls it as it sees it. Yet again, the Court is calling out the systemically imbedded cultural attitudes within the criminal justice system that perpetuate “risk aversion” practices and promote consensual “excessive” bail conditions (at paras 77-78). Justice Martin’s call to action comes in describing bail as a “dynamic, ongoing assessment, a joint enterprise among all parties to craft the most reasonable and least onerous set of conditions, even as circumstances evolve” (at para 92). This is the court’s attempt to dislodge the “culture of complacency” found throughout the justice system (see also R v Jordan, 2016 SCC 27 (CanLII) at paras 4, 40-41, 104 & 135). It is a reminder that the adversarial system can, in the appropriate circumstances, benefit from collaborative decision-making. 

Bonus Reason

Zora is an example of the modern approach to legal writing. This would be reason alone to include Zora on any law school reading list. Justice Martin writes as we all should: clearly, plainly, and persuasively. My favourite line, found at paragraph 88, encapsulates the tone of the entire decision when she says, “Bail conditions may be easy to list, but hard to live.” 

In the Zora decision, the Supreme Court of Canada did much more than determine the fault element for section 145(3). The Court laid down very explicit guidelines in conditions of release on bail. In doing so, they gave back Chaycen Zora, and others like him, their liberty, their dignity, and their humanity.

I am taking a Pause to take responsibility for allowing racism to continue. I am taking a Pause to be accountable to society for remaining silent, when there was a need to speak up. I am taking a Pause to reflect on who I am and what I stand for. 

I am white, privileged, comfortable and safe. There are people who are not. I will not see the world through their eyes because I have no right to do so. I will see myself through the events of today, yesterday and tomorrow. I will recognize that I am part of the problem of racism. That I need to change. That I cannot say “I am not a racist, other people are.” 

I Pause to open my eyes to the truth. I Pause.

Criminal law is a powerful weapon in the fight against COVID-19. Criminal law reflects our societal values by deeming certain conduct as morally reprehensible and thereby blameworthy. By using the criminal law, we are condemning that behaviour in the strongest terms. This criminal condemnation power is much different than the enforcement power under regulatory offences. In charging and potentially convicting someone of a crime, we are using a particular kind of judicially authorized coercion. Liberty interests are at stake in the criminal law and those stakes are high considering every criminal offence attracts a potential jail term. A loss of liberty is a concern but so is the stigma attached to a criminal charge, never mind a criminal conviction. Often, in particularly egregious circumstances we tend to forget our most hallowed and cherished fundamental principle of justice; the presumption of innocence. COVID-19 can kill but a criminal charge in the context of COVID-19 challenges us to set aside our emotional fear and personal disgust to ensure every individual so charged has a fair trial, and if convicted, receives a just sentence. It is in this heightened circumstance, that we now turn to consider COVID-19 crimes.

Turning from the regulatory field to the criminal law landscape will help us further identify how COVID-19 is impacting our criminal justice system. There are two ways in which criminal law and COVID-19 have generally come into close contact. First, we have those Criminal Code charges laid as a result of COVID-19 misbehaviour – almost regulatory meeting criminal in aspect. An example of this are the charges laid of assault by coughing. These are charges that would not be laid in the pre-COVID-19 era. Indeed, there are no reported decisions found with cough as an assault, except where the cough may be part of a spitting action by an accused. We will discuss spitting as an assault later in this article. 

The second group of charges where COVID-19 and criminal law meet are those charges laid where COVID-19 is merely the context or background of the charge. An example of this would be an assault charge laid against an individual who pushes people in a store lineup created by the reduced access to stores due to COVID-19. This type of charge could be laid pre-COVID-19 and could easily arise in any queueing situation. These two categories do not have bright lines drawn between them. The behaviours under both general groups can be seen either as “new” crimes or simply “old” crimes used in new ways. In any event, both of these categories challenge the limits of our criminal justice system and upon reflection suggest that what is criminal conduct and what is not may be shifting, not only during the time of COVID-19, but perhaps even thereafter. In this article, I will be focusing on the first kind of COVID-19 crime. 

The first category I alluded to earlier, being Criminal Code charges laid as a result of COVID-19 misbehaviour, which would not necessarily be considered criminal behaviour before, can be viewed as crime creation. For instance, assault by coughing. There have been numerous charges laid on this basis, although not near as many incidents as reported in the UK. These coughing assaults may result in a range of charges such as simple assault under s. 265, assault police under s. 270 or common nuisance with the assault as the unlawful act under s. 180. 

There is, of course, a world of difference between laying a criminal charge and proving one. I have spent much time with the intern student, David Bunce, who I hired through the Peter Sankoff #100Interns project, discussing the various issues engaged by merely the simplest form of assault by coughing. The issues involved are dazzling and, although of great academic interest to both David and I, raise the more basic question of whether we should use criminal law in this context in the first place. This primordial question is important to consider, even if criminal convictions can be founded in these cases and even though we may want to condemn this behaviour in the strongest terms. In the end, our criminal law is shaped by charges which come before the courts. Once an accused enters the courtroom, there is no room for why, but only for guilty or not guilty in accordance with the law.

But let’s, for argument sake, walk through an assault by coughing to determine whether such a charge could be proven by the prosecution. There are many factors to consider in determining whether the prosecution has proven an offence beyond a reasonable doubt. In this discussion we will focus only on the elements of the offence and not on credibility issues, even though credibility looms large in these offences. 

First, the basics of an offence. Every criminal offence requires an actus reus (prohibited act) and mens rea(fault element or criminal intent). Both the prohibited act and the criminal intent must occur at the same time (See Fagan v. Metropolitan Police Commissioner, [1968] All ER 442). Additionally, the prohibited act must be committed voluntarily. This means the act must be a product of a “willing mind at liberty to make a definite choice or decision” (See R v King, [1962] SCR 746 Taschereau J at p 749). It is, however, arguable that if an individual had knowledge of the events that might lead to the involuntary act, the act may not be considered involuntary. In that instance, the accused had control over the outcome of the events. Reflex actions are considered involuntary acts. A classic example is the physician who sharply taps below the patient’s knee causing the patient’s muscles to contract, creating a sudden and uncontrollable kicking movement. Another such bodily reflex can be a cough or sneeze. Like the knee-jerk reaction, a person who coughs or sneezes reflexively cannot control or even stop their actions. Indeed, both actions are defensive responses to foreign material that protects the body from irritants and disease. In criminal law, voluntariness matters as we attach blameworthiness to those individuals who choose to commit criminal offences, making those individuals worthy of blame, condemnation and punishment. 

In the assault by coughing scenario, the voluntary act concern is further complicated by which party has the onus to prove voluntariness. The Crown must prove the prohibited act beyond a reasonable doubt, but the law is not clear whether an act is presumed to be voluntary or whether the Crown must prove voluntariness as part of the prohibited act or actus reus requirements. Much of the uncertainty around this arises from the Supreme Court of Canada split (5:4) decision in R v Stone, [1999] 2 SCR 290, which considers the defence of automatism, a specific form of involuntariness. The majority decision of Justice Bastarache relies upon the presumption that people’s actions are voluntary to place both the evidentiary and legal onus on the defence to establish automatism (at paras 169-172). Justice Binnie, on behalf of the dissent, disagrees. In the dissenting view, voluntariness as part of the actus reus elements of an offence must be proven by the Crown (at paras 37-40; 44-53). Much of the disagreement in the case results from the unique circumstances of automatism, which is a state of impaired consciousness (at para 156). Unlike reflex, automatism occurs when an accused acts without awareness and therefore cannot control their actions. Automatism focuses on the “willing mind” aspect of actus reus. If an act results from a willing mind then an impaired “will” cannot produce a voluntary act. In applying Stone to non-automatism scenarios, later courts have found that Stone only applies to automatism and not to other forms of involuntary acts such as reflex (See e.g. R v Fontaine, 2017 SKCA 72 at paras 25-32). In those scenarios, the Crown must prove the act was voluntary beyond a reasonable doubt. 

There may however be a further argument made by the prosecution even if the cough is viewed as a reflex action. This argument is based on the earlier comment made in this article that if the accused had knowledge of the events that might lead to the involuntary act, the act would be considered legally voluntary. Applying this to the cough situation, if the accused was aware a cough could arise in the circumstances but failed to cover the cough or even failed to stay away from public places, the actions could be considered voluntary. This argument may be a stronger one when combined with the recommendation (or even a requirement) to wear a mask in certain social situations.

 Even if the cough is considered voluntary, considering many of the charges seem to be alleging an intentional cough scenario, the cough, for purposes of the actus reus requirements for assault under s. 265 of the Criminal Code, must be an application of force. This seemingly simple requirement opens up a virtual Pandora’s box of issues. In fact, David Bunce and I spent a good part of a two hour Zoom meeting spotting the issues arising from this requirement. Assault can be committed where there is an attempt or threat of force (see s. 265(1)(b)) so “application” is not necessarily required but even for that to be fulfilled, the cough must be considered force. 

Although I have a great fondness for the patchwork of laws cobbled together to create the Criminal Code, there is no doubt that the use of the term “force” in this section causes difficulties. For instance, “force”, as with many key terms in the Code, is not defined. The quality of that force is also not clear. In other words, what is force and how much force is needed is an ongoing discussion when looking at the case authority on the issue. It may assist to know that there are other Code offences that require “injury” (See s. 466 (to animals)), “harm” (See s. 247 (traps)) and “violence” (see s. 343(a) (robbery)). Applying statutory interpretation by comparing differing terms may give us an idea of what is not considered force. Case law emphasizes that touching, even if minimal, is force (See e.g. R v Cuerrier, [1998] 2 SCR 371 at para 10). For example, in R v Burden, 1981 CanLII 355 (BCCA), the British Columbia Court of Appeal found the accused person’s brief action of laying his hand on the complaint’s thigh was an application of force.  This also leads us to the application of the modern approach to statutory interpretation, which uses a contextual and purposive perspective. In discussing “application of force,” courts have considered the objective or purpose for the crime of assault to further illuminate the meaning of force. The main objective, according to case authority, is to protect an individual’s self-autonomy and bodily integrity in the broadest sense (See e.g. R v A.Z., 2000 CanLII 16976 (ONCA)). 

In applying the above interpretation of “an application of force,” it is useful to also look at other bodily functions considered force under the section. Spitting, as mentioned earlier, is such a bodily event (See e.g. R v Galogeudis, 1967 CarswellQue 336(Le Tribunal de Montréal) as the oldest reported case of assault by spitting). It appears, that in those instances, the spit must land on the complainant to be an application of force. Although, as I have already mentioned, assault can be committed through a threat of force and there is also the possibility of an attempt assault should the spit not fall on the intended victim, I could find no reported cases involving an attempt assault. This might indicate that such an incident is deemed not as consequential and therefore not worthy of laying a criminal charge. This raises the application of de minimis non curat lex(the law does not concern itself with trifles) as a possible defence in cases of cough. Importantly, whether an offence is trifling is not based on the act itself but on the nature of the offence. For instance, the doctrine does not apply to sexual assaults, where “even mild non-consensual touching of a sexual nature can have profound implications” (See R v JA, 2011 SCC 28 at para 63). It would be argued in the context of COVID-19 that a cough is hardly a trifling circumstance.

In comparing the two activities, without considering the medical dimensions, the obvious difference is that spitting has a visible presence that a cough simply does not. There is a clear “touching” that results from the spitting action. More subtle is the cough, which we do not necessarily “see.” Pre-COVID-19, this lack of presence would be one of the reasons why a cough would simply not be considered an application of force. Post-COVID-19, the visible and non-visible world has collided and now we discuss aerosols emanating from a cough, which would be mist-like drops difficult to see except in the brisk morning air. Of course, this leads me to consider the “moist” cough akin to “moist” speaking (see this video of Prime Minister Trudeau discussing moist speaking and commenting on how that phrase brings to mind a “terrible image”) or singing, which can also produce aerosols. In considering the physiological make-up of a cough, it is not just any possible spit that is the concern, it is the aerosols emanating from a cough. Proximity may be a factor in proving the offence, coupled with a large dose of expert medical evidence. Adding to the complexity is the intersection between crime and regulation, considering people should be at least 2 meters apart. Presumably, an assault by coughing must occur in the “moist” zone, where people are less than that distance from one another (See e.g. this study on cough aerosols produced as far away as 1 metre, this video on how cough aerosols can travel beyond the 2 metre range and this article on how cough aerosols can “linger” for up to 14 minutes).

But where do we draw the line between a dry cough and a wet one? Other than cough medication descriptions, which seem to rely on ordinary people knowing the difference between the two types, to base the definition of force on aerosols goes well below the concept of minimal force of touching. On the other hand, any kind of cough, if close enough, can interfere with the bodily or physical integrity of a person. Having said that, would we want to criminalize every interference into someone’s personal space? 

Even if the cough is an application of force, there is no assault unless that application of force was without the other person’s consent. Implied consent may be considered, depending on the scenario. Often a cough or a sneeze is an expected incident when interacting with people. Like a slap on the back, we may consent to a cough between friends but not between strangers. 

Even though the offence captures a broad range of conduct, we must be guided by the overarching principle of criminal law, one so important yet easily forgot, that criminal law is a “blunt instrument” to be used sparingly (See R v Hutchinson, 2014 SCC 19 at para 18). This principle of restraint requires us to think deeply before we criminalize behaviour and label it worthy of punishment. Restraint anchors societal values to our rule of law in a profound way. Even if we can charge people with assault in these circumstances, should we be doing so? And if we do, what does this mean for our criminal law and how does it impact other behaviours we find perhaps disgusting, maybe even disturbing, but not, to this point, deemed criminal? If we are to use regulatory enforcement, should we not consider whether the regulatory regime is better suited to discourage coughing in close quarters during the pandemic. That does not automatically mean we use the criminal sanction to do it. The beauty of regulation is that it can be flexible by creating incentives – the carrot rather than the stick. The point I am trying to make here is that before we engage the criminal law in any battle, we must consider our options and ensure that it is the right strategy. Taking a cue from s.1 Charter doctrine and the Oakes decision ([1986] 1 SCR 103), we must apply other principles to this decision such as proportionality, reasonableness and minimal impairment before the knee-jerk reaction that causes us to reach for that stick because it is handy and easily wielded.

So far, I have looked at the law and not the real-life situations connected to it. There are, as I have said a number of cases where people have been charged with assault by coughing (See the excellent Appendix created by David Bunce at the end of this article). The perceived seriousness of these incidents is heightened by their context. Some of the charges involve traditional front-line workers such as police officers, while others involve what COVID-19 has identified as front-line workers such as convenience store clerks. Although the perceived seriousness is increased by the occupation of the victim, assault by coughing charges arising in an arrest situation may be complicated by the specific circumstances of the incident. For instance, if the accused is handcuffed at the time or in a confined space of the arrest processing unit, the ability of the accused to avoid coughing in a particular direction is limited. These cases will need to be vetted and determined on a case-by-case basis, hopefully, in light of some of the comments I have made in this article.

Finally, in the COVID cough context, I would like to mention common nuisance under s. 180 of the Criminal Code. Remember that with or without an accused actually having COVID-19, if coughing is considered force, it is an assault. The consequences of such an action need not be actually or potentially harmful. That is not so for the charge of common nuisance, under s. 180. If coughing or spitting is the force of the assault and if the assault is the unlawful act under s. 180, then a charge under that section is possible. However, the charge requires endangerment to the public, not simply to an individual. For example, in one case where the nuisance charge was laid, the accused allegedly “leaned” into a neighbouring car through the open window and coughed. There are two problems with an offence relating to this scenario. First, the interior car space is not public. Second, individuals inside that car interior would be a very small slice of the public. This seems to be a case of overcharging.

As I suggested earlier, this offence, assault by coughing, may broaden our conception of what an assault may be. This will have lasting effects on what behaviour we consider criminal and may lay the foundation, even after COVID-19 as the spitting incidents have done in the time of HIV, for a much more generous interpretation of assault based on protection of the physical integrity of the person. As discussed earlier, this integrity could include the personal space in which one feels safe. It could also mean amendments to the Code to include cough as an assault for clarification and/or amending the sentencing provisions to include such behaviour as an aggravated form of assault. It can also engage further regulatory rules requiring people to cough in their sleeve or arm for instance. Considering how reflective coughing can be and how many issues are engaged by this simple act of coughing, we have much to consider before we criminalize these incidents.

The other charge which seems to be specially made for COVID-19 are mischief charges resulting from licking or spitting onto property pursuant to s. 430 of the Criminal Code. Although there have been cases of licking or spitting on grocery or food resulting in charges (See Appendix), certainly spitting on elevator buttons, although disgusting and disturbing, did not result in criminal charges. There are of course a number of ways a person can commit mischief under s. 430. Licking or spitting on food may engage any of those forms of mischief enumerated under (1)(a) to (d). Section 430(2) may also be applicable should the act actually endanger life. There is precedence for laying “food tampering” charges, such as in R v Granada, 2013 ABCA 273 (ABCA), but that involved sticking pins into food at a grocery store. Again, we are confronted with a “new” form of mischief as a result of COVID-19, which may be provable but may also, as discussed with assault by coughing, broaden our conception of mischief. There is no doubt the action is disgusting but is it morally reprehensible? Food tampering is morally reprehensible, but does it matter how the food is tampered for the act to cross the criminal law-line? These and other questions are raised by these charges and by criminalizing COVID-19.

In the next blog post on Crime in the Time of COVID-19, I will look at the potential criminal charges laid in the COVID-19 context, which do not create new crimes but uses our criminal law as a response to these situations. For instance, the investigations of the long-term care facilities and the possible criminal negligence charges arising from that scenario.

This Article was written with the invaluable assistance of David Bunce, law student at the University of New Brunswick, Faculty of Law.

David Bunce’s Appendix

 Date: 03/04/2020

Incident: 27-year-old man charged after coughing on a police officer while in custody. He was arrested after being found in breach of the conditions of a release order. 

Link: https://calgary.ctvnews.ca/lethbridge-man-with-potential-exposure-to-covid-19-charged-after-coughing-on-police-officer-1.4881305

Charges: Assaulting a peace officer (S.270) 

Date: 06/04/2020

Incident: Daniel Black, 38, charged after coughing on an Edmonton bus driver and transit peace officers. He claimed to have tested positive for Covid-19. 

Link: https://globalnews.ca/news/6784612/coronavirus-coughed-edmonton-bus-driver-assault/

Charges: Two counts of assault (S.265) and an unspecified charge under the Public Health Act for attempting to infect another individual. 

Date: 07/04/2020

Incident: Dwight Tootoosis,59, claimed to have Covid-19 and intentionally coughed on two police officers. 

Link:https://www.660citynews.com/2020/04/07/rcmp-charge-one-person-for-claiming-they-have-coronavirus/

Charges: Two counts of assaulting a peace officer (S.270) and one count of failing to comply with a public health act. (S.7.0.11(1) of the EMCPA)

Date: 08/04/2020

Incident: 20-year-old charged after licking grocery store product and putting it back on the shelf. 

Link: https://globalnews.ca/news/6796932/taber-alberta-charges-lick-product-store-covid-challenge/

Charges: Mischief under $5,000 (S.430).

Date: 08/04/2020

Incident: Tyson Helgason, 24, coughed on officers after stating he was Covid-19 positive. He was detained at the time while being investigated for a burglary. 

Link: https://www.cbc.ca/news/canada/british-columbia/suspect-charged-coughing-officers-1.5526380

Charges: Assaulting a peace officer (S.270). 

Date: 08/04/2020

Incident: Unknown passing cyclist spit on a woman and her young daughter who was in a stroller. 

Link: https://www.castanet.net/news/Kelowna/296770/Kelowna-mother-says-cyclist-spat-on-her-14-month-old-daughter

Charges: None - police stated that an assault charge could be filed. 

Date: 11/04/2020

Incident: Man spat on elevator buttons in a Vancouver building.

Link: https://www.straight.com/covid-19-pandemic/public-outrage-grows-after-video-shows-man-spitting-on-elevator-buttons-in-vancouver-building

Charges: None 

Date: 11/04/2020

Incident: 27-year-old man charged after blocking the line at grocery store. A customer attempted to move past him and was assaulted. 

Link: https://www.cbc.ca/news/canada/kitchener-waterloo/man-charged-assault-kitchener-superstore-1.5530087

Charges: Assault (S.265).

Date: 12/04/2020

Incident: 42-year-old woman stuck her head into the vehicle of an elderly person to cough on them and the vehicle’s handles. 

Link: https://kitchener.ctvnews.ca/woman-who-allegedly-coughed-on-elderly-person-in-drive-thru-charged-with-assault-1.4892949

Charges: Assault (S.265) and common nuisance endangering life (S.180). 

Date: 14/04/2020

Incident: 57-year-old man coughed in the direction of an LCBO employee after paying for his items. 

Link: https://kitchener.ctvnews.ca/assault-charge-laid-against-man-accused-of-coughing-on-lcbo-cashier-1.4895943

Charges: Assault (S.265).

Date: 15/04/2020

Incident: 25-year-old woman charged after coughing on a grocery store clerk who would not sell extra tissues. 

Link: https://www.tricitynews.com/news/coquitlam-woman-facing-assault-charges-for-coughing-on-grocery-clerk-1.24118315

Charges: Assault (S.265). 

This post keeps that individual, Meng Wanzhou, in mind. For it is Meng Wanzhou who faces serious criminal charges and for whom this extradition decision will have direct and serious consequences. That is why I am looking for the individual in this recent extradition decision rendered by Associate Chief Justice Heather Holmes on the “double criminality” requirement, in which a person is extradited only when the conduct amounting to the criminal offence in the requesting state is also conduct amounting to a criminal offence in Canada. I am doing so because people matter, and because the law requires it. 

It’s best to start at the beginning. There are, in fact, two beginnings, both intertwined: one legal and one personal. Meng Wanzhou was arrested in Canada at the request of the United States in December of 2018. She is considered by some to be “corporate royalty” as CFO of one of China’s most powerful corporations, Huawei Technologies. At the time of her arrest, Meng was travelling from Hong Kong and through Vancouver to Mexico, with no plans to stop in Canada eventhough her two youngest children (she has four) were in Vancouver schools at the time. It was this transitory presence in Canada that brought her within reach of the US judicial machinery. The timing seemed odd to many. At the time, the United States was trying to convince Canada to leave out Huawei in the negotiations to develop 5G mobile networks in North America. The allegations also seemed stale. They involved Huawei’s financial relationship with the US banks and Huawei’s failure to disclose its trade relationship with Iran, an entity embargoed in the United States, but not similarly sanctioned in Canada. 

Legally, the Meng Wanzhou case began when the person Meng Wanzhou was arrested. I am not going to trace the various court dates of the case. Neither am I going to discuss the bail hearing and other arguments made in the days leading up to the double criminality decision. Rather, I will start at the point where the individual and the legal principle meet: the decision on “double criminality,” what it means legally, and what it means for Meng Wanzhou. 

The legal aspect touches upon the purpose behind extradition, which is the process by which a person can be sent to a foreign state for “the purpose of prosecuting the person or imposing a sentence on or enforcing a sentence imposed on” that person (see s 3(1) of the Extradition Act, SC 1999, c 18). This purpose is not complete without considering the values behind this process. Justice Ian Binnie, speaking on behalf of the majority decision in MM v United States of America, 2015 SCC 62 (CanLII), suggests that “extradition serves pressing and substantial Canadian objectives: protecting the public against crime through its investigation; bringing fugitives to justice for the proper determination of their criminal liability; and ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law” (at para 15). Importantly, these objectives are deemed “Canadian” in aspect, albeit a fulfillment of international obligations. In other words, these objectives are familiar and apply domestically. We want crimes to be investigated and the apprehension of those individuals suspected of crimes for our protection. We also want a fair and independent tribunal to assess the case by applying our rules and principles, including the presumption of innocence and proof beyond a reasonable doubt. We also want this determination to be done fairly and consistently, with our Charter of Rights and Freedoms firmly in mind. Societal interests in the apprehension of crime reside in the same space as our Charter values. That space guarantees the person suspected, charged, and facing a criminal offence certain legal rights that coincide with the public interest of apprehending and sanctioning individuals for crimes. 

So too in the extradition world, the individual matters. Justice Binnie in articulating the above objectives of extradition, also stated that “the extradition process serves two important objectives: the prompt compliance with Canada’s international obligations to its extradition partners, and the protection of the rights of the person sought. The latter objective places important limits on when extradition can be ordered” (MM at para 1). The key to extradition, therefore, is the “careful balancing of the broader purposes of extradition with those individual rights and interests” (at para 16). This balance must be in place throughout the extradition process; as we fulfill our international obligations, as we pursue our criminal law objectives, the individual who is at the heart of the process must not be forgotten.

With the above admonition in mind, we can now, with a critical eye, review the decision rendered by Justice Holmes on the issue of “double criminality.” We must acknowledge that this issue is merely a threshold one. It permits the process to continue but it does not determine the final extradition decision. That final decision, in fact, lies outside of the four walls of the courtroom. As the extradition process is engaged by the Minister of Justice who issues the Authority to Proceed or ATP, the Minister has the final say on whether the order for surrender will be fulfilled. Nevertheless, the double criminality issue, which is a statutory requirement under s 3(1)(b) of the Extradition Act, can end an extradition process if unfulfilled. As suggested by Justice Holmes, double criminality “derives from the foundational principle of reciprocity” (Meng Wanzhou at para 20) between nations. 

Reciprocity is an international law concept and is more than a mutually beneficial exchange between two entities. It is a concept based on the recognition of the ‘other.’ An exchange between two nations requires a recognition of the other state’s sovereignty, an admission that the other state exists as an independent and viable society. It requires acceptance, tolerance, trust and patience. The importance of recognizing statehood cannot be underestimated. In the Meng Wanzhouextradition for instance, Iran, as a foreign state sanctioned by the United States through a trade embargo, was not to be recognized, tolerated or trusted in the requesting state’s view. Reciprocity is not just an exchange; it is a symbolic act between two foreign entities, and a potent one at that. 

Double criminality, as an example of reciprocity, accepts differences in foreign approaches to the rule of law (see Kindler v Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 SCR 779 at 844, per Justice McLachlin as she then was) but at the same time requires consistency. This may seem contradictory and impossible to fulfill, but the Canadian approach to double criminality, that is, a conduct-focused approach as opposed to offence-focused, permits the fulfillment of these two goals of accepting differences while recognizing the similarities between the two nations. In the Meng Wanzhou decision, all parties agreed the conduct-based approach is the correct one. It is in its application where the parties differed. 

Counsel on behalf of Meng Wanzhou argued that the alleged conduct underlying the offence of fraud as found in Canada under s 380 of the Criminal Code, RSC 1985, c C-46, would not amount to fraud in Canada because, in its essence, it would not be considered misconduct in Canada (at para 30). In Canada, Iran was not a sanctioned entity. The federal prosecutors disagreed. They argued Meng Wanzhou’s corporation, Huawei, by failing to disclose their commercial relationship with a US-sanctioned Iran in their dealings with US banks, deceived the banks and materially deprived them of accurately assessing their financial relationship with Huawei (at para 35). The prosecutors relied on the dishonest deprivation required for fraud as arising from both a failure to disclose the Iranian connection and a general dishonest deprivation unconnected to the sanctions (at para 36). 

Justice Holmes, in accepting the fraud based on the Iran sanctions only, rejected the narrow interpretation of conduct-based double criminality offered by Meng Wanzhou’s counsel. In her view, the conduct should not be so specifically framed. By doing so, it restricts both the meaning of fraud under s 380 and the double criminality requirement under the Extradition Act (at paras 60 and 66). Double criminality as a threshold requirement, where the court does not weigh the evidence of the actual events or make a final determination of guilt or innocence, or even make a final determination of an extradition surrender order, needs to be generously interpreted. If not, double criminality would no longer be a threshold issue but would be a final one. 

Justice Holmes’s view is consistent with other criminal law principles. For instance, in legal causation where there is an intervening act, in assessing whether the intervening event was reasonably foreseeable, the trial judge does not view that foresight through the lens of the specific event but merely reviews the generalities arising from it. Thus, in R v Maybin, 2012 SCC 24 (CanLII), the foreseeable event was not “the unprovoked assault by a bouncer of an unconscious patron,”but whether it was reasonably foreseeable that someone would intervene in a fight (at paras 33-34). It is the general nature of the event that matters, not the specifics. 

Here too, in Meng Wanzhou, it is the general nature of the actions in the context of the legal environment of the requesting state that engages or doesn’t engage the fraudulent act requirements under s 380. The specific fact, that if Huawei conducted the same business in Canada they would not be acting fraudulently, is of no moment because the general nature of that conduct, that of a dishonest deprivation, could amount to an offence under s 380. 

Moreover, a restrictive meaning would cut out the legal landscape of the requesting state. It would necessitate an almost surgical excision of the Huawei conduct, transplanting it into the surrendering state, without context and without that crucial reciprocity consideration. That form of transposing the facts belies legal authorities that are replete with commentary on the need to consider the “institutions and laws of the foreign jurisdiction” (at para 68, quoting Justice Watt as he then was in Germany (Federal Republic) v Schreiber, 2004 CanLII 93326 (ON SC) at para 37). The argument is novel and no doubt will be further tested in the appellate courts if there is an order to surrender Meng Wanzhou.

Even if the double criminality decision is consistent with the purpose behind double criminality as a principle, there are fundamental concerns with the Meng Wanzhou decision. Double criminality is a threshold issue with a difference. It is a foundational principle that permeates extradition as a whole (see MM at para 16). It is not a separate and contained issue to be parsed from the extradition process. This means that it is to be considered in light of the “pressing and significant Canadian objectives” (MM at para 15) driving the entire extradition process, which balance international obligations and the individual’s rights and interests. Although Justice Holmes may have applied the correct double criminality principles, the more pressing issue is whether she properly applied these foundational extradition principles. By parsing the double criminality issue from the extradition hearing, she treated double criminality as purely a statutory requirement to be reviewed, determined and fulfilled under s 3(1)(b) of the Extradition Act. Although that statutory requirement obliges Justice Holmes to determine the issue, it has a doppelgänger or a “double” in the foundational principles of extradition. This other double criminality principle needs to be part of the entire extradition process, including the final extradition determination expressed in s 29(1)(a) of the Extradition Act that requires an extradition order only where there is admissible evidence to justify committal to trial in Canada, right through to the Minister’s final say on whether the surrender order will stand (MM at paras 22-23). 

Most importantly, as more than a threshold issue, double criminality has life beyond the statutory reflection of that principle under s 3(1)(b) of the Act. Legal principle reads double criminality in a manner consistent with the Charter and Charter values by requiring the court to consider and balance the individual’s rights and interests in the extradition process (MM at paras 1, 14-18). Nowhere in the Meng Wanzhou decision is this explicitly articulated. Yet it is as foundational as reciprocity and the fulfillment of international obligations. Taking into account the individual throughout the extradition process brings into focus the person who faces surrender, who faces a separation from country and loved ones, and who must attorn to another foreign entity and their justice system. 

The Meng Wanzhou case is not over by a long shot. Despite Justice Binnie’s admonition in MM that extradition requires “prompt compliance” (at para 1), this case has not been promptly handled. As emphasized by Justice Holmes, there is still a “larger” issue to be determined, which is “whether there is evidence admissible under the Act that the alleged conduct would justify Ms. Meng’s committal for trial in Canada on the offence of fraud under s 380(1)(a) of the Criminal Code” (Meng Wanzhou at para 90). Extradition is still an open question. Yet, even beyond that, court determined closure is the final step, in which the Minister of Justice could refuse surrender if such an order is “unjust or oppressive” pursuant to s 44 (1)(a) of the Extradition Act. In this decision too, the individual looms large, not just as a fugitive who must face justice, but as Meng Wanzhou with her personal history and life story. 

Our first stop is law related, of course. What better way than to take a break and sit in the “Lawyers Lounge” the new podcast series launched by Emond’s Criminal Law Series. This podcast has something for every dyed in the wool criminal lawyer – law, laughs and well, lounging. So put your feet up for a while, while I while away the time musing on this podcast series. 

 First, we have outstanding hosts, Danielle Robitaille and Lisa Jørgenson, to welcome us into this “community” space, as the hosts describe it, where like-minded criminal lawyers can connect and decompress. Community is even more crucial in this asynchronous time when it feels as though our watches have all stopped. Community is also now incredibly fragile as our new “BFFs” become our laptops, our smart phones or even our decked out in designer wear, Bitmojis and other sundry digital avatars. 

The Lawyers Lounge gives us that missing human touch by bringing us back to reality, in a pleasant way. It offers sound advice from Lisa and Danielle, two witty, sharp and grounded criminal lawyers, who tell us how to manage that difficult client or how to connect with clients emotionally during this emotional time. 

There are also superb special guest presenters in each episode, running the gamut of Vancouver’s Eric Gottardi, the entertaining and winning lawyer, who discusses his most recent win in R v KGK to the sobering reminder that racism is sadly alive and well during the time of COVID-19, as eloquently presented by the brilliant Gerald Chan. So, take a listen to this earthy, informative podcast that brings us some lively conversation, by taking “lounging about” to a new level.

Speaking of legal podcasts, I would be remiss if I didn’t also mention “Paw and Order,” a hard hitting reminder of how woefully inadequate our criminal law is when it comes to protecting animals. Peter Sankoff, Camille Labchuk and others host this always relevant and thought-provoking podcast. It is guaranteed to be lounge worthy. Another favourite is The Docket hosted by the ever effervescent Michael Spratt and Emilie Taman. This podcast is chock full of law, politics and pitch-perfect rants, which makes this the perfect listen when you need a home alone lift. Finally, without seeming to push my own agenda, but what the heck, Ideablawg’s podcast on the Criminal Code of Canada is worth a listen as I try to stumble through every section of the Criminal Code. I am only up to s. 72 but who’s counting!

Let’s take a 360 and look at some non-legal lounging that can be done at anytime and anywhere. I have started to do multi-platform listens (and watchings) of daily readings and knowledge sharing. So what does a typical listen look like in the Lisa Silver lounge: 

I listen to Sir Patrick Stewart read a Shakespeare sonnet a day on Instagram (also can find it on Twitter). Sir Patrick is not just about trekking through the universe but also is an unbelievably believable Shakespearean actor. There is nothing like his portrayal of John of Gaunt in Richard II in which every actor is outstanding, be it Ben Whishaw as Richard or Rory Kinnear (whose father, Roy, was hilarious in the Beatles movie, Help!) as Bolingbroke or David Suchet (aka as Poirot) as the Duke of York. Watch this recording of 4 John of Gaunt portrayals with actors reading “This Sceptered Isle” monologue with Stewart’s as the last one. You will agree his is the most mesmerizing of all – apologies to Sir John Geilgud. 

If Shakespeare’s English doesn’t speak to you then how about something a little newer, albeit not too new. The Rime of the Ancient Mariner Big Read is a treat. Each day, three stanzas of the spine-tingling Samuel Taylor Coleridge classic is read by actors, musicians, scientists and the like, together with lapping water and eye-catching art, plus an Albatross screech here and there. 

Then, for the more serious mathematically inclined is the quantum café lounge found with Brian Greene’s Daily Equation on Youtube. Admittedly my math stopped at calculus but he can sure explain the most complex physics and mathematical theories in an engaging and surprisingly accessible way. 

I could go on but one cannot live on lounging alone. Although if we did, we would be well rested, intellectually nourished and ready for the next day of – well – the next day of lounging!

The focus of this piece is criminal law. This is a bold statement considering we are, with this Covid-19 crisis, currently deeply within the regulatory world. There is so much to unpack in the area of regulation and Covid-19 that to focus on one area is dissatisfying. There are, however, many of my colleagues both here in Alberta and across the country discussing various aspects of the regulatory “new normal”. Specifically, I suggest a look at the ABlawg website where there are a number of Covid-19 related articles from colleagues writing in their areas of expertise such as statutory interpretation, health, human rights, environmental and natural resources. Many of these areas overlap with the criminal law perspective but I will try to keep this article anchored in more classical criminal law concerns. This will require a discussion of regulatory offences, specifically those arising in the time of Covid-19, which enforce a regulatory scheme through the criminal sanction. By using criminal law concepts to enforce the regulatory scheme, these regulatory offences are subject to those criminal law legal principles which describe, define and confine offences. In this discussion, we will look at the general precepts of regulatory offences, how this form of liability connects to traditional criminal law concepts and then apply our knowledge to a Covid-19 measure involving social or physical distancing. This application will be done through survey of that measure across Canada to identify the ways in which we are responding in the context of regulation. This survey will provide the basis for some preliminary recommendations based on lessons learned through the review of these regulatory, and in some instances, non-regulatory measures. 

 Finding the Connection Between Regulatory Offences vs Criminal Offences

It’s revealing that in defining a regulatory offence, the case authorities do so by comparing and contrasting it with a crime. This approach discloses an important truism; that the two different types of enforcement mechanisms are intertwined and each type of mechanism can only be explained by understanding the precepts of the other. Despite this connection, there are differences between the two areas. Justice Dickson in R v Sault Ste Marie, [1978] 2 SCR 1299 at pages 1302 to 1303, described regulatory matters in “substance of a civil nature” and lying more in the “branch of administrative law” thereby limiting the relevancy of criminal law principles. Although this sentiment is from the late 1970s, it is still relevant today. Case authority has continually treated regulatory matters as lying within the civil side of the law in terms of the fault requirement and in terms constitutional terms, as we will discuss later. Moreover, regulatory offences tend to be directed toward legitimate activities, not conduct that is “inherently wrongful” (see R v Wholesale Travel Group Inc,  [1991] 3 SCR 154, Justice Cory at p. 216) like crimes. For regulatory offences, the emphasis is in the ability to control legitimate activities that require special care and the creation of standards of behaviour. In this sense, regulation creates rules to live by, rules that are “essential for our protection and well-being” from “cradle to grave” (Wholesale Travel at p. 221). 

But regulation is not just for the individual, it is also for the common weal and a socio-political tool used to implement public policy objectives. When viewed through the social good lens, our individual backs may get up; government interference in our daily lives while we go about our daily business is paternalistic and often an unwelcome interference. There has been much ink spilled over the benefits of regulation, whether behaviours can be shaped by it and how it can be best implemented to provide the desired outcome (see e.g. Cass Sunstein and his approach to regulatory “nudges”). 

We do not generally feel the same angst about criminal law. We typically want our state authorities to protect us from murder and mayhem, with the caveat that they do so with the minimum level of intrusiveness needed to provide that protection. But the line between regulation and criminal is not so starkly drawn. Justice Cory in Wholesale Travel chided us to remember that “as social values change, the degree of moral blameworthiness attaching to certain conduct may change as well” (at p. 220).  Regulatory misbehaviour may not be as morally blameworthy as criminal behaviour but the relationship between regulation and criminal law is not static. The range of conduct under each area moves and shifts according to societal mores and needs. 

Perhaps this connection between regulation and criminal law started at the beginning of our collective history as a nation. The Constitutional Act 1876 creates the division of powers, found under ss. 91 and 92, which outline the powers of parliament and the exclusive powers of provincial legislatures, respectively. Section 91(27) gives the federal government the power to create criminal law and criminal procedures. Section 91(15) gives the provincial government the exclusive power to use the criminal sanction to enforce a valid provincial law, such as property and civil rights in the province (see s. 92(13)). There are other powers that touch upon the administration and maintenance of the criminal justice system but for regulatory offence purposes these sections provide the authority to create provincial laws enforced through a criminal-like framework. The provinces by creating legislation are using the tools of criminal law but they are not creating criminal law. Provincial legislatures can use the criminal sanction to enforce provincial laws, as long as they stay within their area of interest as determined by the Constitution Act 1867 and the myriad of division of power case authorities. This sounds simpler than it is in practice. Often, it is not so clear under which area the province is legislating. To make matters even more obtuse, there are many areas of interest that overlap between the federal government and provincial legislative powers. 

Health is one area where there is this constitutional overlap, which when considered logically, makes perfect sense. Canada, as one nation, should have a national interest in the health of its citizens. The obvious example of this for our discussion is the federal Quarantine Act. Of course, “quarantine” is found under the federal head of power pursuant to s. 92(11) of the Constitution Act. The Quarantine Act was updated in 2005 after the SARS outbreak. When Covid-19 became a concern, the Act was easily amended to include Covid-19 in the Schedule of communicable diseases. The preamble to this Act gets right to the point; the Act is “to prevent the introduction and spread of communicable diseases.” Note the word “introduction,” which relates to the main focus of the Act on border control, a federal concern.  On the other hand, the provinces also have a deep interest in the health and safety of their provincial residents as expressed by s. 92(16) of the Constitution Act 1867 arising from “matters of a merely local of private nature.” (see Schneider v The Queen, [1982] 2 SCR 112). Communicable diseases are regulated through provincial legislation on public health such as the Alberta Public Health Act, which is the main source of many of the Covid-19 legislative efforts in that province. 

So, if the provincial regulatory efforts are not criminal law then the connection between regulatory offences and criminal offences must be the provincial ability to use the criminal sanction to enforce provincial laws. Even though the provinces are not creating criminal law top down so to speak, meaning they are not creating a crime and then attaching a sanction to it, the provinces are engaging criminal law principles by using the criminal sanction. Although the criminal sanction does not apply until an accused person is convicted, its mere potentiality triggers discourse beyond the punishment and sentencing context. This is why case authority looks at regulatory offences through the criminal law lens and why a discussion of one area requires a discussion of the other.

The first important decision on regulation versus crime is the seminal case of R v Sault Ste Marie. Although this decision is pre-Charter, its influence is undeniable. In this case, Justice Dickson marks out many fundamental criminal law principles. Yet, this is a case which factually lies squarely within the regulatory arena. The City of Sault Ste Marie was charged with polluting the waters, a provincial offence. The main question for consideration in the decision was the characterization of the regulatory or public welfare offence. The character of the offence mattered as it would define the kinds of defences available to the City in defending the charge. To determine this, Justice Dickson reached into both the criminal law and regulatory law context to create a “half-way” house form of regulatory liability, called strict liability. This form of regulatory offence bridged the gap between criminal and regulatory by creating negligence-based liability, which provided defences to the defendant in a regulatory manner yet retained the administrative efficiencies needed to promote and enforce public welfare violations. 

This was a welcome addition to the regulatory arsenal as previously the choice was a stark one. On one end of the spectrum was the public welfare offence of absolute liability where the fault element was absent to allow for efficient enforcement of the regulatory law. At the other end was the regulatory offence qua criminal offence that required proof for subjective liability that mirrored a traditional criminal offence. Such proof was difficult in the public welfare forum as it required proof of knowledge, intention or recklessness of the defendant, an almost impossible requirement when it came to corporate offenders or in this case, a City. Strict liability struck the right balance. 

But Sault Ste Marie did not just open the regulatory door to a different form of enforcement, it also laid the foundation for Charter application to regulatory offences. Justice Dickson, by delineating the fault element as between crimes and regulatory offences, and by describing the purpose and objective of regulatory enforcement, set the stage for future discussions in cases such as Re BC Motor Vehicle Act, [1985] 2 SCR 486 and Wholesale Travel. Those early Charter cases extended Sault Ste Marie from the regulatory perspective and, together with the Vaillancourt ([1987] 2 SCR 636) and Martineau (1990 2 SCR 633) decisions from the true crime field, constitutionally set strict liability as the minimum form of fault required by the Charterfor regulatory offences where the punishment included a loss of liberty. Fault and sanction were required to be fully aligned and proportionate to one another and in their effect. These decisions resulted in the principle that absolute liability offences could not be enforced through a loss of liberty such as imprisonment. Many provinces re-thought their regulatory enforcement as a result creating fine only offences in an effort to retain the ease of conviction with absolute liability offences. In, Levis (City) v Tetreault, [2006] 1 SCR 420 at paragraph 17, Justice Lebel remarked on the rarity of absolute liability offences, calling that form of liability the exception rather than the rule due to the presumption for strict liability. Yet many absolute liability offences can be found in regulatory schemes. Although absolute liability and strict liability have been clarified over the past few decades, the issues of which kind of liability a specific regulatory violation requires is an open one and indeed one of the first arguments to be made in Court in a regulatory prosecution.

The reality is that with the explosion of regulatory measures to contain Covid-19, these basic issues of fault and sanction are even more important. Some provinces have enforced Covid-19 measures through a fine only regime, while others have added imprisonment as a potential sanction. This results in similar measures through differing enforcement mechanisms resulting in different proof requirements. There could, however, be an argument that even those measures enforced through imprisonment are absolute liability offences where fault is not required. This would be based on a s. 1 argument presaged in Re BC Motor Vehicle Act by the then Justice Lamer when he said, at paragraph 85 that,

Administrative expediency, absolute liability's main supportive argument, will undoubtedly under s. 1 be invoked and occasionally succeed. Indeed, administrative expediency certainly has its place in administrative law. But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.

Knowing the fault element is therefore important for prosecuting regulatory offences in terms of proof requirements and for defending such offences in terms of the kinds of defences available, which depend on the form of liability. For instance, absolute liability offences have no fault element and therefore the prosecutor need only prove the prohibited act or actus reus beyond a reasonable doubt for conviction. The only defences available are whether the act was voluntary, capacity defences and, if applicable, arguably the defences of excuses (necessity and duress) and justifications (self-defence and defence of property). If strict liability, the defendant had more options based on proof, on a balance of probabilities, that they were acting with due diligence or took all reasonable steps to comply or that they were operating under an honest and reasonable mistake of fact. The importance of having these negligence-based defences is profound as the application of those defences can provide protection against convicting the morally innocent of an offence. This is not the same for absolute liability offences, which convict despite a person’s best efforts to comply. In the harshness of the absolute liability world, even the reasonable person is convicted and punished. It is this “revulsion against punishment of the morally innocent” (Sault Ste Marie at p. 1310), which conflicts with the objectives of regulation that serve to promote and maintain high standards of public health and safety. This “field of conflicting values” (Sault Ste Marie at p. 1310) become even more rarified when engaged by those public health and safety measures, which have dire consequences if not scrupulously enforced such as in the Covid-19 situation. In those dire circumstances, it seems that the more imperative the enforcement measures are to fulfill the regulatory objectives, the more crucial it is that we recognize those conflicting fundamental values at risk of being disregarded, such as the concern for punishing the morally innocent. 

This concern for punishing the morally innocent also flows from the principle of legality (See e.g.  R v Lohnes, [1992] 1 SCR 167 and R v Levkovic, [2013] 2 SCR 204). This concept enshrines restraint as a guiding criminal law principal. It provides a statutory SWOT analysis that holds our lawmakers accountable to its citizens. This principle requires citizens receive fair notice of those behaviours considered contrary to the law, which in turn serves to limit state enforcement. It is tied to concepts of statutory interpretation and reviews the offence as described to determine its justiciability by considering whether the entirety of the offence is  void for vagueness or drawn overly broad. The Charter too has a role to plays if a section does not fulfil this principle. Again, although we are in the regulatory sphere, this concept of fair play and restraint is an important theme in regulatory offences as well.

 Regulating Covid-19 By Staying 2-Metres Apart

Now that I have discussed the general legal context, let’s keep these principles in mind as we look at regulating Covid-19. There are a number of such measures implemented across Canada through provincial legislation. The provinces and territories initiated these measures by declaring a public health emergency allowing each province to issue public health orders and emergency management orders tailored to the measure to be implemented. Although the measures in each province appear similar, many provinces differ in the details. Additionally, not all of the Covid-19 measures are enforced through the regulatory scheme. Some provinces have opted for advising their residents to follow certain public health measures, rather than requiring statutory compliance. Of course, it is only through statutory rules that enforcement through the criminal sanction can occur. Which approach is more effective is an excellent question that requires further study beyond the scope of this posting. Another question that remains to be answered is which approach is more balanced in view of the “field of conflicting values” concept where enforcement through punishment to protect society is a means to an end. Again, understanding the impact of these two approaches, statutory or advisory, may help answer these vitally important questions.

For purposes of this article, I decided to look at one common Covid-19 measure found across Canada; social distancing or physical distancing (the Yukon government calls this “safe spacing and physical distancing”), which requires individuals to be 2 metres part from one another. I also chose this measure because it is, in my view, the measure that is most open to interpretation and therefore does bring into the conversation those general issues I have discussed earlier in this article. My initial thought was this measure would be the most difficult to enforce as it relies on a specific absolute measurement that is not readily ascertainable. We may have an idea of what 2 metres looks like but without verification, we could never really be sure. This poses a problem for both those who are trying to fulfill the requirement and those enforcing it. In prosecuting someone for such a violation, proof must be of the actions as described in the rule, it cannot be based on approximations.

Of course, in this time of Covid-19, we are in the world of approximations; many of the governmental  websites describe the distancing requirement as 2 metres or 6 feet. Those of us who are conversant in metric and in Imperial units know that metres and feet do not so easily translate to whole numbers. In fact, 2 metres is 6.56168 feet. Someone could be in violation of an Order to stay 2 metres away if they followed Imperial units of measurement. To assist in discerning the required distance, many provinces offer visuals on how to fulfill the 2-metre rule. In Alberta, the length was described on the Alberta government website as “about the length of a hockey stick.” In Newfoundland, the government offers a physical distancing animation video on YouTubeurging everyone to keep 6 feet apart. British Columbia preferred to compare the distance to the length of a queen-sized bed, which I found most difficult to visualize. The federal government offered the more staid two arms lengths apart description. Yukon is the most creative when it comes to visual prompts. They offer a “1 caribou apart,” “2 huskies apart,” “8 sourdough loaves apart” physical distance visuals. I highly recommend viewing these posters – a sense of humour where warranted is definitely welcome in the highly-charged age of Covid-19! The Northwest Territories explainer of the distance includes a fantastic meme that shows the exponential growth of the number of people infected by one person.

Visuals aside, as I indicated above, a person charged with an offence arising from a violation of this distancing rule would be held to the statutory rule as specifically described in the legislation. This raises proof issues of that particular regulatory offence in terms of both the prohibited act or actus reus  component and the fault element or mens rea component, if not an absolute liability offence. Violation of the rule would then be enforced through the offences and penalty section of each statute. In terms of the actus reus component the prosecutor would need to prove beyond a reasonable doubt, that the defendant was not 2 metres distance away from another or not at least 2-metres away, whichever way the rule is articulated. As discussed, this indeed would be difficult to establish unless it was an obvious breach of that distance. We may not know how far we are from one another at long distances but at very short distances, we can safely infer that we are not complying with the rule. It seems, therefore, that this kind of regulatory offence could only be enforced in clearly egregious violations. But that, in the criminal law world, is not good enough. We cannot rely on discretionary enforcement to make a law one that complies with fundamental legal principles. Our principle of legality makes sure of that.

The mens rea requirement is more complicated and does depend on statutory interpretation, common law presumptions and Charter case authorities. In Sault Ste Marie, Justice Dickson created a presumption that regulatory offences require the negligence-based form of liability known as strict liability. With this form of liability, the Crown would need to prove the actus reus beyond a reasonable doubt at which point the trial judge could infer the fault element from that conduct unless the defendant establishes on a balance of probability that they were acting duly diligent, taking all reasonable steps required in the circumstances or that they were acting under a honest and reasonable mistake of fact. This presumption was elevated to a minimum Charter requirement where there was a potential for a  loss of liberty upon conviction. Thus, penalty is an important indicator of what form of liability is required by the section. 

In Re BC Motor Vehicle Act, Justice Lamer considered absolute liability offences, where no fault was required. Applying the Charter, Justice Lamer found that those absolute liability offences which were enforced through the criminal sanction where loss of liberty was possible, such as jail or probation, violated s. 7 of the Charter  and could not be saved by s. 1. As a result, in creating absolute liability offences, provincial lawmakers limit the sanction to fine only. However, it is still arguable even where an offence is enforced through fine only that it requires strict liability rather than absolute. Strict liability is the presumptive form and to be rebutted there must be clear parliamentary intention for a different form of liability. The same principle applies to those regulatory offences that like criminal offences can require subjective form of liability. Those regulatory offences would require intent through the words used in the section, such as knowingly or intentionally or for the purpose. They would also attract the severest penalties involving potentially lengthy jail sentences. 

The purpose of this discussion is to show that the question of mens rea for these regulatory distancing offences would depend on the regulatory scheme being used with special emphasis on the penalty and by applying the presumption for strict liability. Strict liability offences would be consistent with many of the principles already discussed as providing an avenue for those who we would not consider morally blameworthy as they either could not avoid committing the offence or they were working under a reasonable factual misapprehension. On the other hand, absolute liability would be efficient by not requiring proof other than the conduct, but would capture those who we may not consider blameworthy in the circumstances such as when no person could have avoided committing the offence. There is a final defence possible for any kind of regulatory offence, be it strict, subjective or absolute, and that is the limited mistake of law defence known as officially induced error (see Levis (City) v Tetreault, [2006] 1 SCR 420). This defence results in a stay of proceedings rather than an acquittal as the focus of the defence is on the abuse of process occasioned by incorrect information given by a relevant government official, which is then acted and relied upon by the defendant. Without getting into the niceties of the defence, which is involved, an officially induced error may amount to a defence given the appropriate circumstances when it comes to being 2 metres apart. 

Returning to the regulatory schemes across Canada, what struck me was the differences in regulating, or not regulating, this simple, yet hard to describe, concept of social distancing. First, I will make some general remarks about my experience surveying these measures before I discuss the specifics of each province and territory. For some jurisdictions, it was incredibly frustrating to even confirm whether the jurisdiction was regulating social distancing.  Often, the public health orders that created the rule were difficult to find. Usually, the government website would discuss social distancing, relay the 2-metre distance, but not clearly indicate whether this was an enforced rule or merely a recommended best practice. Additionally, the social distancing was often discussed with another common regulatory rule on limiting mass gatherings. For instance, mass gatherings of a certain size would be prohibited but the gatherings below the limit would be permissible if the participants complied with social distancing rule of 2-metres apart. This relationship although understandable tended to obscure the true definition of social distancing resulting in inconsistent media messaging. For example, I found an article that conflates these two measures, making it seem that distancing was a rule, when it was really the mass gathering limit that was the enforceable activity in that province. 

There were some provinces who did provide clear linkages to relevant legal information. Nunavut lists hyperlinked public health orders directly on the general Covid-19 information webpage. The Yukon, upon scrolling down the website, lists a link for “orders and recommendations.” Newfoundland also clearly presents a link on their Covid-19 website to “public health orders.” 

Conversely, PEI webpages were more difficult to navigate. For instance, the webpage for “COVID-19 Advice for Individuals and Families” headlined “practice social distancing” outlining the mass gathering restriction of groups of no more than 5 people and an admonishment to “make sure you understand what social distancing means.” The phrase “social distancing” hyperlinks to a webpage on the concept. It discusses the “recommendations for social distancing” of staying at least 2 metres or 6 feet apart. It seemed on this basis that the 2-metres was a recommended practice. To confirm this there is also a webpage on Covid-19 enforcement that gives a further hyperlink to “Covid-19 enforcement.” It also gives a link for a Public health Order for self-isolation but no other Orders. Taking the hyperlink to another Covid-19 enforcement site, finds a webpage news release on the provincial measures from March 23, which did not detail all of the measures but did indicate the penalty for non-compliance as “including” fines of $1000 for a first offence, $2000 for a second offence and $10,000 for a third offence. The Public Health Order hyperlink offered only three choices with the only possible relevant Order entitled “Public Health Order for Covid-19 Isolation.” This Order, although more detailed than other Orders from other provinces as having an actual definition section similar to legislation, did have mention of keeping 2 metres away but directed towards those businesses permitted to stay open where the owners or managers, under section 12, were required to “take every reasonable step to ensure minimal interaction of people within two metres of each other”. The order also speaks to mass gatherings under s. 16 but no connection between the 5-person limit and social distancing. The upshot is that indeed social distancing is a recommended practice in PEI unless you are running a business and even then, it appears there is a due diligence defence written into the rule. As an aside, failure to comply with the Order is an offence under s. 66 of the PEI Public Health Act, which outlines the fines as per the government webpage referenced above except that it also indicates that a third offence or more is not only subject to a 10,000 dollar fine but also to a term of imprisonment not exceeding six months. In the time of Covid-19, getting direct, clear and easily accessible information takes patience.

After an entire day of searching, I was able to trace, with one exception, whether a province or territory had a social distance regulatory enforced rule to stay 2 metres apart, either generally or connected to businesses (such as take out establishments) or connected to the mass gathering rule. British Columbia is the exception. The BC government website I encountered discusses “practicing” of physical distancing. I could not find an Order regulating this requirement for all individuals (except for businesses such as take out) despite the media report from March 25 that “Social, or physical, distancing is a provincial public health order — not a suggestion — telling British Columbians to stay at least two metres away from others and avoid crowds of 50 people or more to slow the spread of the coronavirus.” I note that the BC government also tweeted from their twitter account that “social distancing is an order – staying 2 metres apart outside home.” 

I also checked the City of Vancouver website to see if they legislated in this area. In Ontario for instance, there is no physical distancing legislation provincially but the City of Toronto, through their by-law powers, did implement such distancing outside in public places. I found this comment on the City of Vancouver website: “Keep 2 m apart from others if you must leave your home. The Province has the authority to give fines and penalties for not keeping physical distance out in public, not the City of Vancouver. We are encouraging compliance using public education.” Again, much of this confusion is the use of the term “physical distancing” as a general basket of conduct which includes limiting mass gatherings and staying out of closed parks and recreation areas, rather than using the term to mean staying 2-metres apart. However, in the BC case, it appears, based on what I could find and not find online, that there is an actual informational conflict.  

Finally, to make my point on the importance of consistent messaging, I turn to my home province of Alberta, the government website advises that “all Albertans should practice physical distancing to help limit the spread of COVID-19 and reduce the risk of getting sick.” The webpage calls physical distancing a “practice” but also references “mandatory restrictions on gatherings” with a hyperlink. That webpage indicates that “People gathered in groups of fewer than 15 people must maintain a distance of 2 metres from one another. Gatherings must occur in a space that allows for mandated physical distancing(at least 2 metres between attendees).” The hyperlink for the phrase “mandated physical distancing” goes back to that first webpage in which distancing is labelled a “practice.” It is in the public health order, specifically CMOH Order 07-2020, where there are rules on gatherings indoors or outdoors of less than 15 people, which require staying a “minimum of 2 metres distance from one another,” unless from the same household. 

Difficulties in discerning where the line is drawn between regulation and recommendation becomes even more important when a rule is statutory because of the categorization of the offence as strict or absolute liability or subjective liability. Although the presumption is for strict liability and the availability of some defences based on the reasonable person standard, many of the Covid-19 measures do impose penalties of fine only, suggesting absolute liability offences. Additionally, is that caveat I referenced earlier in this article from Justice Lamer in Re BC Motor Vehicle Act that the prohibition against absolute liability being enforced by a loss of liberty may be subject to extraordinary emergency powers such as in an epidemic situation. According to Lamer J, such a violation of s. 7 may be saved under s.1. There may be arguments presented by the government that even when the penalty attracts jail, it is an absolute liability offence, with no fault element and no reasonable care defences available. The provinces where the potential sanction is jail upon violating Orders are Newfoundland (see the Public Health Protection and Promotion Act although in terms of physical distancing, it appears to be a practice not a rule – see s. 7 of this Order), PEI (as earlier indicated has jail for third or more offence under the Public Health Act), Nova Scotia (see Health Protection Act under s. 71), Yukon, Nunavut, Northwest Territories, and in certain circumstances, incarceration is also available under the British Columbia Public Health Act (see e.g. ss. 99 and 108).

New Brunswick enforces physical distancing requirements by way of fine but a recent charge for a violation of this rule exemplifies the problem with regulating something as ephemeral as a length between two people. Keith Gagnon, according to a media report, received a ticket for violating the rule as a result of driving in a vehicle with a friend he did not live with. They were on their way to the car wash. According to Keith, he “never knew about that law” and intends to mount a defence against the charge. 

When I originally reviewed New Brunswick Orders regarding physical distancing, the mandatory order, which was then under s. 18, prohibited everyone who “knowingly” approached within 2 metres of any person, except those with whom they reside, including in a vehicle. The section also excuses those who come within 2 metres who “inadvertently or despite their best efforts to avoid contact.” A first offender would indeed face a fine only sanction (Part 2 of the Provincial Offences Procedure Act as category F offence) but on a second conviction should the judge be “satisfied” that no other sentence than jail would deter the person from repeating the offence, a jail term of no more than 90 days could be imposed (see s. 63(2)). Considering the presumption for strict liability, the word “knowingly” used in the Order, the  excuse permitted under the Order, and the penalty, it is likely a strict liability offence (although that word “knowingly does suggest subjective liability). The difficulty is that Mr. Gagnon’s statement suggests an ignorance of the law situation, which would not provide a defence unless officially induced error (even then it would not amount to an acquittal but a stay of proceedings). We have little to go on with just a media report. 

Notably, since I looked at the Order, less than a week ago,  the  Mandatory Order was changed as of April 24. Now the section, under s. 20, reads much differently and could potentially exonerate Mr. Gagnon’s conduct by providing an exception to the rule where persons from one household mutually agrees to be in closer proximity to another household and, in the case of vehicles, if the person is in compliance with measures issued by the Chief Medical Officer of Health relating to vehicles. 

Preliminary Recommendations for the Future

By focussing our discussion on one measure, social or physical distancing, and looking at it through the lens of criminal law, we can identify a number of issues arising from the regulatory response to Covid-19. Before listing these key take-aways, we must keep in mind that behind the law there is a much larger discussion engaging social, political, economic and public interest spheres. Covid-19 is a pressing societal problem, which requires unprecedented governmental response. Because time is of the essence, governments have implemented measures very quickly without thorough discussion and feedback. What works and what doesn’t work from a public health perspective shifts and changes as evidence-based research and data is explored. This means the information, the advice, and the rules that are being implemented are not perfect legally or socially but they are all that we have between us and the potential dire consequences of the virus. My purpose in this article is not to call out governments for regulatory and informational faults but to provide a guideline for the future. We do not want this circumstance to occur again but learning from this event will ensure we will be ready for whatever curve ball the world sends us in the future. 

Recognizing that every province and territory are using different regulatory frameworks for legislating Covid-19 rules, it would be useful to have a national  legislative committee, whose membership is from across the provinces and territories to work on drafting appropriate measures. Again, it is a compressed time period and these are Orders issues very quickly for maximum results. However even if this committee acted as a repository for these measures, a think tank to review them, and then provide reasoned but timely advice, the principle of legality together with our need to protect each other would be advanced together rather in opposition to one another. This committee could create general guidelines for the provinces relating to the most effective measures that minimally interfere with the legal principles arising from the case authorities I have discussed above. 

Every province and territory has their own specific approach to responding to Covid-19. Although understandable as each jurisdiction is unique and requires a response tailored to the residents of each jurisdiction, some co-ordination across Canada on how each jurisdiction messages the measures, defines these activities and regulates or doesn’t regulate these activities would be helpful for the citizen who wants to comply. Again, although I am reticent to recommend another committee, this working committee could assist in consistent messaging with general suggestions on information sharing. 

Finally, the power of education cannot be underestimated. We have an opportunity in this dire situation to show how the justice system can work in non-traditional ways through public education including assisting people to navigate through the myriad of rules and recommendations. Importantly, criminal law knowledge and expertise can offer insights into the regulation of Covid-19.

 Regulating Covid-19 as seen through the criminal law lens exposes the strengths and weaknesses of our justice system. It is hard in a time of crisis not to be heavy-handed in our legal approach when public health and safety is paramount. Yet it is equally important to anchor our approach to our fundamental values as expressed in our legal principles. By complying with these principles, we will help Canadians comply with Covid-19 measures which may help save lives.

Shakespeare sonnets (listen to Sir Patrick Stewart read one a day on Instagram), quantum mechanics (via Daily Equation by Brian Greene), British history (Peter Ackroyd’s History of England Series & Elizabeth R drama series), daily puzzles (Decodaquote, crosswords & Sudoku), Star Trek (Deep Space Nine, Voyager & Picard), colleagues, friends and family, and, best of all, teaching and learning are my life cycle events, neatly compressed into this strange time of Covid-19. The list is not exhaustive. There is in the background the ever-present fear of infection and the ever-present shadow of the news; all too easily accessible in the digital age. It is ironic that the virus has gone viral in cyberspace. It is difficult to pull oneself from the daily graphs, statistics and descriptions of what we are all enduring as we sit patiently inside, waiting for something to happen outside. We are not waiting for a miracle perhaps but a sign, no matter how small, that we are all going to come out of this okay.

The sign may be spring. I hear the “sweet birds” of Shakespeare singing. During Shakespeare’s time, as we incessantly read in the media, they too suffered from contagion and death. For two years the playhouses lay empty, banned from opening to control the outbreak of plague. Yet, life went on, and eventually it returned to full force. That is something to remember.

A sign of these times may also be the social mantra to “help prevent the spread.” I went into a form of self-isolation early into this “new normal.” My husband, who is in treatment for stage four lung cancer, needed the protection of home to stay healthy and safe. Quickly, we found strength in isolation as it became abundantly clear that being alone in our home did not mean being home alone. Text chat groups (which one friend labelled Covid Boredom), telephone calls, Zoom meetings, and online streaming of religious services became the social outing we all craved. That first week was a blur of a new kind of activity. It wasn’t physical because the physicality of our space shrunk so rapidly. Rather it was of the mental kind; neurons firing at rapid speed and emotions careening from highs to lows.

Work became the sign of consistency; the anchor to both the new and old reality. Quickly pivoting from in-class teaching, where I was physically present, to remote teaching, where I was digitally presented, was a welcome challenge. I am constantly amazed at the adaptability of human beings; how quickly we can revise our path and lay down a new one. From the “ashes” of Shakespeare’s sonnet, we can become stronger. That strength of character can only be created through the support of others. A quote from Thomas Paine is apt; “It is not in numbers, but in unity, that our great strength lies.” My faculty colleagues provided exceptional outreach and support during this tentative time. Immediately, one colleague started a Slack App chat where we could post our ideas and questions on how we were approaching this online transition. This opportunity provided the support we needed to forge ahead as we created a new rendition of our courses. Most helpful was reading the experiences of colleagues after their first foray into online learning. To finish that Paine quote, “yet our present numbers are sufficient to repel the force of all the world.” Although the first week was stressful, it was powerful too.

To my pleasant surprise, remote learning was energizing. The ability to be creative and provide a teaching and learning platform that each student could tailor to their own learning needs was an incredibly positive experience. I implemented some pedagogical practices that I previously promoted in varying degrees but did not implement fully. For instance, I “flipped” the entire classroom, in the classical meaning of that term, by creating audio PowerPoints, accessible anytime and anywhere, through the course website. I continued with the scheduled classes via Zoom but re-envisioned the classes as an enhanced learning space for quick review, deep discussion and break out room problem solving.

I injected some much-needed fun into this newly imagined learning space by starting a Spotify music playlist with my students. Now for the big reveal – I teach criminal law to first year law students. This musical interlude allowed me to integrate course themes with music. One playlist, for instance was entitled justifications and excuses to highlight musically the defences of duress, necessity, self-defence and defence of property. Students added to the main criminal law playlist as the days stretched into weeks. I invited other faculty members to provide suggestions. To lend a human touch to the criminal justice system, I invited my special Zoom guest, a local judge, to do the same.

Although this musical project represented the “fun” in the “fundamentals” of criminal law, it was also meaningful. One student suggested The Tragically Hip song called “Wheat Kings,” an achingly beautiful song that told the story of David Milgard, who spent twenty-three years in prison before being exonerated. Earlier in the year, David Milgard was at our law school to speak of the plight of the wrongfully convicted. The song was a poignant reminder of what really matters and why we were all sticking to the law school plan even in this time of adversity. The playlist, which started as a fun addition to a stressful situation, brought us together in a way that a traditional class could not; to misquote the words and meaning of Shakespeare, if “music be the food of learning, play on.” In the time of Covid-19, play we must.

Another hopeful sign of renewal is the nearing end of the term. Wrapping up the semester brings a sense of closure. It marks not just the end of a specific period of time but celebrates our accomplishments. We have endured much but we have also triumphed, ready to take on the next challenge. For the students, however, instead of a joyful look toward the future, the term end brings uncertainty. Many students have lost their anchor as many students lost their summer placements. They feel adrift; cut off from human contact and career prospects. But this is where we faculty members can make a difference. A colleague at another law school generously gave his time and effort to raise money to fund student summer internships. Our faculty is poised to hire a number of extra students to do research. In this Covid-19 time of scarcity, we have found more. Now that truly is something to celebrate.

The last sign of the times of Covid-19 is the sure knowledge that all of these new learnings, from teaching to friendship, will last. We must hold onto these experiences, learn from them and integrate them into our “new” lives. This means doing, what I am doing right now, which is writing, reflecting and engaging in the individual, collective and systemic impact of Covid-19. Without this, our isolation will be for naught. Instead of permitting Covid-19 to define our lives, we can define our lives through the unique perspective Covid-19 has given us. This includes thinking about teaching and learning in a different way. We all, as knowledge sharers, can share more than our knowledge; we can share, at this fragile period in our lives, our wisdom as calibrated through the lens of new experiences and fresh approaches.

Sonnet 73 was written by William Shakespeare in 1609. We are now in 2020, some 411 years later, yet, over that stretch of time we have changed and grown in ways unimaginable even to the best playwright of all ages. Being alive in the time of Covid-19 is an experience unlike any other. The most vulnerable in our society – the elderly, the sick, the homeless and the institutionalized – are all at risk of harm. We see these vulnerabilities very clearly now and perceive how societal change can make meaningful differences in all of our lives.

I started this reflective piece with a slice of Shakespeare, and with a sonnet that suggests the end as opposed to the beginning. I end now with a Shakespearean beginning – not the beginning of a sonnet or play but the popular notion that Shakespeare was delightfully productive during what is known jarringly as the plague years. In fact, he may have written some of his most enduring plays, such as Antony and Cleopatra, King Lear and McBeth during that grim period. Covid-19 may be a barrier to the full enjoyment of our lives but we can also look at it in a different, more positive light; life in the time of Covid-19 can be a time of creative renewal when we stretch our imagination and look beyond those barriers to the future.

More specifically, we turn to criminal law and the enforcement mechanisms inherent in it to create change, to communicate the change and to compel people to comply with that change. The concern is whether our criminal law is able to implement this “new normal” or whether we are simply asking too much from a common law system that develops over time. Even if we can be satisfied that our criminal law is nimble enough to generate this change, what does that mean for our criminal law as a criminal justice system? “New normal” suggests irrevocable change – is that what we want and expect? These questions raised are crucial to our understanding of criminal law as a legal paradigm and may cause us to question further the future sustainability of our criminal law and the justice system in which it resides. It is a daunting task to fully answer these pressing concerns in the blog format. Moreover, it may be too soon to understand the complexities raised by covid-19 and the long-term impact this virus will have on the justice system. Nevertheless, my intent, at this point, is to write a series of articles to explore these questions in an effort to start a deeper conversation. 

 In this, my first article, I will identify and categorize the myriad of issues arising thus far from the unexpected presence of covid-19. This identification will not, at this time, include a deep analysis but it will provide a platform for more detailed analyses in further articles. After identifying and discussing the various ways in which covid-19 has impacted the criminal law and justice system, I hope to take a larger look at what entire impact of these issues mean for the criminal justice system in the long term. In this way, I hope to answer or at least attempt to answer the big picture questions I posed in the previous paragraph. 

Identifying or spotting criminal law within the blast of covid-19 information is not an easy task by any means. Almost on a daily basis a criminal law connected incident plays out in the media. When I first thought of writing this article, I started tracking the various news stories I found online and on social media where criminal law and/or the criminal sanction was being used in the covid-19 context. I quickly became overwhelmed with the number of online articles in this area. I did, however, detect a pattern or distinct categories, which I will use as my identification framework for these blog articles. First, I want to acknowledge, the excellent working paper rand tracking information recently produced online on covid-19 and policing in the Canadian context. The website and working paper, created and authored by Alex Luscombe at the Centre for Criminology & Sociological Studies at the University of Toronto and Alexander McClelland, a sociological researcher at the University of Ottawa Department of Criminology, provides a thoughtful snapshot picture of the multitude of instances where the criminal law and the criminal sanction are increasingly engaged in the enforcement of covid-19 measures. As my focus is on the legal issues, anyone wishing to see the actual data in terms of how covid-19 is being policed in our community should be reading the Luscombe and McClelland website entitled “Policing the Pandemic”. The website is updated continuously and it’s well worth returning to this page for the newest information. 

I have grouped the issues into five broad categories. These categories involve regulatory offences, criminal offences, criminal process, administration of justice, and criminal justice issues. There is some tension between these categories. For instance, whether an offence is regulatory or criminal in pith and substance may not be clear. Additionally, the categories are coloured by Charter rights and values - some overtly, such as in the s. 11(b) unreasonable trial delay issues raised under the administration of justice category. Other Charter issues may not be as apparent such as the larger Charter discussion engendered by the larger questions I posed earlier in this article. In the end, the criminal law underlines our fundamental values as a society and the criminal justice system, therefore, must reflect that normative construct. The bigger questions of just what the criminal law will and should look like after covid-19 is essentially a Charter question in which our Charter may or may not be able to adequately respond to in the “new normal” of the post-covid-19 world.

Without getting into the specifics, which I will leave for the next instalment of this covid-19 mega-blog, I will now outline the various issues arising from each of the above five categories. These issues are ever evolving and it may be that I re-define or create new categories and sub-categories.

The first category covering regulatory offences covers a broad area of issues. Here, it appears, is where the federal and provincial government are using regulation as the primary vehicle for creating and enforcing public health initiatives. To label these measures as initiatives is probably too diffuse a term. Rather, the measures are strict rules put into place to contain or eradicate the virus. To enforce these rules, the criminal sanction is used to create incentives, to deter and to punish. The regulatory rules being used are either new, such as the various CMOH (Chief Medical Officer of Health) Orders being issued in Alberta pursuant to the Public Health Act (see this link for an example of an Order) or are already in place, such as the web-like structure of rules under the federal Quarantine Act. In the case of the Quarantine Act, the government merely tweaked the Schedule under the Act by adding COVID-19 coronavirus disease as a listed communicable disease. This regulatory response will be a fertile area of discussion in the blog articles to come.

The second category relates to substantive criminal law. This includes the various criminal offences being used for criminal behaviour in the covid-19 context. An example is the Kelowna, BC resident charged with aggravated assault (under s. 268 of the Criminal Code) for spitting on an RCMP officer during a break and enter investigation. This is reminiscent of similar charges being laid for accused carrying the HIV virus (see R v Bear (C.W.), 2013 MBCA 96). This, and the many other charges now being laid due to covid-19 misbehaviour, will be discussed thoroughly in this blog series.

The third category engages the criminal process. The best example is the impact covid-19 is having on judicial interim release. Over the past three weeks, this issue of bail, and how the virus engages the liberty interest of an accused in pre-trial custody, has blossomed. The import of bail is further highlighted by its real and deadly connection to the next and fourth category involving criminal justice issues, under which is the serious concerns with covid-19 spreading within the vulnerable jail population.

Finally, the fifth category are administration of justice issues. This category was impacted very early by the covid-19 public health measures and those CMOH Orders mentioned earlier. The physical distancing measures and the group congregation limits resulted in the restriction and cancelling of court matters. As mentioned previously, this category explicitly engages long-term impacts on legal process rights such as s. 11(b) under the Charter, requiring a trial within a reasonable time. It also raises public access to the courts and media rights. Indeed, the very concepts of transparency and accountability are brought into question under this category. The Courts have been responsive (see for instance this interview with the Chief Justice of the Alberta Queens Bench, Madame Justice Mary Moreau) but how sustainable the responses are will be a matter of time and planning.

I have started this criminal law in the time of covid-19 blog series to generate a thoughtful and much needed discussion on how the criminal law may change in this new and unlooked for paradigm. Certainly, the one tool we do have to help us with this deliberation is time; time in which to think, analyze and recommend a pathway to a new future. I hope you will join me in this exploration as we attempt to map out criminal law in the time of covid-19.

Factually, the incident mirrors the everyday; the accused drove at excessive speeds over a short distance resulting in a fatal collision. Mr. Chung was charged with dangerous driving causing death but was ultimately acquitted at trial. On appeal, the British Columbia Court of Appeal found the trial judge erred in law, overturned the acquittal and entered a conviction. The majority of the Supreme Court of Canada agreed with the appellate court and upheld the conviction.

Justice Sheilah Martin, writing on behalf of the majority, found there was, as required for a Crown appeal against an acquittal under s 676(1)(a) of the Criminal Code, an error in law. The error was two-fold but interrelated, being “two sides of the same coin” (at para 18). First, the trial judge applied the wrong legal test and secondly, the trial judge failed to apply the correct legal test. Both of these errors resulted in the failure of the trial judge to “properly consider the conduct of the reasonable person in all of the circumstances” when assessing whether the conduct amounted to a marked departure from that standard (at para 18). The sole dissenter, Justice Andromache Karakatsanis, took the opposite view. In her opinion, the trial judge did not err by relying on a wrong principle (at paras 32 & 35) nor did the trial judge fail to apply the correct test (at para 39).

The decision, albeit rendered by a mere panel of five, offers an important practical clarification of the mens rea assessment in driving offences. It also sheds some light on the continuing issue of what kind of error amounts to a question of law. When read closely, both the majority and dissent used mindfulness in coming to their positions on these issues.

First, is the preliminary issue of what amounts to an error in law in the context of a Crown appeal against acquittal. This is not any easy issue to unravel. Indeed, the ephemeral nature and character of “any ground of appeal that involves a question of law alone” per s 676(1)(a) of the Criminal Code has been the subject of many Supreme Court decisions. In the R v JMH (2011 SCC 45) decision, for instance, Justice Cromwell called the issue a “vexed” one (at para 24). A question of law cannot be founded on the weighing of the evidence or on the assessment of the evidence on the ultimate question of guilt or innocence (JMH at para 10). There is, however, a difference to be found in a failure of a trial judge to consider relevant evidence on the ultimate issue or in finding facts for which there is no evidence. Such a failure would amount to an error in law. In those instances, the trial judge is simply not being ‘mindful’ or aware of the presence or absence of significant evidence.

An error in law can be found, according to Justice Martin (Chung at para 11), in the application of the correct legal principle to the evidence that nevertheless shows an erroneous understanding of that principle (at para 11). It can also be found in the application of the wrong legal principle (at para 11). Both such errors, according to Martin J, were committed in Chung. In reviewing these errors, Justice Martin was careful to reiterate a long-standing appellate principle that the trial judge’s reasons must be read as a whole in determining whether an error exists (at para 13). Parsing the reasons by cherry picking sentences to illustrate errors is not appropriate. It is the totality of the reasons which must be considered. In Martin J’s view, this full reading of the reasons for acquittal established the error in law, despite the trial judge’s correct articulation of the law on mens rea from the Roy (2012 SCC 26) decision (at para 14).

Justice Karakatsanis agreed with the majority’s description of the law on errors of law (at para 31) but disagreed in the majority’s application of that law to the grounds of appeal in Chung. She too reiterated the foundational principle of appellate review that a trial judge’s articulation of the law must be read in the context of the entire judgment (at para 33). However, Karakatsanis J arrived at an opposite view from the majority. For her, it was in the reading of the whole that she found no error.

How can the utilization of the same principle arrive at such differing outcomes? Here, we lean on another favoured tool used by the Supreme Court in analyzing legal issues – context. Contextually, Justice Karakatsanis viewed the reasons through the perspective of the “busy trial judges who cannot be expected to write perfect reasons” (at para 33). This view mirrors the similar appellate caution for jury cases that the jury must be properly instructed, not perfectly so (R v Jacquard, [1997] 1 SCR 314, Lamer CJC at para 2). It also reflects the meta-principle that “what the law demands is not perfect justice, but fundamentally fair justice” (R v O’Connor, [1995] 4 SCR 411, McLachlin CJC at para 193). In the end, for Karakatsanis J, the decision may not have been perfect but it was fundamentally fair and rendered, contextually, in accordance with the correct legal principle. For the majority, the trial judge simply failed to apply the correct principle by failing to connect the law to the analysis.

This leads to another reason why the majority and dissent disagreed on the question of whether there was a legal issue to ground the appeal, and that is deference. Deference to the trial judge as an overarching principle permeates the dissenting position. Trial judges may not be perfect but they are in the unique position, as front-line judicial officers, to render decisions based on the unique circumstances before them. In the words of Chief Justice Wagner and Justice Rowe in the context of appellate intervention in sentencing, “the sentencing judge sees and hears all the evidence and submissions in person” and understands the “needs of the community” (R v Friesen, 2020 SCC 9 at para 25). It is the trial judge, therefore, who has the pulse of the community’s sense of justice. This does not excuse a trial judge who errs in law but it does allow for a generous reading of the reasons in which the appellate court gives the trial judge, particularly where there is an acquittal rendered, the benefit of the doubt. This leads to Karakatsanis J’s position that reading the decision as a whole in light of the correct articulation of the law warranted an interpretation that the trial judge’s analysis was done correctly. Thus it is this deference perspective, which contributes to such stark differences in appellate intervention in this case.

This decision reinforces another appellate review principle, which requires trial judges to not just repeat legal principles by rote but to demonstrate, in their reasons, through their legal analysis of the facts that they understand and appreciate the effect of the law (see e.g. R v George, 2017 SCC 38 at para 16). Judges are presumed to know the law, yet they must show in their reasons “that the law is correctly applied in the particular case” (See R v REM, 2008 SCC 51, McLachlin CJC at para 47). Moreover, articulating the legal test accurately “cannot insulate a trial judge from legal errors” (George at para 16). Apt to this point, albeit in the context of the balancing required in the s 24(2) Charter analysis even where conscriptive evidence is at issue, are the comments made by Justice Lebel in R v Orbanski, 2005 SCC 37, that “the concept of fairness should not be reduced to a ritual incantation that spares judges from further thought once the word is said” (at para 96). In other words, trial judges must be mindful (there’s that word again!) of what a legally appropriate analysis looks like in their reasons. Lip service to the rule of law will not do. We, therefore, have in Chung layers of legal principle resulting in differing conclusions – which is what justice does look like in each courtroom on a daily basis.

Finally to the substantive ground of appeal in Chung which provides further fine-tuning of the mens rea requirements for driving offences as discussed in Roy and Beatty (2008 SCC 5). Returning to the first of the two errors identified by Justice Martin, the trial judge used the correct mens rea principles in the wrong way by failing to compare the accused’s conduct in the circumstances of the case with the actions of the reasonably prudent driver in similar circumstances in determining whether the conduct showed a marked departure from that standard. In other words, just articulating the standard correctly, as the trial judge did at some point in the reasons, is not enough. Rather, the trial judge must show they applied that standard in assessing the conduct. This requirement is the equivalent to showing your work in giving the answer to a mathematical equation – it’s not just the answer that matters but how someone arrived at the conclusion.

The second error is found in the trial judge having used the incorrect legal principle. This error also connects to the substantive error as discussed above; by failing to compare the accused’s conduct with that of the reasonable person, the trial judge focused too readily on the “momentary nature” of the conduct (at para 21). On this point, Justice Martin made it perfectly clear that momentary marked departures, such as excessive speed over a short period of time in Chung, can result in a conviction (at para 19). According to Martin J, the trial judge therefore erred by accepting, as a principle of law, that momentary excessive speed, on its own, cannot amount to dangerous driving (at paras 19 & 20). Justice Martin distinguished the Chung situation from the momentary inattention or momentary mistake of Roy and Beatty, which is connected to the nature of driving as an automatic and reflexive activity (at para 22). Momentary speed, as a momentary risky action done by the accused, creates a risk of danger “of serious consequences” (at para 22) amounting to a marked departure from what we expect of the reasonable driver (at para 28). What lies between these risky actions and the momentary inattention or missteps in the Roy and Beatty cases is the difference between an act and an omission to act. In Chung, the intentional behaviour of weaving through traffic and accelerating excessively was a marked departure from the standard of a reasonably prudent driver. It was not inattentive behaviour , such as in Roy and Beatty, but lacked awareness of the impact the behaviour may have on others. This difference was also highlighted when Justice Charron, in the Beatty decision, came to the common sense conclusion that intentional conduct, being the actual state of mind of the accused, should be considered in assessing the mens rea for dangerous driving (Beatty at para 47). Mr. Chung’s driving could be seen as intentional conduct in which he was intentionally creating a risk to the public.

The dissent made short work of this mens rea error. First, relying on her preliminary position that there was no question of law because there was no error, Justice Karakatsanis found the trial judge was well aware of the requirement to assess the conduct in light of the reasonable person standard (at para 39). In any event, according to Karakatsanis J, the assessment is “fundamentally” or inherently comparative (at para 39) such that the trial judge by entering into a determination of the issue discharged his legal duty. As for the second error, finding that the momentary conduct was not a marked departure, there was no such ‘legal’ principle to begin with, ergo no error at all. In Karakatsanis J’s view, the findings of the trial judge on the issue were wholly within the purview of the trial judge. It’s all a matter of perspective.

In the end, for the majority, Mr. Chung was not channeling mindfulness behaviour. Rather, he was acting purposely whilst totally oblivious to the risk he was creating to others through his actions. He was not acting in the moment but acting for himself alone. Notably, he was not acting as a reasonably prudent driver would in similar circumstances (at para 28). As Justice Martin reiterated at paragraph 28, the reasonable person “understands that driving is an inherently risky activity. It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic.” It is this marked departure that defines the offence committed. It was this finding, based on an incorrect understanding of the legal principles, that was an error in law.

Mirrored in the failure to articulate the law is the failure of the accused to attend to his conduct – not just inattentiveness but a complete lack of mindfulness. So too, although trial judges are busy, they must be mindful of the law, of how they articulate it, and how they then apply it to a given set of facts. Within this mindfulness, the trial judge must also connect the dots between the legal principles, the application of those principles and the factual determinations required. But just what mindfulness looks like is a moving target within which a judge has the latitude to write decisions in their own unique way. And we, in the legal sphere, must be mindful of that too.

The facts of the Brown case are straightforward, albeit, disturbing. Brown was a twenty-seven-year old elite athlete, who at the time of the offences, was serving as captain of the University hockey team. He had no prior criminal record and no disposition for violence. On the night in question he consumed alcohol and a quantity of “magic mushrooms” containing psilocybin, a prohibited substance under Schedule III of the Controlled Drugs and Substances Act. Psilocybin, according to a Government of Canada website on illegal drugs, is a known hallucinogen that results in an altered state of consciousness. The strength of the drug varies and is not readily detectable. A person on such a drug may experience a distortion of reality, of senses, and of time. They may also experience anxiety, confusion and paranoia. A person experiencing a “bad trip” on the drug may perform risk-taking activities. A person predisposed to psychiatric conditions may be at an “elevated risk” for these side effects. 

According to Brown, he had consumed magic mushrooms once before but it was a “positive” experience. That night, however, Brown did not have a positive experience, in fact he had a very bad one. After consuming an undisclosed number of mushrooms his behaviour became wild and unpredictable. He stripped naked and ran into the neighbourhood, ultimately breaking into two homes by smashing windows. In the first home, he violently attacked the occupant, a professor at the university he was attending, with a broken broom handle. He was ultimately charged with breaking and entering while committing mischief and assault with a weapon (at paras 35-52).  

The trial judge, Justice Hollins, acquitted, believing “the testimony of every witness” (at para 94). The trial judge also concluded the accused had no motive for the crime and the offence was totally out of character. According to the medical evidence, Brown was likely experiencing a form of drug-induced delirium at the time of the offence. The forensic psychologist, relying on diagnostic information in the DSM-5 (at para 66), an interview of Mr. Brown including a personality assessment, the police reports, and third-party interviews concluded there was “no evidence” of mental disorder before, during or after the offence (at paras 64 and 67-71). Rather, the psychologist opined, Brown was under the influence of the psilocybin at the time of the events and suffering from short-term acute delirium as described by the DSM-5 (at paras 70-71). In short, the cause of Mr. Brown’s behaviour was the drug. 

The psychologist “completely rejected” the suggestion Mr. Brown was simply exhibiting drunken behaviour and “vehemently rejected” Mr. Brown intended to commit the offences (at para 77). Justice Hollins, in dismissing the Crown’s argument that the psychologist’s position relied on “circular reasoning” (at para 78), found support for the psychologist’s position in the medical literature, the DSM-5 and the totality of the expert evidence at trial (at para 79). This finding was also based on Mr. Brown’s evidence that his behaviour was not feigned, that he could not explain his actions and had no motive for them (at para 93).

The facts are therefore easily discernible, but the legal basis for the acquittal is not as clear. In the first paragraph of the decision, Justice Hollins states the “case raises the rare defence of extreme intoxication akin to automatism.” A little further, in paragraph 7, she characterizes the defence as “non-mental disorder automatism”. In conclusion, she acquits on the “rarely available” (at para 95) basis of automatism. Although, at paragraph 11, Justice Hollins describes the differing outcomes of a successful non-mental disorder automatism defence (acquittal) and mental disorder automatism defence (the application of s 16 of the Criminal Code resulting in a finding of not criminally responsible by reason of mental disorder to be dealt with under the mental health regime described in Part XX.1 of the Code), she does not enter into a s.16 mental disorder analysis. In paragraphs 17 to 18, she does recognize how “public and judicial skepticism” of the defence of automatism resulted in many courts finding a disease of the mind pursuant to s 16 to avoid an acquittal. At paragraph 19, she discusses briefly the Canadian position confining non-mental disorder to “involuntary conduct not arising from the disease of the mind.” But she does not extend the analysis by discussing the role s. 16 does have, according to case authority, in the automatism analysis. 

The legal analysis does segue into intoxication issues, particularly the law regarding extreme intoxication as an exception to the general rule that intoxication is not a defence to a general intent offence. Justice Hollins mentions, at paragraph 21, the differing treatment of self-induced automatism in the availability of the automatism defence but she does not directly or fully connect self-induced extreme intoxication to this concept. 

The discussion of both issues, how non-mental disorder automatism fits into the automatism analysis and how self-induced intoxication automatism differs from non-self-induced automatism, was critical to the outcome of this case. It is this intersection between capacity issues that creates a difficult analysis into the issues, despite the clearly defined facts of the case.

Before, I enter into the analysis of the issues, it is important to generally explain capacity, or as it is often framed in the negative, incapacity issues and how mental disorder, automatism and, intoxication issues are interrelated. First, a brief primer on incapacity in criminal law. Incapacity involves the primary question of scope of criminal liability and who in our society should be deemed incapable of committing a crime. Capacity is a meta-issue, larger than the elemental issue of whether the accused had committed the mens rea and actus reus of an offence. The issue becomes one of whether the accused is even capable of forming the requisite intent or even capable, due to their altered mental state, of acting in a voluntary manner. To consider these issues, the law must do much more than get into the mind of the accused to determine intention, the law must get at the root cause of the altered state. This requires, as Justice Dickson explained in Cooper v R, [1980] 1 SCR 1149, the use of a legal test with a medical component. It also requires a deep dive into policy, re-focusing the legal issue as a concern for public safety. Criminal responsibility is at the core of capacity. Yet, criminal responsibility and moral blameworthiness become fuzzy concepts when viewed through the medical-legal lens. The perspective becomes even more obscured when the court boldly exclaims that mental disorder (a shorthand for “disease of the mind”, see s 2 definition of “mental disorder”), is neither “a term of art” in law or psychiatry (Cooper at 1153). Clearly, in considering capacity, the criminal law extends beyond the law and into the medical, social, political and policy spheres. 

 Age is also a capacity issue, requiring a determination of when a child is incapable of committing a crime. Currently, section 13 of the Criminal Code deems the minimum age a person is capable of committing an offence as twelve years (for further discussion see episode 15 of the Ideablawg Podcasts on the Criminal Code entitled “Age as a Defence”). This minimum age seems to be a moving target often based more on policy than evidence-based decision-making. For instance, under section 9 of the first Criminal Code of 1892, the age for capacity was seven years old. In 1980, it was raised to twelve years with changes to our approach to youthful offenders, where it still stands, despite grumblings by the previous Conservative government to lower the age to ten years of age (this was attempted by a private member’s Bill C-68 sponsored by the then Justice Minister Peter McKay in 1999). Age, however, is a binary statutory requirement – either you fall within the criminal law or you do not –  purely on the basis of birth date. The other capacity issues I consider in this post require the application of a legal test involving a multitude of factors.

Mental disorder, for instance, and the finding of not criminally responsible by reason of a mental disorder under s 16 of the Code, has a long and chequered history in English common law, in statutory amendments to the Code, and in case authority. The term “mental disorder” was not used as a defined term in the Criminal Code until amendments in 1991. In terms of the legal test outlined under s 16, the only change was one of terminology. Instead of a finding of insanity, the court made a finding of not criminally responsible. This was an attempt to decrease the stigma attached to an insanity finding. Although the shift away from insanity is a welcome attempt to breakdown negative perceptions and stereotypes, in some ways, the name change has simply downloaded the negativity onto the term “mental disorder.” In R v Luedecke, 2008 ONCA 716, the defence made a compelling argument that the finding of NCRMD is fraught with stereotyping and negative societal labelling. Specifically, the defence argued that Luedecke’s disorder of parasomnia not be considered under the NCRMD label due to that stereotyping. In response, Justice Doherty, writing for the Court, found that such a fine distinction was itself founded on stereotyping; by suggesting not all mental disorders are alike, the inference is that some mental disorders are more deserving of the negative NCR label. However, Justice Doherty recommended, at paragraph 117, that the NCRMD label indicate the kind of mental disability being suffered at the time of the offence to promote “proper labelling.” Although this suggestion has not found any traction, it cannot be disputed that the NCRMD label does involve adverse stigmatization of those suffering from, either currently or in the past, with a mental disability. For a broader and more historical discussion on s 16, see my previous article and podcast on the issue here.

The test under s 16 requires two steps. The first step requires a finding that the accused, at the time of the commission of the offence, was suffering from a mental disorder. The second step requires that the accused, as a result of the mental disorder, was, at the time of the offence, incapable of either appreciating the nature and quality of their acts or knowing that the acts were wrong. The step one mental disorder or disease of the mind finding involves the application of the legal test from Cooper together with the holistic approach described in the R v Stone case ([1999] 2 SCR 290). In Stone, Justice Bastarache for the slim 5:4 majority, described a contextual and functional approach to the mental disorder determination. Using the Cooper test, which provided a broad-based definition of disease of the mind, Justice Bastarache incorporated three factors that would assist the trial judge in applying the Cooper test. The Cooper test defines “disease of the mind” as including “any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion” (Cooper at 1159). 

The holistic approach from Stone brings together a number of factors to be considered in the Cooper context. Those factors involve considerations of continuing danger, internal cause, and public policy as a mechanism to fulfill the legal and policy objectives of the NCRMD regime. Those objectives emphasize, as indicated by Justice Martin in the Ontario Court of Appeal decision in Regina v Rabey, 1977 CanLII 48, the scope of the exemption from criminal responsibility by virtue of mental disorder and the protection of the public “by the control and treatment of persons who have caused serious harms” while in a mentally disordered state. It is this dual concern with scope and public policy that will impact how the law deals with automatism and, in some respects, intoxication. The continuing danger factor reviews the potential risk for societal harm should the accused face the same triggers that initiated the conduct in question. The internal/external cause discussion looks at whether the accused’s reaction to those triggers arose from the subjective make-up of the accused as compared with the “normal,” or what I prefer to call “ordinary,” person or whether it was caused by an extraordinary external event. That inquiry involves a comparison of the accused’s reaction to the trigger event and how an ordinary person would react in similar circumstances. Finally, the policy factor emphasizes the objectives of NCRMD and is particularly helpful when the continuing danger factor and internal cause factor are inconclusive (Stone at para 218). Policy concerns are an open category depending on the circumstances of the case but are directed at “whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code” (Stone at para 218).

I will not discuss here the legal interpretative details for the second step of the s 16 analysis other than to highlight the differences between the two steps. Step one involves a modernization of the Cooper test in light of accumulated case law in which the courts were using one factor over another. In contrast, step two involves specific court interpretation of the meaning of the two prongs such as Chief Justice Lamer’s decision, as he then was, in R v Chaulk, [1990] 3 SCR 1303, on the meaning of “wrong” in the second prong. Needless to say, step one is a robust “big tent” inquiry that is purposely left broad and encompassing. While step two restricts the exemption from criminal responsibility and confines it to very specific circumstances. In law, we are familiar with such two-step tests such as in the factual and legal tests for causation, where moral blameworthiness seeks to confine the factual outcome (See e.g. R v Maybin, [2012] 2 SCR 30). 

Stone does not just re-fashion the step one section 16 inquiry, it also considers automatism within that inquiry. The ostensible issue in Stone was whether mental disorder automatism should have been left for the jury’s consideration. But the real issue was the general legal approach to automatism in light of the high-profile acquittal, upheld by the SCC, in R v Parks, [1992] 2 SCR 871. The accused, Parks, who was tried for murder, was acquitted on the basis of parasomnia or sleepwalking as the automatistic event. The acquittal caught the attention of the public and the concern that the door was opened far too wide for further acquittals based on the automatism defence. Justice Bastarache in Stone, with Parks in mind, created a different approach to automatism, anchored in s. 16 and the mental disorder finding under step one. Recognizing that “automatism may arise in different circumstances” including extreme intoxication, Justice Bastarache created “a single approach to all cases involving claims of automatism” (at para 162). The approach requires two steps with the first step considering whether the claim has an air of reality or evidential foundation. This requires an assertion by the accused that they were acting involuntary, as automatism is a “subset of the voluntariness actus reus requirement” (see Parks at 896, La Forest J).That assertion must also be supported by expert evidence (Stone at para 192). In considering this threshold issue, the trial judge reviews a number of case specific factors (Stone at para 192).

Justice Bastarache articulates this first step in the air of reality language, finding the defence will discharge the evidentiary burden where there is “evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities” (at para 192). Yet, the details involved in reaching this conclusion read more like a final determination of the matter. This is particularly so when Justice Bastarache leaves it to the “discretion and experience of trial judges to weigh all of the evidence” (at para 192). This admonishment runs contrary to other SCC descriptions of the air of reality test such as in R v Cinous, 2002 SCC 29 (CanLII), in which Bastarache J was a member of the majority. In Cinous, the SCC explains “the trial judge does not make determinations about the credibility of the witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences” as those matters are within the province of the trier of fact (at para 54). 

In any event, step two of the automatism determination requires the trial judge to decide which form of automatism – non-mental disorder automatism or mental disorder automatism – should be left to the trier of fact in deciding the ultimate substantive issue. Citing a brief filed by the Canadian Psychiatric Association (CPA) on possible revisions to the Code on the automatism defence, Bastarache J took “judicial notice that it will only be in rare cases that automatism is not caused by mental disorder” (at para 199). The CPA called for all automatism claims to be classified as mental disorders consistent with the “medical perspective” (at para 198 and for further information see the selected bibliography compiling the information before the House of Commons on the issue). Thus, step two requires the trial judge to view the automatism through the lens of mental disorder and to delineate on the basis of various factors whether the root cause of the automatistic behaviour arose from mental disorder or from non-mental disorder. This requires the trial judge to determine the issue by applying step one of the s. 16 mental disorder analysis from Cooper and the Stone holistic approach. Continuing danger concerns, internal cause factors, policy considerations and the objectives behind s 16 would also be relevant. Again, it must be emphasized that it is a legal test to be determined by the trial judge.

Although Justice Hollins references dimensions of the Stone decision in her analysis, albeit not by name (see paras 86-87), she does not start with the presumption that the automatism arose from mental disorder. Rather, she goes directly to a non-mental disorder automatism analysis. The closest she gets to implementing the mental disorder inquiry is when she makes conclusionary findings at paragraphs 86 to 87 that the automatism was not internal but externally acquired from the use of drugs. She also finds there is no likelihood of re-occurrence as there was no evidence of the accused had a “particular susceptibility” to the drug (at para 87). Although these may be sound findings based on the evidence, they are conclusions and are not a result of applying the full Stone test. For instance, one of the factors in the internal cause analysis is whether a “normal” or “ordinary” person would have reacted similarly to the accused when ingesting the drug. The forensic psychologist agreed he had never seen such a reaction to psilocybin where the person hurt others as opposed to themselves (at para 72). Surely this was evidence to consider in the context of mental disorder and whether the event was as a result of the subjective make-up of the accused, making it more likely it was a mental disorder. 

In R v Luedecke, 2008 ONCA 716 (Canlii),, Justice Doherty, reaffirms the view of non-mental disorder automatism as “very rare ‘one-off’ cases’” involving “single incident of automatism...specific external event...unlikely to reoccur and... produced a dissociative state in an otherwise ‘normal’ person” ” (at para 63). He also suggests that the likelihood of recurrence of normal triggering events such as alcohol, fatigue and stress suggests mental disorder. In R v Bouchard-Lebrun, [2011] 3 SCR 575, Justice Lebel clarified that the trigger discussion under the internal cause factor considers the “state a normal person might have entered after consuming the same substances in the same quantities as the accused” (at para 71). In the Brown case, the evidence supports this as a unique reaction to a drug, particularly considering Brown did not have a similar experience when using it previously. Although, there was also evidence that some type of aggressive behaviour was likely from anyone ingesting the drug. In any event, in terms of continuing danger, the consumption of this kind of drug would not be a “normal triggering event.” Considering the knowledge Brown would now have of the terrible effects of the drug, the assumption must be that it will not be a normal or usual part of his lifestyle choices. 

The Stone approach to automatism, by preferring mental disorder, also furthers the underlying objective of the newly fashioned test that confines and restricts the use of the non-mental automatism to only rare cases. Viewing the automatism issue through the mental disorder lens ensures that non-mental disorder automatism is kept at a minimum; the broader the definition mental disorder becomes, the narrower the range of non-mental disorder scenarios (see Luedecke, at paras 60 and 63). This fulfills concerns with scope of the defence and refines the meaning of criminal responsibility. However, the Stone approach is cumbersome and overly complex, particularly the so-called air of reality step one. Instead of trying to shoehorn all forms of capacity under one umbrella, it may be time to open the door even wider and consider diminished responsibility in a larger context in our Criminal Code. This, of course, would require a thoughtful and meaningful response by our lawmakers, looking at the entire criminal responsibility structure in the Code.

In the end, Justice Hollins did accept the psychologist’s evidence that Mr. Brown was not suffering from a mental disorder but again, the finding was a conclusion used to dismiss the relevance of mental disorder in the legal analysis. Although Justice Dickson in Cooper recognized the medical “knowledge is directly linked to the legal conclusion” in arriving at whether a disease of the mind or mental disorder is a factor, he also acknowledged that medical and legal perspectives can differ. In other words, the psychiatrist or psychologist may describe the mental state but it is for the judge to decide whether the condition is a disease of the mind by applying the legal/policy test. Disease of the mind is a “legal term” not a medical one. The ultimate decision rests with the judge.

The other main concern with Justice Hollins legal analysis in this case is her treatment of intoxication. The decision does carefully summarize some of the issues with intoxication as a defence. Historically, intoxication was not a defence except in very limited circumstances dependent on the type of offence. Intoxication, according to this compendium of case law, could be a defence to a specific intent offence but not a general intent offence. Although the distinction between specific and general intent is itself an issue, the categorization has been retained for the applicability of intoxication. Justice Moldaver in the R v Tatton 2015 SCC 33 (CanLII) expands on the meaning and purpose of the distinction. Specific intent offences, like murder, are those offences that have a “heightened mental element” or an ulterior intent and/or tend to require more complex cognition (at para 28 and paras 37-39). In contrast, general intent offences, such as assault, require minimal thought processes and “little mental acuity” (at paras 35-36). This explains why intoxication by a mind-altering drug would be relevant to the intention to commit an offence requiring more complex thinking. 

Justice Moldaver made further observations on the policy dimension of the categorization while commenting on the self-induced nature of the defence. For instance, the fact it applies only to specific intent offences, which typically have lesser and included general intent offences, means some type of criminal sanctioning would be available upon conviction (at para 44). In other words, there would not be a full acquittal as intoxication does not apply to general intent offences. The accused would still be held criminally responsible for their self-induced actions. Justice Moldaver also noted there were compelling policy considerations for restricting intoxication as a defence considering alcohol “habitually” plays roles in crimes involving violence (at para 43). In Brown the evidence suggests violence to others is not regularly connected to use of the psilocybin drug, although it is a well-known behaviour-altering drug. 

That is not the end of the intoxication analysis. In Brown we are concerned with extreme intoxication akin to automatism. On that issue, the majority of the SCC in the R v Daviault decision ([1994] 3 SCR 63) found the common law principle foreclosing the application of extreme intoxication to general intent offences violated s 7 of the Charter as it permitted the voluntary consumption of alcohol to substitute for the fault element required by the offence. Despite this finding, Parliament moved quickly to counteract Daviault and provide a statutory prohibition under s 33.1 of the Code confining any intoxication defence, extreme or otherwise, to specific intent offences only. It is this section which was found unconstitutional in the pre-trial motion before Justice de Witt in Brown and why, therefore, extreme intoxication could be considered as a defence for the offences, both of which require general intent. For further reading on this issue, my previous podcast/article on “Section s 33.1 and How Intoxication Became a Form of Mens Rea” that can be accessed here.

I will not discuss or analyze the Charter decision other than to comment that there are inconsistent decisions on the issue across the country. In Ontario, the question received differing treatment at the Superior Court level and on October 9 of 2019, the Ontario Court of Appeal considered the issue as raised in R v Chan, 2018 ONSC 3849 and 2019 ONSC 783, which is now on reserve. Interestingly, in Chan (see the trial decision 2018 ONSC 7158) the accused was also a young person using magic mushrooms with tragic results. Like Brown, Chan had used the drug in the past and “enjoyed” the experience (at para 1). He was well liked and had no previous aggressive tendencies. Although originally charged with murder and attempt murder, the Crown, likely on the basis of extreme intoxication, sought convictions for the general intent offences of manslaughter and aggravated assault. Justice Boswell considered s. 16 as raised by the defence (Chan also had cognition impairment due to previous concussion). The mental disorder defence was based on “the interplay between the drugs ingested by Mr. Chan and his underlying brain vulnerability” (Chan at para 104). Justice Bowell found the accused was suffering from a mental disorder at the time of the offence but that he was not rendered incapable of knowing his acts were wrong. Chan was convicted.

Leaving the constitutionality aside, even if extreme intoxication did not foreclose an automatism defence in the Browncase, there are still principles underlying the law on intoxication as it connects to automatism and mental disorder that are relevant. For instance, as already mentioned, extreme intoxication akin to automatism should be approached through the Stone steps including a real discussion on whether, in light of the objectives of the law on mental disorder, the automatism arises from a disease of the mind per the legal test. But there is a further issue relating to the intersection of intoxication and automatism that is not fully explored in the Brown judgment. That further issue relates back to the self-induced or voluntary nature of the intoxication itself – not in terms of the mens rea substitution as outlined by Justice Hollins – but in terms of whether an accused is foreclosed from relying on an automatism defence grounded in self-induced intoxication based on voluntariness principles.

At paragraph 21, Justice Hollins acknowledges the voluntary act issue arising from the case when she references the 1983 English Court of Appeal decision in R v Bailey, [1983] 2 ALL EWCA Crim 2. In that case, the accused experienced a hypoglycemic episode from a known diabetic condition resulting in a violent attack. Prior to the episode, the accused started feeling unwell and asked for sugar and water in an effort to raise his glucose levels. Ten minutes later the attack occurred. The defence posited that the accused was in a state of impaired consciousness due to a hypoglycemic episode. The evidence was that the accused earlier in the day likely did not have enough food to eat to counterbalance his insulin shot and that is why his glucose level decreased to a dangerous level. The prosecution further contended that the accused was upset and jealous due to the victim’s relationship with his girlfriend. At trial, the trial judge charged the jury that if the incapacity was self-induced, automatism did not apply. The Court of Appeal dismissed the appeal for various reasons but noted the trial judge’s charge on the issue was in error by suggesting the accused’s failure to eat enough food foreclosed the automatism defence. This factually is a much different situation than the one faced in Brown, which involves a clear case of taking an intoxicant knowing that it was a mind-altering substance. Of course, on Brown’s evidence he did not know he would have a “bad trip.” This knowledge is important. There is ample Canadian authority for the proposition that an involuntary act becomes a “voluntary” one if the accused was aware of a situation that could result in an involuntary prohibited act, yet chooses to do the act despite the knowledge. This is reflected not only in case law but in the model jury instructions for non-mental disorder automatism on the National Judicial website. Recall that this instruction would occur after the trial judge decides which form of automatism would be left with the jury. In this case, the decision would be to leave non-mental disorder automatism.

The model jury instruction starts with the cautionary tone found in Stone emphasizing how automatism is “easily feigned” and “all knowledge of its occurrence rests with the accused.” After instructing the jury on the non-mental disorder factors pursuant to Stone such as the severity of the trigger stimulus, evidence of bystanders, medical history, motive and whether the person who triggered the event is the victim, the model instructions proceed to a second step, not entered into in the Brown decision. This second part of the instruction requires the jury to consider whether the accused “did foresee or should have foreseen that he would enter into an automatistic state.” If the answer is “yes,” then the defence of automatism does not apply. 

The footnote in the model instruction indicates “although it is settled that automatism is not available as a defence where it results from the accused’s "fault or negligence", the extent of the risk that must be foreseeable or foreseen is not settled.” In support, the footnote references three cases. The first, is the SCC decision in Rabey v R, [1980] 2 SCR 513, the classic automatism case arising from a psychological blow, decided before Stone and its mental disorder preference. In Rabey, at page 552, Justice Dickson, in dissent, suggests that “in principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime, that cannot be attributed to fault or negligence of his part.”  The second case is R v Grant, 1993 CanLII 2479 (BCCA), where the Appellant was convicted of criminal negligence causing bodily harm resulting from a driving incident when he was experiencing an epileptic episode. Although the Appellant experienced episodes before, they were all nocturnal and therefore the episode at the time of the driving was unanticipated. However, the Appellant was advised by his physician not to drive due to his condition. The trial judge, therefore, correctly found the Appellant could not rely on the defence of automatism. The BCCA in R v Jiang, 2007 BCCA 270 at para 22, reiterated the significance of prior knowledge of a vulnerability, such as parasomnia, could preclude the application of the automatism defence.

Applying this line of authority to Brown, Mr. Brown’s previous experience with the drug was “positive.” However, the taking of an illegal mind-altering drug places Mr. Brown in a different position than those cases where the accused experiences an unexpected medical condition or takes all steps required to ensure the condition does not occur. As both medical experts opined in Brown, “it was reasonably foreseeable that a person who is disoriented and paranoid could become aggressive” (at para 72). The circumstances in Brown may fulfill the knowledge requirement, foreclosing the availability of the defence.

Finally, it is helpful to review the 2010 Quebec decision of R c YS, 2010 QCCQ 2558, involving dangerous driving and criminal negligence charges arising from an epileptic attack while driving. This is a good example of how the Court should apply the Stone decision where the defence of automatism is raised. In YS, the trial judge considered whether epilepsy was a disease of the mind (at paras 78-81) and then considered whether the accused’s automatic reaction would be one expected from a “normal” person in the same situation (at para 82). The court found the trigger was internal and involved the accused’s own internal subjective make up making the automatism more likely from a disease of the mind. The court then applied public policy protection of the public concerns pursuant to Stone  and Luedecke, where Justice Doherty found the trial judge erred by not applying the Stone approach to an automatism sexsomnia defence (YS at para 94). The trial judge in YS concluded the accused was not criminally responsible pursuant to s 16 of the Code (at para 95). It should also be mentioned that in the SCC decision of R v Bouchard-Lebrun, [2011] 3 SCR 575, Justice Lebel, in dismissing the mental disorder automatism argument raised by the Appellants for general intent offences in which they were experiencing drug-induced toxic psychosis, noted that the exclusion of transitory states from a s. 16 consideration is not “absolute” and can be rebutted by evidence that the psychosis did not “exclusively” arise from the self-induced intoxication (see paras 69 and 76). To properly determine this however, the court must look at the whole of the evidence and apply the Stone analysis in its entirety. 

It may be that in Brown the same result might be arrived at even with the application of the legal considerations I have outlined above. Factually, it was a tragic event for everyone involved. The victim’s life was changed forever and no doubt the incident will haunt the accused as well. Legally, the case raises issues of criminal responsibility in the context of very complex incapacity issues. Over and above these legal issues, are the public policy concerns involving blameworthiness and voluntary consumption of intoxicants. Finally, the case stands as an example of the inadequacies in the law to deal with complex intersecting issues and the concern we may all share with the incapacity of the criminal law to adequately and fairly deal with the self-induced but extremely intoxicated accused.

The story, as much of Canadian history, straddles the Atlantic, with one foot in the common law of England and the other in the new colonies of America. As the UK attempted to consolidate criminal statute into a readable and structured format, British North America was dispensing its own version, or should we say its own variety, of justice. While English efforts to codify the criminal law into one statute failed due to inopportune politicking, initially consisting of strong-arm tactics that fell flat, the Canadian effort succeeded through a combination of soft diplomacy and little public interest.

The story of codification can be told through the historical figures of the early Dominion. Main characters in the codification story include Sir James Robert Gowan, one of the earliest drivers behind codification yet whose contributions were conveniently omitted from the final version. Due to the right family and political connections, Gowan became the youngest judge in the British Empire, being appointed to Simcoe District of Upper Canada at the age of 27 years in 1843. After Confederation in 1869, Gowan was asked by Sir John A. MacDonald, who was both Prime Minister and Minister of Justice, to create a national criminal law. Even with his interest and efforts, Senator Gowan, as he then was at the time of the passage of the 1892 Code was not part of the final codification team.

As an aside, the one reference I could find on the Westlaw database to Gowan is in the decision of Gowan v Paton, 1879 CarswellOnt 86, 27 Gr. 48. The case involved a civil suit, in which Gowan and his partner advanced monies to the defendant based on the land value of the defendant’s property. The claim contended that the valuation was fraudulent and the defendant owed $1000.00, a significant amount of money at that time. The case was heard in the Court of Chancery and the finding was in favour of Gowan. Although a number of witnesses testified as to the land value and representations made, Gowan did not appear as a witness in the claim.

Another key figure is Sir Henri-Elzear Taschereau, from Lower Canada, a supporter of Sir John A. and eventually the Chief Justice of the Supreme Court of Canada in 1902. Taschereau was also extremely keen on codification. Despite this interest, he too was left on the codification sidelines. This omission did not go unnoticed and Taschereau spent much time authoring critical reviews of the 1892 Code.

There are a few decisions rendered by Taschereau while on the Supreme Court and the Judicial Committee of the Privy Council, the highest authority in Canada until abolishment in 1949. Desmond Brown, in footnote 136 to Chapter 3 of the book, neatly describes the Supreme Court of Canada before 1949 as a “judicial ‘spare wheel’. According to Brown, prior to codification, the Supreme Court of Canada “heard only thirteen criminal appeals” (at page 69 and footnote 193), while the provincial courts rendered about 400 appellate decisions in the same time period (at page 69 and footnote 194).

Similar to Gowan and Taschereau, George Burbidge is another code-loving figure. Indeed, Burbidge’s Digest of the Criminal Law of Canada was highly influential on the structure and content of the 1892 Code. Burbidge was an intimate of the criminal justice system as a lawyer, politician and judge. He served as Deputy Minister of Justice and prosecuted Louis Riel for treason. However, it was as the first justice of the Exchequer Court that he compiled his criminal law digest, which was based upon the Sir James Fitzjames Stephen’s UK efforts at codification, that as earlier mentioned, failed.

Sir John Thompson, lawyer, politician, once judge then politician again, could be rightly deemed the father of the Criminal Code. As Minister of Justice, and really Minister of just about everything in Sir John A.’s government, Thompson was indispensable and the ostensible leader of the government. Although, he declined to form the new government when Sir John A. died in 1891, it was his coolly calculated presence in the House that ensured swift passage of the final revised version of the Criminal Code. It reflected the ethos of the new nation but also retained much of the English common law flavour of the UK original. It was pithier too, using much less verbiage and more clarity than the various previous versions. Desmond Brown particularly praises the new Code as shedding the “cruel, capricious, and obscure criminal law” of the English common law. The Code was an object of national pride and brought Canada into the modern age with a set of laws that reflected a Canadian common law tradition. This legislation therefore created a criminal justice system that, according to Brown at page 148, was founded on legislation safeguarding a “just and fair” society. It promoted clarity and consistency. It was a paradigm for democracy. A democracy which in turn gave birth to the Charter.

It should be remembered that codification is also intertwined with the move toward the revised statutes and the organization and publication of the entire body of statutory law, both provincial and federal. We tend to lose sight of this fact, that the Criminal Code is at heart just another piece of legislation. Burbidge, for instance, was heavily involved in the compilation of the Revised Statutes of Canada. Codification is not just the creation of a large tract of legislation but is shorthand for the law as created and written by lawmakers.

After reading Brown’s book, I am even more convinced of the importance of continual review and reform of the Code. As I have maintained in previous blog postings, the Code, because it has not been reviewed and refreshed regularly, is a patchwork of amendments. Yet even with the most recent update, the Code would be recognizable to those who created it. Considering the span of approximately 128 years since the Code was enacted, this familiarity has bred complacency as our Code seems out of sync with the times. It no longer is a symbol of a new Canada but of a Canada that was.

As suggested by Desmond Brown, by writing down the laws, we leave them open to criticism. It is this transparency, which is the greatest gift of codification. We can only identify flaws when the full body of law is open to scrutiny and by identifying flaws, we fix flaws to create better laws. This transparency and accountability seems to be unfulfilled today as we debate and argue over small changes without recognizing the real need is to fix those fundamental flaws that act as a barrier to greater societal change. This was what the new Code was able to do in 1892. It was the kind of change that brings together a nation.

Another lesson learned from the historical beginnings of the Code is how personal the creation of the Code was despite the politics involved. The politicians wanted codification to happen because they believed in the power of codification to create a Canadian identity. Those involved took great pains to create a statute that was workable and spoke to the people in a direct and meaningful manner. Hence, no doubt my own obsession with the Code and my fascination with how our criminal law is expressed through it. In many ways the Code is a love letter to Canada.

In the Felix/Parranto decisions, the court, by setting a nine-year starting point for trafficking in fentanyl on a wholesale level, relies on both their own precedential history and the Supreme Court’s binding law. This, on the face, is not exceptional. Provincial appellate courts, although the highest level of authority in their home province, are bound by the law given from the apex court. Nevertheless, this imperative to follow also grants the provincial appellate court the right to lead. In other words, the supreme law binds the lower appellate court, but that lower court must then apply that law through the lens of interpretation, which reflects the appellate court’s own unique voice and perspective. 

I have written extensively on the Alberta Court of Appeal’s penchant for setting sentencing starting points in a previous ABlawg post - “Sentencing to the Starting Point: The Alberta Debate.” The use of starting points in sentencing is controversial, both within Alberta and across Canada. The use of precedent is an important step in solidifying a unified view from the court. But to create precedent, the court often must use precedent. 

It behoves the court in such situations to show the gravitas of precedential authority by empanelling a larger than usual panel of judges to propound on the issue. Instead of the usual 3-judge panel, in Felix/Parranto the decisions are rendered by a 5-judge panel. This is needed in various circumstances; where the issue requires horizontal clarity, such as when the appellate court itself renders unclear or inconsistent decisions regarding an issue; where the issue requires vertical clarity, such as when the appellate court clarifies divergent decisions from the lower court or sets new binding law; and where lower court precedent is clear, but in the opinion of the appellate court is in error. Of the many Alberta Court of Appeal decisions remarking on sentencing starting points (there are approximately 295 cases), the court has utilized 5-judge panels seven times. 

The first such 5-judge panel decision is the ‘starting point’ of all starting point sentencing decisions, R v Johnas, 1982 ABCA 331. Johnas is an example of the appellate court setting down general binding sentencing starting point principles for the lower courts to follow. The citation name of the decision is a misnomer as the decision relates to a number of sentencing appeals involving similar fact situations (the robbery of small late-night commercial establishments staffed by one person) and all of the accused share similar antecedents (youthfulness). Significantly, the decision is rendered by the Court and liberally uses the pronoun “we.” For example, at paragraph 33, the court uses the inclusive pronoun when setting precedent by stating “we are of the view that the starting point in Alberta for the type of robbery under consideration should be three years.” 

 Four years later, another 5-judge panel was struck to consider the use of sentencing starting points for young offenders in R v CWW, 1986 ABCA 47. There, the Court decided it was inappropriate to do so considering the special place individualization has in sentencing a young person and the diminished importance of general deterrence. Interestingly, the Supreme Court of Canada in R v JJM, [1993] 2 SCR 421, in discussing the CWW decision, made particular reference to the precedential weight of JJM in remarking that this position was “adopted by a special five member panel” (Cory J. at 433). Note the description of the position as an ‘adoption,’ which by definition suggests the implementation of a formal acceptance. 

The third 5-member panel to consider starting points is in R v Rahime, 2001 ABCA 203, where the binding effect of the pronouncement is softened somewhat by the Court’s characterization of the decision as “guidance” from which sentencing judge’s “may depart” (at para 19). Of course, creating precedent is not always a numbers game. In R v Fleury, 1990 ABCA 362, the 3-member panel set a sentencing starting point for minor property crimes. Even so, according to the CanLII database, the case has been cited by no other courts. 

In contrast, the next 5-member decision, R v Arcand, 2010 ABCA 363, released nine years after Rahime, is a capstone pronouncement on sentencing starting points. The Court signals the intent of this decision in the opening paragraph by reminding us “without public confidence in the criminal justice system respect for the rule of law is imperilled.” By this point, the concept of sentencing starting points was questioned and tested by a series of lower court decisions debating the validity of starting points in major sexual assaults as earlier set by the 3-judge panel decision in R v Sandercock, 1985 ABCA 218. Like Johnas, the Arcand decision considers a series of lower court “Reconsideration Cases” (at para 6) but unlike Johnas, it does so in a big way. Arcand is almost canonical in its breadth and depth. The Court spends 230 paragraphs worth of pre-discussion, before finally discussing these Reconsideration Cases and the cases at hand. This pre-talk takes the reader on a sentencing journey, starting with an historical approach to sentencing, drilling down into sentencing reforms and then drilling back up to discuss the objectives of sentencing starting points and the objections to it. 

Paragraphs 182 to 230 in Arcand are devoted to stare decisis with a virtual textbook commentary on the binding effect and force of the appellate courts and the need for stare decisis in the orderly space we call the Rule of Law. With a riff on Alfred Einstein’s belief that the supreme being “does not play dice” with the Universe, the Court vividly depicts the stare decisis role within its own Court by warning that without such principle “An appeal would be scarcely better than putting the dice back in the cup and shaking them again” (at para 185). Concomitantly, this section of the judgment touches on the duty of the lower courts to accept the binding effect of the intermediate courts even if the lower court views the precedent as wrong (at para 184). Using the now familiar gaming metaphor, the Court compares a legal landscape without stare decisis as a ‘roll of the dice,’ in which anything and everything goes resulting in trials that are no better than a horse race. In this precedent-less scenario, luck, rather than the law, rules (at para 183).

Over the years, Arcand has been cited 501 times but the road to binding authority has not always been smooth. In R v Lee, 2012 ABCA 17, a decision rendered two years after Arcand, the 3-judge panel was not totally ad idem with the Arcand court; one member of the panel dissented on the issue. In that same year, the Court constituted another 5-judge panel in R v Nickel, 2012 ABCA 158. Here, the focus was on correcting a “flaw” in a lower court decision (R v Evans (1996), 182 AR 21 (Alta PC)) which was favourably cited in other sentencing decisions (at para 3). The majority in Nickel, did not mince words as they found the questionable decision, as well as the “reconsideration cases” that relied on it, lacking in authority and having little, if any, residual precedential value (at para 21). 

The sixth 5-panel court to opine on sentencing starting points is R v Hajar, 2016 ABCA 222. This is another lengthy decision, mostly focussed on the specific sentencing scenario before it, with brief commentary on the role of the intermediate appellate court in reviewing sentencing decisions (at paras 45 to 50). At paragraphs 46 to 47, the court describes the role of the court as an appellate authority assisting the trial courts in the face of pressing societal issues. Thus, the appellate court “does more than act as a buffer against outliers of sentencing outcomes. It also has a duty to provide transparent and manageable methods of reasoning to assist front-line courts in their important function of imposing just sanctions” (at para 46). This mandates the appellate court to provide “real assistance” to the trial courts that is not a matter of merely giving “thumbs up or down on an impressionistic basis as to the fitness of sentence in a given case” (at para 47). Rather, it is the duty of the appellate court to provide guidance through the adoption of “starting point sentencing for certain crimes where typical cases can be discerned and a relatively wide disparity in sentencing exists amongst judges” (at para 47). This then is the meaning of starting points as guidance as articulated in Rahime.

We have come full circle back to Felix and Parranto, which to be fair, are two different, albeit consistent, decisions written by two different members of the panel. As earlier mentioned, the decisions set down a nine-year starting point for wholesale trafficking of the killer drug, fentanyl. Each decision comes at the binding principle in different ways. In Felix, Justice Antonio walks us through the underlying facts including the circumstances of the offender (at paras 4 to 10, 18 to 23), the dangerousness of the drug and the many deaths attributed to it (at paras 11 to 17), counsel’s position at sentencing (Crown asks for global sentence of ten years incarceration and defence for two years plus three years probation, at paras 24 to 26), and the sentencing decision (sentencing judge imposes a global sentence of seven years incarceration, at paras 27 to 36). In fixing the nine-year starting point, Justice Antonio echoes the opening sentiment in Arcand that the act of sentencing engages public confidence in the justice system. Antonio J.  finds it is the duty of all courts, lower and intermediate, “to protect the public by imposing sentences that will alter the cost-benefit math performed by high level fentanyl traffickers” (at para 40). 

To support this notion, Antonio J. leans on Supreme Court approval by quoting both R v Lacasse, 2015 SCC 64, one of the most recent discussions of sentencing principles, and the earlier decision in R v Proulx, 2005 SCC 5. Accordingly, the Supreme Court in Lacasse “confirms the usefulness of ranges and starting points in reflecting the principles and objectives of sentencing” (at para 41). Similarly, the passages relied upon by Antonio J. from Proulx comment on the usefulness of starting points and how the approach promotes transparency in sentencing (at para 41).  She then moves seamlessly from vertical authority to horizontal as she connects transparency with the public confidence needed in sentencing according to Hajar (at para 41). From there, Antonio J. recognizes that “springing from the starting point, sentencing judges must tailor sentences to suit individual offences and offenders” (at para 41) reiterating, as I discuss in my previous blog on the issue, the importance of starting points as a methodology or uniform approach as opposed to the creation of uniform sentences for all offenders committing the same offence (at para 41). In paragraphs 42 to 43, Antonio J. continues her march through starting point and sentencing authority as found by her own court. Finally, at paragraph 44, she uses the weight of the authority outlined to provide “a clear statement” for the lower courts. Thus, stare decisis is used to create new precedent.

The difficulty is that the Lacasse discussion on sentencing ranges, and specifically on starting point approaches, is not wholly supportive of the starting point approach. At paragraph 57 of Lacasse, as quoted by Justice Antonio, the Lacasse court, through Justice Wagner writing for the majority, views such approaches, as the Alberta Court of Appeal did in the 2001 Rahime decision, as 

 nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. (Lacasse at para 57)

This vision conceptualizes starting points as a short-hand or abbreviation of an entire body of case authority and not as a hard start. It leaves room for sentencing judge discretion, which may arise from a thorough analysis of those historical portraits. Starting points can form the foundation of a just and appropriate sentence but it cannot be a substitute for the sentencing exercise. Such a sentencing exercise is conducted by the fully informed and knowledgeable sentencing judge, who applies the law to the specific case at hand.

Justice Wagner continues in paragraph 58 of Lacasse to describe sentencing as “highly individualized exercise that goes beyond a purely mathematical calculation.” This position at first seems at odds with Justice Antonio’s reference to math, which I mentioned earlier in this post (Felix at para 40). These mathematical references, however, are coming from differing perspectives. Justice Antonio is referencing the deterrent effect of a sentencing starting point on the offender and on those considering committing the offence in the future. For many offenders, particularly those who benefit financially from their criminal enterprise, the length of the potential sentence is part of the cost-benefit analysis of doing business. On the other hand, Justice Wagner’s reference serves as a warning to both the lower and intermediate courts that the sentencing exercise itself is not merely the imposition of a precedential number. Rather, it is an exercise in discretion. In other words, a sentencing judge does not start with the starting point number but arrives at the appropriate sentence through a just consideration of the starting point sentence as a guide.  

Still, deterrence is a nuanced and subtle behavioural form of correction that is difficult to distill into a numeric count, even at the level of wholesale traffickers. In the end, Justice Wagner in Lacasse reminds the lower courts that “sentencing ranges are primarily guidelines, and not hard and fast rules” (at para 60). As a result, “a deviation from a sentencing range is not synonymous with an error of law or an error in principle” (at para 60). Otherwise, as the Supreme Court found in R v MacDonnell, appellate courts would be judicially creating categories of offences for purpose of sentencing to circumvent principles of deference (Lacasse at para 61). 

The Parranto decision presents a different factual background with the accused facing a number of offences including possession of a restricted weapon. There was no sentencing or Gladue report, but the sentencing judge considered the fact that the offender was addicted to drugs and of Metis background (at para 5). The sentencing judge imposed a global sentence of 11 years. Justice Watson, speaking for the Parranto court, found the judge “made a series of interrelated errors,” the primary one being “in his handling of the starting point approach” (at para 24) relating to individualization of sentence. In allowing the sentence appeal, the court increased the global sentence to 14 years incarceration (at para 69). 

Justice Watson comes out strongly in favour of the binding authority of the intermediate court on the lower courts in the matter of sentencing starting points (at paras 28 to 38). He reiterates the view that failing to impose the starting point number is not necessarily an error but that “departure from the approach itself” does constitute an error. As Watson J. further explains in paragraph 29, the starting point approach is directive and not permissive; lower courts must consider themselves bound by the approach. The sentencing judge in Parranto committed this cardinal error when he rejected the starting point approach as inconsistent with Lacasse’s description of sentencing guidelines as “historical portraits” (at para 32). According to Watson J., there is no viable debate on the use of starting points as a sentencing approach in Alberta. The sentencing judge’s position “over-simplified and mis-stated the law” and “misconceived the position of the Supreme Court of Canada in relation to starting points” (at para 32). Unlike Justice Antonio, Justice Watson is not just using precedent to support the creation and utilization of sentencing starting points. Rather, he is using precedent in the Arcandsense, where the appellate court feels the need to reconsider and correct the lower court’s application of binding authority. Justice Watson decision sends a clear message to the lower courts that the starting point approach must be adhered to until and unless an even higher authority says otherwise.

Notably, Justice Watson acknowledges the Supreme Court may yet address the starting point approach in the pending decision in R v Friesen, 2019 CanLII 96796. In Friesen, the Manitoba Court of Appeal allowed the sentencing appeal and reduced the sentence imposed by the sentencing judge who mis-applied a sentencing starting point. The Supreme Court allowed the appeal and restored the original sentence with reasons to follow (Friesen, SCC). This decision, if it does engage the starting point issue, will indeed be of great interest and precedential value. The Supreme Court, as the apex court, takes a longer view of authority by setting it in light of precedent emanating from across the country. The starting point approach is not wholly embraced throughout the country. For instance, the British Columbia Court of Appeal recently released their own decision on sentencing wholesale traffickers of fentanyl in R v Leach, 2019 BCCA 451, in which Justice Fitch, speaking for the court, dismissed a sentence of 16 years incarceration. In the decision, Fitch J. carefully considers the sentence imposed through the lens of deference by finding the decision was based upon an extensive review of the applicable case law (at para 60). In furtherance of this approach, Fitch J. acknowledges the difficult balancing required of the sentencing judge where the “conduct imperilled the lives of many of his fellow citizens” for his own personal financial benefit (at para 112). Then at paragraph 113, the Fitch J. invokes a perspective on sentencing ranges that differs from the Alberta Court of Appeal. Justice Fitch reiterates that sentencing “ranges develop over time, guided by judicial experience and the need for public protection. In my view, it is premature to identify a range applicable to a case of this kind.” This view harkens back to Lacasse and Justice Wagner’s description of sentencing ranges as historical portraits. The Supreme Court in Friesen may indeed clarify exactly what those portraits look like when applied by the sentencing judge.

The Felix and Parranto decisions are truly companion pieces. These cases should be read as one unified commitment by the Alberta Court of Appeal to the starting point approach and as one imperative voice to the lower courts to follow stare decisis and apply the law as given by the intermediate level. Precedence has great value in our common law system; it promotes finality and consistency. It ensures the law does not defy prediction. It is, as described in R v Mankow (1959), 1959 CanLII 443 (AB CA), a “central pillar of our law” (see Arcand at para 183). But how stare decisis is used is not inviolable or fixed. As this post suggests, it can be used in different ways to underline the authority of the court using it and to remind those bound by it to take heed.

First, for those who do not have their 1L CANS on the subject at hand, I will provide an objective mens rea primer. Such a discussion cannot occur without a clear understanding of the basic principles. One of the core learnings in 1L criminal law is the identification and discussion of the required elements of a criminal offence; the actus reus (prohibited act) and mens rea (fault element). The prohibited act is many and varied in accordance with the many different forms of criminal behaviour described in the numerous crimes detailed in the Criminal Code. Due to the cognitive relationship between the prohibited act and the fault element of a crime, it can be argued that there are also as many fault elements as there are crimes. In reality, however, the law recognizes two distinct categories of mens rea: subjective and objective. 

Subjective mens rea, as a form of liability, takes on the persona of the accused person by focusing on the accused’s intention, knowledge or awareness at the time of the offence. Instead, in the objective form of liability, the assessment focuses on what the accused should have or ought to have known at the time. This objective perspective requires a shift away from the mental machinations of the accused to the more predictable standard of the reasonable person. In the objective world view, the mens rea determination is not based on the individual’s knowledge, awareness and specific thought processes but is fixed on what the reasonable person, facing the same circumstances as the accused, would have known. The reasonable person is the yardstick by which the accused’s conduct is measured and assessed in light of the offence requirements. 

In criminal law there are two kinds of objective mens rea offences; negligence-based crimes and crimes requiring an objective foreseeability of bodily harm. Typically, the negligence-based crimes are licensed or duty-based activities, like dangerous driving (s 320.13 of the Criminal Code) or failing to provide the necessaries of life (s 215(2) of the Criminal Code). For this kind of objective mens rea offence, the court must also consider how much the accused’s conduct deviates from the standard of the reasonable person. The second type of objective mens rea offences, which has an underlying or predicate offence as an essential element, considers whether flowing from the commission of that underlying act there is an objective foreseeability of bodily harm. As objectively-based offences, the reasonable person perspective informs the objective foreseeability requirement but the assessment is not concerned with the amount of deviation from the norm.

Without covering a term’s worth of principles, needless to say, the objective form of liability resides uneasily in criminal law where the core principle of fundamental justice requires a fault element reflective of the moral culpability of the individual. The line of Supreme Court decisions in the area are some of the best-known decisions in criminal law (See R v Tutton, [1989] 1 SCR 1392, R v Hundal, [1993] 1 SCR 867; R v Creighton, [1993] 3 SCR 3). In these decisions the Court not only grapples with the concept of objective fault as a basis for a criminal conviction but also with the meaning of objective fault in the criminal law context. Two major issues arise from these cases; who is the reasonable person and to what extent the accused’s conduct must deviate off that standard to be considered criminal. 

After twenty-four years of argument and shifting positions, the Court, unanimously decided in R v Roy, 2012 SCC 26, on a workable test for negligence-based offences. This is known as the modified objective test. Despite the moniker, the so-called modifications to this objective test are minimal, boiling down to a requirement for a “marked” deviation from the standard of the reasonable person, or, for criminal negligence under s 219, a “marked and substantial” deviation. This true modification was needed to recognize the difference between the criminal form of negligence and the civil form of negligence found in regulatory offences. 

 The facts in Javanmardi are important to both the majority, written by Justice Abella, and the dissent, written by Chief Justice Wagner. In fact, one could argue that the decision’s precedential power may be limited by the specific factual narrative. Justice Abella, in restoring the acquittals, stresses the decision involves activity-based cases of criminal negligence, emphasizing the skill and expertise of the Appellant, a long practicing naturopath (at para 39). Justice Abella begins her judgment reiterating Ms. Javanmardi’s education, expertise and experience as a naturopath. She also emphasizes the Appellant’s particular expertise in intravenous injections, the activity in question on appeal. Quebec prohibits naturopaths from such activities, but Justice Abella contrasts Quebec with “most provinces” in which the activity is “lawful” (at para 1). The facts, as depicted by the majority, depict the Appellant as a competent, caring practitioner, whose actions, on a normative level are reasonable and appropriate.

The dissent’s opening salvo is much different. Chief Justice Wagner outlines the issues to be determined in the appeal and does so in a manner separating the factual narrative from those issues (at para 47). In the next paragraph, he views the Appellant in a much different light than the majority. The Appellant practises in Quebec and administers intravenous injections to her clients without legal authority (at para 48). In fact, the Appellant has been conducting illegal injections for years and therefore violating provincial laws for years. This runs counter to the narrative of the majority, which does not use the word “illegal” anywhere in the decision. Conversely, the dissent references the illegality of the Appellant’s “practice of medicine” four times. This differential characterization of the Appellant’s conduct acts as a leitmotif throughout the decision. 

Such intravenous injections of nutrients are part of the stock and trade of naturopaths. According to Justice Abella, Ms. Javanmardi treated thousands of patients with intravenous injections before the day of the incident without any adverse results (at para 1 and 5). On the day of the incident, the Appellant used a single-use vial of the nutrients for three client injections (at para 3). The third time, with tragic consequences, as the client died from toxic shock brought on by contamination of the vial (at para 7). The other two clients suffered no adverse effects (at para 3). Although not noted by the majority decision, according to the dissent, the use of the single-dose vial, which contained no preservative, was contrary to the “recommended practice” (at para 50).  Ms. Javanmardi was subsequently charged with criminal negligence causing death (then s 220 of the Criminal Code) and unlawful act manslaughter (s 222(5)(a) of the Criminal Code), both objective mens rea offences. Notably, the “unlawful act” element of both offences is the Appellant’s administration of the intravenous injection contrary to the provincial legislation (at paras 9 and 17).

The trial judge acquitted Ms. Javanmardi of both charges. On the criminal negligence offence, the judge found her conduct neither amounted to a marked departure from the standard of the reasonable person nor would a reasonable person have foreseen the risk (at para 12). As for the unlawful act manslaughter charge, the trial judge found the intravenous injection was not “objectively dangerous” and, in any event, a reasonable person would not have foreseen the risk (at para 13). Both the majority and dissent agree the trial judge erred in law but disagree on the extent and effect of the errors. They agree the trial judge erred in articulating the law on the mens rea requirements for criminal negligence pursuant to s 219, requiring the conduct amount to a “marked” departure from the standard as opposed to a “marked and substantial” departure. 

Two points must be noted here. First, the standard of liability for a  s 219 criminal negligence offence was, years earlier found to be a “marked and substantial” departure from the norm by Justice McIntyre, in R v Tutton, [1989] 1 SCR 1392(at 1430-31). This standard was later refined to distinguish the general form of criminal negligence from the specific form found under s 219. The offence of criminal negligence under s 219 required a higher level of deviation off the norm to recognize the seriousness of the offence. All other forms of negligence-based offences in the Code from careless use of a firearm under s 86 ( See R v Finlay, [1993] 3 SCR 103 at 115) and failure to provide the necessities of life under s 215 (See R v Naglik, [1993] 3 SCR 122, at 143 and R v JF, 2008 SCC 60 at para 8) to dangerous driving now under the new s 320.13 (See R v Beatty, 2008 SCC 5 at para 43) require the lower deviation of “marked”. The trial judge seriously misstated the law on this point – law that certainly since Beatty in 2008 had been well defined.

The second point is an appellate one. Despite this clear error, Justice Abella for the majority and Chief Justice Richard Wagner for the dissent differ on its significance. Justice Abella finds the error “irrelevant to the outcome” considering the trial judge applied a lower standard than was required, yet still acquitted (at para 43). While Chief Justice Wagner finds the error is not as “palpable” as the other more egregious error in law found earlier in the reasons, that more serious error “magnified the impact” of other errors, including the error in the “marked” mens rea standard (at paras 52 and 80). In Justice Wagner’s view, the errors in the trial judge’s decision should not be viewed separately but as a culmination of an unfair trial.

 Disappointedly, the decision does not tell us what the marked standard consists of and how it should be quantified (at para 23). Nor does it tell us how ‘marked’ differs from ‘marked and substantial’ other than to say it just does. Justice Abella references Justice Patrick Healy, from the Quebec Court of Appeal, in R v Fontaine, 2017 QCCA 1730, who explains how the two standards are “differences of degree” and “cannot be measured by a ruler, a thermometer or any other instrument of calibrated scale” (at para 27). Instead, suggested Justice Healy, the standards gain meaning statutorily, from the actus reus elements of the offence and through their factual context. Accordingly, Justice Healy found that “as with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirely contextual” (at para 27). This contextualizing of objective criminal offences is not new but, as will be discussed later in this article, the majority’s concept of what contextual means, may not be the usual or even correct use of the term. 

In any event, as far back as 2008, in the majority decision of JF written by Justice Morris Fish, the Court successfully side-stepped this crucial issue (JF at paras 10-11). This lack of articulation of the meaning of these standards does provide for judicial flexibility consistent with a case-by-case approach, but it also leads to appellate review, such as this decision, where factual context can be depicted and adjudged differently by different levels of court and within the Supreme Court itself. It is often difficult to reconcile the decision in one negligence-based criminal offence vis-a-vis the decision in another similarly situated offence. Instead of creating flexibility, too much contextualization creates uncertainty for both the law and the people affected by the possible outcomes. It is time the Court weighs in on the issue and provides clarity where the law truly needs it. 

Instead, Javanmardi weighs in on many of the issues surrounding objective mens rea offences, which, as mentioned, appeared to be previously thoroughly discussed. The majority in Javanmardi clarifies, modifies, and muddies the objective waters; waters that remained calm since the unanimous decision of Roy in 2012. Admittedly, some of the issues decided in previous Supreme Court of Canada case law is puzzling. For instance, in R v DeSousa, [1992] 2 SCR 944, Justice John Sopinka clarified the requirements for a crime based upon an underlying or predicate offence. There, the offence was unlawfully causing bodily harm under s 269, an odd offence which seemed to mirror assault causing bodily harm but left open the unlawful act as something other than assault. Although not clear, the unlawful act in DeSousacould have been assault or mischief resulting from the accused throwing a beer bottle against a wall, which broke into shards of glass, injuring the nearby complainant. Justice Sopinka did a masterful job in that decision, breaking down the required actus reus and mens rea of a crime relying on a predicate offence. 

The actus reus consists of an unlawful act and the causing of bodily harm. The unlawful act itself could be a criminal or regulatory offence but not an absolute liability offence. The unclear part of DeSousa is whether the unlawful act needs to be objectively dangerous apart from being contrary to law. Justice Sopinka appears to require the predicate offence be objectively dangerous but does not clearly indicate if that requirement is a separate element of the actus reus of the overall offence. Justice Abella picks up on this obfuscation within the decision and clarifies. In her view, dangerousness as a separate actus reus element is clumsy and unnecessary because of the mens rea requirement. According to Justice Sopinka, the mens rea of the overall offence requires objective foreseeability of bodily harm, meaning the bodily harm caused by the accused’s actions in committing the underlying offence must be objectively foreseeable. In Justice Abella’s view, this mens rea requirement takes care of the dangerousness requirement (paras 26-30). Therefore, the acquittal of Ms. Javanmardi was not in error as the trial judge found her actions were not objectively dangerous. As an aside, here too the trial judge erred as she applied the wrong mens rea for unlawful act manslaughter, that of objective foreseeability of death. That form of mens rea had also been rejected decades ago in Creighton.  

Chief Justice Wagner vehemently disagrees with Justice Abella’s re-alignment of the objective dangerous requirement (at paras 58-59). In his view, Justice Sopinka was clear and the underlying offence itself requires an element of dangerousness. Interestingly, by leaving dangerousness as an added requirement of the actus reus, the focus remains on the predicate offence. Following that line of reasoning, in Javanmardi, therefore, the focus should be on the “illegal practice of medicine,” as suggested by Justice Wagner, through the improper intravenous injection by an unlicensed naturopath. If Justice Abella’s view is accepted, that dangerousness is subsumed in the mens rea analysis, the focus would remain on the specific circumstances of the accused’s conduct. That conduct, according to the majority in Javanmardi, would not be objectively dangerous as the Appellant was an experienced and practiced injector and used the vial previously with no ill results. Context, when it comes to dangerousness and where it resides, is indeed everything.

Other parts of the DeSousa decision are very clear, particularly in the matter of the requirements of the underlying or predicate offence. If the predicate offence is regulatory in nature, it needs to be constitutionally viable. Therefore, the underlying offence could not be an absolute liability offence, which requires no fault element, as the principal criminal offence could result in a loss of liberty upon conviction. Such a possibility would be contrary to s 7 of the Charter, which requires a fault element for crime to ensure the “innocent not be punished” (See Re B.C. Motor Vehicle Act,  [1985] 2 SCR 486 at para 69). Although only the underlying offence, permitting the absolute liability offences to become an element of a crime, would impermissibly “boot strap” absolute liability offences into the criminal law (at 957). The underlying predicate offence, however, could be a strict liability offence as found in regulatory law, as some form of objective mens rea is required, albeit a lower standard of negligence than required under those negligence-based offences in the Code. In those circumstances, strict liability, as a constitutionally valid form liability (See R v Wholesale Travel Inc., [1991] 3 SCR 154), could constitute an appropriate underlying act. 

Yet this rather straight forward proposition in DeSousa is also subject to the majority’s efforts to clarify this area of the law. But by clarifying, Justice Abella changes, not just modifies, the Desousa structure. She finds that if the underlying offence is a regulatory offence requiring strict liability, because it resides within a criminal offence there must be a marked departure from the standard (at para 31). In other words, she transforms strict liability from a public welfare offence to a criminal one by requiring the application of criminal negligence concepts. Although this position may be consistent with maintaining the “bright-line” between criminal and civil law, it raises further issues. For instance, strict liability offences reverse the onus onto the defendant to prove due diligence on a balance of probabilities. Will this bring into question that burden and standard of proof when a predicate offence is regulatory? The repercussions of this decision may be deeper than first realized. This change is not just for unlawfully causing bodily harm but for all those offences, such as unlawful act manslaughter, which lean on DeSousa for the delineation of the actus reus and mens rea. The list includes criminal negligence causing death and possibly criminal negligence itself where it is founded on a failure in a regulatory duty. It is this seemingly small clarification, which may change the nature of a crime based on a predicate offence that is regulatory in nature.

Then, we come to another controversial part of this decision, the composition of the reasonable person in the modified objective test. As mentioned earlier in this article, the reasonable person is to be viewed, not through the accused person’s eyes, but as similarly situated as the accused was at the time of the commission of the offence. This begs the question: what does “similarly situated” mean? Is the meaning purely dependent on the context of the events or is it dependent on the personal characteristics of the accused? 

This distinction was already considered and debated in the long line of cases on objective mens rea. For instance, Justice Antonio Lamer, as he then was in the Tutton decision, advocated for the “generous allowance” of factors personal to the accused, such as “youth, mental development, education” (at 1434) in considering the reasonable person. This depiction of the reasonable person was soundly rejected by Justice Beverley McLachlin, as she then was, in Creighton. In her view, “considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails” (at 61). To import personal characteristics into the reasonable person standard would effectively turn the assessment into a subjective one, transforming the reasonable person into the accused person. As succinctly put by Justice McLachlin “we are all, rich and poor, wise and naive, held to the minimum standards of conduct prescribed by the criminal law” (at 63). The reasonable person is not personalized, merely contextualized by being placed within the circumstances of each unique case. Otherwise the reasonable person standard remains the same, whomever is charged with the offence.

Yet, twenty-six years later, the majority in Javanmardi returns to this issue but in the context of an individual who possesses expertise and skill in a particular activity. This conundrum of the reasonable person in licensed or “activity-sensitive” (at para 38) offences lies at the heart of the Javanmardi decision. There is commentary by Justice McLachlin in Creighton on this issue. Contextualization means the case is not to be assessed in a “factual vacuum” (Creighton at 71). Context is provided not only by the circumstances of the incident but also the nature of the activity undertaken. Although the legal standard remains the same for each case, it is in the application of that standard, and whether the accused failed to come up to that standard, which may vary case to case depending on the circumstances and the activity undertaken. In activities that have an elevated standard of care, such as in surgery, an example referenced by Justice McLachlin, a person may fail to come up to the standard either because they are not qualified to perform surgery or, if qualified, performed the act in a grossly negligent manner. Either way, the standard remains the same, but the failure is arrived at from differing factual perspectives.

Justice Abella approves of Justice McLachlin’s activity-sensitive approach. At paragraph 38, Justice Abella agrees that “while the standard is not determined by the accused’s personal characteristics, it is informed by the activity.” Therefore, the Appellant’s conduct must be viewed in light of the administration of the intravenous injection by a reasonably prudent naturopath. Justice Abella finds the trial judge did not err in applying this activity-based standard as she was “obliged” to consider the Appellant’s skill and expertise as a naturopath (at para 39). This, at first blush, seems logically sound. If the person is charged as an expert who negligently failed in the performance of their expertise, the reasonable person must be similarly situated as the prudent expert. 

But there is a missing piece of activity-sensitive information that must also inform the context. In the circumstances of this case, the Appellant, although skilled, was prohibited from practicing medicine and therefore prohibited from performing the activity in question. The Appellant, no matter how qualified, is still unlicensed. The reasonably prudent naturopath situated in Quebec does not practice medicine. It is this very lack of medical skill that is important to the dissent. Yet, in the majority’s view, the Appellant’s skill in an unlicensed activity is relied upon as an exonerating factor. This may be taking contextualization too far by hyper-contextualizing the reasonable person with the personal skill set of the accused as opposed to the skill set of the reasonably prudent naturopath who follows the regulatory regime required by law.

The Javanmardi decision can be read as a decision, which clarifies the law for easier application at the trial level. But, as argued in this article, there is another side to Javanmardi, which suggests the challenge is not over when it comes to objective criminal offences. The dissent in Javanmardi, although small in size, has much precedential power behind it, namely the series of decisions rendered by the Court over a span of more than two decades. The majority in Javanmardi, by attempting to clarify the law, also muddies the clear vision and court unity so painstakingly created over time in these past decisions. Instead of providing closure on these complex issues, this decision may only be the beginning of a new series of case law as the trial courts attempt to apply Javanmardi principles. In any event, however this decision is interpreted, one thing is very clear, Javanmardi will be added to my criminal law syllabus for next term.

With many thanks to the ABLawg editorial team for reviewing, commenting and editing this article! 

On December 18, 2019, the terms “appearance notice,” “recognizance,” “release order,” “summons,” and “undertaking,” will be defined by connecting each term with its pertinent Form number. This might provide clarity; the Forms themselves are detailed and when reviewed provide much information on the kind of release contemplated. It can be argued that by defining these terms through their Forms, we are providing a richer definition without creating an overly verbose one. Additionally, these terms are already defined under s. 493, which is the definition section for Part XVI on Compelling Appearance of Accused Before a Justice and Interim Release. It appears that this “change” is nothing more than a move uptown, so to speak. Instead of being definitions connected to a particular Part, these definitions will apply to the entire Code.

So, on the surface these amendments do not appear to make any real substantial changes. They do, however, raise my curiosity. It is curious that the definitions for these types of release mechanisms, even before the amendments, are not defined in any substantive way. I will explain.

The new definitions do not tell us what, for instance, an appearance notice is, other than defining it by its format, which is Form 9. The Forms appear at the end of the Criminal Code. Forms are also the subject of the last section in the Code, s. 849. Not all terms expressed by a Form are defined. For example, there is no definition of “Information,” but an Information is drafted pursuant to Form 2. By the way, there is very little resemblance between the Form 2 in the Code and an actual Information. Sure, the details required in Form 2 are found in an Information, but it really doesn’t look like the Form – there’s much more to it.

So, the Forms as definitions help but they do not tell you what an “Information” really is, which is the charging document that brings the matter into court. There are definitions of “Information” found outside of the Code. In Dowson v R, [1983] 2 SCR 144, Justice Lamer referenced just such a definition from Jowitt’s The Dictionary of English Law, London, Sweet & Maxwell Ltd., 1959, at p. 968. This dictionary is still available in its 4th edition but is a tad pricey at $1, 027.00. It would be much simpler for parliament to define it. In any event Jowitt, who was William Jowitt, the 1st Earl of Jowitt, defines Information as “Proceedings before justices of the peace in matters of a criminal nature are commenced by an information, which is a statement of the facts of the case made by informant or prosecutor, sometimes verbally, sometimes in writing, and either with or without an oath; when not upon oath, the information is said to be exhibited.” That definition goes a long way to understanding what an information is and what it does in the criminal justice system. It certainly provides much more information than merely saying an “information” means the document in Form 2.

In case you were curious, there is a definition of “indictment” but there is no Form for such a document. The Crown prosecutor has a free hand to draft an Indictment, although it would be circumscribed by the common law, case authority, and any internal guidelines.

Finally, let’s look at another Form that begs to be defined - Form 16, which is the Form for a Subpeona to a Witness. There is no definition of subpoena under s. 2 but there is a section in the Code, s. 700, which does explain the contents of a subpoena and does effectively define it. Well done! But, even “curiouser”, s. 700 does not reference Form 16!

But back to the amendments at hand. Section 2 will now define the following types of judicial interim release: “appearance notice” as a “notice in Form 9 issued by a peace officer; "recognizance" as Form 32 entered into before a judge or justice; "release order" as an order in Form 11 made by a "judge" as defined in section 493 or a justice; "summons" as a summons in Form 6 issued by a judge or justice or by the "chairperson" of a Review Board as defined in subsection 672.1(1); "undertaking" that “means, unless a contrary intention appears, an undertaking in Form 10 given to a peace officer.” This definition for “undertaking” is not overly helpful, although the previous definition under s. 493 was not either. The previous definition merely defines it as Form 11.1 or 12. The new definition defines undertaking as Form 10 “unless a contrary intention appears.” I have no idea what that phrase means and in the context of statutory interpretation I do not hesitate to suggest that this definition is not well drafted. I suppose we will need to wait until the “contrary intention” does in fact “appear.” In other words, we will know an undertaking when we see one. By the way, in case you were curious, “peace officer” is also defined under s.2, although they don’t tell us this in these new definitions.

Seeing these definitions, I immediately realize that “promise to appear,” a form of release presently available in the Code, is not defined. It is not defined as that form of release will no longer be available come December 18. This means a person charged with an offence can no longer promise to attend in court to be dealt with according to law. In my view, it is rather a sad day when a person’s word is no longer enough – but there you have it. An argument could of course be made that such a promise to appear is no longer needed as an accused person can simply be given an appearance notice, that carries no conditions like a promise to appear, except for the requirement the accused to attend court and, if applicable, attend for fingerprinting.

The result may be the same but there is something about trusting the person who is engaged by the criminal justice system that resonates with me. Trusting their promise to appear goes hand in hand with the presumption of innocence; that we are presuming they are law abiding citizens and we trust them to attend as required. The judicial system is also, in the nomenclature of “promise to appear,” obtaining the accused person’s trust; the accused person by promising to attend is putting themselves into the hands of the justice system – they too are trusting the rule of law.

These s. 2 additions are just a peek into the more substantive changes to the entire judicial interim release regime. These sections come much later in the Code, starting at s. 493 of the Code and considering I am only at s. 70 in my podcast Code journey, we still have a way to go before we dig into that issue.

One last comment. There is a final December s. 2 amendment involving the definition for “intimate partner.” This is not a new definition for the Code. Like the judicial interim release definitions, the term was defined elsewhere, under s. 110.1 of the Code, having been placed there in 2015 amendments. The definition specifically referenced weapon prohibition orders under ss. 109 and 110 where the offence involved “an indictable offence in the commission of which violence was used, threatened or attempted against” (see s. 109) an offender’s intimate partner. The term is defined as “current or former spouse, common-law partner and dating partner.” It is moved to s.2 for a reason; there are now new sections relating to “intimate partner” violence such as the special sentencing provisions under s. 718.3(8). This change, at least, makes sense and also re-defines the term slightly to make it more readable and understandable.

Next special podcast episode will continue the retro journey, as we look back at the podcast sections that have now changed in the Code.

 No need for me to discuss duelling pursuant to section 71. The section was repealed in 2018 amendments, which is rather sad on a personal level as it was an extremely popular offence in the 1L criminal law classroom. Overall, the changes being made to the Code are significant, hence why I will be providing a series of podcasts. So, sit, back, relax and let’s “turn and face the strange” with thanks to classic rock and the ever-engaging David Bowie.

In this first of several special edition podcasts, I will be expounding on s. 2 changes, which will come into force on September 19, 2019. Section 2, in my view, should be given the “most changes that are a bit hard to figure out” award. Even so, that will not stop any criminal lawyer from digging into each syllable of every word found in this section. I will attempt to elucidate these changes as best as I can, without seeming pedantic, but my best advice is to keep calm and carry on by slowly and methodically working through these changes before advising a client and certainly before attending Court. 

Section 2 is the interpretation section of the Code. Interpreting theCodeis a continual work in progress. Definitions are not exhaustive but crucial to the interpretation of a section. Take a section outlining an offence such as section 130, entitled personating a peace officer. The offence is seemingly straight forward, involving a false representation of a peace officer or a public officer. But to prosecute this offence, the Crown must prove every element of the offence beyond a reasonable doubt. Those essential elements arise from the words of the section themselves and case interpretation of those words. The first step to defending or prosecuting the section requires the lawyer to determine the nature of the charge the accused is facing by looking at the charging documents. This will help delineate the offence. In the case of s. 130, the charging documents will tell us whether the accused is charged as falsely representing a peace officer or a public officer. Let’s imagine the accused is charged with the false representation of a peace officer. Step two will be determining what a “peace officer” is under this section. This matters to the prosecution as the evidence must establish this essential element of the actus reus. This matters to the defence who may see the lack of evidence on this issue or may be able to raise a reasonable doubt on it. Part of the determination of what a “peace officer” is involves looking at the interpretation section to see if it is defined and described. There is indeed a definition of “peace officer” under s. 2 of the Code. 

Even with these definitions, we still need to turn to case authority to assist us in interpreting the interpretation. In other words, we need to know the meaning of the definition itself. This is all part of the continual statutory interpretation being done in criminal law. The Code is not a closed book. Yes, it reflects the written word, which appears static on the page, but those words are imbued with historical significance coming from common law usage before words were written down. Section 2 is the backbone of the Criminal Code, but it needs teasing out and referencing beyond the four corners of the page. 

Let’s look at that s. 2 definition of “peace officer.” That definition includes “the pilot in command of an aircraft” that is registered in Canada under the regulations of the Aeronautics Act or leased without crew and is operated by someone who is qualified to own an aircraft registered under the regulations of the Act. Additionally, and here’s the kicker, a person, even if they fulfill the above definition, is not a pilot in command of an aircraft unless the aircraft is in flight. What “in flight” could mean for purposes of this definition is also defined in the Code but under a different section, being s. 7(8). As this shows, although significant changes were made to the Code, structural changes were not at the top of the list as this further important defining feature of “the pilot in command of an aircraft” lies elsewhere. This also shows that definitions in the Code can be like sticking your hand in the Cracker Jack box; its messy and you may fish around for a while before you find the prize, that’s surely there, at the bottom.

 Because Code definitions are exceedingly important in criminal law, clarity is key. Too much or too little wriggle room in the definition may result in problems in defending or prosecuting a given offence. The revisions coming our way in a few days, September 19, 2019, will structurally change the definition of “Attorney General” by paring down the s. 2 definition but by adding a further new section, s. 2.3, to support the s. 2 definition. Also, on September 19, there will be two definitions, which were not in the Code previously; “audioconference” and “videoconference.” Audioconference adds a completely new procedure and videoconference simply labels what was already available. 

An audioconference is defined as “any means of telecommunication that allows the judge or justice and any individual to communicate orally in a proceeding.” The definition gives the judge or justice in a proceeding the ability to communicate verbally with “any” individual via telecommunication methods. This is a broad definition both in which circumstances this can occur and with whom. The term “proceeding” is used liberally throughout the Code. There is a definition, which we could work with, provided under the interpretation section 785 of Part XXVII on Summary Convictions, but this definition is less than helpful. I won’t sport with your intelligence by repeating it, but it is never good when a definition includes the word itself. In any event, a better definition for our purposes would simply to use “proceedings” as referencing any court matter such as an action or an application. For instance, a trial is a “proceeding” as is a Charter motion. 

A proceeding in this sense, is a hearing that, by its very nature, requires communication through the spoken language. Of course, there are capabilities for those who do not speak but communicate through sign language but even that is then translated to the spoken word. To be heard, therefore, generally one must speak. Audioconferencing will ensure that even if the people who need to be heard by the judge (defined elsewhere in the Code under the interpretation section 552 for Part XIX, Indictable Offences Without a Jury) or justice (defined under s. 2) are not physically in court, they can be heard. 

Those people can be “anyone” such as a lawyer, a witness or an accused. Although, the definition is broad, it is also circumscribed by other sections of the Code. For instance, according to section 650(1), the accused, subject to certain exceptions, shallbe present for their trial. Although an exception can be found under section 650(1.1) entitled “video links,” which is also being amended on September 19, 2019 to provide for videoconferencing, there is no ability now or in the future for an accused to be “present” at the trial via audioconferencing. The new amendments to s. 650(1.1) will permit the accused to appear, on consent, via videoconferencing, but even this mode of communication is restricted to trial matters “other than a part in which the evidence of a witness is taken.” 

Videoconferencing is defined as “any means of telecommunication that allows the judge, justice or "chairperson" of a Review Board, as defined in subsection 672.1(1), and any individual to engage in simultaneous visual and oral communication in a proceeding.” This ability to videoconference is not new but was not previously labelled as “videoconferencing.” See for example the pre-September 19 s. 650(1.1) that permits the accused appear by way of “simultaneous visual and oral communication.” The essence of “videoconferencing,” permitting the “virtual presence” of a witness, is also already permitted in the current s. 714.2(1). The use of the new term will create a consistent meaning of what is envisioned by this simultaneous seeing and hearing communication.  

Audioconferencing is new and will now, as of September 19, be found under Part XXII of the Code on Procuring Attendance, under the heading, “Video and Audio Evidence” from sections 714.1 to 714.8 and section 714.41. Essentially, these changes will create a regime for permitting witness testimony to be given via audioconferencing using teleconference or computer device capabilities, presumably when there is no simultaneous visual of the witness available or for expediency/efficiency reasons. The Code sections on this certainly do not clearly indicate that videoconferencing is the preferred manner of communication.

Although these changes appear to be in line with the technological age and reflective of the global economy, this new audioconferencing ability is in fact a game changer. It will provide the platform for a subtle shift away from credibility assessment based on observation to assessing credibility in other more objective terms. Although the case law is clear that demeanour alone is not a ground for accepting or rejecting evidence (see R v Hemsworth, 2016 ONCA 85 at paras 44-45), demeanour is still one of many factors to be considered in determining the credibility of a witness. This permissive ability to proffer evidence that is oral only and unobserved when given, sends the message that other credibility factors, such as internal and external consistencies of the evidence, will be more important. That seems to be consistent with the scientific literature and what we have even personally experienced; that people who are nervous are not necessarily untruthful. 

But where does it leave the accused, who must be present at trial and therefore must give “live” observable evidence? What happens to the nervous but truthful accused who is subject to an observational credibility assessment? It is important to heed Justices Bastarache and Abella at para 20 of R v Gagnon,[2006] 1 SCR 621, in their caution that "[a]ssessing credibility is not a science." In their view, assessing credibility involves not just observational inferences but the emotional response to those observations. As they further contend, "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" places the trial judge in a unique and difficult position when crafting their reasons for judgment. This also means the trial judge’s credibility assessment deserves deference, being a more complete assessment than available to the appellate court who lacks that observational dimension. Making observation optional for witnesses but mandatory for the accused may create a trial unfairness.

An accused’s right to full answer and defence may also be engaged by permitting evidence through oral communication only. This right does not mandate face to face examination in every circumstance, there are exceptions in the Codesuch as s. 486.2 permitting witnesses under 18, in certain circumstances, to testify outside of the courtroom or behind a screen. Even in those circumstances, the judge observes the witness even though the accused does not. Here, no one in the courtroom observes the testimony. The new amendments do have discretionary factors for a judge to consider in permitting an audioconference, which would protect this right. For instance, under the new version of s. 714.1, before permitting audioconferencing evidence, the court considers “the accused’s right to a fair and public hearing” and the “potential prejudice” resulting from non-observation of the witness. Certainly, even in the Jordan era, court time will be needed to sort out the very real concerns raised by these changes.

 “Telecommunication” is also part of these new definitions. That word was defined under s. 326(2) of the Codebut the definition was repealed in the 2014 Protecting Canadians from Online Crime Act.This Act brought in a number of cybersecurity measures and specific offences relating to the use of digital images. I suspect the reason for making telecommunications definition-less is an effort to keep the term broadly construed and flexible enough to pertain to all matters of technologically advanced communication. 

This almost innocuous definitional shift in section 2, as I have shown, seems uncontroversial but may actually challenge us to rethink core evidential concepts. Rethinking may be a useful and much needed exercise, but it needs, in my view, to come before Codechanges take place. As I have said before, and will say again, Code revisions should be a mindful exercise and taken with eyes wide open. Big thinking should come before large scale changes. Otherwise, the changes look inadequate or worse, unworkable.

The next set of significant definitional s. 2 changes coming September 19 are found in the newly revised meaning of “Attorney General.” We should in some ways be thankful for these changes as the current definition is a statutory interpretation nightmare and is as long as some criminal records I have seen. Nevertheless, the new definition, although shorter, does not read any better or any clearer. In fact, much of the information contained in the old definition is now off-loaded into a new interpretation section, s. 2.3, which fills in the jurisdictional issues arising from different offences potentially being prosecuted by the provincial Attorney General, the provincial Solicitor General, the Attorney General of Canada, or the Director of Public Prosecutions or a combination of them. In short, these definitions are a real lesson in public service politics. 

Suffice to say, jurisdiction can be important. For instance, for offences involving the sale of tobacco products, a newish regulatory-type crime (which, in my opinion should NOT be in the Code) created by 2014 amendments to the Code, the new definition of Attorney-General combined with s. 2.3 tells us that the offence can be prosecuted by the provincial Attorney General, or the provincial Solicitor General or the Attorney General of Canada and includes the lawful deputy of any of them. Phew. That’s a lot of concurrent jurisdiction. In other words, be sure to check both sections to confirm who is who. 

In the next episode, I will discuss the s. 2 amendments that will come into force in December 18, 2019 and will give us a real run for our money as we talk about the changes to Forms of release, which means changes to bail release procedure.

As a reminder, the W(D) principle involves a suggested approach to credibility assessment where the trier of fact must apply the principles of fundamental justice, presumption of innocence and reasonable doubt to the assessment of the prosecution and defence evidence. The gist of the principle is to ensure that even when the accused’s evidence is not believed, the trier does not reverse the burden of proof and take that rejection as proof beyond a reasonable doubt. Rather, the trier must consider the possibility that despite rejecting the accused’s evidence, when reviewing the entirety of the evidence they do accept, they may be left in a state of reasonable doubt as to guilt, thus requiring an acquittal. The principle ensures the trier does not fall into the credibility contest trap, where the “winner” means the “loser” is necessarily guilty. In essence, the essence of W(D)is keeping the burden and standard of proof at the forefront of the credibility assessment. It is about keeping an open mind and not equating disbelief with proof beyond a reasonable doubt. But this principle does not reside in a vacuum, rather, it is contextualized and framed by the given substantive offence. The standard of proof is about proving the elements of the specific offence. The ultimate question asks whether this accused person committed this offence beyond a reasonable doubt.

Admittedly and unashamedly, I am thoroughly committed to the centrality of the W(D)concept in assessing credibility. By saying this, I am actually acknowledging the centrality of the presumption of innocence in our criminal justice system. This concept cannot be better described than it is in Woolmington v DPP, [1935] 1 AC 462, the seminal criminal law decision from the English House of Lords. There, Lord Sankey colourfully visualized the presumption of innocence as a shimmering golden thread: 

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 

This famous passage reinforces my contention that the presumption of innocence, together with the onus on the prosecution to prove guilt beyond a reasonable doubt, is the strength of our system without which justice could dissolve, not unlike a spider’s web. For more on my thinking around the presumption of innocence and some musings on the web-like metaphor used to describe it, see my blog/podcast entitled “The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada.”

Admittedly as well, I have written on W(D)previously both in journal article format (see The W(D) Revolution, (2018) Manitoba Law Journal 307-48) and in blog articles (see Why Reconsider W(D)?(February 7, 2019) online: ABlawg). In reconsidering W(D), I commented on Justice Martin’s W(D)perspective in R v Ryon, 2019 ABCA 36 CanLII, and his suggested approach to the application of the principle in determining a case. For a lawyer, W(D)discussions, like the one in Ryon, are like being allowed to stay up late at your parents’ adult party; in the beginning you feel part of a mysterious uncharted world but then realize we are all speaking the same language, just expressing it in different ways. 

Of course, all of the above becomes more complicated when applied to cases where the “sides” are not so clearly wrought and where the elements of the offence require a nuanced approach. The objective standard of liability is a much-debated area of criminal law, straining the traditional formulation of crime as subjectively based. The trier of fact, instead of determining what was in the mind of the accused when the offence was committed, must determine what the reasonable person would have known or ought to have known in the circumstances. In objective mens reacases, the narrative of the accused provides context of the circumstances of the case to assist the court in situating the reasonable person into the factual matrix. Even if the accused denies intending to do what is alleged to have been done, and even if the trier accepts this evidence as true, in an objective mens reaoffence, such as manslaughter, it is of no consequence if there is an objective foreseeability of bodily harm arising from the conduct of the accused. It is this scenario which the court in Ibrahim attempts to explain how W(D) matters.

The above explanation seems to be the answer to the Ibrahim situation; W(D) simply does not apply to objective mens rea cases. However, intention can matter in the objective mens rea world. When the Supreme Court of Canada, in R v Beatty, [2008] 1 SCR 49, finally, finally, clarified the objective mens rea test for criminal offences, Justice Charron, speaking on behalf of the majority, also clarified the role of intention in the objective matrix. Intention may not be the standard to assess the accused’s fault, but it is a circumstance, a piece of evidence, which, together with the whole of the evidence in a case must be considered. Picture an accused person, charged with criminal negligence causing death, an objective mens rea offence, on the basis the accused purposely used their car as a “weapon,” causing fatal injury to a person walking along the sidewalk. If this intention is proven, the objective mens reais met; those actions would be objectively dangerous and a marked and substantial departure from the conduct of a reasonable person. In fact (and in law!), subjective mens rea, an intention to kill, would also be fulfilled. Deliberate action would be evidence of the objective offence. Although Justice Charron in Beatty (para 47) and Justice Doherty in Willock (2006 CanLII 20679(ON CA) at para 32) use slightly different examples, the principle remains the same; intention as subjective mens rea if proven would also provide proof of the lower standard of objective mens rea. 

This argument can also be understood by looking deeply into the structure of mens rea. Justice Sopinka, in R v Anderson, [1990] 1 SCR 265, a Supreme Court of Canada decision straddling the division created by Justice Lamer’s desire to personalize the objective standard and permit consideration of the accused’s personal characteristics in determining objective mens rea, neatly explained the similarities between objective and subjective mens rea. Both forms of fault are determining the “foreseeability of consequences” (Andersonat 270) and the connection between conduct - the physical actus reus component of crime - and foresight – the mental or mens rea element. The connection is a “criminal” one rather than the less substantial “civil” relationship. The greater the risk of harm created by the conduct, as explained by Justice Sopinka in Anderson, the “easier it is to conclude that a reasonably prudent person would have foreseen the consequences,” as required for the criminal form of negligence (Anderson at 270). It is “equally” easier to conclude that the accused “must have” foreseen the consequences (Anderson at 270). Taking this further, when the consequences are “the natural result of the conduct creating the risk” (Anderson at 270), the foreseeability – consequences relationship is, as in the highest level of subjective intention, a certainty. It is important to note that consequences do not necessarily create the liability. In other words, a fatality resulting from a car accident does not mean the accused is guilty of dangerous driving. A horrific outcome does not create objective dangerousness.   

Understanding this relationship, in which subjective and objective mens rea are part of a unifying continuum, permits understanding of why W(D), may apply equally to objective and subjectivemens rea offences. Justice Trotter in Ibrahim, looks at the flip side of this ‘subjective intention as objective intention’ relationship by considering the effect the accused’s evidence, if accepted, would have on the issue of objective mens rea. The reasonable person, in the objective assessment, does not reside in a vacuum. Here, the reasonable person must be similarly situated as the accused. This does not mean the personal characteristics of the accused are considered as Justice Lamer recommended in a series of cases on the meaning of the objective standard in criminal offences. The Beatty decision permanently shut down that minority position. A similarly situated accused does not share personal characteristics with the accused but shares place or context. As I explain this to my 1L class, objective mens rea in criminal law is contextualized not personalized. 

Context is important, particularly in determining the availability of, what authorities like Hundal, [1993] 1 SCR 867and Beatty calls, an exculpatory defence. Like strict liability for regulatory offences, objective mens rea for criminal offences is “modified” to permit defences of mistake of fact and due diligence or due care. The premise behind these defences is again about what the reasonable person would have done in the circumstances. As Justice Charron explained in Beatty, objective mens rea is founded on the presumption that reasonable people “in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity” (at para 37). Conversely, if the reasonable person “in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger” (at para 37) then the logic behind that presumption falls. Notice, we are situating the reasonable person in the place of the accused. Similarly, the defence of mistake of fact defence in the objective arena is based on reasonable belief, which requires objectively verifying the accused person’s subjective perception. In other words, the mistake in the facts, which resulted in the accused committing the offence, must be an honest and reasonable one, requiring a mix of subjective and objective factors (See R v Tutton and Tutton, [1989] 1 SCR 1392, McIntyre J at pp. 1432 to 1433). The accused’s place in the circumstances of the offence is an important ingredient in both the essential elements of the offence and in the consideration of the exculpatory defences.

It becomes evident then that the defence evidence, particularly the accused’s evidence on the circumstances of the offence is relevant and may result in an acquittal, whether it is accepted or not. Equally, the evidence may not result in an acquittal, whether it is accepted or not. The point of the exercise, indeed the point of W(D), is to remind the trier of fact that the accused’s evidence must be considered in the final assessment of guilt or innocence. It is troubling that case authority, until Ibrahim, suggests courts did not apply the principles arising from W(D). This is the reason why not only does W(D) matter but Ibrahim matters as well.

Justice Trotter, like Justice Cory before him, gives the trial courts a modified W(D)approach for objective mens rea. It simply reminds the trier what we have already identified and discussed in the previous paragraph and throughout this article that the accused’s perceptions are relevant and must be considered in the final determination of the case. At paragraphs 62 to 64 of Ibrahim, Justice Trotter outlines the preferred approach and then urges trial judges, at paragraph 65, to take heed of these instructions in the context of the unique facts and issues arising in their own specific cases. This tailoring of W(D) recognizes that W(D) is a state of mind, a decision-making approach, not an incantation or formulae. W(D), in many ways, is a concession to our humanity. It articulates in principle-based language the concept we all know but rarely admit; that judges are people too. We have independent and impartial triers of fact precisely for this reason; to make use of their humanity to discern, discriminate and digest facts and law. We want and need our decision makers to apply their logic and common sense together with legal principles in assessing the evidence. By relaxing our hold on the stock jury instruction, we permit judges to personalize their instructions and tailor them to the case at hand. No two judges are alike and equally, no two cases are either. These two truisms must be recognized and reflected in the instructions to the jury. So too decision-making cannot be the same exercise for everyone. The only requirement is that the decision be made on the basis of the evidence and in accordance with legal principles. In the end, no incantation or formulae can work the magic of a properly instructed trier of fact. And we have W(D) to thank for that.

But this accessible and engaging writing is also finding its way into case decisions; the bastion of legalese. Of course, “accessible” and “engaging” are sometimes two different kinds of writing. Let’s look at “accessible” writing. In legal circles, accessible writing is an access to justice issue. Not every person involved in the justice system has the luxury of a lawyer to inform them of the issues in an easily translatable manner. Admittedly, not all those who do have lawyers receive this kind of information either. In any event, particularly with the advent of free online databases of decisions such as CanLII, it is increasingly clear we in law need to be clear in our writing. More importantly, case decisions should be understood by those whose lives are bound up with the outcome. The accused, the victim, the injured party and defendant all need to be able to read the final decision on their case and understand what did or did not happen to them. To be sure, judges write for many audiences but none more deserving of knowing than the aggrieved parties to the action. 

Interestingly, most case decisions are not specifically directed to the parties. They are written in the third person. The judge references their names and does not generally write in the second person by using the pronoun “you.” This is in sharp contrast with many political speeches. John F. Kennedy’s famous inaugural speech of 1961, is an example of where “we the people” were specifically entreated to “ask not what your country can do for you—ask what you can do for your country.” Making writing personal brings the individual into the bounded space of the page. It brings a sense of identity and an emotive response to the words. This power of words to move people is likely the reason for not writing case decisions in the 2nd person as case decisions must also double for case authority and precedent. Like Sgt. Joe Friday in Dragnet, it is better to just stick to the facts, particularly if the purpose is not to create an emotional response but to create an authoritative voice. 

Yet, directing the decision to the person affected, particularly in sentencing an accused, can send the right (write?) message. If one of the principles of sentencing is to rehabilitate or even denounce the behaviour, making the sentencing words powerful can speak to the offender on a different level. I am not thinking of a strongly worded chastisement of an offender but an accessibly written reasoning for punishing the offender. No doubt this goes on without a written record as most cases managed in provincial court are done in the moment without written reasons. However, there are notable case decisions such as R v Armitage, 2015 ONCJ 64, where the sentencing judge, Justice Nakatsuru, intentionally sentenced the Indigenous offender in a language the offender could relate to and understand. In my 1L criminal law class, I have the students read parts of this decision as a prime example of meaningful plain language legal writing. It is beautifully written and as readers we feel we are in the courtroom, hearing the judge speak frankly and directly to Jesse Armitage. 

In another sentencing decision, this time a young offender, Judge Janzen of the British Columbia Provincial Court, directs the entire decision to the offender by using the pronoun “you” in R v BLA, 2015 BCPC 20. Another example, a powerful one, of speaking directly to the offender, is R v MacGregor, 2005 CanLII 33746, an impaired driving sentencing by Judge Ayotte of the Territorial Court of the North West Territories. In this sentencing, Judge Ayotte explains to the offender, at pages 2 to 3, why their conduct is serious and how it can impact many lives,

When you drive in that condition, you turn your vehicle into a potential weapon. It was observed by the Chief Justice of Alberta, not the present one but a few years ago, who, of course, is the Chief Justice of the Territories, that the only difference between the drunk who gets home safely and the one that does not, is pure dumb luck.

I can tell you that in the years that I have spent on the bench, there has been more than one occasion where some otherwise upstanding good citizen has sobered up the next morning to realize that he or she has killed someone. It happens regularly.

Many of our citizens don’t understand the seriousness of the problem. Parliament has gone to extraordinary lengths to fight it. I will give you some examples. Ordinarily, a Court has the option in imposing sentence, of simply imposing a term of probation without more. We are prohibited from doing that for a drinking driver, even a first offender. There must be at least a $600 fine.

Ordinarily, Courts are given a choice of sentence, fine, gaol, probation, or a combination of those things. In some cases, as you found out in your case, the Crown is given the power by serving this notice to take away that Court’s choice and require a term of imprisonment. It is unusual for a Court to lose its discretion. Parliament does not do that sort of thing lightly. They do it because of the immensity of the problem in this country of the drinking driver.

 The decision is in both first and second person as the judge explains the law, explains the public wrong and does so as if the judge and the offender are sitting at a kitchen table having coffee. This is an accessible decision, which uses the power of words in a compassionate and personal way. I also recommend this short sentencing by Judge Ayotte in R v Modeste, 2005 NWTTC 10. But there is no better testament to a well written decision than another judge’s comments. Judge Doherty of the British Columbia Provincial Court, in sentencing an offender in R v Paul et al, 2005 BCPC 693, relies on a decision of Judge Ayotte with these words,

I am impressed with the care that Judge Ayotte took in R. v. Lamouche, et al, in the Provincial Court of Alberta, Criminal Division, reported at 1998 ABPC 101 (CanLII).  When I say impressed, I am impressed with his opening and the reasons he sets out.

Sentencing is understandably well suited to the personal touch. It is more difficult to personalize reasons for conviction or judgment. But this does not mean it cannot be written in an accessible manner. For example, Justice Feehan, who now sits on the Alberta Court of Appeal, writes clear straight forward decisions in his civil and criminal cases (see e.g. 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd, 2018 ABQB 478). Such a task becomes more difficult in the appellate courts where the rule of law, not the rule of plain English is of main concern. On the appellate side, Justice Doherty from the Court of Appeal for Ontario, continually produces decisions that illuminate rather than obscure. This is particularly important for a court dealing with contentious issues. An example of Justice Doherty’s style is in the decision, R v N.S., 2010 ONCA 670 questioning the accused’s constitutional right to confront a witness who testifies while wearing a niqab. The simplicity of Justice Doherty’s language is enhanced by his scrupulous fairness is arriving at a decision. He sees the competing interests and he describes them in “human” language. For example, at paragraphs 45 to 46 he writes:

Before turning to the constitutional concepts and analysis, I think it is important to remind one's self of what is at stake in human terms. N.S. is facing a most difficult and intimidating task. She must describe intimate, humiliating and painful details of her childhood. She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence. The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members. It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

[M---d.S. is facing serious criminal charges. If convicted, he may well go to jail for a considerable period of time. He will also wear the stigma of the child molester for the rest of his life. In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M ---d.S. in a very different way. M---d.S. is presumed innocent. His fate will depend on whether N.S. is believed. In a very real sense, the rest of M---d.S.'s life depends on whether his counsel can show that N.S. is not a credible or reliable witness. No one can begrudge M---d.S.'s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him. 

The two perspectives summarized above reveal the quandary faced by the preliminary inquiry judge. Both M---d.S. and N.S. have powerful claims that seem to lead to diametrically opposed conclusions. 

This kind of writing reflects the reality of criminal law and brings the issue to the citizen. This is accessible and engaging writing, but it is also powerful; not in the authoritative sense but, in the sense that through the power of words, the decision animates justice.

 A final comment on the use of the second person “you” pronoun. Notably, in the charge or instructions to the jury, the judge does use the pronoun “you.” Again, this device serves to bring directly to the jurors their personal responsibility to assess the evidence and arrive at a just and reasonable decision. The use of “you” attracts the duality of a jurors duties as well; each juror swears to act impartially and uphold the law but must do so collectively. 

There are some jurists who tend to the literary side. Their decisions are remarkable as they employ literary devices. Justice Watt, another experienced former trial judge and now appellate justice, writes in a muscular literary style, reminiscent of a par-boiled detective novel, as he starts his factual considerations in a clipped no-nonsense manner. A good example of this is the decision in R v Wolynec, 2015 ONCA 656 in which Justice Watt introduces the facts and the conclusion in paragraphs 1 to 9 as follows:

A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had a dark French goatee. He was soft-spoken when he asked the teller for cash. He made no gestures, nor any express threats. 

The next day, a few blocks away, the same thing happened. A lone bandit. A hoodie and sunglasses. A beard and moustache. But this time, the bandit presented a note. It said he wanted money. And that he had a gun. 

A short time after the second robbery, police found a grey sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper, somebody had printed “have gun give me all money”. And on the top of the newspaper sat an open napkin similar to those supplied by restaurants. 

Police seized the sweatshirt. And the newspaper. But not the napkin. 

A few months later, a technician found a crusty tissue in a pocket of the sweatshirt. On the pocket and the tissue, a scientist detected evidence of bodily fluids. The chance of somebody other than Victor Wolynec being the source of the bodily fluids was one in 57 billion. 

A judge found Victor Wolynec guilty of both robberies and imposed concurrent sentences of imprisonment of 9 years. 

Victor Wolynec claims that the trial judge failed to adequately scrutinize weaknesses in the evidence adduced by the Crown and failed to grasp the position of the defence. As a result, he says his convictions are unreasonable and a miscarriage of justice. 

Victor Wolynec also challenges the sentence the trial judge imposed. He contends the sentence is too long, crushing any prospect of rehabilitation or reintegration into society. 

These reasons explain why I have decided that Victor Wolynec`s convictions are unassailable and his sentence fit. I would dismiss his appeal from conviction and grant leave but dismiss his appeal from sentence.

Note, how Justice Watt uses the first-person pronoun “I” to notify the reader that he takes full ownership of the decision. He also creates a partnership with the reader by stating the reasons to follow will provide an explanation for his conclusion. So too in the Armitage decision, Justice Nakatsuru uses the first person in the first few paragraphs to explain why he, the judge, was writing the decision for the offender. “I am writing for Jesse Armitage,” so says the judge at paragraph 5.

Yet, first person case decisions are unusual, despite the use of it by Justice Watt to frame his reasons. This is because case decisions are not about the judge personally or the judge’s feelings; the judge is not a party to the action but must be impartial and unbiased. The use of “I” perhaps personalizes the decision too much, making it more about the decision maker than the decision. Naturally, this does not mean a judge must abandon their past and become “sphynx-like” (see R v Adano, 2008 CanLII 23703 (ON SC) at para 23). A judge is a person too but not the first person in a case decision. Conversely, by eschewing the “I”, it could be argued the judge is depersonalizing the decision too much. In effect, we often need to read between the lines to understand the context of the decision and to humanize it. 

Recusal applications, in which the court is asked to step down from a case due to reasonable apprehension of bias, may be another kind of first-person decision.  Although, such applications are not to be viewed as personal affronts, it is difficult to suggest they are not. The test is an objective one; what the informed reasonable person would conclude. But the test is applied to a highly emotional situation where the trial judge is allegedly not acting “judicially.” The “I” is there no matter how arms-length the test may be and no matter how much law is recited.

 Engaging language in case decisions can also lean on humour. In a recent Ontario decision on a summary judgment application, Austin v Bell Canada, 2019 ONSC 4757, involving statutory interpretation and comma placement, Justice Morgan remarked at paragraph 47 that “despite their physically small stature, commas have created controversy in important places.” After more grammatical parries and thrusts, Justice Morgan concludes at paragraph 69, “I do not believe it was a legally induced comma.” Humour can relieve the tension, but it cannot take the place of legal principle; the decision is now under appeal. The case will be reviewed not on the basis of its candour but on the basis of its law. 

Another notably light-hearted decision is in Henderson v Henderson, 2016 SKQB 282, in which Justice Danyluk determines custody of the family pets. He opens the decision by stating a known truth that “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.” The light heartedness turns a corner as the judge chastises the couple for wasting scarce judicial resources on the issue and urging them to settle this difference outside of court in an effort to “move along” the matter.

 For language we can all live by, the Charter decisions rendered by the Supreme Court of Canada are hard to beat. Interestingly, the Supreme Court Justices often use first-person personas, even when they are speaking on behalf of other justices. Justice Wilson, in particular, writes from the heart when in a separate but concurring judgment in R v Morgentaler, [1988] 1 SCR 30, she writes at page 164 that 

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

This passage beautifully encompasses the yin and yang that is the dichotomy of the Charter; it encapsulates collective principles that are enshrined for the individual. Later in R v Lavallee, [1990] 1 SCR 852, she continues to bare what society tends to want to bury and tackles the legal tolerance of spousal abuse as a reflection of society as “laws do not spring out of a social vacuum.”

 Connecting the past to the present, Justice Abella knows how to open a decision by capturing the reader’s attention. On the pressing issue of media rights under s. 2(b), Justice Abella in her opening paragraphs 109 to 110 in R v Vice Media Canada Inc., 2018 SCC 53,maintains that 

 For twenty-five years, this Court has flirted with acknowledging that s. 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s. 2(b). The words are clear, the concerns are real, and the issue is ripe. A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it.

Similarly, in the earlier decision of R v DLW, [2016] 1 SCR 402, Abella J commenced her dissent in paragraph 125 with the deft use of good old fashioned metaphor by stating that 
“This case is about statutory interpretation, a fertile field where deductions are routinely harvested from words and intentions planted by legislatures. But when, as in this case, the roots are old, deep, and gnarled, it is much harder to know what was planted.” The living tree, indeed.

But it is the s. 8 search and seizure decisions, in which the normative world collides with the legalistic one, where the writing rouses our passions and requires us the reader to take part in the decision making. In Hunter v. Southam Inc., [1984] 2 SCR 145, Justice Dickson, as he then was, in determining the constitutionality of what he called an authorization of “breathtaking sweep,” remarked the then “new” constitution has 

an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

This reiteration of Lord Sankey’s “living tree doctrine” repatriates our fundamental values as a Charter principle and gives the reader a sense of Canadian destiny and nationhood. Fast forward to a more recent decision with Justice Karakatsanis dissenting in R v Fearon,[2014] 3 SCR 621, in which she calls out what is at the heart of s. 8 when she reminds us at paragraph 103 that “an individual’s right to a private sphere is a hallmark of our free and democratic society.  This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination.”

There are many more examples of clear, accessible and engaging language used in case decisions. Instead of the exception to the well-worn trope that the law as written is unreadable, these kinds of cases should be the expectation we have of our justice system. Our laws are ours and to be accessible, readable and meaningful, we look to those who wordsmith on a daily basis to bring us into the legal system as a true partner in its creation. Does legal language matter? I leave it to the reader to decide.

 Justice Eidsvik’s decision, firmly based in the administrative health law arena, reads, sounds, and acts like a true criminal law case. Admittedly much of this criminal law-ness is suggested by the application of the Charter. But the Charter is acting at the behest of the criminal justice system when Eidsvik J. finds that the involuntary committal regime of the Alberta Mental Health Act, RSA 2000, c M-13 (MHA) violates sections 7, 9, 10(a) and 10(b) of the Charter (at para 140). In striking down these provisions, Eidsvik J. is engaging the full force of the criminal justice system. Through this decision, health law becomes criminal law as legal rights familiar to the criminal justice system – such as arbitrary detention and the right to know the reasons for that detention – become the central issues in the case. In this way, the JH decision identifies as pure criminal law with all of its emotive and authoritative qualities. 

Emotion permeates a criminal file. The factual narrative makes us direct witnesses to the event evoking the shame, pain and sorrow felt by all the people involved. True, the legalistic language attempts to deaden us to those painful circumstances. Nevertheless, an emotional response is acceptable and part of the criminal law-ness. In this same way, the JH decision provokes us. Reading the decision, we are shocked, saddened, indignant or just plain angry. The case makes us want to call out our administrative officials to “do better” and to text our government representatives to fix things quickly. The decision does this in different ways; it offers a purely legalistic view of statutory power, yet it does so by placing a mirror to societal conceptions of how “normal” people must and should act. It is a symbol of the universality of our justice system as pressing and persistent mental health issues span the globe. It is also a muscularCharter decision, requiring swift but thoughtful government action. For all these reasons, the JH decision represents the need to modernize our laws as a response to the marginalization of those individuals in our justice system with perceived differences. It is also an exemplar of the power of the Charter, which is increasingly a tool for change. 

For an excellent overview of the initiating factual and legal underpinnings of this decision, read Professor Lorian Hardcastle’s 2017 ABlawg commentary of the quashing of the mental health certificates in this case. See also, a follow-up ABlawg discussion on the constitutionality of the MHA sections written by then law student Kaye Booth and Alberta Civil Liberties Research Centre Human Rights Educator, Heather Forester. This earlier action was the individualized response to the improper actions that authorized JH’s detention in a mental health facility. The recent decision offers the flip side of the event, wherein the Court considers and applies the Charter to the systemic issues enabled by the MHA legislative framework. The two decisions can be read separately but we must recognize they flow one from the other. It is the human price paid that precipitates the Court-ordered remedial response. 

This decision is framed and filled in by JH, who is represented by initials to protect his privacy and dignity, yet who was stripped of both within the mental health system. Like Joseph K. in the literary fictional world of Kafka, JH could be any one of us and is, in fact, all of us as he finds himself in the hospital as a result of being a victim of a hit and run accident (at para 11). It is his physical well-being which needs treatment but as we know all too well, the physical often collides with the mental as the less tangible mental well-being of JH becomes the centre of medical attention. To be clear, all participants are acting with the best of intentions. Everyone is trying to “help.” However, like The Trial, which resides in the genre of “bureaumancy” where the surreal is found in the mundane, the story of JH unwinds incrementally, frame by frame, compounded by a series of everyday actions. Actions which transform JH’s sojourn in the physical treatment-side of the hospital into a long-term stay in the mental health side of the facility. Actions which lead inexorably to the penultimate decision rendered by Justice Eidsvik (see JH v. Alberta Health Services,2017 ABQB 477 (CanLII)). 

To the medical authorities JH checks all the boxes needed for an involuntary certification: he is homeless; he is cognitively deficient; he is prone to drink; he is uncooperative; he lacks community support; he is unwell. But there is an alternate story here: JH is homeless because hospitalization made him so; he is not cognitively perfect but how many of us are; his propensities are just that – inert possibilities; he does not co-operate because he knows he does not need this kind of treatment; he lacks community support because he does not “mentally” fit the criteria for a community treatment order; he is unwell because he is, against his will, being treated for a mental health issue that does not in fact exist. To end the recitation is the glaring fact that JHis a member of Canada’s First Nations and subject to all of the preconceptions residing within that identification. In short, JH is on the “other” side of society and needs the insiders help. This paternalistic view of JH can be found in many criminal law cases. 

 We have not exhausted JH’s life story or his deep frustration with an imperfect system, but the story now moves from the private to the public. It is time to consider the criminal law stance of this legal story. The first indication of the criminal law-ness of this decision is apparent in the initial 2017 determination by Eidsvik J. on the potential mootness of the Charter application (see 2017 ABQB 477). This is the “why bother” question the Crown raises on the basis that JH is out of custody. But the Court nicely responds to that question by underlining the societal impact of the MHA and the constitutional importance of her gatekeeper function that protects us all from legislative overreach (at paras 27 and 28). In this decision, JH has moved from an individual’s quest for justice to the overall integrity of the justice system. A similar journey occurs in criminal cases. This is the first indication that in the JH decision, the criminal justice system is fully engaged. The parallels are obvious. Unlawful detention and a lack of due process are familiar criminal law themes. In JH we experience the mental health justice system through those criminal law tropes. The veneer of non-criminal law does not matter. It may file the JH case under “health law” or “administrative law” or even “Charter rights” but it is still a case involving legal protections and rights afforded to all individuals when faced with state-like authority.

 Another way this decision parallels the criminal justice system is in the finer details. The decision is reminiscent of the use of the hypothetical offender in s 12 Charter litigation. A sanction or punishment is “cruel and unusual” under s. 12 if it is “grossly disproportionate” to fundamental sentencing principles (see R v Boutilier, [2017] 2 SCR 936 at para 52). In this analysis, the hypothetical offender represents the potential reasonable scenarios in which the application of the impugned legislation could breach the Charter. In considering the effect such provisions would have on the hypothetical person, the court moves away from the particulars of the individual before them to test the constitutionality of the legislation in the broader context. Such a litmus test brings the legislation into sharper focus as the overall Charter cogency of the section is at issue. To quote the then Chief Justice McLachlin in R v Nur, [2015] 1 SCR 773, hypothetical scenarios are not merely limited to the “bounds of a particular judge’s imagination” but are delineated by the “reasonable reach of the law” to understand the “reasonably foreseeable impact” of that law (at para 61). As in JH, perspective is everything.

Even though McLachlin CJC went on to characterize the scenarios as tools of statutory interpretation, the hypothetical offender is much more than simply a compendium of factoids used to illustrate unconstitutionality. Such hypothetical “people” are not the offender before the court, but they do exist. For instance, in striking down the mandatory minimum sentence of six months imprisonment for the possession of marijuana plants, the court in R v Elliott, 2017 BCCA 214(Can LII)(at paras 47, 48, 69 and 70) considers the not so hypothetical offender who attends university, lives in a basement apartment and grows 6 potted marijuana plants for home use. A 6-month jail sentence imposed in those circumstances would be “clearly disproportionate and shocking to the Canadian conscience” (see McLachlin, J in dissent in R v Goltz, [1991] 3 SCR 485at 532). 

Similarly, in JH we have no need for the hypothetical person to shock our sense of moral right and wrong, but a real person caught in a shockingly familiar scenario (as suggested by Dr Baillie’s expert opinion evidence and by the evidence-based arguments advanced by the Intervenor, Calgary Legal Guidance at paras 3, 57, 154, 227 and 228). Turning again to the criminal law, in the most recent decision from Ontario, R v Luke, 2019 ONCJ 514(Can LII), striking down the mandatory minimum sentence for impaired driving, Justice Burstein also has no need to turn to a hypothetical scenario. Ms. Luke is an exemplar of the devastating effects of colonialism and the justice system’s failure to respond to Indigenous heritage as well as a youthful first offender with “strong rehabilitative potential” (at para 45). The same sense of criminal justice permeates the JHdecision. Granted my parallelism argument depends on a s 12 Charter specific analysis but in many ways JH’s treatment is “punishment” for being someone who is perceived as “outside” of the norm. Of course, being labelled and then being contained apart from the rest of society should not and cannot determine the applicability or availability of basic rights.

Further analogies to the criminal justice system can be found in the way the MHA regime parallels with other mental health regimes engaged by the criminal justice system. For example, after an individual is found not criminally responsible (NCR) for an offence, the mental health system takes over with a decidedly criminal law flavour. In that regime, the criminal conduct constantly frames the response. Another parallel can be found in dangerous offender applications, which are decidedly hybrid in nature. In those criminal sentencing hearings, the risk of harm and dangerousness is driven by mental health assessments and treatment potentials. Notably, these regimes, NCR and dangerous offender, have been Charter tested (see R v Swain, [1991] 1 SCR 933and R v Lyons, [1987]2 SCR 309respectively). In the case of NCR, the regime was legislatively re-fashioned to ensure compliance with Charterprinciples of fundamental justice including “ensuring the dignity and liberty interests” of an individual in that system (see Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services),[2006] 1 SCR 326at para 26). 

Even with this constitutional tune-up, there are continuing issues with the Criminal Code’s s 16 mental disorder test and the ensuing NCR label. I have discussed these issues in episode 18 of my podcast series on the Criminal Code. In that podcast, I comment on the historical basis for the NCR defence, which is virtually the same as the original 1843 M’Naughten Rule fashioned by the House of Lords, some say, at the behest of Queen Victoria who did not take kindly to the acquittal of M’Naughten for his delusional killing of the PM’s secretary. A nice recitation of the history of that case and subsequent rule can be found on the CBC website. 

In my post, I also mention the continual drive to change NCR as a result of public and political influence such as the changes contemplated in the now defunct Bill C-54, which sought to implement stricter conditions on those found NCR as a result of public push back on the Vince Li case. Vince Li, who was suffering from schizophrenic episodes at the time of his killing of a fellow bus traveller, showed excellent signs of recovery after treatment resulting in a loosening of his treatment conditions. Notably, section 8 of the MHA, providing the criteria for involuntary committal, was amended in 2010 in an effort to implement better controls over those suffering from schizophrenia (JH at para 179). Loved ones dealing with the disease found the dangerousness requirement for involuntary admission as a “too little, too late” response preferring the criteria of “harm” to self or others or requiring an even less restrictive finding of “substantial mental or physical deterioration or serious physical impairment.” Ironically, “dangerousness” was originally added to the criteria to provide more protections for those vulnerable to involuntary committal and was touted as “a significant safeguard” by the implementing government (at para 176). This change in statutory criteria from dangerousness was significant and although implemented with all good intentions, resulted in the involuntary detention of JH as someone who could possibly be a harm to himself or deteriorate if he started consuming alcohol. JH’s situation emphasizes the importance of that hypothetical scenario as a yardstick for statutory change. Instead of applying this test after the fact, all legislation should be subject to a reasonable hypothetical test to ensure the legislation’s effects do not capture those who should not be captured or in the JH case, should not be detained at all.

Having engaged the criminal justice system as the contextual template in which this decision arises, the legal analysis is more easily applied. This unhinging of the criteria from dangerousness meant that the grounds for involuntary detention was not anchored in the objective and purpose of the MHA, which, according to Eidsvik J. was for the temporary detention of “acutely mentally ill persons for the purpose of treatment and release back into the community” (at para 189). The purpose was not long-term warehousing as exemplified by JH himself, who was detained for some 9 months. Another statutory authority was available for long-term concerns under the Adult Guardianship and Trustee Act, SA 2008, c A-4.2 (at para 189). There was no grounding of the loss of liberty to a valid and beneficial objective in the legislative criteria. This glaring gap in the legislative criteria was apparent upon review of other provincial mental health statutes. For instance, the Ontario Mental Health Act, RSO 1990, c M.7, connects involuntary committal to previous history of mental disorder, previous successful treatment of that disorder and the need to treat that disorder at the time of the application. Importantly, these provisions were placed in the Ontario legislation after the decision in PS v. Ontario,2014 ONCA 900 (Can LII), which found earlier sections unconstitutional. 

The statutory interpretation not only closes the legislative gap in the MHA but also gives closure to the injustice suffered by JH. Criminal law cases often turn on statutory interpretation and the principle of legality, which “affirms the entitlement of every person to know in advance whether their conduct is illegal” (see R v Lohnes, [1992] 1 SCR 167 at p 180, McLachlin J) and constrains the power of the state (see R v Levkovic, [2013] 2 SCR 204 at paras 32 to 33). Here too, the authority given by the law to public health facilities must be constrained and people subject to that authority must understand how their mental well-being can engage that power.  

Finally, the JH reasons resonate like a criminal justice system decision because of the societal context that runs like a thread in the in-between spaces of this decision. Mental health issues are no longer hidden inside the hospitals but are discussed frankly in public in an effort to destigmatize individuals who may appear to be on the “outside” of society. More public airing of these issues promotes understanding and lessens the fear of “harm” from those struggling with these issues. Systemic institutions must be part of the answer and part of the conversation if we are to move forward to a less aggressive and more supportive response to those members of our community who need our help. The JH decision tells us that those who are at risk of losing their life and liberty need our special attention. It is now up to the government, who has one year in which to remedy the MHA, to provide the leadership towards the fulfillment of this goal. This should not be a difficult task. Justice Eidsvik, in suspending the finding of invalidity to allow the law makers a 12-month grace period in which to revise the MHA and make it Charter compliant, gave detailed directions to the government on exactly how to do it (at para 317). There should be no time spent in considering the next steps – the steps have already been mapped out with care through the careful consideration of the court.

But let’s not forget the personal story. The crux of this story is about JH and how we are conditioned to react to certain people and certain behaviours. Like a children’s fable, the JH story reminds us that the emperor’s new clothes can be created from thin air or a princess can be hidden in plain view until we finally decide to really look. The case also reveals a deeper truth about these fables: that such narratives are often built on a certain view of what the world should look like and how it should be peopled with those who conform to the old tales. But this is real life in 21st century Canada and our commitment or promise to each other, and more importantly to the Indigenous peoples of Canada, must be to treat each other with dignity, respect and understanding. And the law, as the JH decision has shown, has a role to play in accomplishing this.

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

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

The section reads as follows:

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

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

(i) of training or drilling themselves,

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

(iii) of practising military exercises; or

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

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

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

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

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

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

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

 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 Le, 2019 SCC 34 and R v Barton, 2019 SCC 33to look at another recent decision R v Omar, 2019 SCC 32. Omaris brief and easily discarded in favour of Le and 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 Chief Scribe 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 Charter involving 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 announced his 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. 

 The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected.

A “starting point,” according to the online Cambridge Dictionary, is “a place or position where something begins.” This is a linear concept, reminiscent of elementary mathematical vectoring, where motion is conceived as implying a direction from A to B. We move through space and time from one point to another. A starting point anchors us in that space and carves out a place, a pinpoint, at which we can orientate ourselves. Without such concreteness of place and time, we would experience vertigo. We would be horribly out of place. A recent book by the theoretical physicist, Carlo Rovelli, explains this human need to belong to somewhere both literally and physically. In “The Order of Time,” Rovelli describes our entire world view as a human construct. “Entire” includes our conception of time. In fact, Rovelli persuasively argues, time is entirely a human construction which has little scientific basis. We created time to help us explain the world better and to better control it. Time, in other words, is humanity’s starting point. Time helps us understand events. If we can’t start with ‘In the beginning’ or the ‘Big Bang’ then we can’t completely appreciate the import and impact of those events. 

This brings us to Rovelli’s further contention that points in time are imbued with perspective. Perspective requires a particular point of view connected to the time event. According to Rovelli, “point of view is an ingredient in every description of the observable world we make” (at 153). This requires us to look at the world from within because that’s where we are located – within the world. Just as we cannot use a map to take us from point A to B without knowing where we are in relation to those points, we feel a need to make sense of the world through the eyes of the insider.

You may now ask how this travel through the space-time continuum relates to starting points in sentencing. It has everything to do with them. This seemingly side bar peregrination lends context to the debate on the space occupied by starting points in our sentencing nomenclature. Without considering the human desire to start from somewhere, we will not have the entire perspective before us. Without injecting the human perspective into an event, we are losing meaningful engagement with it and within it. 

To gain this meaning, we need to take a deep look at the source. Although Alberta did not create the concept of starting points in sentencing, it did perfect it in the 1984 decision, R v Sandercock,1985 ABCA 218. There, in the context of sentencing for a major sexual assault offence, Justice Roger Kerans, speaking for the panel which included the then Chief Justice James Laycraft, affirmed the Court’s “commitment to the ‘starting-point approach’ to sentencing” (at para 2). When I say, ‘the Court,’ I mean the entire Court. Justice Kerans, in paragraph 2, makes this unusual position clear. He states confidently that “All members of the Court were consulted ... and we are authorized to say that the conclusions in these Reasons were approved by a majority of all of the judges of the Court, as well as this panel, and are to be considered as a guideline.” With this sweeping statement, starting-points in sentencing in Alberta were swept in. 

Yet, the Court of Appeal was no stranger to that concept even then. The starting-point approach was first articulated as a guiding principle in the R v Johnas decision, 1982 ABCA 331. In Johnas, the Court considered the appropriateness of a starting-point for robbery in light of the sentencing of several offenders for factually similar circumstances but with differing personal backgrounds. Some of the offenders had criminal records, while others were youthful offenders (at para 2). All of the cases involved the late-night robbery of small retail venues, such as convenience stores and gas bars (at para 3). Although violence was threatened, no victims were harmed (at para 4). At the time, these types of robberies were of great community concern. In terms of general sentencing principles, due to the gravity of the robberies, the principles of deterrence and denunciation were of paramount concern rather than rehabilitation. On this basis, the Court found that “we must recorda term of three years imprisonment as a starting point in the seeking of an appropriate sentence” (at para 19). The word “record” is underlined for emphasis. Remember that word.

 In any event, the Court does recognize the individuality that is sentencing. The general principles in determining a fit sentence required the Court to “speak of generalities” but through the perspective of the individual and the circumstances of the offence to arrive at a fit sentence (at para 16). It is important to note the duality of this sentiment and the juxtaposition of terms. The specific becomes the general as the individual is sentenced to a term of imprisonment which fits the type. Yet, the Court does this as an imperative – “we must” – and “records” or keeps the information by storing it in the precedential archive for future use. The individual may still be present, at the point of the imposition of sentence but is the individual really present at that pre-recorded starting point? 

The Alberta Court of Appeal was not breaking new ground in Johnas but was, through clear court-driven consensus, normalizing starting-points and, in so doing, embedding the approach into well-established sentencing principles. Other provincial appellate courts were using a similar approach, but labelling is everything. In the Nova Scotia Court of Appeal, for example, the Court referenced a “minimum” term of imprisonment for the Johnas-type of robbery (see R v Hingley (1977), 19 NSR (2d) 541 at 544). This was not consistent with the Alberta branding of starting-points (Johnas at para 22). It was too literal and restrictive, permitting discretionary decreases from that term only in “exceptional mitigating circumstances” (see R v Owen (1982) 50 NSR (2d) 696). This seems to suggest that the Johnas Court still recognized that sentencing was an exercise in discretion. 

Yet, the Court does not use the word “discretion” in the decision but does use the phrase “judicial reasoning” (at para 31). Judicial reasoning is a process, or a form of analysis, employed by a judge in arriving at a decision. It involves how the sentence is determined not the mechanisms used. Starting points are therefore about the consistent application of sentencing principles based on a “norm for the type of offence involved” (para 31). This norm is developed “by comparisons to other cases, by experience, by the seriousness of the offence and by its prevalence” (para 31). It is only after the norm is determined that the Court then looks at the aggravating and mitigating factors involved in the specific case (para 31). Sentences, in other words, are objectively determined but through the unique perspective of the offender and the specific circumstances of the case. No two sentences will ever be precisely the same. In support of this position, the Court quoted Lord Justice Lane said in R vBibi, (1980) 71 Cr App R 360, who stated that:

We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach. (at 361)

Nevertheless, the distinction between uniformity of sentence and uniformity of approach is subtle. For instance, in the UK, Lord Justice Lane’s jurisdiction, uniformity seems to be the key word for both approach and sentence. A sentencing council, comprised of legal and non-legal members, create sentencing guidelines mandated for use in determining sentence in court (https://www.sentencingcouncil.org.uk). This council strives for “greater consistency in sentencing, whilst maintaining the independence of the judiciary.” These guidelines go further than a matter of judicial reasoning by setting a sentencing point based not only on legal principle and case authority but also on public consultation. This approach widens the field of perspective.

Having pursued the starting point to its starting point, we can fast forward to the Supreme Court’s most recent treatment of the approach in the Lacasse decision. Thisdecision sets the standard for sentencing across Canada by not setting a standard. In that decision, the majority of the Court reiterated sentencing principles found in the common law and as reflected in s 718 of the Criminal Code but at the same time confirmed the essence of sentencing as a discretionary process. The sentencing judge, as the eyes and ears of the Rule of Law, is in the best position to fashion a fit and appropriate sentence. In this way, sentencing is a true partnership between the principles, which guide the judge, and the judge’s own sense of justice as see through the factual, legal and societal lens. 

This human touch to sentencing is therefore, according to Lacasse, connected to the standard of appellate review. Deference to the sentencing judge serves to contain appellate review to demonstrably unfit sentences resulting from an error in principle and law. The principle of deference, in this way, illuminates the process of sentencing by recognizing responsibility lays on that judge to craft a just and fair sentence. It is a deep responsibility indeed. A responsibility that despite the comments in Lacasse has resulted in division in the Alberta Court of Appeal on the parameters in which that deference must be wielded. Yet, the recent decisions rendered by the Alberta Court on the issue suggests the softening of the starting point from a hard start to a soft reference point. Such approach, is more consistent with the Supreme Court’s views of the issue.

There have, of course, been critics of the more flexible approach to starting points. One matter of contention in the Alberta Court of Appeal started before Lacasse but continued in earnest even after the release of the decision. In a series of dissenting opinions (R v Murphy, 2014 ABCA 409 (Wakeling JA is not in dissent but renders a concurring judgment) Rv KSH, 2015 ABCA 370, R v Rossi, 2016 ABCA 43, R v Vignon, 2016 ABCA 75, R v Yellowknee, 2017 ABCA 60), and R v SLW, 2018 ABCA 235, Justice Thomas Wakeling believes appellate courts “must provide an analytical framework for the assistance of sentencing courts” (KSHat para 60,Rossiat para 56, Vignon at para 45 and Yellowknee at para 52). In each decision, Wakeling JA creates sentencing protocols for sentencing judges, akin to the computer coding language of “if, then.” These “subsets” or “bands of offences” (see e.g. SLW at paras 97­–98) reflect categories of sentences in which gravity of the offence is the variable measurement. If an offence falls within a band, then the sentence to be imposed is easily ascertained and articulated.

Although Wakeling JA perceived this framework as providing articulable sentencing structure within a discretionary decision, other appellate courts disagreed. As later commented on by the Manitoba Court of Appeal in R v PES, 2018 MBCA 124, Justice Wakeling’s effort created “rigid analytical categories,” which “unnecessarily limit the discretion of the sentencing judge.” The Manitoba Court emphatically rejected this unifying approach (at para 77). The Alberta Court of Appeal too rejected this model in R v Gauvreau, 2017 ABCA 74and  R v RGB, 2017 ABCA 359. In RGB, the Court made it “absolutely clear, it is not the law in Alberta that a sentencing judge must apply the three-subset model in imposing sentence for these types of offences” as mandated by Justice Wakeling. The Court went further by categorically rejecting the Wakeling Model and “sentencing grids in general” (at para 18). In the Court’s view, the approach “fetters the proportionality analysis” (at para 18). 

Notably, Justice Wakeling continued to recommend “an analytical sentencing framework” even after the rejection of it. In the 2018 SLW decision, Justice Wakeling makes the case for his approach by referencing other jurisdictions such as the UK, which favours such a framework. As mentioned, the UK experience involves community input through a sentencing council, which does provide detailed and refined sentencing guidelines for certain offences, albeit not all. In Justice Wakeling’s last effort on the issue, he pointedly remarks in SLW at paragraph 100 that “because Parliament has not established a sentencing commission with a mandate to prepare sentencing guidelines, it falls to appeal courts to do so.” Wakeling JA’s comments did not attract any further attention from the courts. 

In R v Suter,2018 SCC 34, a decision of the Supreme Court of Canada rendered on June 29, 2018, the same day as the SLW decision, the Supreme Court considers a sentencing appeal from the Alberta Court of Appeal. Notably, Justice Clement Gascon, albeit in dissent, imagines an “analytical sentencing framework” already available in the Criminal Code sentencing provisions. At paragraph 153, Justice Gascon describes the statutory scheme as “carefully drafted” and as provisions which were “enacted as ‘a step towards more standardized sentencing, ensuring uniformity of approach’ (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at 1.59).” Justice Michael Moldaver for the majority in Suter, reiterates sentencing ranges “as merely guidelines” (at para 24). He too confirms the paramountcy of the statutory framework in the Code by suggesting that “as long as the sentence meets the sentencing principles and objectives codified in ss 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.”It seems the Supreme Court views the statutory authority as sufficient sentencing guidance. 

Another, earlier riff, on an analytical framework for sentencing can be found in R v Hamilton,2004 CanLII 5549 (ONCA). There, Justice David Doherty envisions sentencing as “a very human process” (at para 87). In his view, “most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing” (at para 87). In discussing the appropriate range of sentencing for cocaine importation, Justice Doherty, after running through the various sentencing objectives, principles and sentencing precedents touches upon the meaning of a sentencing “range” for an offence. At paragraph 111, he explains how a range for a specific offence “does not determine the sentence to be imposed on a particular offender as the range is “in large measure a reflection of the ‘objective seriousness’ of the crime.” In other words, the range of sentence is a short hand for a constellation of objective criteria arising from a factual matrix including, in the example of cocaine importation, the amount of the drug imported and the commercial aspect of the incident. That range is then tailored to the specific instance by consideration of aggravating and mitigating factors resulting in a sentence which may be at any point throughout the appropriate range. Perhaps, even, Justice Doherty explains, the sentence imposed could be “well below” that range should the circumstances of the offence and the offender require it. Sentencing is thus humanized through the filling in of the objective criteria with real, tangible circumstances. 

Applying this sentiment, starting points may provide the objective point needed to focus or pin down the point of reference for a sentencing judge. But this point cannot be further objectified through a rigid container approach. Rather, the sentencing judge breathes life into the reference point through the just application of principles and objectives, which are responsive to and reflective of the narrative before them. In appellate review, this should mean deference to the sentencing judge who considered and understands the complexities of the case before them. It should not mean a recalibration of a sentence back to the starting point without a clear error as described in Lacasse. Using a renaissance art analogy, starting points should be the fresco cartoon, which roughly sketches and maps out the image, not the finished fresco imbued with colour and movement. That final piece is wholly created through the discretion of the sentencing judge.

Although the Wakeling experiment ended after SLW  in 2018, this foray into a more structured approach to sentencing was not so off the mark of the original starting point concept. Wakeling JA’s use of “subsets” or “different categories of offence classified by their degrees of seriousness or blameworthiness” (Yellowkneeat para 70), is essentially the same as the Court’s penchant for categorization through characterization of offences to assist in determining a starting point sentence. For instance, in R v Pazder,2016 ABCA 209,the court in an attempt to create a uniform approach to sentencing and uniformity of sentence, delineated distinctions between first level and second level offenders for commercial drug trafficking sentencing (at paras 13–14). The difference between the three-year starting point for level one, a more minor form of trafficking, and the four and a half year starting point for level two, involving the wholesale dealing of drugs, was found in the moral culpability or personal responsibility of the offender (at paras 15–17). The degree of responsibility could increase or decrease the sentence from the starting point (at para 18). Similarly, the LaBergecategories of culpability (1995 ABCA 196at paras 8–12) have resulted in highly regimented sentencing guidelines for manslaughter as sentencing submissions involve fitting the case into the desired sentencing category. Categories as a signature of blameworthiness was further approved in the five-panel decision in R v Arcand, 2010 ABCA 363, the pre-Lacassedecision upholding the Court’s approach to starting points and then again later in R v Hajar, 2016 ABCA 222, rendered after Lacasse. 

The Hajar decision reaffirmed the starting point mentality in the context of the starting point for a major sexual interference against a child. A five-panel court was assembled, producing a majority decision of three justices, a concurring judgment from one justice and a sole dissent. Even so, according to R v DSC, 2018 ABCA 335 at paragraph 40, “Hajar is binding on all trial judges in the province. Until it is overruled by the Supreme Court of Canada, or reconsidered by another five panel of this Court, it is binding on all appellate judges.” This statement directly responded to an earlier 2017 decision, R v Gashkanyi, 2017 ABCA 194,in which the majority essentially disagreed with Hajar. The majority in that case included Justice Ronald Berger, known for his dissenting positions. To be even more clear on the Court’s disapproval of Gashkanyi, in R v Reddekopp, 2018 ABCA 399, the Court unanimously reiterated that Gashkanyi “did not change” the three-year starting point for major sexual interferences cases (at para 5). The Court went further by clarifying that a starting point is “not a mandatory minimum sentence” (at para 10) but is only a point of reference. Interestingly, Justice Wakeling is a member of the Reddekopp panel, which decision was rendered nearly six months after Justice Wakleing’s last foray into an appellate-driven sentencing framework.

Yet Reddekoppwas but one of fifteen Court of Appeal decisions from 2018 discussing starting points in sentencing. For the most part, these 2018 decisions continue using the starting point as the focal point of the analysis. An exception is the decision in R v Gandour, 2018 ABCA 238. The Court, in allowing a Crown appeal against sentence, at paragraph 55, found the sentencing judge misconceived the scope of the starting point for a home invasion offence. According to the Court, the judge viewed the starting point as a “cap, not notional places to start the analysis.” This perspective suggests the starting point is a place to anchor the sentencing analysis and not mechanically binding number. 

However, a few months later in R v Godfrey, 2018 ABCA 369, the majority decision spends much of its time discussing the precedential effect of starting points. The majority admits that as per Lacasse and Suter“it is not per se an error in principle for a judge to sentence outside a sentencing guideline” (at para 4). However, in their view, starting points are “part of the law of the province” and are not “established in the abstract” (at para 5). In short, starting points are there to be recognized and considered as part of the sentencing process. Indeed, according to R v Arcand, 2010 ABCA 363, there is a three-step process in applying the starting point – akin to an analytical test (Godfrey at para 5 and 8). The Godfrey majority describes starting point sentences as “an assimilation and amalgam of all of the relevant sentencing considerations. They are not just ‘one more source of guidance’ among ‘competing imperatives’. They promote parity in sentencing, and consistency in weighing the gravity of the offence and the responsibility of the offender” (at para 6). In doing so, the majority in Godfrey cautions “local judges” to follow the starting point analysis and as they “are not entitled to invent their own standards in criminal sentencing isolated from national or provincial/territorial standards” (at para 7). Justice Brian O’Ferrall in dissent does not take exception with the concept of starting points as persuasive authority but contextualizes the starting point analysis as one of many “guides” to sentencing (at para 26). As Justice Gascon did in Suter, Justice O’Ferrall looks to statutory authority and codified sentencing principles as providing guidance as well (at paras 27–28). Appellate courts do also provide guidance but only to the extent that they review and analyze “hundreds of sentencing decisions” to arrive at the starting point (at para 29). In this way, starting point sentences are a grass roots venture, informed by the organic process of individual cases reviewed in reference to other cases. As Justice O’Ferrall aptly puts it “guidance is a two-way street” (at para 29). The concept of binding authority gives way to a communal perspective.

Starting points as binding authority or one of many guides to sentencing is another aspect of the concern with starting points as effective minimum sentences. Although in R v Arcand, 2010 ABCA 363(at para 131), the Court of Appeal emphatically found that “starting points do not amount to minimum sentences,” there was a notion earlier in the Supreme Court of Canada that “there is a risk that these starting points will evolve into de facto minimum sentences” (see Lamer CJC’s remark in R v Proulx, 2000 SCC 5 (CanLII) at para 88). With the advent of an increasing number of minimum sentences in the Code, the Alberta Court has continually reiterated the distinctiveness of starting points. The most recent decision commenting on this, R v Ford, 2019 ABCA 87, is both a decision on starting points and on the constitutionality of minimum sentences for sexual interference. In that decision both concepts are overlaid upon each other resulting in, as discussed further below, in a softer approach to starting points. 

This softer view seems to come “top up” as per Justice O’Ferrall’s comments in Godfrey through the application of starting points in the lower courts. The Honourable Judge J. Maher explores the meaning of starting points in R v BCP, 2019 ABPC 2. In this decision, Judge Maher compares starting points with sentencing ranges and discusses the preference, as a sentencing judge, for the starting point approach (at paras 11–14). In his view, starting points are more flexible and less confining than a sentencing range which involves “floors” and “ceilings” creating a rigid field of sentences absent exceptional circumstances (at para 12). Conversely, a starting point has no end or beginning and therefore releases the sentencing judge from the blinders created by a rigid range. Although this reasoning is attractive, it seems at odds with Justice Doherty in Hamilton and with the Supreme Court in Lacasse. Ranges may in fact provide more options as guidelines not requirements. Additionally, “exceptional” circumstances provide a generalized label that only garners meaning from the facts of each individual case. Still, as recognized in R v Alcantara, 2017 ABCA 56at paragraph 45, the starting point also provides “guidance” but does not “fix a mandatory number.” 

As later restated in Ford, in the Court’s view, there is a clear dividing line between mandatory minimums and starting points (at para 32). In Ford, the sentencing judge imposed 6 months imprisonment for sexual interference of a child, far below the Hajar starting point of 3 years. Although, Ford is notable for striking down the mandatory minimum of 12 months required for the offence under s 151, the Court, through the decision of Justice Martin, suggests Judge Maher’s view of starting points may in fact be correct. While still approving of Hajar, the Ford court upholds the 6-month sentence imposed on the basis that the accused suffered from mental challenges and was therefore less morally culpable. The starting point may be present in Ford but as a background reference, a reference point from which the sentencing could be viewed through the factual perspectives. This blurring of the starting point into a contextual guideline is evident in other 2019 Court of Appeal decisions such as in R v Paulson ,2019 ABCA 147and R v Costello, 2019 ABCA 104. 

Starting points are needed but they must not be applied in the vacuum devoid of individuality. In deep space and time without a reference point we are lost. So too in sentencing as defined in Reddekopp, a starting point is “as the term suggests, it is that point at which the applicable principles and objectives of sentencing are applied to the relevant circumstances of the case to arrive at a fit sentence” (at para 10). Points of light can guide us, but we must do so with the perspective of the within. Justice Martin reminds us in R v Boudreault, 2018 SCC 58 ,that “sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing” (at para 58). The Ford decision suggests the Alberta Court of Appeal may finally be in sync with the “highly individualized” and “delicate balancing” of sentencing (see para 4 of R v Suter). Starting points or not, sentencing Courts must approach this exercise with the individual at the centre of that point – not alone – but in the contextual mix of legal principle and circumstances of the case to arrive at a fit, just, fair and proportionate sentence. This is the perspective which must lie at the core of the point from which sentencing is imposed.

I have already suggested the facts matter and they do. Mills was charged with offences, colloquially described as internet child luring offences. Through the medium of social network, luring does become decidedly lurid as sexually explicit messages and pictures are sent to entice children. In Mills, the contact with fourteen-year old “Leann” led to the “in person” meeting, which ended in the arrest. All seemingly run of the mill, so to speak. But what “made all the difference” in this case is the reality of “Leann” as a false identity for a police officer. In many ways, this investigative technique is no different than many other undercover operations such as police posing as sex workers or drug dealers. But what makes this technique unique is the manner in which the investigation was done. By filtering the technique through internet wires, the relationship possibly becomes a “private communication” attracting s. 8 Charter interest. At the core of this argument lies the “ghost in the wires” and whether there is a reasonable expectation of privacy in this type of internet communications. 

I say “this type” of “communication” because of the decision in R v Marakah,2017 SCC 59. There, the majority viewed text messaging between potential drug dealers as a private communication. Stripped of the bad personhood attached to that messaging, the majority called out the relationship engendered by such communication as attracting a reasonable expectation of privacy. Like the “reasonable hypothetical offender” (See e.g. R v Morrisey, 2000 SCC 39 at para 2)  or, to use the new age term, “reasonably foreseeable applications” (See R v Morrison, 2019 SCC 15 at para 170) used in s. 12 analysis, the messages become a statement of content neutrality (See Mills at paras 25, 110, 117­–122). There is no value judgment placed on Marakah’s bad choice of friends or even worse, his bad judgment to deal drugs. Instead, the focus is on fostering relationships, as in the law of privilege, and what it takes to protect and maintain private relationships in the context of law enforcement. In this way, the concept of communication as relationship-building is further explored in s. 8 through the relationships we see ourselves having with the state. 

Interestingly, the dissent in Marakah held onto the hard focus of hardware by emphasizing the container in which the communications were residing (at para 151). This view is an easy extension from previous s. 8 case law including the majority in R v Fearon, 2014 SCC 77, viewing the search and seizure or rather, as in the case of digital devices, the seizure and search of the device as the key to the analysis. However, this perspective failed to recognize the pervasiveness of the privacy issue throughout all aspects of s. 8. From standing to s. 24(2) exclusion, reasonable expectation of privacy creates the Charter space for the s. 8 discussion. Unsurprisingly, Mills does not step back into the container as the analytical driver of the decision. Instead, it is the meaning of relationships, which creates the patchwork of decisions in Mills. 

Yet Mills does not just define relationships worthy of s. 8 protection. Nor does the decision define relationships in a vacuum. Rather it defines relationships in the context of the normative standard embedded into the reasonable expectation of privacy analysis. In R v Reeves, 2018 SCC 56, Justice Karakatsanis, at paragraph 41, touted the “normative, not descriptive” standard as the overarching theme of s. 8 to acknowledge what we in the cyberworld already knew – that electronic conversations are human not machine directed. Instead of this free-floating concept of human relations, the majority in Mills takes this chimerical-like quality of normativeness and pins it squarely onto the Criminal Code. Just as the criminal law reflects our fundamental values by underlining those acts worthy of moral approbation through just sanctioning, so too does the normative quality of s. 8 reflect the morally based vision of a safe law-abiding society.

In Mills, the Supreme Court is not navel gazing or conducting blue sky visioning. In Mills, the majority looks directly at the conduct in question, no neutrality here, and sees the so-called relationship between a child “stranger” and a criminally-minded adult as unworthy of protection. Section 8 is not a shield; it is not the “happy place” where we are free from state intervention, and it is certainly not the private place where we can propagate illegal conduct to our hearts’ content. Yet, this normative view does not take away from the shades of privacy previously recognized by the Supreme Court. As in R v Jarvis, 2019 SCC 10, privacy has a universal meaning. In this way, a relationship stylized by the manner of communication or defined by a space where privacy ebbs and flows, what will be protected through s. 8 is deeply contextualized. This is vertical contextualization, in which the Court drills down deeply through the stakeholders’ strata. The “totality of the circumstances” is viewed not just through the accused’s lens, not just through the perspective of the victims, but also through the community’s sense of justice. As in other Supreme Court decisions, where the public interest shares space with individual rights (See e.g. R v Jordan, 2016 SCC 27 at para 25) normativeness involves collectiveness.

Nevertheless, rejecting the Mills scenario as Charter worthy still keeps the s. 8 conversation alive. True, in essentials, Mills is about what is not a privacy right under s. 8. Yet, the decision also provides the contours for what is or possibly still could be engaged by s.8. For instance, the intersection of electronic communications and Part VIinterceptions of that communication is still very much in issue. From the pseudo-majority of Justice Brown to the pseudo-majority of Justice Karakatsanis (I say “pseudo” as Justice Moldaver concurs with both decisions making both majority judgment worthy) including the minority view of Justice Martin, the presence of surveillance becomes the indicator of interception. For the majority, surveillance is decidedly old-school involving state authorities who are outside of but looking into the private lives of citizens, whilst Justice Martin flattens out surveillance as the state, no matter where placed, looking at citizens, no matter where located. Certainly, Justice Martin’s description is more attune with the Internet of Things and the connectivity we all now experience in which no-one knows who is watching whom. To distill the differing viewpoints on the issue, this is “watching” versus “intruding.” Of course, since Hunter v Southam, [1984] 2 SCR 145 and the s. 8 textual conventions since that decision speak of state intrusion. Watching, on the other hand, is much more insidious, much more powerful, and of much more concern to the community sense of justice.

Another issue unresolved by Mills is the Charter applicability in the transitional grey area between state intrusion to state participation. If s. 8 of the Charter is not concerned with investigatory techniques in which the state initiates a conduit for enforcement, then when does s. 8 become relevant? This is where previous case decisions provide no clear answer. To see this obfuscation, we need to look the intersection of two scenarios. One scenario focuses on third party consent while the other engages the Mills situation emphasizes when state intrusion is used, without prior judicial authorization, for the purpose of implementing an investigative technique. 

Third party consent is not novel. Like reasonable expectation of privacy, third party consent can impact all stages of the s. 8 analysis. It impacts standing issues through the measurement of control. It impacts whether state authorities have lawful authority to seize and access an electronic device belonging to the accused or a third party. Just as privacy is not an “all or nothing” concept (R v Jarvis, 2019 SCC 10 at para 61), neither is third party consent (See R v Cole, 2012 SCC 53). People share ideas, homes and hearts. People can too share control and authority over an object or a conversation. Millsdistinguishes the state as initiator of the private communication from the state as intervenor into a private communication despite consent from a third party. There is still Charter room in the shared conversational space where a third party is involved be it the concerned family member who hands over a device or the individual participating in the communication.

Mills permits the state actor to be whomsoever they need to be for investigative purposes but also as the initiator of the ruse. The decision leaves open the scenario where the concerned or involved third party hands over a device and the state authorities continue the conversation under the cover of the true participant of the communication. Here, there is still an intervention or a looking into a communication albeit through the eyes of the known recipient. There is a relationship, however the majority or minority defines it. Even if the original participant consents, Millsdoes not pronounce on the efficacy of that unauthorized intervention. This means, in Supreme Court terms, that we can expect more decisions on the issue.

 You may have noticed that I referenced in my opening paragraph a much-loved poem by Robert Frost, “The Road Not Taken.”  The poem is famous for symbolizing life’s choices and where they may or may not take us. In fact, that is not what the poem is about despite our ubiquitous reference to it as a life changing or even life affirming metaphor. When read carefully, the poem suggests we misread our life decisions. “Ages and ages hence” we will tell a tale of how we stood on the brink and choose a more challenging life journey. Yet, in actual fact, there was no such life altering choice to be made at the time as the roads “equally lay” “just as fair.” Perhaps the same can be said of the Mills decision. The decision does not take us down a road that makes “all the difference” but through the same interconnectivity of privacy ideas we already have before us. ‘Same but different’ may be an apt description of this decision and other recent Supreme Court rulings. Indeed, the fractured decision best mirrors who we are as a society, which is far from cohesive or uniform. 

We are presently very much at the crossroads of privacy and in the criss-crossing wires of the Internet of Things. There is an element of uncertainty as we stand at that intersection. But uncertainty may not be such a bad or scary prospect. Looked at with eyes wide open we can assess the potentialities of s. 8 and see perhaps through the differing perspectives of Mills a way forward taking with us a vision of who we want to be.

To be sure, at first glance, doing a theft under case in provincial court has little to do with a Supreme Court of Canada decision on s 8privacy rights. Or does it? Theft is a public law offence yet by its very nature it is about private rights. This is mine not yours. It is about territory and possession. But hidden within the weeds, within the legal structure of theft, is the conflict between public and private which s 8 engages. This conflict can be seen, for instance, in the defence of colour of rightthat is embedded into the elements of theft. Although mistake of law is generally no excuse, when it comes to believing what is mine is mine, it provides a complete answer to a theft charge. That shows private rights abound in criminal law, but privacy, as a personal motif, is an entirely different matter. 

Private rights are not necessarily privacy rights. Yet, there are distinct parallels. In by-gone days when a phone was static, involved a dial, and could not fit in your pocket, the privacy concepts protected by s. 8 were territorial and oriented around the immediacy of personal space. Although s. 8 was in place to protect the person and not a place, it did protect the person’s personal territorial space. Territorial space may not be as solid as territory as land, but it has density to it and can be visualized. Picture the street view of Google mapand the Pegmanwho can be plucked up, carried, and placed into a circle of space. We are that Pegman when it comes to s. 8. Every placement serves to define our s. 8 rights with a property-like quality. This is my space not yours. That is until modernity arrived to displace the solidity of territory. And with that newness came a totally different conception of privacy, cut free from the shackles of Google. Or, maybe more accurately, detached from the map that is Google to be re-imagined in the same cyberspace of Google, the internet platform.

How this new formulation of privacy impacts old considerations of property interests me. Section 8 search and seizure law has kept pace with modernity and changing societal values, but property law seems to lag far behind. Theft, for instance, involves the taking or conversion of “anything” under s. 322 of the Criminal Code. This taking deprives of the owner of that “anything.” Although, the “anything” is typically a tangible thing, it may consist of a conversion of an intangible, as is the case of a taking of a bank credit for instance. However, even this unseen anything is seen in the inner eye. We can all visualize and objectify a bank credit into money in our wallet. The solidity of which cannot be denied. 

The difficulty arises when the “anything” of theft is an idea or better yet as in R v Stewart, a 1988 decision of the Supreme Court of Canada, the theft of confidential information. There, a document containing confidential information, was copied, and therefore not considered a taking of “anything.” The information was still available to the original owner of the information and there was no deprivation. Policy dictated that such wrongs be righted through the civil law not underlined by the condemnation of the criminal sanction. This narrow view of what can be stolen may be driven by policy or even, as Justice Lamer suggested, by the desire to let the lawmakers in parliament create such crimes, but it is nevertheless an antiquated approach to what a person “owns” or “possesses.”

The decision in Stewartcertainly does not wear well when viewed in the s. 8 context. It also confirms that in the property crime world tangibles, or those things that can be objectified, matter most. In today’s connected world, it is mind over matter as tangibles dissolve into a web of technology. Parliament, at least, paid Stewartsome heed and did legislate crimes relating to the misuse of computer images and data. But these new offences seem to be a concession to Stewart, not in defiance of it. True, confidential information can be memorized and copied leaving the information still available to the original owner or originating source of that information. It is not, however, the availability of such information that impacts the deprivation resulting from the taking of that information. By taking the confidential information, through cutting and pasting or through storing it in the Cloud, the original owner or source of that information is deprived of control of that information and deprived of choosing when, how and in what format that information would be released and used. 

We can push the property envelope even further if we look at “taking” through s. 8 Charter REP (reasonable expectation of privacy) eyes. A taking of confidential information would be considered a search and seizure pursuant to s. 8 of the Charter. In s. 8, we see a movement away from the castle-like solidity of territorial privacy to the ephemeral empty cyber spaces where we build castles in the wires. It’s in s. 8 where the full expression of privacy as a virtue is protected and nurtured. Ideas, thoughts and confidences do not just reflect an attitude (despite thoughts to the contrary in R v Benson,2009 ONSC 1480) but form an individual’s biographical core. It is that taking of data, that deprivation of choice in terms of when and how we disclose our secrets, which gives property perhaps a new and different meaning under the criminal law.

Before we consider whether we reconsider W(D) there may be some of you, albeit I am guessing not many, who are unaware of the decision and the principle for which it is named. In W(D), the jury, as the trier of fact, was faced with competing narratives from the complainant and the accused on a sexual assault charge. The accused was convicted. On appeal, the issue was the manner in which the trial judge instructed the jury on the task of assessing the disparate evidence. This concern was not a new one. Previous appellate decisions had warned of the “credibility contest” conundrum in which the trier of fact improperly believes they are obliged to base the verdict on choosing between two stark alternatives of believing the Crown evidence or the defence evidence (see e.g. Regina v Challice, 1979 CanLII 2969(ON CA) at 556). By seeing the decision as binary, the trier was not considering the legitimate alternative – that the trier of fact is unable to resolve the conflicting evidence and is simply left in a state of reasonable doubt. This error effectively shifted the burden of proof, requiring the accused to provide a credible explanation. 

Although the issue at the time of W(D) was far from unique, the error was common. Something more than appellate review was needed. This “something more” came in the form of Justice Cory, speaking for the majority in W(D), who attempted to break the cycle of error by suggesting an instruction that would convey the correct approach. An approach that would be simple yet convey the importance of the burden and standard of proof in a criminal prosecution.

Justice Cory, sadly, was wrong. W(D) has been referenced in 9701 cases and counting. Notably, it has been referenced in 38 Supreme Court of Canada decisions. Of those 38, two of those decisions are from the past year, one, R v Calnen, 2019 SCC 6 (CanLII), as recent as February 1, 2019. In Alberta, W(D) has especially resonated with 968 case mentions, almost the same number as British Columbia and twice as many as Saskatchewan. The Alberta Court of Appeal has considered the case a little more than 50 times from 2015 to present. In this context, it is unsurprising that the Alberta Court of Appeal felt it necessary to reconsider W(D)in Ryon. Indeed, the issue had been raised almost two years earlier in R v Wruck, 2017 ABCA 155 (CanLII), an application for judicial interim release pending appeal heard before Justice Watson, who later delivers a concurring judgment in Ryon. Presumably, the Wruck appeal was not to be after the bail application was dismissed and the reconsideration was left for another day and another case. Although Ryonappears to be just that case, as I will explain, the Court had already revisited W(D)in 2012.

Before we turn back the W(D) clock, we need to take a close look at the most recent decision in Ryon. Justice Martin writes for the majority. As mentioned, Justice Watson writes a concurring decision but essentially agrees with the Court’s general exasperation with yet another W(D) appeal – and a good one at that, as the Court allows the appeal on the basis of the W(D) error. Instead of sending the case back for a re-trial with a disappointing shake of their collective appellate heads, Justice Martin digs into the time vortex in an effort to rehabilitate, refresh and generally update the W(D) instruction. 

There are many reasons why Justice Martin feels the need to intercede. W(D)is a staple in the trial judges’ decision-making tool kit but it was a framework, a bare bones recommendation that required filling in. It was created with an eye to the factual matrix from which it came involving two competing narratives. It did not account for a more sophisticated evidentiary base arising from a complex factual and legal situation such as a case involving inculpatory and exculpatory evidence from the admission of an accused’s confession, or unsavory witnesses overlaying a Vetrovec caution (See Vetrovec,1982 CanLII 20 (SCC)) onto the instruction or trials involving multiple charges and included offences. In short, the W(D)instruction, when lifted directly from the pages of the decision, lacks context and therefore meaning. Many a trial judge, believing the words spoken by Justice Cory to be adequate, failed to realize the error of leaving the words alone to do the heavy lifting. 

Although Justice Martin fills in the framework to account for these variant situations at paragraphs 29 to 32 of Ryon, it is the common-sense admonishment underlying his decision that truly encapsulates the essence of W(D). At paragraph 38, for instance, he advises us to “step back and consider the message intended to be delivered.” Later, at paragraph 48, Justice Martin reiterates the need for the instruction to be “contextual and responsive to the evidence.” Finally, after recommending a more inclusive instruction, Justice Martin at paragraphs 53 and 54 cautions that 

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

These are sentiments that apply to every situation in which the accused’s exculpatory evidence is pitted against the prosecution’s case. In the end, it is the trier of fact alone, equipped with the special criminal standard, who must use and apply their common sense, as nurtured by lived experience, to the set of facts before them. However, in the case where there is potential for a credibility contest, the concept of reasonable doubt as it applies to that evidence must be brought home to the trier of fact. As Justice Sopinka said in R v Morin, 1988 CanLII 8 (SCC) at 360, rendered before his dissent in W(D), “The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion.” This freedom to fact-find is essential to our criminal justice system and through the judicious use of judicial instructions on how to get to that ultimate conclusion, we are ensuring that the verdict arrived at will be a fair and just one.

Although Justice Martin is right to bemoan the overuse of W(D)as a panacea for credibility assessments, he does seem to get too far into the weeds by over-instructing the trier of fact with all the potentialities of a W(D)situation. His comments on the sequence of the instruction, including which evidence must be considered first, may create a less flexible framework and run contrary to Justice Sopinka’s fact-finding vision as articulated in Morin. Granted, providing clarity on the type of evidence to be considered, exculpatory rather than inculpatory, is helpful, but to get into parsing evidence into types may cause more problems than it’s worth. For instance, the concern raised with applying W(D) to neutral evidence may result in arguments by counsel over what is neutral evidence and what is not. At some point we must trust the jury to come to a true verdict by allowing them to draw inferences from the evidence on the basis of their findings of fact.

Nevertheless, Justice Martin’s penultimate statement on what information should be imparted to the jury at paragraph 51 is helpful and does fill in the skeleton-like structure of the W(D) instruction. Of course, Justice Martin had ample opportunity to consider this as he expounded similar suggestions in his 2012 decision, R v Gray, 2012 ABCA 51 (CanLII). As an aside, that decision received quite a bit of traction with the Honourable Judge Gorman of the Newfoundland and Labrador Provincial Court who quoted the Gray decision in 13 cases between 2012 and 2014. I too will quote from Justice Martin in Gray at paragraph 45 in which he explains that “In other words, the instruction is a contextual, evidence‑sensitive, one that requires a trial judge to carefully mould it to the evidence and not just recite it in isolation with the hope that the jury will understand or figure it out.” Truer words have never been spoken—or, rather, they have been spoken but not listened to—but perhaps this time these words will have the impact they deserve.

I conclude this post with some final thoughts on conflicting narratives and criminal trials. The situation of competing narratives is not in and of itself unusual. A trial is a time anomaly. The trial itself is conducted in the present four corners of the courtroom, yet it is concerned with past events that lie outside of those courtroom walls. In many ways a trial borders on science fiction as it leaps through the time-space continuum. 

The trier of fact, who is in the present space, must turn the present tense into the past through the consideration of days gone by. In short, a trial is stuck in the past and the trier of fact needs tools to translate the past events into a language of the present. This is particularly important as at the time those past events were occurring, not everyone involved could see the future significance of those events. The narrative was not captured in pristine form at the time. A further “past meets present without future thought” problem is that often those events did not involve direct observers. The people living those events did not rush out and bring in a witness for future use. Indeed, these events are by their very nature done in private. Nor did these events necessarily produce animate items for future use at trial. 

The W(D) trial is a description of the past from the perspective of the complainant and the accused person. The trier must assess that information through a kaleidoscope of time, which collapses those past events into present time. But that is not all—those events are also filtered through legal rules and principles. This changes the texture of those narratives and gives them a different, special meaning. It is the application of those legal principles that frames the past so it may be used in the present time of a trial. This is the true message of W(D), which serves as a memorial itself by commending to a trier of fact a possible, but not the only, way to review evidence in coming to the ultimate decision of guilt or innocence. 

 Does W(D) need a reconsideration? There is not much wrong but much right about re-energizing legal principles and ensuring they are understandable, meaningful and relevant for those who must apply them. An update and a re-working can enhance the administration of justice. However, in that new look, we must retain the essence of that original statement and its raison d’etre. In the case of W(D), any reformulation must emphasize the linkages that must be made between credibility assessment and reasonable doubt. Without this crucial connection, a reconsideration is not doing W(D) justice. Justice must not only be seen to be done, it must also be done. The Ryon decision, in its aspect and essence, will go a long way of doing just that.

This program, as a concept, as experiential learning, and as community-builder, makes me realize that “advocacy” is a shape-shifter. It is not just about standing up in court and doing a killer examination or a staggering legal argument, it’s about the communal coming-together as a profession for the purpose of the betterment of that profession. This program, whether we are a 3L who has never seen the inside of a courtroom or a seasoned practitioner who has seen too much the underside of the law, brings us together so we can all strive for excellence in our own way but together.

I want to emphasize that advocacy is also about finding your authentic voice. To be sure, there are best practices but not one best practice. What I love best about the Advocacy course is how we are all encouraged to find how we each can contribute to the practice of law by being ourselves. The program is a safe environment in which students can start to do this. It is only a start as it can take years to find the individual approach that best works. But that’s okay – that’s advocacy.

I cannot leave this blog without connecting my thoughts to some personal reading I have done over the break. Philippe Sands, QC is a British barrister well known in international law circles. He has written textbooks in the area and practiced in the International Criminal Court for years. He also writes and podcasts in a more personal way. He has applied his prodigious legal skills to tracing his Jewish family history in Nazi-occupied Lemberg, which had a battered history of name changes as it buffeted from one occupying country to another. 

Sands brilliantly weaves that personal story of discovery with the equally compelling story of two men, both Jews who lived in Lemberg, who escaped the German occupation, and who individually contributed to modern international human rights: Hersch Lauterpacht and Raphael Lemkin. Lauterpacht was a gifted law professor who championed the concept of individual rights as protected by the global community. His involvement in the Nuremberg trials resulted in the convictions of those individuals who were responsible for the murder of millions including the families of Lauterpacht, Lemkin and Sands. Hersch Lauterpacht was the originator of the then nascent offence of “crimes against humanity.” Raphael Lemkin came at Nuremberg differently. His emphasis was not on the individual but on the groups and cultures which the Nazi war machine sought to obliterate. He invented the word “genocide” to reflect his belief that the destruction of an identifiable group of people cannot be countenanced. Sands book includes a map of Zhovkva, a tiny village close to Lviv, where his great-grandmother and Lauterpacht were born. The map shows the street where both families resided and which hauntedly connects to the burial place of the Jews of the village who were all massacred during the Nazi occupation. Hence the name of the book as East West Street.

Now the connection to my thoughts on advocacy. It struck me how the story in East West Street was simultaneously a story of the pursuit of individual and collective justice, just as the stories of Lauterpacht and Lemkin, super-imposed on one another, was one story arising from mirror images of what injustice looks like. Sands is, as his training and family history made him, an advocate of the highest degree who is concerned with the individual and the whole. So too, being a skilful advocate requires those two halves, the private and public, to reveal itself into one vision. We are obliged to pursue justice through individual means but for the greater good. Even when we represent an individual, it is not just the client’s plight it is our plight too. Being an advocate requires expertise in managing these two dualities.

Circling back to the start of these musings on advocacy, I can see the bigger picture this course suggests. What we each do in the legal profession does impact individual lives but what we do together significantly outsizes that impact. We protect individual rights but we also engage in community-building. Advocacy, as an integral part of who we are as a profession, reflects both of these objectives and celebrates them. To me that is the truly wonderful outcome of the course and what I look forward to experiencing on Monday.

Take for example the removal of the reverse onus phrases “proof of which lies” on the accused. The Backgrounder on Bill C-51, which brought in this change explains the reasoning behind the removal. This phrase, which reverses the burden of proof onto the accused, is constitutionally suspect. By reversing the burden, s.7 is engaged as the presumption of innocence, a principle of fundamental justice, is compromised. In the words of the Backgrounder such reversals of the onus onto the accused could “result in convictions where a reasonable doubt exists as to the accused’s guilt.” The removal of these reverse onus requirements is not only Charter consistent but necessary. Yet, a review of the Code reveals some such reversals are left intact.

Let’s look at which reverse onus phrases were removed. Including the Forms, there are 47 references to the onus, “proof of which lies” on the accused, deleted. The most notable large-scale removal was from s. 794, deleting subsection (2) placing the burden on the accused in summary conviction offences to prove an “exception, exemption, proviso, excuse or qualification prescribed by law operates” in favour of the accused. Many of the removals were in sections where the case law raises potential Charter unconstitutionality such as in the reverse onus in possession of housebreaking tools under s. 351.

What is not removed is more telling. Three of the sections retaining the reverse onus phrase appear in Part XXIII of the Codeon Sentencing. The phrase in sections 742.6(9) and 742.6(16) are still operative. These sections are engaged when an offender allegedly breaches a conditional sentence order (cso). Both subsections outline options given to the court upon finding, on a balance of probabilities, that the offender did “without reasonable excuse, the proof of which lies on the offender” breach a condition of the cso. These subsections were subject to a Charter challenge in the Ontario Court of Appeal decision in R v Casey with leave to the SCC refused. The Ontario Court of Appeal found the breach is not an offence within the meaning of s. 11 of the Charter. Any argument the subsections violated ss. 11(d) (reversal of burden of proof), s. 11(h) (rule against double jeopardy) and s. 7 (principles of fundamental justice) were dismissed. The decision hinged on the characterization of the cso regime and the consequences of a breach. In the OCA’s opinion a breach of a conditional sentence was not a separate offence as the sentencing judge, who reviews the breach, can only deal with the expired portion of the sentence. A sentence, which the Court was quick to remind, is a term of imprisonment being served in the community. Finding a breach cannot increase that sentence. Additionally, the sentencing judge is reviewing the alleged breach as the supervisor of the cso and not as a trial judge quatrial judge. 

 Even so, courts have added a caveat to this supervisory power under s. 742.6. In the 2005 decision of the then Justice Cromwell, in the New Brunswick Court of Appeal, R v LeBorgne, found the breach regime “engaged important interests of the offender” and “vital interests of the offender are in play and must be scrupulously protected” (at para 13) and “scrupulously fair” (at para 14). 

Another section, s. 734.5, which is similar to s. 55.1 Cannabis Act, also retains the reverse onus provision. Section 734.5 is also a sentencing provision relating to the default payment of a fine. This section provides for an additional “incentive” for the offender to pay a fine by permitting the provincial government to refuse to issue a licence or permit, such as a driver’s licence, to the offender until the fine is paid “proof of which lies on the offender.” Again, this is enforcement of a sentence imposed and is not to be viewed as additional punishment. This section was considered in the most recent Supreme Court decision on the unconstitutionality of the victim fine surcharge, R v Boudreault. That section had used the s. 734.5 enforcement regime for the fine surcharges. 

Leaving aside the special circumstances of the use of the reverse onus in these sentencing provisions, there are still two offences in the Criminal Code, sections 440and 383(2), where the reverse onus is retained. These sections create offences similar to the other sections from which the reverse onus phrase was removed. These two offences also happen to be the only offences in the Codedescribing the reverse onus as “the burden of proof” as opposed to the other now deleted phrases that introduce the reversal by stating “proof of which.” Was there perhaps a slip of the pen by not removing these sections too or is there some other reason for their retention?

Section 440 is an odd offence creating an indictable offence for removing, wilfully and without the permission of the Minister of Transport, a natural bar such as a stone or earth from a public harbour. The reverse onus attaches to the proof of the written permission from the Minister. It may be argued that this permission is specifically an element of the offence and therefore should be disproved by the prosecution. Yet, the section contemplates otherwise by using the reverse onus. Some case law suggests the lawful excuse, consisting in s. 440 of the Minister’s permission, is not an element of the offence (see R v Gladue, 2014 ABPC 45, Rosborough, PCJ). It appears this authority has been questioned on summary conviction appeal (see R v Neufeld, 2014 ABPC 66, Rosborough, PCJ at paras 28-30). Considering the uncertainty in the law on this issue, this phrase “the burden of proof of which lies on the accused,” should have been removed from s. 440.

Notably, s. 440 does have a public welfare flavour to it. In the regulatory world, the defendant has the burden on a balance of probabilities to establish they acted with all due diligence. In this case, that the defendant had the necessary permits to make changes to a public harbour. But this offence is not of the regulatory world but the criminal one. It appears in the Criminal Code and it is punishable by Indictment for a maximum period of imprisonment of 2 years in the penitentiary. In any event, the regulatory argument that the accused is in the best position to produce this information fails in this instance as it is Minister permission, which one would assume is readily available to the government prosecuting such an offence.    

The other offence retaining the reverse onus phrase, section 383, creates fraud-related offences in purchasing stocks or merchandise for the purpose of making a profit in the rise or fall of the price of those items. This activity does rather sound like what people regularly do when playing the stock market. It even sounds like what people also regularly do, when purchasing real estate, not for the purpose of inhabiting the property but for the purpose of flipping it in order to make money in the short term rise in price. What this section is directed to is a form of wash trading wherein an “investor simultaneously sells and purchases the same financial instruments to create misleading, artificial activity in the marketplace.” Of course, such conduct benefits the wash trader but to the detriment of legitimate people in the marketplace. Section 383(1) defines the offence of the making, signing or authorization for the sale of shares or goods with the intention of making a gain or profit by the rise or fall of the price. Subsection (2) where the onus resides finds that when it is established that the accused made, signed or authorized the sale or purchase of those goods, the onus is then on the accused to prove a bona fideintention to acquire or sell the shares or goods in question. Although this subsection appears to create an evidential burden and not a legal one, considering this section is merely a specific form of fraud under s. 380, the use of a reverse onus seems out of place and heavy-handed. Further, there is another specific offence relating to wash trading under the Code in s. 382, which is creating a false appearance of active trading of stocks does not use any such presumption. Additionally, a search of case authorities suggest that these situations are usually dealt with under securities regulation instead of the criminal law. 

The reason the onus remains may be historical. In Burbidge’s Digest of the Criminal Law of Canada, the progenitor of the 1892 Code and upon which the Code was formulated, outlined a similar offence under Article 236. There the offence did not have a reverse onus phrase. However, in the 1892 codification of the offence, section 704, which is similar to 383(2) was added as an evidentiary presumption. Although evidentiary presumptions to ease the admission of documents and certificates signed by an official are present in the Codewe now use, there is no other such section that presumes an essential element of an offence upon proof of the accused’s acquiescence. For instance, the reverse onus in s. 197(3) of proving a place is not a common gaming house but is an “incorporated genuine social club” is intact. Or the requirement placed on the accused under s. 117.11 for the accused to prove someone else is the holder of a firearm or weapons authorization or licence for weapon offences listed. These burdens, as opposed to the onus under s. 383(2), do not require the accused to testify or provide evidence emanating from themselves. The s. 383(2) presumption would require a response from the accused to establish “good” intentions without which the accused could be found guilty of an indictable offence and liable to imprisonment for 5 years. Surely, this subsection (2) should have caught the notice of the government in amending the Code and should have been removed with the other reverse onus phrases. Even if the government wanted to retain an evidential burden, replacing the offending phrase with the less constitutionally challenged phrase of “in absence of evidence to the contrary,” would have been more consistent with the law. 

Renovations are needed when a place is well-used, run down and no longer relevant but the new fabrication should not be a mere façade or a simple paint job that will brighten up the space but not make any substantive changes. The government has made good on its promise to delete some of the old sections in light of the ones more useful and meaningful, but they needed to step back from the finished product to ensure, after the paint dried, the entire building would still hold up. When it comes to the reverse onus sections, the government still needs to re-do that re-do to ensure all constitutionally suspect phrases become a memory of the past. 

This situation particularly resonates for me as a professor teaching 1Ls fundamental criminal law concepts. The cases I teach are rife with “we will get to that another day” sentiment. In JA, [2011] 2 SCR 440, for example, both the majority of the then Chief Justice McLachlin and the dissent of Justice Fish leave open the Jobidon issue of consensual sexual activity that involves bodily harm. Again, in Mabior, [2012] 2 SCR 584, Chief Justice McLachlin, after referencing sexually transmitted diseases other than HIV throughout the judgment, disappointedly states that “Where the line should be drawn with respect to diseases other than HIV is not before us” (at para 92).  

The majority in Reevestries to employ a similar yet different tactic to deflect a decision on the issue. Instead of the tantalizing suggestion that there will be some case on the horizon which will engage the issue squarely on, Justice Karakatsanis suggests the issue may be present but assessing it is unnecessary because there was a s. 8 violation in taking the computer and, in any event, Reeves’s counsel conceded the entry was lawful (paras 20 to 21). Furthermore, and here is the brush off, the issue raises “competing considerations” and to proceed without “full submissions” would be imprudent (at para 23). As an aside, Justices Côté and Brown, in their dissent in Trinity Western University,2018 SCC 32, took this same tack on the sticky issue of the standard of review as they declined to comment on the Doré/Loyola framework“in the absence of full submissions” (at para 266).

Despite this firm “no,” Justice Karakatsanis continues to explore the complexities inherent in such a decision (paras 24 and 25). That it invokes the intersection of the public and private spheres of our lives. That it highlights the nuances apparent in how we live those lives, raising questions of where and when our privacy becomes shared and if privacy amounts to mere physical space. I have explored the multi-verse of privacy and space in a previous blog posted on my Ideablawg website entitled, “Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and Private Living Space.” Overlaid is the societal desire to maintain public safety through the investigation of crime.The issue is, as suggested by Justice Karakatsanis, “complex” and requires a “considered response.” 

Yet, the presence of “competing considerations” is exactly why the concurring justices decide to give a response, considered or otherwise. For Justice Moldaver, a tentative response is better than none. In his view, direction from the Court is needed, albeit not binding direction. Justice Moldaver often gives advice to lawyers and trial judges when the issue requires it. For instance, in R v Rodgerson,[2015] 2 SCR 760, Justice Moldaver, offers some street-smart advice on how to run a murder case before a jury. In Reeves, Justice Moldaver does something different – he anticipates the issue as an issue and, in a forthright, make no bones about it manner, he states his “purpose in writing this concurrence is to express some tentative views on the issue of police entry into a shared residence” (at para 71). But that’s not all, the reason for writing something that is not a ruling, that is not a decision, that is not really even true obiter dicta as it is “tentative,” meaning he has not really made up his mind, is to fill a gap that is “a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.” This statement alone packs a wallop as Justice Moldaver anticipates an immediacy that cannot wait until another day. The matter is so pressing that it cannot wait for full submissions and cannot wait until he has fully formulated his opinion. This is, in other words, a matter of critical importance. It must be said.

Interestingly, “tentative views” have been offered in the Supreme Court previously. In eight SCC decisions such “tentative views” have been expressed. In the oldest such decision, St. John and Quebec R Co v Bank of British North America and the Hibbard Co, 1921 CanLII 574, Justice Anglin is not expressing a tentative view as much as he is making it clear that the tentative view he had of the case was not dispelled through oral argument (p 654). The other seven SCC decisions do express tentative views on matters on the basis those issues were “not raised before us” as with Justice Cartwright dissenting in Smith v The Queen, [1960] SCR 776) and Justice La Forest in Tolofson v. Jensen; Lucas (Litigation Guardian of) v Gagnon, [1994] 3 SCR 1022.

An instance where “tentative views” matter, as they presage the binding ruling and have precedential impact, is in R v Bernard, [1988] 2 SCR 833. In that case, Justice Wilson’s concurring decision (at para 93 to 95), on the constitutionality of the Leary Rule limiting the effect of intoxication on mens rea, ultimately became the majority ruling of Justice Cory in R v Daviault, [1994] 3 SCR 63 (see also R v Penno,  [1990] 2 SCR 865 and R v Robinson, [1996] 1 SCR 683). Not only did Justice Wilson’s opinion become law but it caused Parliament to hastily respond by adding s. 33.1 of the Code.

The “tentative views” presented in Reevesby Justice Moldaver are well-thought out and do not seem tentative at all. His analysis of the basis for the police officers’ entry into the shared home with the consent of Reeves partner is based in principle and on an application of years of case authority building upon police officer’s common law ancillary duties. In his 27-paragraph discussion on the issue, he deftly “tentatively described” (at para 96) the police common law duty to enter a residence to take a witness statement for purposes of an investigation. He sketches out five criteria to ensure the authority is carefully circumscribed through a practical and common-sense approach to the potential intrusive situation (at para 96). Despite his belief that his comments require fuller attention in the future, he continues the opinion with his further belief that his scenario for common law entry by the police, without reasonable grounds to believe an offence has been or that evidence will be found of an offence, is nevertheless constitutional (at para 97). He draws upon case authority which permits intrusive police action, in certain contained circumstances, based on reasonable suspicion. He concludes in paragraph 99, that as his criteria for entry is specifically constrained that it “may well meet s. 8’s reasonableness requirement.” Again, the discussion is not that it “will” meet or that it “does” meet but that it “may well” meet. The virtue testing is left for another day.

But the issue is not really left on the corner of the bench. In paragraphs 100 to 102, Justice Moldaver then applies his “tentative articulation of the lawful authority under which the police could enter a shared residence” to the facts of the case. He assumes his formulation is constitutional and finds it “quite possible” that up to the time of actual seizure of the computer, Reeves’s s. 8 rights remain intact. To add to this speculative brain-worthy exercise, Justice Moldaver decries the paucity of the record as it does not contain sufficient facts to properly determine the outcome of all of the five criteria formulated as part of the test.

In stark contrast is the decisive concurring decision of Justice Côté. There is nothing tentative about this presentation of the issue. She calls out the majority for declining to consider the issue considering “it was ably argued by the parties” and impacts the s. 24(2) analysis (para 105). Justice Côté takes the issue head on and makes quick work of years of carefully crafted s. 8 principles. She boldly finds that police can and should be entitled to enter a shared residence, without a warrant, based on the consent of one party alone. She does so in 13 paragraphs without the need to formulate or constrain police authority. She does so by focusing the s. 8 lens not on the accused but on the valid, subsisting and present consent of the co-habitant. In Edwards-like fashion she keeps the spotlight on the presence of the consent thereby dissolving the s.8 issue on the basis of an absence of a search or seizure. The entry is simply an everyday matter of invitation and is not the heightened arena of the state intruding into the privacy of a citizen’s life. With a flick of the switch, s. 8 disappears in favour of the down to earth realities of hearth and home. 

By deciding not to decide, the majority set the stage for a showdown but not the quick draw we are used to in reading a Supreme Court decision. Instead, we have in R v Reeves, a slow-motion decision that requires us to patiently await the right case to appear to give an authoritative voice to the tentative one. Let’s hope we don’t need to wait too long.

The premise is not very original. For years, journalists have gathered sensitive and volatile information from hidden human sources. This is the stuff of smart investigative reporting and it offers insightful but sometimes explosive reveals. Such was the case in Vice. Let’s be clear, Vice Media is a go-getter media outlet: a newish kid on the block, who with equal doses of style and aplomb combined with grit and tenacity, present stories with the urban flair expected of a here and now media team. In this case, the journalist connected to a prize – a source who was the real McCoy – a suspected terrorist. They exchanged, as all sharp social media-ites do, a series of text messages. But these were text messages with a difference. The journalist, by communicating with a suspected criminal, entered the “it’s complicated” world of criminal law. More than merely conversational, these messages were potential evidence and as evidence attracted legal meaning and weight. It was as if a school-yard scuffle was transformed into a Las Vegas prize fight. The journalist investigation was instantly transformed into a police investigation. With that transformation, the rules of the game changed. What was driven by the written word became transported through the portals of law.

The police moved quickly to secure and preserve the information, “under glass” so to speak, through the legal tools available. A production order under s. 487.014 was obtained quickly, silently and ex parte. Production orders are the aide du camp to the search warrant regime in the Code. When issued, they require the person so named in the order to hand over to the police the subject document that is in their possession or control. It is all about evidence, trial evidence, and what kind of information is needed to prove a criminal offence in court. With a stroke of a pen, the legal world encases the whirly-burly world of media in a glass case. Dynamic communication is crystallized, dryly, into documentary fact. However, this colourless coup still has some drama left to it. In this encasement, the formalistic legal rules must grapple with the equally formalistic journalistic rules. Here Vice meets Squad and legal principles run up against another as journalistic source privilege creates an impasse. It is up to the Supreme Court to reconsider the legal and journalistic landscape.

In the end, the Supreme Court agrees with the lower courts by upholding the presence of the law as the paramount concern in this media story. The production is properly issued and must be obeyed. But this story does not go out with a whimper but a bang as the Court, though in agreement in the result, does not agree in how they get there. This is truly the excitement and energy of the urban landscape as two opinions on the issue emerge. The majority, hanging onto the creation of law by the slim agreement of 5, is written by Justice Moldaver, the criminal law heavy-weight on the Court. Justice Moldaver is an experienced criminal lawyer and approaches the decision with his usual hardboiled common sense. The concurring minority decision is written by Justice Abella with her innate sense of the human condition. The setting could not be better for a decision on the realities of the urban scene.

Justice Moldaver opens with the obvious in paragraph 1 of the decision. There is an analytical framework, found in the 1991 Lessard decision, to decide the issue. As an aside, the framework, pulling no punches here, involves the balancing of “two competing concepts: the state’s interest in the investigation and prosecution of crime, and the media’s right to privacy in gathering and disseminating the news.” The issue here however does surprise. It is not a “business as usual” question, involving the application of that long-standing framework, but involves a deeper question asking whether the framework is actually workable. The law can create but, so the argument goes, the law must be useable. Principles may be lofty and imbued with high-minded values, but they must work on the street-level as well. What is said in Ottawa must be later applied in small-town Dundas, Ontario or main street Nelson, BC. If it can’t work there, it’s of no use, legally or otherwise.

Does that balance work? The majority believes it does with some refinement. Tweaking has become the new tweeting at the Supreme Court level. If it ain’t completely broke then don’t entirely fix it. Renos are a less costly measure. Justice Moldaver suggests just such a quick fix by importing a case-by-case analysis that permits a less mechanical application of rules and by “reorganizing” the applicable Lessard factors. But then, and here is where a tweak looks more like a re-do, the majority offers a modified standard of review (SOR). This, in the words of Raymond Chandler’sPhillip Marlowe in The Big Sleep, is like finding a “nice neighborhood to have bad habits in.” The spectre of SOR runs deep in the Supreme Court decision-making psyche. Rearing its head here of all places gives this decision a decidedly bête noire flavour.

We need a feel for the atmosphere before we take on this part of the decision. We are in the heightened atmosphere of “the special status accorded to the media” (para 14) as envisioned under the aegis of the Charterpursuant to s. 2(b). Freedom of expression in the form of media expression is, as I quote the dissent of Justice McLachlin in Lessard, more than the vitalness of the “pursuit of truth.” It is an expression and act of community. The press is society’s agent, not the government’s agent. Their actions give meaning to “expression” but also to “freedom.” As such, the press is “vital to the functioning of our democracy.” But, spoiler alert, the gravitas of this sentiment differs as between the majority and the dissent in Vice. It is this difference, which I suggest drives the decisions in this case more than anything else. In any event, Lessard, impresses s. 2(b) with the stamp of vitality promised by s. 2(b). It involves a boisterous labour action at a post office, the bread and butter of on the ground media reporting. The crowd was video-taped and the police wanted the recording as evidence for a criminal prosecution. Incidentally, my most recent Ideablawg podcast on the Criminal Code, discusses the sections on unlawful assembly and riots. In contrast, the facts in Vice, touch upon democracy’s innermost fear of terrorist activity. 

I should add that an additional difference in Viceis the presence of a confidential informant, who also happens to be the potential suspect. The law of privilege is an evidential oddity as it serves to exclude evidence which would otherwise be relevant and admissible in a criminal case. Through the protections afforded by privilege, the identity of a CI is confidential. This in turn promotes relationships in which vital information is exchanged. A CI is more apt to divulge information to a journalist with the knowledge there will be no adverse repercussions as a result. The kind of adverse repercussions as in Vice, where the information is used against the CI in a criminal investigation. This kind of privileged communication within a journalist relationship is not absolute and is subject to judicial discretion. Even so, the CI/journalist relationship adds a sharpness to the issue. For a fuller discussion on the vagaries of CI privilege, read my blog posting on the issue here.

In this media infused atmosphere, context is everything. That should be no surprise to anyone who has read a Supreme Court case in the last decade. In fact, we might say that context is not just everything, it is royalty, as principles seem to bend to it. Case in point is the majority’s view of the Lessardfactor of prior partial publication. Under the unrefined Lessard framework, if the information of the criminal activity sought by the state has been disclosed publicly then seizure of that information is warranted. Indeed, those circumstances may heighten the importance of that factor, which “will favour” the issuance of the order or search warrant. Justice Moldaver finds the Lessard approach turns a factor into a “decisive” one (para 39). Although it is arguable whether Justice Cory in Lessard would agree with that characterization of his comments, Moldaver J’s approach, to allow for context in assessing prior publication by favouring a case-by-case analysis, is defensible. Again, smoothing out the complexities through a good dose of common-sense driven principles.

Another area for revision involves whether the probative value of the information should be considered in the balancing and assessment of the Lessard factors. Probative value is connected to that basic rule of evidence I earlier referenced; that all relevant and material evidence is admissible. Facts, which make another fact more or less likely, are admitted into evidence as such facts have value or weight. The basic rule is subject to other rules that may render evidence inadmissible, such as bad character evidence. It is also subject to the discretionary exclusion or gatekeeper function of the trial judge to exclude relevant and material evidence where the prejudicial effect of admitting the evidence outweighs its probative value. Probative value is a measurement of the strength or cogency of that evidence. Probative value is not an absolute concept but involves relationships or connections between evidence. In fact, the probative value or weight given to evidence must be viewed in the context (there’s that word again) of the whole case. This explains Justice Moldaver’s position, at paragraph 56, that the probative value of the protected evidence is a consideration in whether the evidence should be accessed by the State. It is “a” consideration, not a stand-alone Lessard factor, as the production order proves is part only of the investigatory stage. It would be premature to place too much weight on probative value before the entire case is yet to unfold. 

This leads logically to Justice Moldaver’s further caution that probative value should not be dictated by hard evidential rules. Again, contextually and functionally this would be contrary to common sense. A production order or a search warrant is at the infancy of a case. These are investigatory tools albeit tools which may lead to trial. The information to be accessed are facts not evidence. They have not been filtered through the legal rules engaged at trial. They are anticipatory. Therefore, Justice Moldaver declines to import the Wigmore criteria of necessity to the assessment (paras 52 to 58). However, by permitting probative value as an overarching factor, the Court is scaffolding evidential concepts onto the investigatory assessment. Probative value is considered in issuing an investigatory tool, probative value is weighed against prejudicial effect in determining admissibility of evidence at trial, and, finally, probative value is weighed in light of the whole of the evidence to determine whether the State has proven the accused person’s guilt beyond a reasonable doubt. As the standard of proof increases, how much that probative value matters also will increase.

So far, the tweaking seems more of an oil change and lube: something to make the engine work better. But now comes the overhaul as Justice Moldaver announces a change in the standard of review (paras 68 to 81). For the Supreme Court, the standard of review is to the reviewing court like provenance is to art museums. No one can really rely on the reviewing court’s decision unless there is agreement on the standard by which that original decision is assessed. The standard of reviewing the issuance of an investigatory order was determined almost 30 years ago in Garofoli. There, Justice Sopinka clarified the review was not a de novo assessment in which the reviewing court simply substituted their opinion. Rather, it is an assessment as seen through the eyes of the issuing judge, looking at the information before the judge at the time but with the benefit of any acceptable amplification on review. This test has parallels with the air of reality test, a threshold test used to determine whether a defence is “in play” and can be considered by the trier of fact. The air of reality test requires a consideration of whether a jury properly instructed and acting reasonably could acquit on the evidence. With a review of an issuing judge’s decision, the review court asks whether “there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (para 69). 

This test is a deferential one, albeit not completely so. Although, the issuing judge is best placed to decide, there is wriggle room for the reviewing court through amplification on review. Additionally, the view through the eyes of the issuing judge is, here it is again, contextualized by the evidence before the reviewing judge. For instance, the reviewing judge can consider an application to cross-examine the affiant of the Information To Obtain as part of its review. If permitted, the evidence may provide further context to the original basis for the authorization. The difficulty with this approach, Justice Moldaver notes, is where the authorizing judge issues processex parte with only the State providing the grounds for such authorization. Warrants and investigatory orders are typically issued in an ex parte manner. The real difference in the Vice scenario is the inability for the media outlet to argue, at the time of authorization, against issuance on the basis of s. 2(b) of the Charter. They can argue this upon review, but then the standard of review is no longer de novobut on the basis of Garofoli. 

Deference is the true standard here. By permitting a more contextual permissive approach, Moldaver opens the door to a moveable feast of standards for review that is appears tailor-made to the situation or facts (para 74 to 81). Moving away from deference may be fairer but it also creates a non-linear hierarchy within the issuance of such orders. It also replaces deference with the other “d” word – discretion. But with that discretion comes responsibility. I have written previously of the enhancement by the Supreme Court of the Gatekeepers function in the last decade. To me, this modified Garofoli is a further indication that the trial judge carries the integrity of the criminal justice system on their shoulders. So much so, that just as Newton has “seen further ... by standing on the shoulders of giants,” trial judges raise the public confidence in the criminal justice system to the highest level. They are foundational to our justice system. 

All of this tweaking may be meaningless considering the revisions to the Codeitself now providing for the special case scenario of journalistic sources and specifically those sources arising in a national security context. Yet, the Vice decision goes beyond parliamentary intent. Indeed, the minority decision of Justice Abella does just that. Her legal world view is not suggestive of the hard-boiled common-sense of the majority decision. Instead, Justice Abella calls out the majority by emphasizing the invisible undercurrent of the majority decision which resides in the Charterand the sanctity of the freedom of the press. If the majority can be stylized as a Raymond Chandler novel, then the minority is Clark Kent in the newsroom. Tweaking won’t do here but action. The level of action is not shoulder height but up in the blue sky. The minority decision reminds us of what is at risk when we diminish the freedom of the press to the margins. It also reflects the current conflicts we see in the world today. 

For Justice Abella, the time is “ripe” (para 109) for a new world view that provides for a distinct and robust freedom of the press in s. 2(b) of the Charter. Logically flowing from such recognition is the need to change the Lessardframework to fulfill this new world vision. Not only is this change required due to the enhanced delineation of media s. 2 (b) rights but is also required by the potential violation of the media’s s.8 privacy rights. Privacy rights, through previous Supreme Court decisions in Marakah and in Jones, have also been enhanced and emboldened by the social landscape. They too matter in the application of Lessard. The issuing judge still balances under this enhanced (not just tweaked) test but does so in the clear language of the gatekeeper (para 145). For Justice Abella, the vividness of Charter rights must be viewed with eyes wide open as the judge may issue the order only when “satisfied that the state’s beneficial interest outweighs the harmful impact on the press should a production order be made” (para 145). Notably, Justice Abella agrees with Justice Moldaver on the issue of prior publication, probative value of the evidence (para 149) and on standard of review (157 to 160). Essentials remain the same, but it is the context which changes. 

Context appears to rule in the rule of law. Context is important as rules should not be created in a vacuum. In the end, law cannot be wholly theoretical, or it fails to provide guidance. However, contextual analyses beget different world views and serve to underline the differences as opposed to the similarities. True, the Vicedecision is unanimous in the result but worlds apart in the manner in which the decision-makers arrived there. Maybe this is another new reality we must accept as we jangle and jostle our way through the everchanging urban legal landscape. Maybe we need to embrace context and loosen our grip on the hard edges of legal principles. Or maybe we won’t. And that is the beauty of context – it truly is in the eye of the beholder.

In the first step of understanding these sections, I will turn to a previous blog I wrote in 2012 entitled “Reading The Riot Act.”  In that blog, I posited that riots are embedded in our human psyche. In support of that position, I referenced a number of notable historic events where riots figured prominently for a variety of reasons. I also connect the sections presently in our Criminal Code with the now repealed UK Riot Act of 1715, which had the long title of An Act for Preventing Tumults and Riotous Assemblies, and for the more speedy and effectual Punishing the Rioters. The Act was originally a response to the increasingly common “rebellious” assemblies which threatened the “King’s Peace.” Be that as it may, our sections in the Code mimic the language and intent of this 300-year old law. This Act was ultimately repealed in 1973. 

Eventually, the UK replaced the Riot Act with another legislative instrument, the Public Order Act 1986. That Act abolished the common law offences, to which our offences are more akin, in favour of a modern version of assembly-based offences. These new offences are explicitly connected to the use or threat of “unlawful violence.” There are varying offences dependent on the size of the assembly. There is a “riot,” involving 12 or more people who share unlawful violence as a common purpose (s.1). Then a “violent disorder,” involving 3 or more people (s. 2) and an “affray,” which is directed to an individual (s. 3).  There are other offences, which could fill a podcast or blog, but I will refrain from that critical analysis in favour of our own legislation. 

In fact, our legislation also outlines varying degrees of behaviour but not to the extent of the newer UK version. Section 63 criminalizes an “unlawful assembly.” Such an assembly involves three or more persons “with intent to carry out any common purpose” who: “cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they (a) will disturb the peace tumultuously; or (b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.” Section 64 takes this one step further by creating the offence of riot in which the unlawful assembly “has begun todisturb the peace tumultuously.” 

The defining term for these offences is the word “tumultuously.” It is the lynchpin of the offence but is not defined in the Code and carries with it those historical connotations from the Riot Act. To understand the meaning of this word, case law is needed. In the Berntt case, involving the Vancouver Stanley Cup Riot in 1994, the defence argued the term “tumultuously” was overly broad and vague. The word failed to provide a clear understanding of the essential requirements of the crime. Without such clarity, the accused’s ability to make full answer and defence, as found in s.7 of the Charter, was compromised. 

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society in which Justice Gonthier emphasized the importance of using clear language in our legislation to permit meaningful legal debate. However, language, according to Justice Gonthier, is not a panacea for unclear laws as

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

With guidelines comes context and, in the end, the BCCA found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly.” Accordingly, “tumultuously” connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to common law England and the Riot Act. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration. 

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

Concealment of identity is another aspect of the offences under sections 63 and 64. These offences are found under section 65(2) for disguised rioters and section 66(2) for disguised persons in an unlawful assembly. The sections speak of someone wearing “a mask or other disguise to conceal their identity.” This offence can be viewed as an aggravated form of the offences involving rioting and unlawful assembly. The objective of criminalizing concealment is to protect the lawful investigation of crimes connected to sections 63 and 64. Someone who is rioting while wearing a disguise cannot be identified for purposes of arrest and prosecution. The offences also recognize the psychology behind rioting. Being anonymous can embolden some people to do acts they would not otherwise do. However, in an age of privacy, being unseen has value. Again, our laws must ensure that we are punishing concealment for the right reasons. Unlike section 351(2), which criminalizes the use of a disguise “with intent to commit an indictable offence,” sections 65 and 66 create an offence with no such specific intent. An individual may be convicted by the mere fact they are disguised while part of the riot or unlawful assembly. The intent required under s. 63 is to simply carry out a “common purpose,” not even requiring an unlawful common purpose as under the parties section in s. 21(2).

Another historical throw-back, still retained in these sections, is the requirement of an official who receives notice of a potential riot to disperse the unruly crowd through the reading of a proclamation as specified under section 67. This unenviable task requires the official, which includes a mayor or penitentiary official, to “command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect” as follows:

Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.

By virtue of the definition of who shall read this proclamation, it becomes clear that this section may assist in the circumstances of a so-called “prison riot” (see Thorne v R, 2004 NBCA 102 for an example of the reading of the proclamation during such an event). Of course, should the crowd fail to respond to this announcement within 30 minutes of its reading, the rioters are subject to prosecution under s. 68. Further, anyone who wilfully “opposes, hinders, or assaults” the reader, with force, will be subject to further repercussions under section 68(a). To add salt to the metaphorical wound, under s. 69, a peace officer who “receives notice” of a riot (not an unlawful assembly) is guilty of an offence should they not take “reasonable steps” to suppress the riot unless they have a reasonable excuse. This highlights the political significance of this section as it evokes images of those officials, sympathetic to the cause, who thus oppose the Crown or the government through inaction and passive acquiescence.

Reform of these sections seems sensible, yet the omnibus Bill C-75, which is due for t 3rd reading in the House does revise these sections but little. The Bill amends the punishment sections to hybridize the offences, permitting a Crown to elect to proceed by summary conviction as opposed to the straight indictable offence they are currently. This is hardly the kind of reform needed. Despite the Berntt decision and the narrowing of the meaning of the actus reus required to commit the offence to include violence, we need to ensure that in words and in aspect these sections reflect the kind of restrictions society expects and wants. The continued use of archaic terminology fails to adequately notify the citizens who are deeply connected to this kind of offence, the parameters of legal and illegal assembly. 

To make my point, I too will turn to history by discussing Rex v Patterson, an Ontario Court of Appeal decision from 1930. First, I want to reiterate that this decision applies the same sections in place today. Patterson was convicted of participating in a riot and the majority of the court of appeal upheld this conviction. Patterson was a labour unionist leading 800 unemployed people through the streets of Hamilton. We can all appreciate the desperation of the “dirty thirties” and the Great Depression that drove this event. The issue here was the parade through the streets involved a “restricted area” for which the crowd did not receive police permission to march through. Permission was sought but denied and Patterson deliberately decided to lead his people into the area. The mischief caused by those actions, according to the police, was to tie up traffic in the area and create an “unmanageable” crowd. Even so, there was no “physical violence doing bodily harm.” 

The majority decision of Justice Middleton, upholding the conviction, emphasized that although “the object of those who assemble may be perfectly innocent, even highly commendable, yet, if the circumstances, in the mind of the ideal, calm, courageous, and reasonable man, are such as to lead him to fear that the public peace is in danger, it is the duty of those assembled to disperse.” As result, Patterson was properly convicted. In contrast, the dissenting opinion of Justice Magee viewed the incident quite differently. The police advised the crowd that if they “conformed” to their direction to stay out of the restricted area, there would be “no interference.” However, should Patterson disobey their direction, there would be “trouble” and arrests would ensue. In terms of the restriction itself, according to Justice Magee, there was no proof as to why the area was restricted and on what legal basis. In fact, there was some evidence that the Chief of Police wanted no parade at all and if it did happen, Patterson would “suffer.” The dissent emphasized that even if Patterson may have been in breach of some City by-law, it was far from a criminal offence as,

So far as the evidence before the Court goes, the men were entitled, like other citizens, to go along any street so long as they conducted themselves properly. From beginning to end there is no hint that they did not obey the ordinary traffic regulations or that there was any difficulty or undue interference with others or by others with them. They excited no hostile feelings. They gave no evidence of intention even to resist the police. They expected arrests, but there is no indication that they intended to do otherwise than submit to arrest, as the appellant in fact did, and as others do, to test the legality of the acts of persons assuming authority. The police officer says there was no violence. Section 87 of the Code is aimed at disturbance of the peace tumultuously or provoking it. Here nothing of the sort was intended or occurred. There was not even disturbance of traffic, except that caused for a few minutes by the police themselves unwisely stopping the procession at the intersection. 

This decision is a stark reminder that a protest is truly in the eye of the beholder. As Justice Fish said in paragraph 71 of R v Levkovic, 2013 SCC 25 that  

Indeed, the doctrine against vagueness cannot be satisfied by inaccessible laws.  It is not enough for laws to provide guidance to legal experts; laws, as judicially interpreted, must be sufficiently intelligible to guide ordinary citizens on how to conduct themselves within legal boundaries.  As McLachlin C.J. explained in Mabior (in a passage more fully set out above): “It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act” (para. 14). 

 It is time for our laws on assembly to reflect this sentiment to ensure that our right to peaceably assemble remains articulable to the people for whom this form of public expression is a fulfillment of their democratic ideals. We also need to ask whether there are there better ways to control a crowd and whether there are other, less intrusive, offences available in the Criminal Codeto combat such unlawful conduct.

 Crowds, protests and even uprisings have different purposes depending on the time, place and space of the event. Just like people, crowds are complicated and engage all of the behavioural tools we have available in our society. Although difficult, to respond in an effective legislative manner requires a thoughtful review of the past and of the human condition. Thoughtful, but perhaps not dispassionate, as we need to recognize a crowd for what it truly is, which is an emotional expression of the inner workings of our society. The Code, as a societal document, must be a meaningful part of that discourse.

First, a civil contempt primer is in order. Civil contempt arises from English common law, although it can now be grounded in statute. It is a tool used by the civil courts to enforce court orders and to maintain the integrity of court proceedings. To be in contempt in the eyes of the law is to be in disobedience of that self-same law. Contemptuous behaviour cannot be countenanced and must be severely punished. A loss of liberty can be the result. A loss of legal rights is inevitable. Yet the kinds of behaviour captured under the rubric of civil contempt is varied. For instance, civil contempt proceedings can occur in the context of a self-represented suitor failing to attend case management meetings (Pintea v Johns, 2017 SCC 23 where the Supreme Court vacated the declaration of contempt) or when lawyers fail to comply with a Mareva injunction by disposing of assets as in Carey v Laiken, 2015 SCC 17(Carey) or when First Nations engage in a peaceful blockade contrary to court injunctions (Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534). Civil contempt covers a wide net. It can arise from family matters, labour disputes, and environmental rights. An order of the court is one thread that binds them all. 

 Although a common law tool, it is found statutorily as well. It is in the statutory powers where civil and criminal law straddle the divide between them. In the Criminal Code RSC 1985, c C-46, for instance, section 127 creates a blanket offence for when any person, “without lawful excuse,” “disobeys” a court order, other than an order for monetary compensation. As worded, this offence can apply for non-compliance of a civil court order. Even so, this offence, although broadly engaged, is an offence of last resort. It cannot be utilized if there is another recourse, “expressly provided by law,” available. 

There are indeed other statutory recourses to the criminal law. Turning from the Criminal Codeto the Alberta Rules of CourtAR 124/2010, Part Ten, Division 4, provides a mechanism for non-compliance with rules of court and interference with the administration of justice under Rule 10.49. Civil contempt of court is found under Rules 10.51 to 10.53. These Rules specify the entire civil contempt regime including the process used to bring the alleged contemnor before the court (Order to Appear pursuant to Form 47, which can double as an arrest warrant), the mechanism for finding a person in contempt (Rule 10.52), and the possible punishment such as imprisonment “until the person has purged the person’s contempt” (Rule 10.53). Rule 10.52(3) provides criteria for declaring a person in civil contempt with the caveat that no such declaration will ensue should the person have a “reasonable excuse.” Similar powers are found for provincial court matters under s. 9.61 of the Provincial Court Act RSA 2000, c P-31. There, however, no such contempt declaration is made if the person furnishes an “adequate excuse.”

In the lower court decision in Envacon (2017 ABQB 623), Associate Chief Justice Rooke declared the Appellant/Defendant 829693 Alberta Ltd in civil contempt pursuant to the criteria enumerated under Rule 10.52(3) of the Alberta Rules of Court. The contempt related to a failure of 829693 Alberta Ltd to produce financial statements in accordance with three production orders issued by the case management justice. To assist in interpreting the requirements under the Rules, the Associate Chief Justice applied Alberta case law arriving at four key elements of a civil contempt declaration (Envacon QB at para 17). First, was the requirement for court orders to produce the statements. Second, was the notice requirement to 829693 Alberta Ltd of those orders. Third, was proof that the failure to produce was as a result of “an intentional act of a failure to act” on the order. Fourth, was the requirement, on a balance of probabilities, that the failure to act was performed without “adequate” excuse. 

As all elements were established, a contempt finding was declared. The remedy or more properly the punishment for the contempt was to strike the pleadings of 829693 Alberta Ltd should they continue to be in non-compliance with the orders. Solicitor and client costs for Envacon were also granted (Envacon QB at para 31). On appeal, the Court of Appeal found the first and second production orders were not “clear orders” and vacated the contempt relating to them (at para 68). The third production order, however, was clear and unequivocal requiring 829693 Alberta Ltd to produce the statements (at paras 14, 29 and 67). This left two real issues on appeal: whether 829693 Alberta Ltd failed to comply with the order and if so, whether 829693 Alberta Ltd had a “reasonable excuse” for that non-compliance. Ultimately, the Court of Appeal found 829693 Alberta Ltd did fail to comply with the order and there was “ample support” for the conclusion the corporation had no reasonable excuse (para 58). On the final issue of the remedy, the appellate court varied the penalty by removing the potential striking of 829693 Alberta Ltd pleadings and granting Envacon “costs on a solicitor and client basis” not on “solicitor and own client costs” (at paras 67 and 69. See also Twinn v Twinn, 2017 ABCA 419 for a discussion of the differences between the two forms of costs at paras 23–28).

The issues arising from this appeal are inter-related. A failure to comply may be connected to a reasonable excuse for doing so. A remedy is reflective of the context of the contempt and the corrective influence such a remedy may have. In other words, is the contempt power used to punish or is it used to coerce compliance? Is the court maintaining integrity of its processes or is it using the sanction, as in criminal law, to show the disapprobation attached to the contemptuous conduct? Here again we see that bright-line division between criminal and civil matter.

It is this bright-line which previous case law on civil contempt attempted to illuminate. In the 2015 Careydecision, Justice Cromwell at paragraph 31, commences discussion of the elements of civil contempt by comparing civil contempt with criminal contempt. According to the Court, criminal contempt required an element of “public defiance,” while civil contempt was primarily “coercive rather than punitive.” The Carey decision rightly demarcates criminal and civil contempt by invoking the traditional dividing line between the two areas of law. This public nature of criminal law versus the private matter of civil suits lends a contextual framework to the law of civil contempt as delineated in Carey and in Envacon. Although residing on two sides of the same coin, there is still a public aspect to civil contempt. The disobedience of a civil court order can add time and expense to a civil case, reducing access to the courts and impacting the administration of justice. In the era of Hyrniak v Mauldin,2014 SCC 7 and Jordan, 2016 SCC 27, where civil and criminal justice is at risk due to a complaisance attitude toward trial fairness, “public defiance” has a new and more robust meaning. Further, in certain circumstances, there can be a punitive dimension to civil contempt to highlight the public interest need for deterrence and denunciation. The higher standard of proof also recognizes the public dimension of civil contempt. In such a finding, the public is not indifferent but is engaged through the lens of public interest. The Envacondecision recognizes the overlapping aspects of contempt by requiring judges to impose remedies consistent with the specific objective of the original order. 829693 Alberta Ltd was required to produce financial statements as part of case management in order to “permit proper adjudication of the claims” (at para 67). The failure requires a coercive response not punishment.

The public versus private distinction not only impacts the remedy but also the interpretation of civil contempt requirements. The failure to comply is not an intentional or deliberate disobedience of the order itself. Rather, it is an intentional act to fail to act in accordance with that order. The difference is subtle yet essential. In the first instance, requiring intent to disobey the order, the fault requirement is high, consistent with the high level of subjective mens rea typically required for murder (intent to kill) or robbery (intent to steal). Such a high level of intention or, as Justice Cromwell in Careycharacterized it, contumacious intent, would “open the door” (Carey at para 42) to unjustifiable arguments against a declaration of contempt. The focus would no longer be on the act that creates the disobedience. Instead, the contemnor could argue there was no intention to disobey as they were mistaken as to the import of the order or they misinterpreted it, despite the order’s clarity. Such a situation would be incongruous. As suggested by Justice Cromwell, as he then was on the Nova Scotia Court of Appeal in TG Industries Ltd. v. Williams, 2001 NSCA 105 (TG Industries), it would provide a mistake of law defence for civil contempt when such a defence would be unavailable for a murder (TG Industries at para 11). Thus, the criminal and civil law analogy only goes so far. Civil contempt is firmly not criminal and the application of criminal mens rea principles have no place in the determination. 

In the case at hand, 829693 Alberta Ltd did not produce the financial statements (Envacon QB at para 17). There was some argument that the statements were not in 829693 Alberta Ltd’s power to produce as they were lodged with the CRA and the IRS. 829693 Alberta Ltd wrote to these organizations and provided the production order with no success. The requests made, however, were not in proper format (Envacon ABCA at para 23). Finally, the CRA sent documents, which were not complete. 829693 Alberta Ltd did not contact the CRA for explanation or with a further request (Envacon ABCA at para 26). Efforts with the IRS were no better (Envacon ABCA at para 27). The court of appeal agreed with Rooke ACJ that 829693 Alberta Ltd did not act with “a sufficient degree of due diligence” in attempting to comply (Envacon ABCA at para 28). 829693 Alberta Ltd thereby intentionally failed to produce as required by the order.

This finding, although logical, does impact the role of “reasonable excuse” in the contempt finding. If a finding of intentionally failing to act involves a due diligence discussion, then what kind of discussion is needed to determine if the person was acting without reasonable excuse? Is due diligence different than reasonable excuse and if so how? Carey is silent on this. Rooke ACJ considered both issues separately. In paragraphs 19 to 21 of his decision, Rooke ACJ found an intentional failure to produce based on a number of factors including that the order requirements were clear, that there was in fact no production of those statements, and that requests were “inadequately made” on the basis 829693 Alberta Ltd was “going through the motions,” the request lacked specificity and there was no “follow up.” (Envacon QB at para 21). Although “due diligence” is a loose summary of Rooke ACJ’s finding on that aspect, the discussion of “adequate excuse” ran much deeper. It is in that review, where the court is clearly going beyond the discussion points on 829693 Alberta Ltd’s failure to act. For instance, at paragraph 22, Rooke ACJ finds 829693 Alberta Ltd to have obstructed justice in the sense that their efforts to produce the statements from the CRA and the IRS was not the point. The point was their ability to produce by other means such as recreating the documents.

The Court of Appeal considered how the ruling in Careyon the intent required for civil contempt impacted the reasonable or adequate excuse requirement. Carey, in their view,did not change this requirement. Admittedly, Justice Cromwell in Carey did not directly discuss the impact of the reasonable excuse requirement. He did find the contemnor “was in contempt and his obligations to his client did not justify or excuse” the failure to comply with the Mareva injunction (Careyat para 3). However, on a review of the TG Industries decision, written by Justice Cromwell when he was on the Nova Scotia Court of Appeal, he suggests such an analysis may be pertinent to the discretion wielded by the judge after a finding of contempt (comments on the due diligence defence at paras 31 and 32). This is further supported by Justice Cromwell’s comments in Carey on the three elements of civil contempt, none of which include contemplation of an excuse, reasonable or otherwise (Careyat para 32). This omission may be explained by the context of Carey, which applies Rule 60.11 of the Ontario Rules of Procedure RRO 1990, Reg 194. That rule sets out contempt procedure but offers no criteria for a finding of contempt except that it may be found when it is “just” to do so. This is in contrast with the Alberta Rules that have clear requirements including a reasonable excuse determination.

The Court of Appeal does not, however, focus on these statutory differences but on the criminal/civil law differences. In their view, the discussion in Carey was about the level of intent needed for contempt, a classic criminal mens rea or fault element issue (at para 36). This did not, in their view, impact the reasonable excuse requirement, which, in the case of contempt, could impact actus reus or conduct (at para 37). By applying criminal law nomenclature such as actus reusand mens rea, the court is drawing an analogy between civil contempt and a criminal offence. Yet, the classic criminal law definition of an excuse given by Justice Dickson, as he then was, in Perka v The Queen, [1984] 2 SCR 232, 1984 CanLII 23 (SCC), suggests otherwise. An excuse, according to Justice Dickson, applies after the mens rea andactus reus are proven as it “concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor”(Perka at p 246). A successful excuse defence will result in an acquittal. The problem in Envacon is not whether the court properly identified whether the excuse pertains to mens rea or actus reus. The true problem with the decision lies in the use of the criminal law analogy in the first place. Civil contempt is not a criminal offence. The overlay of criminal law concepts onto civil contempt simply does not work. 

This ab initio error leads the court to further suggestive reasoning. At paragraph 37 of Envacon, the court explains how a reasonable excuse can relate to the actus reus, 

Particularly in the case of mandatory orders, an alleged contemnor may argue that his or her failure to do what the court required was not intentional. In these cases, a finding of contempt will turn on whether the alleged contemnor did enough to bring about the result the court order required. This enquiry is distinct from the question of mens rea or contumacious intent, which was at issue in Carey. Thus, not all “reasonable excuses” encompassed by rule 10.52(3) are excluded by the Supreme Court’s rejection of contumacious intent as an element of contempt.

The inquiry of whether the alleged contemnor “did enough” seems to be connected to whether they intentionally failed to do the act as required by the order, which Rooke ACJ did contemplate during discussion under paragraphs 19 to 21 of his judgment, separate from the “adequate excuse” discussion following those findings. The court of appeal appears to be conflating the finding of a failure with the reasonable excuse requirement. The reference, in paragraph 38 and 39 to Justice Cromwell’s position in Carey, that due diligence may be considered after a finding of contempt, hardly supports the court of appeal’s reasoning. As indicated earlier in this case commentary, Justice Cromwell’s position seems to weaken the applicability of reasonable excuse, not strengthen it.

Note as well the fluidity between the qualifier of that excuse as found in the various statutory pronouncements on civil contempt. There is “reasonable” excuse in the revised Alberta Rules as opposed to “adequate” excuse as indicated in the previous iteration. All of adjectives are further compared to the Criminal Code version of contempt with “lawful” excuse being the requirement. Although the Court of Appeal does not differentiate between these types of excuses, they should. Is the change in wording from adequate to reasonable mean anything in terms of meaning? If not, then the argument may be stronger for a civil view of cvil contempt. Certainly an “adequate” excuse suggests a much lower standard than even due diligence, which “reasonable” might invoke. Either way, comparing that terminology to “lawful” as required under the criminal law version of contempt puts us squarely into criminal law nomenclature. Such a term brings into the assessment those excuses defined by law or as found in other statutory authority. A much higher standard than merely due diligence.

The court of appeal, having found reasonable excuse as an element of civil contempt, discusses the burden and standard of proof for that element. It should be recalled that Rooke ACJ in assessing “adequate excuse” relied on previous Alberta case law that “once the actus reus of contempt is proven beyond a reasonable doubt, the contemnor may respond, on a balance of probabilities, with evidence and argument intended to try to demonstrate justification” (Envacon QB at para 23 and see FIC Real Estate Fund Ltd v Lennie, 2014 ABQB 105).Here again, Carey provides little assistance other than reiterating the ultimate standard of proof as proof beyond a reasonable doubt. There is no due diligence defence specifically contemplated in Carey and thus no need to suggest a different burden for the reasonable excuse requirement. 

It is also difficult to have a discussion on the burden of proof issue considering the clear message from Carey that civil contempt should be distinguished from criminal contempt. As such, civil contempt is unique and should not be viewed through the criminal law lens. There is no other civil construct requiring this high criminal standard. However, this high standard is required, not because civil contempt is criminal law, but because of the potential loss of liberty. It is the criminal law-like sanction that attracts the high standard not the criminal quality of civil contempt. The court of appeal by applying a criminal template to civil contempt obscures the real issues in the Envacon case.

In fact, the court of appeal had two viable options. The first option would be to find that reasonable excuse is subsumed by the Careycivil contempt elements and is not a separate decision-making requirement. The second option would be more consistent with Carey and TG Industries by finding reasonable excuse applies after the finding of contempt. Thus, reasonable excuse would have a gatekeeper discretionary function. Acting as a concession to human or corporate frailty, so to speak. Instead, the court of appeal entered into a regulatory offence type of discussion on burdens of proof and whether the burden shifted on the alleged contemnor to satisfy the court they had a reasonable excuse on a balance of probabilities. The court of appeal preferred to find that neither the legal or evidential burden shifted but that, depending on the circumstances, a prima facie case may require the contemnor to proffer some evidence of an excuse (para 48). This preference is no doubt resulting from the uncomfortable fit a shifting of the burden would be considering civil contempt is not prosecuted and is a judge-led determination. Nevertheless, making evidence of an excuse a tactical or strategic requirement makes good sense, but it still muddles the issues. The court of appeal in many ways creates something out of nothing and lends a criminal law nostalgia to a uniquely civil common law tool.

Civil contempt proceedings are not unique in Alberta. According to a CanLII database search, Alberta has 384 case decisions on civil contempt, second only to Ontario with 393 decisions. Civil contempt is an important expression of the court’s obligation to protect the integrity of the administration of justice. It is a powerful tool, which must be wielded carefully and sparingly considering the potential dire consequences. The stakes of a civil contempt finding are incredibly high as loss of liberty is possible and a loss of access to justice is inevitable. In an age where the spotlight of public confidence centres on the courts, civil contempt deserves clarity. The decision in Envacon may have cast more shadows on an area of law which appears to be cast in a light of its own.

First a note about Jonathan Rudinwho has dedicated his life’s journey to the recognition of our legal failures in our relationship with Indigenous people. His pathway through this book has been straight and true as he himself created legal institutions and legal principles, through his professional work at Aboriginal Legal Services, to ensure no Canadian forgets these failures. He has worked hard to turn these failures into positive developments. This book is indicative of his work and a testament to it. 

The book opens as any legal treatise might by offering a literature review highlighting the systemic issues. But this is no ordinary literature review as page after page, Rudin summarizes each of the 13 Inquiries and Reports tabled since 1989, which have ruminated on Indigenous people in the criminal justice system. Starting with Donald Marshall Jrand ending in the 2015 Truth and Reconciliation Report, it becomes evident that for almost 30 years our system has expounded on these legal failures. It is equally clear, that for an equal number of years we have done little to nothing to change the gross inequalities inherent in our society which have caused those failures. There are an inordinate number of recommendations and a paucity of resulting change. This singular truth haunts the reader and compels us forward as we read page after page of case law steering us through those failures which have come to us through excruciatingly slow and deliberate steps. 

And yet for all of our legal slowness, the impact of Gladue, as discussed in this book, is not so much celebrated as it is waved as a flag of defiance in support of a future that will move faster and with purpose. The purpose being to eradicate the discriminatory practices which have given the statisticaltruths of Indigenous overrepresentation in our legal systems their quality of hardness and bitter remorse. In the last part of the book, we revel in the promise of the extension of Gladueprinciples into every nook and cranny of our legal systems. From sentencing to bail and beyond into military and civil justice, we see a glimmer of what our law can be should we take up the task offered by this book. Indeed, no lawyer even on the margins of practicing law, should put this book aside without thought to what they can do to bring about meaningful change.

Meaningful change can be found in this book. Woven between the pages are suggestive kernels of knowledge that each of us can take back to our law practices, court rooms, and law schools. There is, for example, a telling passage on Aboriginal English (and French), taken from the ground breaking work of Australian Socio-linguist Diana Eades, which can leave one with the kind of “aha” moment needed to create innovative approaches to intractable problems. There are many such veil lifting moments in this book.

Another change moment appears in the chapter dedicated to Indigenous courts as organic entities, holding the promise of a more responsive and proportionate Canadian legal system. This chapter holds real meaning for me, as on June 21, 2018, The Donald Marshall Junior Centre for Justice and Reconciliationwas opened on the Nova Scotian Wagmatcook Reserve. The Centre holds provincial and superior courts incorporating Indigenous justice traditions and healing. It is the embodiment of the kind of change willed by Rudin’s book.

Often we say that truth is stranger than fiction, in the case of this practitioner’s handbook, we can say that truth, like good fiction, can move us to do great deeds. Although the book can be considered a legal treatise, it shows that the law does not need to speak in code to be understood. It is a book which I will keep on my shelves and unreservedly recommend to any future or present legal practitioner. It is a book for sharing and for shared dialogue on what we can do in our profession to right the wrongs of the past. Most of all, however, it is a book offering the promise of a better future for Indigenous justice to be read and fulfilled by us all.

Although apparently straight forward, appearances in the regulatory world are not as they seem. Even the facts of Precision suggest the dichotomy that is regulation. On a high-level view, the incident is straight forward: a worker is involved in a workplace incident and suffers serious injuries. But when the trial court wades into the minutiae of the moments surrounding the incident, the factual matrix becomes complex and more nuanced. The simple incident devolves into an evidentiary whirl of drilling rig operations and oilfield “jargon” (at para 8). Arising from this factual cacophony is an incident involving manipulation of a machine by more than one worker creating a toxic mix of automation and human fallibility. The result is tragic.

However, the facts alone do not reflect the entire legal narrative. They must be viewed through the legislative scheme, adding an additional layer of intricacy. The defendant company was charged with two offences under the Alberta Occupational Health and Safety Act, RSA 2000, c O-2 [OHSA]. One offence was of a general nature invoking a general duty under s. 2(1) of the OHSAto ensure the health and safety of the worker “as far as it is reasonably practicable for the employer to do so.” The other more specific offence, found under the Occupational Health and  Safety Code 2009, Alta Reg 87/2009 [Safety Code], sets out, in regulatory fashion, the detailed rules of workplace engagement (at para 38). The specific rule allegedly breached was s. 9(1) of the Safety Code, requiring the company to take measures to eliminate identified workplace hazards or, “if elimination is not reasonably practicable,” to control them. Unsurprisingly, these two offences are not self-contained but overlap; a not unusual occurrence in regulatory enforcement. 

This overlap in offence specification also results in an overlap in the factual foundation. Even so, at trial, the prosecutor took different legal approaches in proving each charge. The offences are strict liability offences, a form of liability proposed in R v Sault Ste Marie, [1978] 2 SCR 1299[Sault Ste Marie]. This requires the prosecutor to prove the actus reus beyond a reasonable doubt, from which the fault element would then be inferred. Upon such proof, the burden of proof shifts onto the defendant to prove, on a balance of probabilities, they exercised all due diligence or took all reasonable steps to avoid liability. This formula for strict liability remains unchanged since the seminal decision of Sault Ste Marie.For instance, in La Souveraine v. Autorité Des Marchés Financiers, [2013] 3 SCR 756[La Souveraine], the Supreme Court’s most recent discussion of due diligence requirements for regulatory offences, the court reiterates these basic elements as essential for the fulfilment of regulatory objectives of public welfare and safety (La Souveraineat para 54). Effectively then, the due diligence defence rebuts the presumption for fault. The onus rests on the defendant to discharge this burden on the premise they have the best evidence of the reasonable steps and industry standards required to proffer such a defence. For the prosecutor, proof of the actus reus is of vital importance in founding a conviction. 

 Consistent with this strict liability notion, the prosecutor in Precision, for the general duty offence under s. 2(1) of the OHSA, relied upon “accident as prima facie proof of breach” pursuant to R v Rose’s Well Services, 2009 ABQB 1[Rose’s Well]. The Rose’s Well decision considered the same section in arriving at this position (Rose’s Well at para 68 and Precision at para 5). Quite simply, this was an “I think therefore I am” position: there was an accident, the worker was harmed, and Precision Corp. was the entity directing such work, ergo the prosecutor has proven the actus reus beyond a reasonable doubt shifting the burden onto the defendant. The more specific Safety Code offence, however, required a more detailed analysis of the actus reus. In neither of the offences did the prosecutor prove, as part of the actus reusrequirements, what was “reasonably practicable” in the circumstances. This, the prosecutor submitted, was a matter of proof for the defendant as part of the due diligence defence. The trial judge agreed, convicting Precision Corp. of both charges. 

On summary conviction appeal, the judge found errors in this approach. Although the “accident as prima facie proof of breach” could be sufficient to prove actus reus in some cases, it was “not a strict rule of law” (at para 27). At trial, the prosecutor failed to prove the commission of a “wrongful act” and as such failed to prove the required actus reus components of the general duty charge.  The “wrongful” part of that act could be found, according to the summary conviction judge, in the failure of Precision Corp.to do what was “reasonably practicable” to avoid the harm as required of the section. This phrase “reasonably practicable” was an essential element of the actus reusand without this evidence, the charges could not be made out. The appeal was allowed, and acquittals entered. It is that distinctive “reasonably practicable” phrase, which colours the meaning of the facts and in turn presents difficulties in discerning the not so bright line between actus reus and mens rea in the alleged contravention of general duty in a regulatory statute such as that set out in s. 2(1) of the OHSA.

This means that, unlike most appeals, the facts frame the issue and drive the legal principles. The conversation immediately devolves into a part legal, part factual debate on causation and fault, which requires a deeper dive into the facts. Even the characterization by the summary conviction appeal judge of the act as “wrongful” raises the level of the discourse up a notch. But how deep must the prosecutor go when it is a regulatory offence and not a criminal one? The exacting standards required of a criminal case gives way when the overarching objective is public welfare. Yet, where that line is to be drawn is an ongoing moving target that at some point must give way to clarity and immobility. An incident happens but how much detail is required for the prosecutor to meet the burden of proof? An incident happens but is it merely an unforeseeable accident? An incident happens but is it preventable and did the company do all that is “reasonably practicable” to prevent it? Already the factual matrix broadens into a general discussion of the company’s duty of care and the standard on which they must discharge that duty. However, in the world of actus reusand mens rea, as borrowed from the criminal law, the lines between act and fault are rigidly applied. The main issue in Precision is whether the lines as drawn in previous case law are workable in this regulatory regime of occupational health and safety.

 The majority, written by Madam Justice Veldhuis — yes, this is a split decision of the court suggesting this principle may have a future in the higher court — finds the phrase “as far as it is reasonably practicable for the employer to do so” is an active part of the actus reus. The minority decision of Justice Wakeling takes the opposite view, leaving the issue of reasonableness to the fault element analysis required in considering due diligence. Although the lines are drawn inPrecision, they are not written in stone. There are problems with both the majority decision and the dissenting opinion in this case, problems that are inherent to the regulatory/criminal law divide.

 For instance, this slippage from actus reus into mens rea seems natural when considering regulatory offences. La Souveraine, one of the more recent decisions of the Supreme Court on regulatory matters, makes this point. There, Justice Wagner, as he then was, for the majority of the court makes preliminary comments on the jurisdiction of the court to hear arguments on actus reus issues when leave was granted on the basis of mens rea due diligence concerns (La Souveraine at para 20). Justice Wagner finds the two issues “inextricably linked” (La Souveraine at para 26) and therefore the jurisdiction to consider both was evident. 

Here too, in Precision, it is difficult to separate the two concepts. In some ways this inability to distinguish clearly between the prohibited act and the fault element results in the finding of the majority in Precision that proof of what was “reasonably practicable” must be proven by the prosecutor as part of the actus reus. This circularity is embedded in the creation of strict liability as the compromise “half-way house” form of liability in Sault Ste Marie (at pp 1313, 1315 and 1322). According to Justice Dickson, as he then was, in Sault Ste Marie, this purely regulatory type of liability was needed to relieve the harshness of the absolute liability offence for which a defendant has little ability to defend themselves. Strict liability also assuages the concerns inherent in subjective liability offences, which by nature mimic the full mens rea requirements of proof from criminal law. Instead, strict liability permits a contained but fair due diligence defence; a defence mirroring the regulatory obligations of the defendant, yet in a manner which relieves the prosecutor from climbing into the psyche of the defendant and taking on the defendant’s expertise and knowledge  to prove a fault element beyond a reasonable doubt. With strict liability, the prosecutor need only prove beyond a reasonable doubt the objective facts of the actus reusthus triggering the response from the defendant to show they acted duly diligently. Key to this form of liability is the inference drawn from the actus reus of prima facie proof of the fault element. It is in this half-way form of liability where the mens rea or fault element can be found in the actus reus, binding the two concepts together. It is no surprise then that the majority in Precision sees the need for proof of a mens rea type concept as part of the actus reus, where, based on statutory interpretation, the legislature specifically emphasized the need for it. Without such a finding, the phrase “reasonably practicable” would have little to no meaning. 

But does it have meaning on this reading? Or is it merely a euphemism for “show me the facts.” Is not the reality of the majority decision in Precision merely another way of putting the prosecutor on notice that, with this offence as it is worded, they cannot simply rely on the surface facts of an accident but must do their own “due diligence” by leading evidence of the circumstances surrounding the incident? 

Notably, the majority’s decision may parallel similar findings in careless driving prosecutions, where actus reus and mens rea elements are interconnected and provide mutual meaning. In a recent decision from the Ontario Court of Justice in R v Gareau, 2018 ONCJ 565, the Justice of the Peace considering the issue made insightful comments on the “unique nature” of the actus reus found in careless driving under the provincial legislation (para 48). JP McMahon correctly points to the essential actus reus component of the charge involving a failure to meet the standard of a reasonably prudent driver (see also R v Shergill, [2016] OJ No 4294 (QL) at para13). Proving this, the JP opined, “easily leads to confusion” as negligence becomes part of the actus reus proof process (para 48). The “practical effect” of this, according to the JP, is that a defendant will be acquitted if the defendant is able to raise a reasonable doubt as to whether they were driving below the required standard. Raising a reasonable doubt is all that is needed as the standard of care forms part of the actus reus, which must be proven by the prosecutor beyond a reasonable doubt. Raising a reasonable doubt, as suggested by the JP McMahon (at para 49), is an easier burden to meet than the standard of proof on a balance of probabilities, which is required for a due diligence defence (See R v Wholesale Travel Group Inc, [1991] 3 SCR 154at pp 197–198 [Wholesale Travel]). The same can be said of the Precision decision by importing reasonableness into the actus reus, the enforcement mechanism weakens, bringing into question whether the objectives of regulatory regimes are being advanced.

As with all that is regulatory, the Precision decision engages a myriad of tough issues. So tough, in fact, that the court of appeal required further argument on a number of specific issues, which resulted in a divided court (at para 31). It is telling that this re-focus was required as the parties drifted back into the mens reaor due diligence tropes. As Gareau reminds us, looking at actus reus where a duty of care is involved is like looking into the fun house mirror that endlessly repeats the same image. Regulatory mind tricks aside, the issues in Precision span the legal repertoire with concerns involving the viability of long-held legal principles, application of the rules of statutory interpretation, proof and procedural requirements. All of this, of course, is in the context of promoting the pressing and desired societal objective of ensuring a safe and healthy workplace environment. 

Regulation of legitimate activities is a sign of good government and is at the core of our democratic ideal. Of course, there is room for a robust debate on the quantity of regulation needed. Naysayers tend to depict a “nanny state” where our lives are burdened with rules, while those in favour look to the benefits of regulation as providing incentives or nudges to individuals to make those safe and healthy life choices. Whichever side one takes, we all agree that, particularly in the workplace regulation is needed and the proper incentives to comply, considering the potential harm, must be vigorously enforced. Precision presents a situation, however, that is all too familiar in the regulatory field: when it comes down to the mechanics of enforcement, who is in the best position to bear the burden of proof and cost? More important is the question of which approach will promote the objective of providing the right kind of incentive without severely impacting the real economic benefits of such activities.

The added difficulty, as exposed in Precision, is the reality of the regulatory regime. In the regulatory world, there are no clear edges of the criminal law; rather, there are blurred signposts where the law is part criminal, through the application of criminal law concepts and terminology, and part civil law, as the conduct complained of are not true crimes like murder or theft but engages what we would consider legitimate activities. We want to promote those activities, but we also want to ensure these legitimate activities are performed mindfully, to use a new age term. Mindfulness means we need to recognize we are part of a collective of individuals all doing our own thing but doing it in the same space as one another. We want to be sure people conduct themselves with the other person in mind; when we mow our lawn, when we smoke a cigarette, and when we work, for example. Work, play, and leisure time is not, therefore, truly our own. Underlying this is our drive toward the market economy as we want to incentivize people and corporate entities to strive for innovation and production. In criminal law terms, this is foreign; we want to incentivize people to make the right choices, but we do not concern ourselves with how they make them, as long as they are within the boundaries our criminal law has set for them. Does it therefore make sense — common sense — to impose on the regulatory world criminal-like requirements when the two worlds, criminal and regulatory, are objectively and subjectively not the same?

As recognized by the Supreme Court in a number of decisions (See e.g., Beaver v The Queen, [1957] SCR 531, Sault Ste Marie, and Wholesale Travel), there are fundamental differences between the criminal justice system and regulatory regimes. Justice Cory in Wholesale Travel succinctly described those differences: “criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care” (at p 219). Thus, the two systems are different yet, “complementary” (La Souveraineat para 90). Complementary does not mean one system eclipses the other. Complementary suggests one needs the other. Criminal law underlines our fundamental values and collectively speaks out when egregious wrongs are committed. Regulatory law safeguards the public interest and creates a safe place for us to live. We need both. It is therefore, as suggested by Justice Wagner in La Souveraine “essential not to lose sight of the basic differences between the two systems and, as a result, to weaken the application of one by distorting the application of the other” (at para 90). In the context of Precision, this caution can be applied to the fallacy of reading into the regulatory field the ill-suited rigidly defined criminal law concepts. For in the regulatory regime the individual rights paradigm is not paramount. Rather, the public good is supreme.

What will be the fallout from this decision? Certainly, prosecutors will be mindful of their proof and particularization obligations under the pertinent sections of OHSA. The exact phrase, “as far as it is reasonably practicable for the employer to do so” is integral to this legislation and the previous iterations of this section. Yet, a CanLII search reveals 561 legislative references to the phrase “reasonably practicable” in many occupational health and safety regulations across the country, covering everything from length of ladders (See s. 9 of the Federal Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations, SOR/2015-2) to general duties of employers in Saskatchewan (See s. 3 of The Occupational Health and Safety Amendment Act, 2012, SS 2012 c 25). This decision reaches far and will reverberate in the workplace and the many “textbook” examples of public welfare legislation (Precision at 46), where a duty of care is required. It may also prove to be the Supreme Court decision which will precisely describe the constituent elements of a regulatory offence. This, we hope, will not be done in criminal law terms but in a manner befitting the objectives of our regulatory regimes.

How do I come to speak to this matter? I am by trade a criminal defence lawyer and have been so from my early days of law school in the mid1980s. I have conducted preliminary inquiries, I have argued about them as appellate counsel, and I have written about them as a now law professor. Indeed, I have been rather vocal about the preliminary inquiry and these proposed changes. I hope my Brief and this opening statement will shed some light on why I believe the preliminary inquiry, albeit in a different structural format, is worth saving. 

But first, I will open with a personal story. A story I often repeat to my students when asked which case most significantly impacted me in my early career. The day after being called to the Bar in 1989, I received a case from one of the lawyers sharing space with the law firm for which I was employed. 

The preliminary inquiry was only 2 days away. The client, who was detained in custody, was charged with an attempt break and enter with the intent to commit an indictable offence. The maximum punishment for the full offence, as it involved a dwelling house, would have been life imprisonment but as an attempt it was punishable by fourteen years. Still a significant term. As an aside under the new proposed amendments such a preliminary inquiry would not be possible. 

 It was rather a pathetic and all too familiar story. The client was found loitering in front of a home on the sidewalks of Rosedale holding a pointy and frayed stick. He appeared to be intoxicated. The police were called. Upon investigation of the nearby home, it appeared that the front door lock was freshly scratched with bits of paint that appeared to be derived from the client’s pointed stick. Appearances, however, may be deceiving, Upon review of the file, I recommended to the client we argue against committal at the preliminary inquiry. Needless to say, Judge George Carter agreed. The client was discharged and immediately released. This preliminary inquiry changed his life. He had a lengthy record and was an alcoholic, but this change in his fortunes gave him hope. He straightened out, went back to school and became a youth worker in a young offender facility. Ultimately, he attached himself to the UN peacekeeping tour of Bosnia and he never looked back. 

 I know I was asked here based on my academic credentials and writing in the area but to me there is no clearer evidence of the importance of the preliminary inquiry as a tool for good than this story and I did want to share it with you.

So on to the less emotional side of the equation.

I am certain you have already heard last week many good reasons for why the preliminary inquiry in its present format must be retained. My Brief also outlines the historical significance of the preliminary inquiry as an essential protective shield against the power of the state. It is more than procedural. It lies at the heart of the criminal justice system as it is linked with the presumption of innocence and fair trial concepts. The preliminary inquiry calibrates the scales of justice in accordance with those fundamental principles of justice and provides meaningful judicial oversight. 

The power of the preliminary inquiry, as I have already alluded to, cannot be taken for granted, nor underestimated. But preliminary inquiries take time, precious court resources that are finite. We are, in many ways, facing a crisis in our court system as evidenced by the Jordan andCody decisions on trial delay. In fact, one of the suggestions arising from the Senate Committee Report on that crisis recommended the termination or limitation of the preliminary inquiry. The recommendation before us today in Bill C-75 is the more tempered vision of this Senate recommendation but, in my submission, it still goes too far. The amendments do not provide the protection promised by the full operation of preliminary inquiries and, as outlined in my Brief, does not account for the many other ways the preliminary inquiry assists the proper functioning of the criminal justice system.

Keeping in mind all of these competing concerns, we must create a solution to the problem that still remains consistent with our desire to provide a fair trial in accordance with our long-held principles. Such a solution will require another recalibration, yet one which will maintain the scales of justice as writ large in our common law and Charter. In my respectful submission the solution recommended in the amendments do not do this. Instead, this honourable committee should consider a more practical solution. A solution that lies within easy reach can be found in our civil system of justice in its procedures for civil questioning or discovery. This discovery system, for the most part, lies outside of the courts. It provides useful evidence for trial and can encourage resolution. It is also predicated on full disclosure.

By using that civil system, judicial resources, and therefore court resources, can be used in a focussed manner that stays true to the primary committal function of the preliminary inquiry, yet would permit the advancement of those vital ancillary purposes, be it preservation of evidence, building an evidential threshold case for a defence, or engaging in resolution discussions. Where there is a realistic committal issue, a preliminary will be heard by a judge. Where the matter involves one of the other viable purposes for a pre-trial questioning, the matter can be heard in a less costly forum, outside of court, in a conference room where the matter can be recorded for future use at trial. This solution provides a viable alternative to the amendments, it balances competing rights, it is mindful of court resources and it is already in use.

I thank the Chair and the other members of this honourable committee for inviting me to make submissions on an integral part of our criminal justice system.

This all sounds fine and even slightly poetic but when starting law school, you don’t want to wait for the happy ending, you want answers. Now. Sadly, unlike Douglas Adams and his massively metallic supercomputing thinker, Deep Thought, in the Hitchhiker’s Guide to the Galaxy, the answer is not simply 42. However, maybe we can learn something from that flight of fancy and slightly zany book. Law school, indeed the practice of law, is an adventure and like Arthur Dent, who turns out to be the ultimate hitch-hiker, what you take with you on this wild ride is what matters. 

First, what you take with you is minimal. it is important to come as you are. Indeed, like Arthur Dent, a bathrobe, metaphorically, will do. There is no law school persona to put on. Law school can change you. It can develop a sense of self by challenging your preconceived notions and view of the world. To make the best of it, keep your mind open to new experiences and new ideas. Look at things differently. Remember law school is a safe place to try on theories and discover possibilities. You can and should be creative. Remember those pan-dimensional creatures, looking like white lab mice, in Hitchhikers’ Guide – the ones who created worlds? Yup, that can be you too. 

At the same time, you need to be prepared. Ford Prefect, can offer a role model for the new law student in that regard. A towel is not just “an absorbent cloth or paper for wiping or drying.” It is a multi-purpose catch-all kind of item or your “go to” when you need just a little extra support. It is not to be thrown away as in “throw in the towel.” Success may be a state of mind but it can be tangible too, even the Bugblatter Beast of Traal knows that! Whether your “towel” is person, place or thing, don’t leave home without it.

Speaking of not leaving home without it, as this is my blog, I am going to make a pitch for the course I teach and as such is at the centre of the law school universe, and that is Criminal Law. What notto leave home without in criminal law is the Criminal Code. Yes, the Criminal Codeis my Hitchhiker’s Guide to the Galaxy and rightly so. It is chock full of important information that no criminal lawyer can do without. In perusing its enumerable sections (there are 849, which does notadd up to 42, particularly when your realize there are 45 micro-sections between ss. 487 and 488), you will discover it is also in badly need of an update. Not just the Ford Prefect kind but substantive change. This is another important law school lesson that lawyers can and should be agents of change.

Another key to law school is collaboration but without forgoing individualization. That can sum up law school and even the practice of law. We are all in it together and we need to support and nurture each other. There is a collectiveness about law. However, we do not want group think like those waiting for the Great Prophet Zarquon at Milliways, the Restaurant At The End of the Universe. We want to interact with people and learn from others but in a manner that permits us to stay in our own space and our own thoughts where we critically analyze and reformulate our own ideas.

However, each one of us could use a confidante like Ford Prefect, who can be relied upon to occasionally say “Don’t Panic” when we mean to do just that. Or a Zaphod Beeblebrox, of the “two-heads are better than one” school of thought, who may have a huge ego but is all heart. Specifically, however, everyone needs a Trillian Astra; the brilliant colleague, who can figure things out even when you are still in Deep Space 9. It may be best to stay away from the Marvins, with their constant negativity and conspiracy theories, but then again, Marvin is loyal, waiting millions of years for his friends to pop up. 

Finally, remember to have fun. It may be that you don’t realize it at the time, but enjoyment can be had by reading a really good case. Similarily, a really good argument can be entertaining. But most importantly, helping others, which essentially is what the law is all about, can be joyful. Yes, law school is about your development as a lawyer and finding your voice or unique personal identity. But it is also about taking the time to look outside of yourself and look to others who will benefit from your future knowledge and expertise. And here perhaps is the answer to Life, the Universe and Everything: paying it forward by using your new found knowledge for good by helping those who are unable to help themselves by volunteering for probono activities, student legal services or a clinical project.  Law school may be a journey through the universe and beyond, but it is also a magnificent self-discovery. So long and see you in the classroom!

Introduction

Bill C-75 introduces a number of proposed changes to the Criminal Code. There are 300 pages of amendments covering a broad range of procedural, evidential, and substantive issues. Some of the amendments will significantly change the criminal justice system. None more than the proposed changes to the preliminary inquiry. This Brief will outline the weaknesses inherent in such change and a recommendation for a better, more robust and balanced approach. 

The Proposed Amendment

Bill C-75, in accordance with the summary attached to the Bill, proposes to “restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry.” The amendments will abolish the preliminary inquiry for all but those offences attracting a maximum punishment of life imprisonment. Those offences range from murder to criminal negligence causing death. 

For example, a preliminary inquiry may be heard on a break and enter into a dwelling house[1]but not for a break and enter into commercial premises.[2]A preliminary inquiry will also not be permitted for an attempt break and enter into a dwelling house as the maximum punishment is 14 years imprisonment.[3]

Although prior to the proposed amendments, a preliminary inquiry was upon request of the accused or prosecutor, with the new amendments, the judge hearing the inquiry will have broad discretion to regulate the inquiry. Under the proposed changes to s. 537(1)(i), the hearing judge may do so “in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry.” Specifically, under s. 537(1.01), the inquiry judge may “limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.” Through application of the new amendment to s. 540(1)(a), the inquiry judge may also restrict the defence’s cross examination of a witness called to testify by the prosecution. 

Background to the Role of the Preliminary Inquiry in Our Criminal Justice System

For years the efficacy of the preliminary inquiry has been questioned, studied and discussed by lawyers, government officials, and the courts. Despite debate and amendments, the preliminary inquiry, at its core, exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen,[4]“the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” Despite this sentiment, both levels of government and the courts have questioned the efficacy of the preliminary inquiry seeing little value in the procedure and only costs to the efficient and effective administration of justice. 

The preliminary inquiry discussion started benignly with the call for the abolition of the grand jury system; an English common law procedure requiring a panel of 24 jurors to evaluate the charges to determine if the case should proceed to an Indictment.[5]Eventually, the grand jury system was abolished by attrition as individual provinces simply stopped using the practice. Ironically, the principle argument advanced in favour of eliminating the grand jury inquiry was the existence of the preliminary inquiry as the true procedural safeguard against the power of the state. 

The main purpose of the preliminary inquiry is the committal function. To determine this, a preliminary inquiry justice considers whether or not there is sufficient evidence to commit the accused to trial pursuant to s. 548 of the Criminal Code.If the evidence is insufficient for committal, the accused will be discharged. 

Although the test requires a fairly low evidential threshold, there are cogent illustrations of the impact of this discharge power. An example is found in the case of Susan Nelles, who was the pediatric nurse on duty when a number of babies died in the cardiac ward of the Hospital for Sick Kids in the early 1980s. She was ultimately charged with first-degree murder of four children by allegedly injecting them with lethal doses of the drug digoxin. The subsequent preliminary inquiry revealed a complete lack of evidence for the charge, resulting not only in her discharge but also in an inquiry into the deaths.[6]In this way, a preliminary inquiry protects an accused from the pernicious power of the state and can also provide a forum safe from the vagaries of public opinion.

Nevertheless, according to Mr. Justice Estey in Skogman, the preliminary inquiry serves an additional purpose, derived through usage, of “a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.”[7]It is this ancillary purpose, grounded in the right of an accused to make full answer and defence, which garners the most criticism and provides support for abolition. This argument suggests that with the advent of the Charterand the stringent disclosure requirements of Stinchcombe,[8]the preliminary inquiry is no longer a necessary discovery tool.[9]This reassessment did indeed happen. In October of 2001, the then Liberal government proposed, as part of a miscellany of criminal law amendments, significant changes to the preliminary inquiry process in the omnibus Bill C-15. The then Justice Minister Anne McLellan, in her presentation to the House upon second reading of the Bill, described the revisions as criminal procedure reform, spearheaded by the provinces, in an effort to:

simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system.[10]

Madame Justice Deschamps, in her majority decision in Regina vS.J.L.,[11]considered these amendments. According to Justice Deschamps, the ancillary function of the preliminary as a discovery tool “has lost much of its relevance”[12]due to enhanced disclosure requirements. Justice Deschamps pointed to the new procedures as clearly illustrating the trend “toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures.”[13]

At the same time as this movement away from the preliminary inquiry as a disclosure mechanism, we see a rise of legal rules requiring the accused person to provide an evidential foundation for certain applications and defences before they can advance these issues at trial.[14]

Why the Amendment Needs Revision

It is this last phrase - “better adapted to the needs of the parties, not the imposition of more inflexible procedures” – that requires further attention. Added to this sentiment is the need to ensure procedures do not impede full answer and defence to the detriment of the presumption of innocence, fair trial concerns, and the overall integrity of the justice system. Without fair and just procedures in place, the potential for miscarriages of justice increase. 

The proposed amendments go further than the previous changes to create an inflexible process, which fails to account for the original reason for the preliminary inquiry as a protective mechanism and fails to respond to the new realities of courtroom evidentiary requirements. This double concern results in amendments that detract from the integrity of the justice system instead of promoting it. 

For instance, the preliminary inquiry can be an indispensable tool to establish the required evidential foundation for threshold issues, such as admissibility of evidence, providing the basis for a legal defence or setting the stage for a Charterapplication.[15]Thus, the notion that the preliminary inquiry lacks utility and interferes with the administration of justice fails to recognize the access to justice issues resulting from the inquiry’s demise. In order for the counsel to “appreciate the case made against” the accused, counsel has to have an opportunity to see it.[16]

The concept that the preliminary inquiry weighs down the system and interferes with trial court efficiency is a misnomer. In fact, statistically, the preliminary inquiry works. In a timely 2013 article entitled Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations,[17]University of Ottawa criminologist Cheryl Webster, who has done extensive researchon court reform for the federal government, and retired Department of Justice counsel Howard Bebbington, found value in the preliminary inquiry process as, based on an empirical study, it did positively impact scarce court resources. As referenced in the article, a preliminary inquiry can identify weakness in a case, which may assist in resolution of the file or identify and delineate trial issues thereby shortening the process. In the same way, a preliminary inquiry can also assist in the release of an in custody accused as a weaker case can result in a successful bail application. Additionally, the preliminary hearing can assist either the prosecution or the defence in preserving evidence for admission at trial. 

Further, theview that the preliminary inquiry, as a committal and disclosure forum, can be adequately substituted by prosecutorial discretion and full disclosure fails to appreciate the importance of the inquiry as a forum providing the oversight of a fair and impartial member of the judiciary. Such judicial oversight is a cornerstone of our justice system. Moreover, in Regina v Nur,[18]the then Chief Justice McLachlin cautions against substituting prosecutorial discretion for judicial decision making, particularly in the adversarial context. This would, in the words of the Chief Justice in Nur, “create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review.”[19]Additionally, although Stinchcombehas set high disclosure expectations, disclosure is not a static concept but continues throughout the case. Disclosure requests are often informed by the preliminary inquiry process, which can actually result in trial efficiencies. 

Finally, to delineate between offences based on punishment fails to acknowledge the deeply personal impact an indictable charge can have on the dignity and self-worth of an individual, particularly where there may be insufficient evidence for that matter to go to trial. The prosecution office does not have the resources to comb through the many files to determine whether evidential sufficiency nor do they have the appropriate oversight function to do so. 

A more meaningful approach would include a real assessment of the advantages and disadvantages of the inquiry process. We must be open to looking at other ways to retain the safeguards presently built into the preliminary inquiry process. For instance, where committal is not in issue, we may find a useful court alternative in the civil discovery procedures, which permits a less formal and less costly forum for the questioning of parties after full disclosure of documents. With an informed and thoughtful discourse on the issue, a more flexible approach could, and should, be found to save the preliminary inquiry from this premature legislative demise. 

Recommendations

 That the proposed amendments be revised to consider the following:

 1. To retain the preliminary inquiry process for those offences where committal is in issue;

 2. For those cases where committal is not in issue, to utilize a modified civil form of discovery procedures, which would permit questioning to occur outside of the court process in a less costly and more efficient atmosphere.[20]

This proposal will take less judicial resources, less time and relieve courts yet still provide the protection envisioned by the original committal process.

Conclusion

Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. 

Specifically, change within the criminal justice system cannot be done in the name of efficiency only. Efficiency is not what we want from our justice system. That is not what the Jordan[21]and Cody[22]decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about. The goal should be to enhance the criminal justice system while preserving the protections of those whose liberty is at risk.

[1]See section 348(1)(d) of the Criminal Code.

[2]See section 348(1)(e) of the Criminal Code.

[3]See section 463(a) of the Criminal Code.

[4][1984] 2 SCR 93 at 105 [Skogman].

[5]See Parliament of the Dominion of Canada, Sessional Papers, No 66 (1891)Volume17at 7-69.

[6]See Ontario, Ministry of the Attorney General, Royal Commission of Inquiry into Certain Deaths at the Hospital for Sick Children and Related Matters, Report of the Royal Commission of Inquiry Into Certain Deaths at the Hospital for Sick Children and Related Matters, by the Honourable Mr. Justice Grange, (Toronto, 1983. 

[7]Supranote 4 at105.

[8][1991] 3 SCR 326.

[9]See Re Regina and Arviv(1985), 19 CCC (3d) 395 (ONCA), G A Martin JA at para 31; R v O’Connor, [1995] 4 SCR 411,L'Heureux-Dubé J at paras 170 – 171.

[10]“Criminal Law Amendment Act, 2001”, 2ndreading, House of Commons Debates, 37-1, No 54 (May 3, 2001) at 1620 (Hon Anne McLellan).

[11][2009] 1 SCR 426.

[12]Ibid at para 23.

[13]Ibidat para 24.

[14]See e.g. R v Downey, [1992] 2 SCR 10 as it relates to the evidential burden on the accused to rebut presumptions; R v O’Connor, [1995] 4 SCR 411 as it relates to s. 276 applications; R v Davis, [1999] 3 SCR 759 as it relates to the air of reality test in raising honest but mistaken belief in consent; R v Ruzic, [2001] 1 SCR 68 as it relates to duress; Rv Cinous, [2002] 2 SCR 3 as it relates to self-defence; R v Pappas, [2013] 3 SCR 452 as it relates to provocation; R v Fontaine, [2004] 1 SCR 702 as it relates to mental disorder.

[15]Ibid. 

[16]Supraat note 4.

[17]Cheryl Marie Webster & Howard H. Bebbington, "Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations" (2013) 4:55 Can J Corrat 513-532.

[18]2015 SCC 15.

[19]Ibidat para 94.

[20]See e.g. Rule 31 of the Ontario Rules of Civil ProcedureRRO, 1990, Reg 194 and Part 5 of the Alberta Rules of Court, AR 124/2010.

[21]2016 SCC 27.

[22]2017 SCC 31.

True to Justice Moldaver’s view, writing on behalf of the majority in Suter, that sentencing is a “highly individualized process” (para 4), the facts in Suterare highly unusual and particularly tragic. Mr. Suter entered a plea of guilty to a charge of failing or refusing to comply with a demand to provide a breath sample pursuant to s. 254(5) of the Criminal Code. A young child was killed when the vehicle Mr. Suter was operating crashed into a restaurant’s outdoor patio where the child and his family were enjoying a family meal. As a death occurred, the maximum punishment for the refusal to provide a breath sample was increased to life imprisonment under s. 255(3.2). However, the sentencing judge accepted Mr. Suter was not impaired by alcohol at the time of the incident. Indeed, the events leading to the incident involved a highly charged emotional event in which Mr. Suter and his spouse were arguing in the vehicle. Moreover, Mr. Suter’s refusal to provide a breath sample occurred after he received, incorrectly, legal advice to refuse. The fatality was widely publicized and Mr. Suter was a victim of a disturbing and brutal form of vigilante justice (paras 1-3). 

With this unique and troubling fact situation, the sentencing judge crafted a sentence seemingly far below the norm for the offence by imposing a term of four months incarceration with a 30-month driving prohibition. The Crown appealed the sentence to the Alberta Court of Appeal resulting in a substantial increase to the sentence to 26 months incarceration. Leave to appeal to the Supreme Court was granted. Unusually, the majority of the Supreme Court found both the sentencing judge and the court of appeal were in error (paras 5-6), resulting in the Supreme Court re-sentencing Suter (para 5). In the majority’s view, a term of 15 to 18 months incarceration was appropriate (para 103). However, as re-incarceration would cause undue hardship, it was “in the interests of justice” to impose a sentence of time served, amounting to 10 and a half months incarceration (para 103). The sole dissent of Mr. Justice Gascon found the sentencing judge imposed a fit and appropriate sentence and committed no error in law (para 109). He too allowed the appeal in part but restored the original sentence. Both the majority and the dissent upheld the sentencing judge’s imposition of a 30-month driving prohibition (paras 24, 104 & 202). 

With these facts firmly in mind, the issues arising in the case are as unique as the facts and the ultimate outcome. The issues do not arise from the facts but flow from them. There is a difference. In appellate advocacy, the appellate lawyer combs through the reasons, issue spotting and identifying arguable points based on knowledge of the types of appellate issues, which regularly arise in an appeal. For instance, are there grounds for an unreasonable verdict? Did the trial judge reverse the burden of proof in convicting the offender? These are just a couple examples of the specific appellate issues arising from a case. This is not to say that there may not be identifiable non-appellate type issues, such as errors involving substantive elements of an offence, but again those too would be easily spotted and seen to be arising from the facts. In a parallel manner, the appellate decisions based on these grounds swing from one issue to the next. Uniquely, in Suter, the issues flow and are not uniquely identifiable. There is no issue spotting as the legal issues move steadily and continuously resulting in the sensation that the Supreme Court’s treatment of this appeal flow. 

On this basis, setting out the myriad swirling of issues flowing from this decision is no easy task. Identification is also encumbered by the presence of a vocal dissent. In any event, on a meta-view of the decision, the first bundle of issues directly flow from the sentencing of Mr. Suter. One such point of discussion is on the use of vigilante justice, also characterized as a collateral consequence, as a mitigating factor in the sentencing balancing exercise. In Suter, the sentencing judge relied upon the incident in mitigation of sentence while the Court of Appeal found the judge erred in doing so. Both the majority and dissent in Suter agree that vigilante justice, as a non-state collateral consequence, was a mitigating factor to be balanced with all other considerations in arriving at a fit sentence. Justice Moldaver, however, restricted the use of such a collateral consequence to prevent “legitimizing” such illegal behaviour by accepting it as part of a legitimate legal process (para 58). Justice Gascon found the sentencing judge properly balanced the incident in arriving at a fit and appropriate sentence (paras 105, 109, 113-114 & 150).

The issue of the effect of Suter’s quasi-mistake of law can also be identified in this first sequence. I use the descriptor ‘quasi,’ meaning in this context, “apparently but not really” not for pejorative reasons but to emphasize what is at the root of the different world views between the majority and the dissent on this point of law. Neither Justice Moldaver nor Justice Gascon clearly and cogently describe what mistake of law truly is in legal terms. To be sure they discuss around the concept and drop hints, some large hints, of what their working definitions are but the reader is never entirely certain from where each position is starting. Without knowing the legal principles around this legal construct, it is the justification for the ultimate conclusion that becomes the legal construction of mistake of law. This serves to reinforce the feeling that this decision flows in a non-traditional legal judgment manner. Instead of starting with what mistake of law is in legal terms, involving academic scholarship (Glanville Williams comes to mind) and case law (mistake of law versus mistake of fact, colour of right and officially induced error have a large body of case law discussing the substantive issues) including a statutory analysis (s. 19, albeit there is a sparse discussion of this in the dissent), the Court presumes the principles and relies on the justification or their interpretation of whatever legal status they have given the term. Justice Gascon does come closer by challenging Justice Moldaver for this lack of a principled approach (para 125) but does nothing concrete to reverse the time machine and go back to the essentials of what mistake of law is in light of legal principles (paras 125 to 128). Instead, Justice Gascon fashions a template of his own in paragraph 128, in which he creates a sliding scale of blameworthiness based on a range of knowledge that could be attributed to Suter. Thus, the case authority discussion is derailed by the Court not focussing on the issues and instead allowing their decision to be pulled by the current of reasoning, justification, and the issue-spotting of errors found in one another’s reasons. 

Context is one reason why neither the majority nor the dissent gives clear direction on the mistake of law. This mistake of law, based in Suter’s reliance on bad legal advice to not provide a breath sample, is only notionally acting as a defence in order to provide mitigation of sentence. It is not acting as a defence per se. The slurring of the legal meaning of mistake of law is understandable considering the focus is not on the mistake, as operating as a defence impacting guilt or innocence, but as a mitigating factor on sentence to be balanced with all of the other sentencing considerations. Unfortunately, by not approaching the issue in a principled fashion, by allowing the reasoning to be the de facto substitute for those principles, we are never clear as to when and how mistake of law can be used on sentencing generally. The Supreme Court, as the final arbiter of all that is law in Canada, has not given us rules to live by or even rules to apply. 

The analysis of the mistake of law issue is an important one as it provides the dominant mitigating factor on sentence. Without a clear indication of the basis of this mitigation, the balancing is tainted, and the sentence imposed is rendered unfit. Using incomplete defences, which would not amount to a full defence to the charge, in mitigation of sentence is appropriate. This was not disputed in Suter (para 64 of majority judgment and para 125 of dissent and see dissent of Justice Gonthier in R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44 at paras 75 and 87 and the Court in R v Stone,1999 CanLII 688, [1999] 2 SCR 290). The twist in Suteris the general unavailability of mistake of law as a defence unless it falls, as discussed below, within an exception such as mistake of mixed law and fact, colour of right and officially induced error. Again, without knowing the premise of the mistake, in law, we are unsure if the mistake is being used at sentencing as a defence that could not be proven at trial or as a defence unavailable at trial.

There is glancing discussion by Justice Gascon on s.19 of the Code which sets out the admonition that ignorance of the law is no excuse (para 127). There is, however, no discussion of when a mistake of law can be a defence such as when it is a matter of mixed fact and law (see R v Manuel, 2008 BCCA 143 at paras 16 and 17), a colour of right (see Justice Moldaver’s decision in R v Simpson, 2015 SCC 40, [2015] 2 SCR 827), or officially induced error such as in Lévis (City) v. Tétreault, 2006 SCC 12 , [2006] 1 SCR 420. Not referencing the Lévis decision is a surprise as it is that decision in which the Supreme Court outlines the very strict requirements for the defence of officially induced error, a defence traditionally only applicable in regulatory matters. A reliance on another person for knowledge of the law seems to fit squarely within the Suter form of mistake of law. Yet, there is no discussion in Suter of this point. We do not know under what form of mistake of law the Court is considering. Is it officially induced error as Justice Gascon seems to be suggesting or is it an honest but mistaken belief in law? Is the issue a mixed law and fact, permitting a defence? Or is it a question of scope and interpretation of the law, which is a feature of mistake of law? Does it even matter if the defence is available in law or not or what it may consist of if we are in the sentencing hearing stage where the procedural and evidential standards are relaxed? These and many questions are simply left out of this decision to be filled in by speculation.  Again, there are hints to their approach as the issue of the lawyer’s incorrect advice and the reliance on it is a point of discussion and disagreement. 

To be sure, duty counsel or Brydges lawyer (referring to R v Brydges, 1990 CanLII 123,[1990] 1 SCR 190, in which the Supreme Court found the state must provide an accused access to a lawyer upon arrest to comply with s.10(b) right to counsel under the Charter) does not, according to case law, fulfil the Lévisrequirement that the official who gives the legal advice be a government official authorized to speak on the issue. In R v Pea, 2008 CanLII 89824(ON CA) and R v Beierl, 2010 ONCA 697duty counsel was not considered an official for purposes of the defence. This point, seemingly at issue in an officially induced error scenario, was not discussed in Suter just as the defence itself was not directly raised.

Also, not fully discussed is the Pontesdecision, referenced earlier in this post, in which Justice Gonthier, for the dissent, enters into a principled discussion of the operation of s. 19 of the Codeand thoroughly discusses instances where a mistake of law may be a defence to a strict liability offence (paras 71 to 80). Although Pontesis decided in the context of regulatory offences, Justice Gonthier considers an earlier Supreme Court decision in R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, on the required elements of the then Criminal Code offence of wilfully failing or refusing to comply with a probation order. In his analysis in paragraph 75 of Pontes, Justice Gonthier relies on Docherty for the contention that ignorance of the law may provide an excuse where knowledge of the law is part of the mens reaof the offence. The evidence of an accused’s lack of knowledge of the legality of the breach would negate a “wilful” failure or refusal to comply. There is no discussion in Suter on the mens rea required for the offence for which Suter entered a plea and subsequently this aspect was not raised.

There is another telling dimension to the mistake of law approach. Throughout the dissent, Justice Gascon calls the offence “administrative” (paras 107, 172, 181, 183, and 201) signalling his belief the offence is more akin to a regulatory matter. This characterization renders the mistake of law defence even more applicable based on its broader usage in the prosecution of regulatory matters where knowledge of a large body of regulation is difficult. Yet, the Suter offence is in the criminal code and is not regulatory. To characterize this offence as administrative in nature deflects the issue away from the reason behind the offence not just as an incentive to assist police in the investigation of impaired driving crimes but to provide a disincentive to refuse to do so in order to escape criminal or civil liability. Courts have characterized this offence in a similar way (see R v Seip,2017 BCCA 54 at para 36).

This result-oriented perspective occurs to such an extent in Suter that we are not even sure to what standard of proof the mistake of law must be proven for the mistake to be considered in sentencing. This missing piece acts to magnify the differences between the majority and dissent. Justice Moldaver enters into a discussion of Suter’s sincere and honest belief in the mistake (paras 62-70) akin to a mistaken but honest belief assessment needed for the defence of mistake of fact. Conversely, Justice Gonthier focuses on the bad legal advice, without which, Suter would not be in court, making Suter’s “moral blameworthiness ... infinitesimal” (para 174). No one meaningfully articulates the commonalties, other than mistake can be considered on sentence. It is as if the Court is working backward from the sentence to the mistake itself. This backward glance is the source of friction between the two decisions and is most readily apparent in their perception of the importance of the legal advice on the mistake.

This framing of the so-called mistake of law scenario leads into the very different perspective on the bad legal advice given to Mr. Suter. Justice Moldaver pins the mistake of law on Suter in terms of his belief of what the law required. In the majority’s construction of legal rights and responsibilities, it is the individual and their personal choices that control the effect of the law. Justice Moldaver takes a hard-line in finding a paucity of evidence on the true substance of the legal advice given and counters that absence of evidence with the presence of the police officer, who fulfills his Charter duty by cautioning Suter to provide a sample or face the consequences of a criminal charge. To take this position in the context of a sentencing hearing, where evidential and procedural rules are relaxed (see R v Lévesque, 2000 SCC 47, [2000] 2 SCR 487) shows a clear desire to minimize the impact of the mistake, in whatever form it is in.  

Justice Gascon pins the mistake on the duty counsel lawyer and then frames Suter’s duties within a Charter framework. The dissent leans on the Charter as an explanation for why Suter was acting under a mistake of law relying on Charter protections not as stand-alone arguments where rights are breached but to provide the basis for inferences as to why people choose to do what they do. Thus, Suter’s failure to blow, despite the police officer’s dire warning that a failure will result in a criminal charge, is waved away by Justice Gascon as a reasonable response of an accused to information from an agent of the state – the very agent who is attempting to build evidence against him. This emphasis on the state as the bad actor so to speak builds a much different narrative than the majority. It also fails to acknowledge some case authorities that have tackled the issue of officially induced error where the police caution to provide a sample is confusing (see R v Humble, 2010 ONSC 2995). Again, we are on uncertain ground by not knowing what the mistake of law is predicated on and who the “authorized” officials are in the scenario. The Suter decision is directionless on this and yet the appeal provided a perfect opportunity to provide clarity on these issues, despite the uniqueness of the fact situation. 

Nestled within these correlated issues and directly arising from the sentencing hearing, flows the discussion on the application of the 2015 Supreme Court decision on sentencing principles, R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089. Where Suter is set in a unique factual circumstance, Lacasse involves the all too often scenario of impaired driving causing death. There is, sadly, nothing unique about the facts there. Indeed, the Lacassedecision is broadly based and serves to clarify general sentencing principles and the role of the appellate courts in considering a sentence appeal. Suter, while applying Lacasse, resurrects some of those self-same issues. Notably, Justice Gascon dissented with the then Chief Justice McLachlin, giving Sutera déjà vu flavour. Some might even say based on Justice Gascon’s dissent, that far from applying Lacasse, the Court in Suteris doing just what Lacasse attempted to avoid – the “tinkering” of the quantum of sentences at the appellate level. In Suter, as in Lacasse, moral culpability, proportionality and gravity of the offence drive the foundational underpinnings of the decision.

The next issue, flowing from the first two, involves the larger discussion on the role of the Supreme Court in sentencing appeals – not just appellate courts – but as the court of final appeal. This is not just a purely jurisdictional discussion as found in R v Gardiner, 1982 CanLII 30 (SCC),[1982] 2 SCR 368, and as distilled by Chief Justice Lamer in paragraph 33 of the M(CA)decision. This is a complex interplay between the roles of trial courts versus appellate courts in determining fitness of sentence that flows beyond jurisdiction. Appellate intervention is hierarchical yet infused with deference. Deference to the trial judge is a continual appellate theme, as it symbolizes the core of our common law justice system. This is a system where judicial parameters are laid down in principle but not rigidly adhered to. There is, as mentioned at the start of this post, wriggle room for the judges to apply their own common sense and discretion, based naturally in law so as not to be unreasonable or erratic. It flows from judicial independence and from a desire to inject into the process a good dose of humanity in the form of equity. 

Deference to the trial judge in Suter becomes not just an issue arising from the appeal but becomes a tool used by the dissent of Justice Gascon (paras 161 – 178). For Justice Gascon, the majority becomes a court of first instance as they exercise their own discretion, wielded through their own judicial lens by sentencing the accused ab initio. All of this, to Justice Gascon’s chagrin, to ‘tinker’ with the sentencing judge’s perfectly principled original sentence. Justice Gascon goes so far as to ‘call out’ Justice Moldaver for obfuscating the real reason for the increased sentence imposed by the majority as a pandering to the public/government’s tough on crime agenda, particularly in the area of impaired driving (para 159). This deference is hard won as Justice Gascon himself admits that he would have “personally ... weighed the gravity of the offence more heavily than the sentencing judge” (para 170). His challenge to the majority is a clear indication that the court is divided philosophically, politically and legally. Deference in Suter becomes not just trial judge deference but deference to the Rule of Law, to the independence of the courts and to each other.

Indeed, Justice Moldaver commences his reasons by applying an earlier Supreme Court case, R v Mian, 2014 SCC 54, [2014] 2 SCR 689, on the scope of appellate review (see my earlier blog posting on the issue on my ideablawg website). Mian raises the spectre of a reasonable apprehension of bias at the appellate level when the appellate court raises issues not identified by appellate counsel. In Mian, it is not so much the raising of the new issue which is problematic but raising the issue without giving counsel the ability to respond. In Justice Moldaver’s view this opportunity was given in Suter. 

But flowing from the Mian concern is the additional problem or error of the court of appeal in sentencing Suter for offences of which he was not charged (paras 35 to 44). The procedural concept of an appellate court raising new issues on its own motion becomes an error in law as the court of appeal created a “novel and confusing” form of impairment “by distraction” akin to a careless driving or dangerous driving delict (para 38). According to Justice Moldaver, by doing so, the court of appeal was “circumventing the sentencing judge’s finding that this accident was simply the result of “non-impaired driving error” (para 38). Again, deference to the trial judge re-appears, as finding of facts is the province of the trial judge, who lived and breathed the evidence, not the appellate court, who merely reads it. This is particularly important in sentencing as a sentencing judge can sentence an accused on uncharged offences arising from the facts, but those aggravating features must be proven beyond a reasonable doubt (see R v Angelillo,2006 SCC 55, [2006] 2 SCR 728). There is a further concern with this position as it reflects on Justice Gascon’s concern with the majority’s decision to re-sentence Suter. Sentencing as an art is a collage of facts and principle where the emotional content of the accused’s background and the gravity of the offence colour the decision-making. Who better to do this than the original sentencing judge.

Indeed, who better? Briefly looking at previous sentence appeals decided at the Supreme Court level, the re-sentencing of Suter is unique. The Court may remit the matter back to the trial judge for imposition of sentence where the Court enters a conviction overturning an acquittal (see for example R v Bradshaw, [1976] 1 SCR 162,1975 CanLII 19 (SCC); Rv Audet, [1996] 2 SCR 171, 1996 CanLII 198 (SCC),and R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711(SCC)). The Court may also remit the matter to the lower appellate court for re-consideration pursuant to that court’s power under s. 687 of the Criminal Code to vary the sentence imposed (see for example Lowry et al v R, [1974] SCR 195, 1972 CanLII 171 (SCC)and R v Loyer et al, [1978] 2 SCR 631, 1978 CanLII 194 (SCC)where the Supreme Court ordered the matter back to the court of appeal to pass a new sentence upon hearing of sentencing submissions by counsel at page 204). Rarely does the Supreme Court re-sentence an Appellant but never before has the Court found both the trial judge and the court of appeal to be in error in the fitness of sentence imposed (according to my Canlii database search). The Supreme Court has no direct statutory authority to impose sentence as in the case of a provincial court of appeal. 

Although re-sentencing in toto has not happened previously, the Supreme Court has adjusted a sentence. For instance, in R v Morrisey, [2000] 2 SCR 90, the Court varied the sentence to properly account for pretrial custody. Also, the Court has adjusted a sentenceto bring it into conformity with a joint submission on sentence such as in R v Anthony-Cook,2016 SCC 43, [2016] 2 S.C.R. 204. Prior to Suter, the closest the Court came to imposing a sentence is in R v Middleton,2009 SCC 21, [2009] 1 SCR 674, where Justice Cromwell, dissenting in part, found the sentence to be illegal but refrained from deciding what sentence he would impose considering the outcome of the appeal per the majority’s decision (see paras 112 -113).

Justice Gascon, to put it mildly, did not approve of this re-sentencing. As mentioned earlier, he found the new sentence imposed by the majority to be effectively a non-sentence as it amounted to time served. Consistent with this view, Justice Gascon labelled the majority’s decision as a “stay” of the sentence (para 158). The Supreme Court has stayed the passing of sentence in previous appeals but not in conjunction with re-sentencing, such as in Suter, where the Court actually applies sentencing principles and balances the required considerations to arrive at an actual sentence quantum. In R v LFW, 2000 SCC 6, [2000] 1 SCR132 for example, the Court found the conditional sentence was inappropriate and a term of incarceration was required. The then Chief Justice Lamer stayed the passing of that imprisonment as the offender had completed the conditional sentence and it would be “very difficult” for the sentencing judge to re-sentence (para 32). In another decision, the Court restored but stayed a conditional sentence order where the offender had already served the period of incarceration ordered by the court of appeal (see R v RNS, 2000 SCC 7,[2000] 1 SCR 149). Suteralso differs from R v Fice, [2005] 1 SCR 742, 2005 SCC 32 (CanLII), where the Supreme Court found the court of appeal erred in upholding an illegal conditional sentence order but stayed what would otherwise be a penitentiary sentence. The Court in Ficedid not enter into a sentencing assessment and the stay appeared to be with consent of all parties (para 46).

It should also be noted that the concept of imposing time served on a sentence appeal even if a longer sentence was appropriate is not unusual. Provincial appellate courts of appeal regularly take into account whether it would be in the interests of justice to re-incarcerate the Appellant when a sentence appeal is allowed (see R v Reddick, 1977 ALTASCAD 199 (CanLII)at para 4; R v Mann, 1995 CanLII 321 (ON CA)and R v Maxwell-Smith, 2013 YKCA 12(CanLII) at para 21). What is unusual is the fact that it is the Supreme Court doing it. Justice Moldaver, who sat as a trial judge and as a court of appeal justice, is very familiar with sentence appeals and the pragmatic outcomes needed. We see in Sutera clear division along the lines of practical realism on one hand and principled rule-based approaches. 

The last set of issues flow from the previous ones as we read between the lines of this judgment. Such a close reading reveals both this Court’s approach to criminal law and the sense of discordant approaches within the Court itself. Examples of this can be seen in the majority and dissent positioning around mistake of law and deference. It is also viscerally read in the tone and approach of Justice Gascon’s dissent with a specific part dedicated to pulling apart the majority’s position to the point of parsing in all of its minutiae the majority’s reasoning (paras 156 – 159). This dissection reminds me of the Supreme Court’s own caution not to cherry-pick or parse a trial judge’s reasons but to view the whole of the reasons in determining whether an error was occasioned and if there is an error, the significance of it (I discuss this more thoroughly in a soon to be published paper in the Manitoba Law Journal entitled The W(D) Revolution). Justice Gascon’s dissent shows this is easier said than done.  

This extensive point by point response to the majority and even the majority’s anticipatory responses to the dissent belie a tension hitherto not seen to such a degree in the Supreme Court. Even in the heady days of the Nineteen- Nineties when the court was fractured, there was a sense the Court was still attempting to talk to us, the legal community, albeit disparately, about the legal principles. Suter feels different. In Suter the judges are airing their laundry so to speak and speaking as they probably do behind closed doors where they engage in no doubt vigorous debate about the issues. Is this the transparency Chief Justice Wagner is encouraging from the Court? Or, as parts of this judgment feel, is this exclusionary as the legal community becomes the child in the room who can sense the tension from the parental tone of voice but cannot understand the meaning of the words? In some ways we are not privy to the deeper discordance that may lay behind this judgment – perhaps the differences between principal and pragmatism, which seems to permeate this judgment.

This leads us finally to a discussion of not what lies between the lines but how those lines are written and the judgment as a unique literary device that may challenge our idea of how the law is not only decided but also represented in Canadian case law. I mentioned this earlier, but the judgment reads as a discourse in which the majority and dissent write for themselves and between themselves. This may suggest an American approach where the SCOTUS render opinions, not judgments, and as such tend to be opinionated in their approach by consistently responding to one another either directly in the opinions or through footnotes. Whether Suter signals a change in writing style and approach will be a matter of record as this newly minted Wagner court renders decisions on decisive issues. 

This decision is important. It discusses novel issues in a novel way. It exhibits an approach from the Supreme Court which we have not seen before. It impacts an area of criminal law in much need of legal discussion considering much of what a trial judge does in criminal law focuses on the criminal sanction. But the Suter decisionis wanting as it leaves us wanting more. Sentencing is a delicate art and requires a fine balance between oft opposing principles. So too, a Supreme Court judgment requires that self-same balance to help us navigate our clients through the legal maze. Although Suter fails to achieve this balance, it does leave a legacy of the further work which needs to be done by the legal community 

In terms of the Criminal Code, there are many references to the armed forces, some overt and some not so easily observed. As previously mentioned, we have already discussed mutiny under s.53, as an offence impacting military discipline. We also already discussed s.52 on sabotage(see podcastand text version), treason offences under s.46(see podcastand text version) and s. 50 assisting enemy alien(see podcast and text version) as offences potentially affecting the security and welfare of our armed forces. We also touched on military duty and military orders under s. 32 of the Codeon the military’s authority to suppress riots (see text and podcast here).

Sections we have not encountered yet show the breadth and depth of the criminal law in military affairs. First, the Codedefines the “Canadian Forces” under s. 2as the armed forces “raised” by Canada but also defines “Her Majesty’s Forces,” again under s. 2, as “naval, army and air forces of Her Majesty” wherever “raised,” including the Canadian Forces. Some of the Code provisions act to protect not only Canadian forces but Commonwealth nations as well. We do find in the Codeoffences a wide variety of military related offences, from falsely posing as a military member (s. 419) to torture under s. 269.1.

At this point, we should pause to remember how military law fits within the criminal law rubric. I touched upon this issue much earlier in this podcast series under Episode 8discussing s. 5 of theCodeas a section indicating the independence of military law from the criminal law. The section, as discussed in that podcast, together with s. 130 of the National Defence Act, create parallel but separate modes of sanctioning a member of the military, be it through disciplinary action or criminal prosecution. Again, this previous blog/podcast outlines in a very summary fashion, the procedure. The blog posting also points out the weaknesses in the military system to adequately underline the repugnant nature of some military offences pertaining to acts of cruelty toward the civilians in foreign nations. These human rights violations go beyond military discipline and treaty compliance and enter the realm of the criminal law to such as extent that only prosecution under the Criminal Codeseems appropriate even though the military courts’ sanctioning ability does permit for criminal law like punishment. 

Since the writing of that blog posting in 2013, the Supreme Court in R v Moriarity, [2015] 3 SCR 485, 2015 SCC 55 has further considered the issue of the use of military discipline under the National Defence Act, in that case, for criminal offences involving fraud. The arguments raised issue with the overbreadth of criminal-like crimes that can be sanctioned under the military system. The decision, written by an unanimous court under Justice Cromwell, found that  ss. 130(1)(a) and 117(f) of the NDA, permitting such sanctioning, did not infringe s. 7 of the Charter. As noted by Justice Cromwell in paragraph 8 of the judgment, only murder, manslaughter, and child abduction offences are not incorporated under the military Code of Service Discipline, which provides the underlying authority for disciplining such misconduct. The decision also reiterates earlier case law (see the 1992 Généreuxdecision) that “Parliament’s objective in creating the military justice system was to provide processes that would assure the maintenance of discipline, efficiency and morale of the military” (see para 46 of Moriarity). In order to fulfill these objectives the disciplinary process may sanction military offenders with these “criminal” offences.

Turning back to the issue at hand, s. 62 of the Codeis a broad section, overly broad I will suggest, outlining offences relating to military forces, some of which are reflective of other offences in the Code. This section applies to both Canadian Forces and those foreign armed forces present in Canada as provided for in the working definition of “member of a force” under s. 62(2).

Section 62(1) reads as follows:

62 (1) Every one who wilfully

(a) interferes with, impairs or influences the loyalty or discipline of a member of a force,

(b) publishes, edits, issues, circulates or distributes a writing that advises, counsels or urges insubordination, disloyalty, mutiny or refusal of duty by a member of a force, or

(c) advises, counsels, urges or in any manner causes insubordination, disloyalty, mutiny or refusal of duty by a member of a force,

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

This section seems to take all of the other offences in the Coderelating to military such as sections 46, 50, and 52 to 53 and provide an omnibus offence with aspects of treason (see s. 62(1)(a)), mutiny (see s. 62(1)9c), and sedition (see s. 62(1)(b) all bound into one section. However, this section appears to offer offences considerably less serious than the other criminal offences it seems to mimic considering the punishment differences. For instance, treason under s. 47 is an offence punishable by a maximum of fourteen years or life (see as previously mentioned podcast Episode 43). Section 62 involves criminal conduct similar to those more serious sections but sanctions the conduct as an indictable offence with a maximum of 5 years imprisonment. 

Historically, it should be noted, the section was brought into the Codein the 1951 amendments and was initially a section involving “Miscellaneous offences of a seditious nature.” For a full discussion of sedition, see Episode 54of my podcast. Notably, however, section 62 does not exactly mirror the sedition section under s. 59 and permits a much broader unlawful act. Sedition under s. 59 criminalizes seditious words and intention as publishing, circulating or advocating. Section 62 criminalizes words of insubordination, disloyalty or mutiny, in the context of the armed forces, that are not only published and circulated but also distributed, issued, or edited. Although distributing and issuing may be synonyms for publishing and circulating, the act of editing is not. There are no other offences in the Codethat consider editing a document for a criminal purpose as a crime. The reference to interfering with loyalty or discipline is reminiscent of the mischief sections under s. 430. The prohibited act of “influences” is also found in the obstruct justice offences under s. 139and corruption like offences under ss. 123 and 121. Although “advises” and “counsels” are akin to the counselling section in the Codeunder s. 22, “urges,” as a prohibited act, is not found in any other section of the Code. This shows s. 62 to be an amalgam of offences providing for a broad range of misconduct. 

The fault requirement can be found in the word “wilful,” which as mentioned in previous podcasts (Episode 44and Episode 45), indicates a requirement for subjective liability but depending on the interpretation of the word, may indicate a form of subjective liability requiring a high-level of intention. There is no case law on the issue.

In fact I found no cases directly on s. 62 in my database search. One possible reason is the desire to use the more flexible court martials process for such misconduct considering the approval for such usage in Moriarity. Furthermore, s. 11(f) of the Charter, giving the right to a jury trial for offences punishable by 5 years or more, specifically exempts military tribunal sanctions. Thus, making for a summary procedure under the military laws. 

This brings us to my final comment on this section – a comment you who have listened to my podcasts may be already tired of hearing – that in the reform of the Code, the government should be pressed to review all of the military-like offences in the Codefor revision and/or deletion. 

I need only concentrate on a few paragraphs of the decision to illustrate my premise. First, the outright usage of criminal law principles is palpable in Justice Moldaver’s finding that Groia’s conduct did not amount to incivility. In Moldaver J’s view, Groia made an honest mistake in his understanding of the rules of evidence, mistaking the Crown’s obligation to disclose relevant and material evidence with an obligation to consent to the admission of such producible evidence. Crucially, this honest mistake was sincerely held, an important factor in the analysis on whether there was a basis for Groia’s in court conduct. As Justice Moldaver suggests in paragraph 93, requiring an honest but mistaken belief as the foundational precept for the civility analysis is taken straight from the 1980 criminal law Pappajohn decision.  

Pappajohn is itself a seminal case, and a foundational one at that, taught in all first-year law school criminal law courses. It provides the foundational elements of mistake of fact in a sexual assault context - the defence of mistaken but honest belief in consent. It is the start of a long line of cases where the Supreme Court struggles with the parameters of such a defence and when such a defence should be left to the consideration of the trier of fact, known as the air of reality test. It is also an infamous case, which at the time of the trial in the late '70s caused a shock wave in Vancouver high society as wealthy business man, George Pappajohn was tried, convicted and incarcerated for the rape of a real estate agent. The case eventually led to the 1999 Ewanchuk decision where the Supreme Court made it clear that no means no and only yes means yes. On the pop culture side, the Pappajohn trial is also one of the cases dramatized in the radio series, and then later  television series, created by George Jonas(journalist) and Eddie Greenspan’s (legendary criminal defence lawyer) entitled the The Scales of Justice. When I teach Pappajohn, I bring in the script as published in the book series for the class to get a sense of the real-life drama surrounding the decision. Too often when we look at cases we forget the facts are not just a written narrative or story but are based in real life events. 

Although, Justice Dickson wrote for the dissent in Pappajohn, his framing of the defence of mistake of fact was adopted by the majority decision, authored by Justice McIntyre. It was Justice Dickson, who clarified the defence in Canada as an honest belief that need not be reasonably held as opposed to the English authority in Tolson (see pages 150 to 154 of Justice Dickson’s dissent in Pappajohn), which suggested the belief must be an honest and reasonable one. Later case law on the issue, particularly Chief Justice Lamer in Davis, emphasizes the need for the belief to be honestly or sincerely held, for the defence to cross the air of reality threshold. Reasonableness is not required but is a factor in determining the honesty of that belief. It is, in other words, part of the credibility assessment of the belief but not a controlling pre-requisite. In Groia, Justice Moldaver relies on this crucial distinction between an honest belief sincerely held and an honest and reasonable belief as a defining basis for finding Groia’s conduct as not deserving sanction (see para 92).

But that is not the only basis for this finding. The subtler reliance on criminal law principle comes as Justice Moldaver speaks of another aspect of Groia’s conduct; whether he was acting in good faith. Contrary to the dissent's interpretation of the majority’s position on this, Justice Moldaver suggests he is not conflating reasonableness with good faith. Indeed, he maintains these concepts act separate and apart. Here, Justice Moldaver relies on criminal law Charter language as he defines the concept of good faith in the same terms as the s.24(2)Grant analysis. Section 24(2) is a remedial section, triggered once the court finds a violation of a Charterright. It is a criminal law remedy as evidence can be excluded under this section on the basis of a breach that brings the administration of justice into disrepute.Grant is a sophisticated analysis that heavily relies upon societal norms and aspirations. It is a remedy that engages long-term goals of society and is firmly situated in the kind of society we want to live in as well as the kind of behaviours we will or will not tolerate as a society. It is firmly fixed in the public confidence in our justice system. Section 24(2) plays an educative role, a disciplinary role and an aspirational one. It is retrospective, in the sense it must revisit the past actions of the authorities in breaching the Charter, but it is prospective in its relief. Admittedly, after doing a couple of presentations on s. 24(2), I am attracted to the Grant analysis as I find the test to be an elegant and inspirational one. 

But back to Groia and Justice Moldaver’s pulling into the mix conceptual images from s. 24(2) in the shape of good faith. Part of the s. 24(2) analysis requires the court to assess the seriousness of the breach, in other words the seriousness of the Charter infringing conduct. In Groia-terms this can be equated to the seriousness of the alleged professional misconduct. Justice Moldaver in paragraph 93 enters into an ersatz s. 24(2) analysis as he describes good faith on a sliding scale “The more egregious the legal mistake, the less likely it will have been sincerely held, making it less likely the allegation will have been made in good faith.” This is exactly what is done in a s. 24(2) analysis. There, the court situates the police conduct on a “scale of culpability” with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter  rights” at the other (see R v Paterson, 2017, SCCat para 43). All of this is, of course, reviewed in light of all of the circumstances of the case – in other words a contextual analysis.

Interestingly, this 24(2) like analysis intersects with the honest but mistaken legal mistake analysis undertaken by Justice Moldaver. As part of the s. 24(2) good faith assessment, the court considers whether the police were relying on an erroneous view of the law at the time of the events. This view of the law may be correct at the time but later changed through case law or it may be erroneously held through a mistaken understanding of the law (R v Vu, 2013, SCC para 69 & R v Duarte, 1990, SCC, para 60). However, there is an obligation on the police to be up to date on the law. They cannot rest on wilful blindness. A noted difference in the analysis is the requirement in Paterson at paragraph 44 of the majority reasons of Justice Brown that the good faith errors be reasonable. Negligence, in accordance with this standard, is not good faith and neither are unreasonable errors based on ignorance (see R v Buhay, 2003, SCC at para 59). As an aside, Justice Moldaver dissented in Paterson. In any event, this discussion must be kept in context – what Justice Moldaver is discussing is civility not competency. The line must be clearly drawn to ensure the integrity of our adversarial system and the buttressing concept of resolute advocacy.

It should finally be mentioned that at no point does Justice Moldaver reference s. 24(2) or the pertinent case law. In a contextual analysis such as this one, anything goes. Which leads me to the last point in this brief blog that obviously the Groia decision continues the Supreme Court’s predilection to contextualize. This modern approach to everything 'where context is everything' first appears in statutory interpretation principles (see Rizzo Shoes, 1990, SCC at paras 21 and 22) but has outgrown the written law to be a favoured solution to all problems. The contextual approach opens the rule of law door, which so often in the more rigid application of law is closed. Whether this open-door policy is a good one, I leave for another day but needless to say, the Supreme Court is certainly consistent. In the end, by using criminal law principles and Charter aspirations in areas not traditionally considered true criminal law, the idea of 'context is everything' is getting a large and liberal interpretation. In a very real sense, criminal law rules!

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 7, R v Black, 2018 SCC 10,  R v Stephan, 2018 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 Queen, 2018 SCC 13with Justice Gascon dissenting, R v Cain, 2018 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 Seipp, 2018 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. Lawrence, 2018 SCC 11). Of note, 1 of the judgments released with reasons, R v Magoon, 2018 SCC14, was an appeal heard and dismissed, with the co-accused’s appeal R v Jordan, 2017 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.

The lawyer by nature is a multi-tasker: trained to see the trial not as a linear exercise but as a multi-layered, multi-dimensional entity in which all of the moving parts of a case must be artfully molded into a workable case to be persuasively and successfully presented to the court. Throw into this delicate mix new age technology and you have, not a work of art, but a machine. Digital evidence in the courtroom re-constructs the traditional case – essentially taking a file from the Clarence Darrowinspired Inherit the Windbased on the Scopes “Monkey Trial” of 1925and plunking it down into the delightfully digital melange of Blade Runner 2049.  The Handbook appreciates the nuances of this task and is a helpful “all in one” guide for the practitioner faced with the challenge such digital cases bring. 

The practitioner bent is nicely explicit throughout the book as it continually and consistently metes out trial advice not as an afterthought to the law but as a practical outcome of it. For example, in the opening pages of the chapter on reasonable expectation of privacy, the authors remind the practitioner to focus on what was seized digitally as opposed to emphasizing the static location of the hardware. Of course, this focus on content over form just happens to be consistent with the focus of the Supreme Court in recent decisions on technology-based searches. In this way, these trial tips sharpen the law into a useable trial tool. But the Handbook does more than offer tools. Throughout the Handbook, the authors provide suggested factors to consider in dealing with the various in and out of court issues, which may arise in such cases. This attention to everyone means that the trial tools are “non-denominational” as they are useful for every player in the justice system defence, Crown, police and even judge. Essentially, the Handbook endeavours to create a virtual tool box that can be custom made for whomever has the need to create a case. Better yet, these tools are not saved into an outbox folder for view at the end of the book but reside within each discussion byte-point as the digital journey proceeds in the Handbook. 

Even if you are attracted to the Handbook purely for the tips, you will certainly read it, cover to cover, for the more traditional discussion of the various legal issues engaged by digital evidence. With a “bit to byte” approach, the Handbook is a smart guide on all of the technological dimensions of a criminal case from Part I on search and seizure, to Part II on disclosure, and finally ending in Part III on the use to be made of the evidence. These Parts divide the Handbook into three conceptual areas: the investigative stage, the pre-trial or case building stage, and concluding with the trial stage where digital technology is used both within the trial process as evidence and as part of the trial process as a tool for presenting that evidence. 

Each Part is further divided into discrete chapters. I am particularly impressed with the opening chapter on the Reasonable Expectation of Privacy in Digital Data. I agree with the authors that reasonable expectation of privacy (REP) “opens and ends the s. 8 analysis” (page 4). Actually, I would go further and suggest REP is theplace in which s. 8 resides (although that depiction may be too ‘territorial’ in aspect for some) and as such is the lens through which digital evidence must be viewed throughout any analysis, be it for legal commentary or trial use. Then there is the less esoteric but equally important chapter 7 in Part II Disclosure on Practical Constraints on Crown and Defence. This chapter is a tell all discussion of how to maneuver through disclosure undertakings, the real cost burden of giving and receiving digital disclosure and the myriad of access to justice issues resulting from the thousands of pieces of data disclosure connected to these files. This big-picture through a magnifying lens approach to digital evidence strikes the right balance between practice and principle – just what a skilful advocate needs and wants. 

Another highlight of the Handbook is the high-level discussions of technological terminology such as the “chipping” and “parsing” required to extract and copy data from a smart phone (page 168). Or the introduction to the “thumbnail” database (page 202) as an indicator someone has viewed a particular computer file. My favourite techie talk is the “Trojan Horse defence,” wherein the defence position goes “viral” by suggesting illegal computer data was parachuted onto the computer through the back door by a hacker or by the use of malicious software. 

If there is a weakness to the Handbook it comes by it honestly. Although Canadian case law does not have the high-speed energy of sci-fi movies, it does have a large and I mean a mega large pool of case law on the use and misuse of digital evidence. The downside to the book, which is not a failing of the authors, is the sheer number of cases which now engage digital evidence. In fact, the book just missed the release of the Supreme Court’s pronouncements in Marakahand Jonesand as such the book, although in sentiment is reflective of these seminal cases, cannot reference them directly. This is where perhaps the publisher might want to use some digital magic of their own by turning the book into a digitally interactive hyperlinked online e-zine that can be updateable by a click of a mouse. Perhaps it will become an App, accessible on your smart phone or iPad. 

Whatever the format, this book truly is a “how to” guide to the digital world, reminiscent of the Hitchhiker’s Guide to the Galaxy, the subtext is - read this book and “Don’t Panic.” More accurately, read this book and you will become more skilful at technological advocacy.

To be sure, there are changes we can all agree upon such as the repealing of some decidedly dead offences disabled by the application of the Charter. The best Albertan example of the danger in leaving things unchanged that have been changed is found in the original decision of R v Vader,2016 ABQB 505 (CanLII). In that decision, s 230, unconstitutional since 1987 as a result of the seminal decision of Justice Lamer, as he then was, in R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC), was resurrected to convict the accused of murder. That error was easily and quickly undone as, in Pandora Box fashion, the lid was slammed shut with the s 230 conviction adroitly converted into the constitutional manslaughter conviction (see R v Vader, 2016 ABQB 625 (CanLII)). Bill C-75 explicitly repeals s 230, and that is a good change.

In C-75, there are also some expected changes, such as the abolishment of peremptory challenges to jury members under s 634 to be replaced by the more meaningful challenge for cause procedure. Although these changes are for good public policy reasons (see my earlier post on the Stanley / Boushie case here), such changes, which turn an automatic process into a discretionary one, still require thoughtful and mindful decisions by all those involved, counsel included. Changes can provide better and more equitable outcomes, but changes do not, in and of themselves, guarantee there will be change, they only make change possible. 

There are also some unexpected changes or at least changes some of us feared but doubted would occur. For further comment on the efficacy, purpose and reason for retaining, in some form, the preliminary inquiry, see my previous post on the issue as part of a case commentary written in April of 2015, “Does the StinertDecision Signal the End of the Preliminary Inquiry?”. The abolishment of the preliminary inquiry, except for the most serious offences, is one change we feared for years and are still probably in a state of denial about as our fears have become a reality. I suppose we should be relieved that the process was not entirely eradicated but perhaps that was the plan; to lull us with a sense of false security. 

Another, smaller change, yet completely unexpected and unwanted is an important evidentiary change under the soon to be added s 657.01, permitting the admission of the “routine” evidence of a police officer at trial in affidavit format, without the hearing of that evidence. This evidence is not given in real time. It is not even given orally. It is proffered as affidavit evidence. In other words, it is tendered on paper. This effects a precarious step, a paper-thin one, toward the potential future of trials by paper in the criminal court. 

As mentioned earlier, part of the difficulty with this government’s approach to Criminal Coderevision is the lack of long-term strategic vision. Reading these amendments, there is a sense that some of these changes were made without thinking them through to their ultimate end and without mentally testing them in a real trial scenario to determine how they will ultimately play out in court. For these changes to be meaningful and workable, yet still upholding the principles of fundamental justice, we rely on our government, before they change the law, to ask themselves why they are in fact changing it. We want the government to think before acting and ask whether the contemplated change is for the better.  Finally, we rely on the government to make these changes in an effort to enhance the criminal justice system while preserving the protections of those whose liberty is at risk. I emphasize to enhance, not to make the system more efficient. Efficiency cannot be and has never been the only reason for reform. Efficiency is not what we want from our justice system. That is not what the Jordan (2016 SCC 27) and Cody(2017 SCC 31) decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about.

As is typical with omnibus Bills, instead of stopping at what needs to be done, the government went above and beyond by also adding under the proposed s 644(3), an ability to convert a jury trial in mid-trial into a trial by judge alone, in the event the number of jurors fall below the number required to continue the trial. Although this can only be done by consent of both parties and therefore appears innocuous and not worth commenting on, my question is – why? A decision to have a jury trial is an accused’s Charterprotected right. Why would the loss of that right as a result of the inability of the jury to continue logically mean that the accused is good to go without one? Why incentivize a change which should not occur for that reason? Why not, instead, permit a jury trial to continue with less jurors than presently permitted? It seems that this change as with the admission of routine police evidence, sworn but not tested through viva voceevidence, is for one reason only – expediency. 

I harken back to Justice Lamer’s comments on the role of expediency in criminal law in Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC)(at para 85). This decision is an early Chartercase on the unconstitutionality of an absolute liability regulatory offence where there is a potential loss of liberty through a term of imprisonment or probation. An absolute liability offence requires no proof of a mental element and is therefore, where there is a potential loss of liberty, contrary to the principle of fundamental justice, “from time immemorial”, that an innocent person not be punished (para 85). Justice Lamer recognized that administrative efficiency is the driving force behind such regulatory offences, as the regulatory regime could be enforced quickly and efficiently through proof of the prohibited act only. To climb into the mind of the regulatory defendant, often a corporate one, would prove to be too difficult and contrary to the overarching objective of regulation, which is protection of the public from unsafe regulatory practices. However, where a criminal law sanction is used, Justice Lamer opined that only in exceptional circumstances, such as “natural disasters, the outbreak of war, epidemics,” would such administrative efficiency “successfully come to the rescue” of such a breach of s 7 (at para 85). Otherwise, life, liberty and security of the person should not be “sacrificed to administrative efficiency” (at para 85). These sage words written thirty-three years ago still have meaning. The principles underlying the Charterand indeed “from time immemorial” cannot be thrust aside in circumstances where the government has alternatives or simply, in a rush to please, has not given careful consideration to those changes. The justice system may be bending under its own weight, but the answer is not to shore it up with a quick and easy fix.

The admission of “routine police evidence” in paper format, as mentioned earlier in this post, serves as another prime example of the government giving all due consideration to administration without considering the rationale or “end game”. Presently, through our rules of evidence, we can make judicial or formal admissions at a criminal trial pursuant to s 655 of theCriminal Code. The section reads very broadly and confers a discretionary right on the defence to “admit any fact ... for the purpose of dispensing with proof”. Typically, such admissions are made in a written and signed agreed statement of fact or agreed admissions, depending on the nature of such admissions. They are often used to admit continuity of an exhibit which a police officer has seized in order to relieve the Crown and the officer from minute descriptive recitation of exactly where the exhibit was located at every point in time of the investigation. Such admissions can save court time and are efficient. They are to be used as indicated – to dispense with proof. This signals to all parties that if a fact is not admitted, the Crown must prove it. Easy and simple to use. Fair and efficient. Enter, the proposed s 657.01, permitting police evidence be admitted at trial in affidavit format. The first question to be asked is why? Why do we need such a paper heavy process when the accused already has the use of s 655?

Let’s go through a faux question and answer period to illuminate the point. The response to those “why” questions may be as follows: admissions under s 655 are formal and therefore binding and conclusive. The new proposed section permits admissions of fact informally, permitting the accused to lead evidence contrary to those affidavit facts, leaving the trier of fact to make the final determination of the issue. I see. Good point. However, so the response may be, if this form of evidence is to be treated like all evidence, in that it is subject to the assessment of the trier of fact, then what exactly is the point? Aha. Clever. But, the responder responds, the point is to relieve the police officer from attending court. A police officer’s attendance, if not required, costs the government time and money. Oho, is the response to that salvo. So, the reason for this is administrative efficiency. Not quite, is the response. An accused can also request an officer attend. Really? So, says the responder. So now the burden is on the accused to speak up and ask for an officer to attend court, to give evidence as is his or her duty, and to present themselves for cross-examination only upon request despite the principles engaged in full answer and defence. When once the status quowas the Crown shouldering the responsibility to present in court testable evidence as part of their obligation to prove guilt beyond a reasonable doubt, now the accused must request it. What was a given is now a discretion. Another point in time for the possible exercise of judicial discretion. Another addition to the now enhanced gatekeeper function of the trial judge. Another point in time where a self-represented accused might be overcome by an overly cumbersome process. Hmm. This seems awfully familiar. Isn’t this what happened to the preliminary inquiry? Once it was a default position to have one unless the accused waived it. Then, it became a request. Now, it will be virtually gone, but for exceptional penalty circumstances. But this is mere process – relax, is the final word from the government. The final response may be – look at what happened with expert evidence – complacency in its admission and a failure to test the evidence resulted in miscarriages of justice until courts were forced to recalibrate the focus. 

Finally, we have the Charter statements on these new amendments so crucial to the governmental approach. These statements, according to the government website on the issue, “are intended to provide legal information to the public” on “some of the key considerations that inform the review of a proposed bill for consistency with the Canadian Charter of Rights and Freedoms.” In this instance, the government provides justifications for the amendments, couched in Charter speak, relying on a broad range of rights, such as s 7 in its various forms, the s 11(b) right to a trial within a reasonable time, the s 11(d) presumption of innocence, and the right to equality under s 15. However, when viewing the admission of “routine police evidence,” for instance, this concern for the Charter feels ingenuine. Despite the government’s Charter statementsto the contrary, a sacrifice of one Charterright, such as limiting s. 7 full answer and defence, for another Charterright, such as using administrative expediency to temper s. 11(b) unreasonable trial delay, is not consistent with the spirit and vision of the Charter. Balancing may be needed but balancing requires a proper weighing of these rights in light of our case law. As Justice Iacobucci remarked in the majority decision in R v Oickle, [2000] 2 SCR 3, 2000 SCC 38 (CanLII), the Charterrepresents the “bare minimum below which our law must not fall” (at para 31). Indeed, “the Charter is not an exhaustive catalogue of rights” (para 31). From “time immemorial” we have assiduously protected due process rights as a reflection of our rule of law. Our government may want us to accept the bare minimum but we in Canada deserve more. We see the government’s attitude in those carefully crafted Charterstatements, which on the surface advance transparency but are so carefully polished, they reflect rather than reveal. Self-serving in nature, these statements publicly maintain the proposed changes are consistent with or advance Charter rights, but it is more by the saying that these changes do this than by the fact they truly do. In other words, by saying so, the changes become so. So, it is written, so it is or must be. Whether written in stone or merely on paper, those statements should not be the outward public face of these changes. Again, Canadians deserve better – we deserve to hear the rationales and the potential outcomes. Hear it, not find it in the trail of papers.

(with thanks to the ABlawg team for editing this piece)

As mentioned, there are many salient legal arguments to be made in wake of the acquittal of Stanley for the murder of Colten Boushie. Most of those arguments are legalistic involving the law of homicide and the mens rea requirements for unlawful act manslaughter, the legal significance of the so-called “defence” of accident, opinion and expert evidence, instructions to the jury, and jury selection. But overlaid onto these legal arguments is the brutal truth – that our criminal justice system is slow to embrace the kind of change needed to make our justice system reflective of our Indigenous peoples. In fact, we have been meandering toward change in a very familiar and comfortable manner. To my case-law attuned mind comes the expression “incremental” change (i.e. R v Salituro, [1991] 3 SCR 654) as a description of how the justice system has responded to the dire issues raised by the Indigenous voices attempting to awaken the system. I cannot pretend to speak on behalf of those voices nor do I have the right to do so but I can through my own personal perspective add to this much needed call for change. To trace the likeness of this issue though the law classroom is an important piece of the awareness or awakening which needs to happen in our legal profession. We are the defenders of the rule of law but also the framers of that law and we need the future of our profession to be mindful of this awesome duty to create sustainable and meaningful change through law.

The trail must start somewhere, and I will choose to start it with a case which resonated with me as a young law student and then lawyer and still catches in my throat today: the story of Donald Marshall Jr., a young Mi’kmaq man wrongfully convicted of murder. His story was an egregious example of the miscarriage of justice our system could generate, and a shameful example of the discrimination and racism tolerated in that system. Out of that example came an acquittal, after years in prison, a royal commission advocating change, and a man who dedicated his life and voice to Indigenous rights. As inspirational as he is even a decade after his death in 2009, his example dates back to the 1980’s, some 35 years ago. His fight for traditional fishing rights culminated in a decision by the Supreme Court of Canada in 1999 (R v Marshall, [1999] 3 SCR 456) in which he was vindicated yet again for breaches of the Fisheries Act but this time on behalf of his people. This story exemplifies the subtext that can be found within the borders of case law and between the words enunciated by a jury verdict.

But I do not need to go back that far to continue the trace or the shadow cast by the “long arm of the law.” When I taught as a sessional instructor human rights and civil liberties to undergraduate criminal justice students in the 2000’s, I was sure to discuss Burnt Church First Nation’s struggle with fishing rights, the Neil Stonechild tragic and unnecessary death, and the treatment and incarceration of Indigenous peoples in the prison system as seen through Michael Jackson QC’s perspective on prisoner’s rights, the Arbour Report on the Prison for Women and the numerous reports from the Correctional Investigator of Canada. Added to this narrative is the Truth and Reconciliation Report and the call to action for monumental change, not incremental change, needed to eradicate injustice in our system. This mountain of information is more than a discussion piece it is the reality of our criminal justice system.

But the Stanley trial and the implications of the case shakes me out of past legal narratives to the present and to the continuing issues we see within the criminal justice system. In the 1L classroom my criminal law colleagues and I implemented curriculum changes to include Aboriginal sentencing issues and a panel discussion to hear, understand and experience the human connection between Gladue reports (R v Gladue, [1999] 1 SCR 688) and the criminal court room. Again, an example of how the law almost two decades ago changed but the impact of that change has not been a visceral one but a legalistic conversation which still haunts the criminal court room and the law classroom.

New cases emerge, adding to the memories of Donald Marshall and emphasizing the need to offer these examples as the contextual foreground in law classroom doctrinal learnings. Gladue comes easily to us as a paradigm of a discrete area of law involving clear statutory directions in s. 718.2 to include the aboriginal perspective. These newer examples are more difficult legally as they serve as counterpoints to the traditional trope of miscarriage of justice through the accused’s perspective. We are comfortable in law dressing our outrage in the language of legal errors directed toward our most cherished values as embodied in the presumption of innocence. This is important as evidenced in the Donald Marshall case but what is not evident and what is harder to debate is the criminal justice system as a societal mirror of how we implement the rule of law on behalf of the entire nation. To push ourselves to view justice in a big picture way is counterintuitive to the lawyer who is trained to peer through the magnifying glass and find those lacunae, those minute errors which provide us with the “Aha” moment when we can decry a miscarriage of justice on behalf of the accused who must face the imbalance of state authority and power. But it behoves us all to take up the mantle of lasting change by widening the focus and emboldening a deeper conversation involving the entirety of the justice system. These cases sit at the edges of the law but also serve as the reminders of what is at stake when the criminal justice system provides space for the stereotypical characterization of Cindy Gladue in R v Barton, 2017 ABCA 216 (see my previous posting on the case) and the impassive resistance of the complainant in R v Blanchard (see Alice Woolley’s excellent posting on this case)

The subtext or context or trace of the likeness of Colten Bushie can and must be taken in the law classroom. We must approach the discriminatory and slow to change mechanisms of our criminal justice system not as a mere legal problem or as a simple teachable legal moment akin to an in-class case hypothetical but as a mindful approach to what the legal principles and case law really mean. These discussions are hard and debatable but that does not mean we do not do it. We should question and debate the role of law in our society. A society committed to diversity, change and tolerance as reflected in our laws and our application of those laws. Sometimes incremental change works but sometimes it merely pulls from behind and pushes forward the vestiges of our legal past. If we want real change we need to listen to the echoes of the past through the lens of today and that includes the black-letter law we teach in the classroom.

We have the tools of reconciliation – desire and willingness to change but we need courage to do so. Our justice system is slow to embrace and integrate indigenous learning and practices. It should not be a question of accommodating or conforming. It should be a question of inclusivity. We are a unique nation and we need to recognize injustice when we see it and welcome those voices into the law classroom.

In my criminal law focused mind, the immediate correlation this design concept has with law matters is in the area of section 8, search and seizure, which provides protection of privacy rights. As with all Charter rights, this protection is not absolute but is framed against the permissible intrusions into our private sphere for the purposes of law enforcement. To ensure this frame fits and sits properly within that privacy sphere, judicial oversight is required. The frame should sit lightly yet must cover enough of that sphere to ensure public safety is not compromised. Similarly, the greater good must not be advanced at the expense of who we are as a society. This delicate balancing is done through the judicial gatekeeper’s lens, which is carefully calibrated through case law with a “cut once measure twice” philosophy. Indeed, the recent decisions of Marakah and Jones, which I commented on in previous posts you can access here (Marakhah) and here (Jones), serve as an example of this balancing and re-balancing of privacy rights. The majority of the Supreme Court seem to be recognizing that privacy is not a static concept nor is it a contained one but is a changeable concept requiring the law to be as nuanced as those conceptions of privacy seem to be.

However, when I look at how architectural space is conceived, I wonder if our legal conception of space is in step with this living space formulation. In terms of Marakah and Jones, which only now recognizes the integration of technology into our “living” spaces and therefore changes our legal conception of those spaces, the concern becomes more fundamental: does the generation that fashioned “reasonable expectation of privacy” truly understand what this generation expects from their “reasonable expectation of privacy?” Public and private are not in opposition, but as vividly exemplified in the multigenerational design of the house, they live together harmoniously. But it goes further: public and private flow from one extreme to another continuously as the core meaning of these terms ebb and flow. When my son refers to the “semi-public” aspects of the house design, he isn’t just referencing the transparent walls which permits the public into that living space but is also referencing the semi-public inner space of the home, which fluxes between one generational family to another. Is our law that flexible? Can it understand the layering and flow of the new reality of space, which embraces public and private occurring within the same time frame and essentially creates a collapsing of time as space recombines these terms into one “space”?

The irony of this “new” conception of space is that it is not in fact new. In Ancient Rome and in Ancient Greece, the home or domus occupied by the upper class was both publicus, of the people, and privus, of the individual. The Ancient Roman domus, for example, was often sandwiched between commercial premises, which may be owned by the home owner as well. Additionally, the living space inside the domus was open to the public demands of the “master of the house” or the dominus, who would receive daily morning greetings (salutatio) from his clients (those whom he gave monetary and economic support to in exchange for their support often in the political arena). For more on this, start here. It is only as society expanded that our concepts of public and private separated. Now that technology has brought us in close contact again, it might be time to be open to a totally modern approach to the legally constructed frame of privacy rights.

Consistent with this view, is further commentary made in Bozikovic’s article calling for a renewed approach to land use laws, which traditionally precludes multigenerational home design. The article maintains that post World War Two, the vision of people living separate and apart but together in one community, was the essence of “tidy” modernity. But that vision is contrived as life cannot be contained in a pre-fabricated frame but must be permitted to bleed over the edges. The need to blur the lines between private and public may be contrary to the bright lines we are taught to expect from the law, but the alternative may be just as murky. Without a living and breathing law that is reflective of the generation who must live by it, we, sitting in the legal landscape, will be left behind.

This brings me to the final connection this article brought to mind, which is the future use of predictive analytics in legal decision-making. In this area the collision of private and public space is a matter of concern rather than a matter of celebration. If the Charter is designed to protect informational privacy as a matter of self-autonomy and dignity, then the prospect of our waking moments being mined for data in order to suggest what we may or may not do in the future is legally concerning. This concern becomes magnified when such big data is funnelled into a “black-box” algorithms which uses the information to deny people bail or sentence them to long terms of incarceration. This concern with transparency and accountability in the realm of analytics is now front and centre in the soon to be “live” European Union General Date Protection Regulation or GDPR. Although the legislation was approved in 2016, the rules contained therein will be enforced as of May 25, 2018. This regulation of data privacy couples with the AI Now Institute 2017 Report on the use of Artificial Intelligence or AI mechanisms through the lens of civil rights and liberties, bias and inclusion and ethics is a must read for those legal minds concerned with the computerized mind making choices and decisions that impact life, liberty and security of the person. In Canada, we need to be doing more open access discussion of these thorny issues which intersect law, technology and social science. For more information, I highly recommend a google search and follow on Twitter my colleague at the University of Calgary law, Emily Laidlaw, who does research and writing in the area of regulation of the internet. Her blog postings on the faculty’s ABlawg website can be found here. Finally, I add to this eclectic mix, a recent article based upon a conference in Barcelona on  Internet, Law & Politics entitled “Personal Data Protection as a Nonfunctional Requirement in the Smart City’s Development” by Lorenzo Dell Corte (Tilburg University & TU Delft), Bastiaan van Loenen (TU Delft), and Colette Cuijpers (Tilburg University) and the intersection between issues of privacy, regulation and the support for the Smart City integrating this new technology.

The kind of interdisciplinary work needed to truly unpack and understand these issues and the significance to the legal landscape is possible and needs to be done. In some ways the scholarly approach needed, involving law, architecture, technology and politics, is a micro-reflection of the “modern” spaces we will be living in and constructing in the near future. Considering that, it is time to broaden the legal landscape and allow the private and public to come in.

In a few days, the law school will be a riot of noise as the 3Ls start the three-week intensive advocacy course. In those three-weeks the students will learn the fine art of advocacy by performing advocacy exercises for members of the bench and bar. They will receive real time feedback and start to develop their own unique advocacy voice. The development of an advocate is continual as we hone our style and abilities on a daily basis. It is through interaction with others we become advocates. This course is preparation for that life-long journey.

Advocacy is not just a matter of projecting one’s oral attributes but involves the ability to remain quiet at just the right moment. Appreciating when it is time to speak and when it is not, is as much a skill as cross-examination. Silence in advocacy comes in many forms. It involves the timing of pauses in that “killer” cross-examination as much as it involves waiting for your turn to speak during argument. How you carry yourself during those quieter moments is also a mark of good advocacy. Silence in the courtroom is, therefore, something to learn and to practice in order to be an effective and successful advocate.

An advocate should not feel pressured to cross examine or re-examine a witness in every case but silence can be a bar to raising an issue on appeal. An objection unmade is an objection lost. Sometimes silence is not golden but is perceived as acquiescence. It must be used like any other advocacy tool - at the right place and at the right time for maximum effect.

Silence is also equated with brevity. Good advocacy is also knowing when to stop speaking. An argument is not made stronger or more persuasive by repetition. Neither does it ring truer. Much of law school is geared toward teaching students to be succinct, to the point and brief, both in writing and in speech. In R v Royz, 2009 SCC 13, Justice Binnie, in an oral judgment, eloquently suggests that “brevity is the soul of a jury charge” where the key function is to “decant and simplify,” as recommended by Chief Justice Lamer in R v Jacquard, 1997 CanLII 374 (SCC). Lawyers should heed this advice as well, be they declaiming on a legal issue or urging a jury to acquit.

Listening, as a silent activity, is also an important part of advocacy. Students will come to realize that the next question is predicated on that active silence. Preparation is important but so is flexibility. Creating an examination of a witness is an exercise in adaptive listening. A good advocate must be open to different avenues of presentation should the matter require it. However, an advocate must be able to recognize when those avenues are there. Seeing is hearing. Hearing is listening. Listening requires silence.

In a few days, the din of the hallways will recede as the students close the doors of their classrooms and practice their art and their profession. I will walk those quiet hallways with a sincere wish that the students will find their professional voice in the presence, not the absence, of silence.

In this episode, we are continuing our discussion of identity fraud and theft type offences. This particular offence involves documentation which confers status of citizenship on the subject holding the document. Section 58 involves the fraudulent use of such a certificate of citizenship or naturalization.

The section reads as follows:

58 (1) Every one who, while in or out of Canada,

(a) uses a certificate of citizenship or a certificate of naturalization for a fraudulent purpose, or

(b) being a person to whom a certificate of citizenship or a certificate of naturalization has been granted, knowingly parts with the possession of that certificate with intent that it should be used for a fraudulent purpose,

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

(2) In this section, certificate of citizenship and certificate of naturalization, respectively, mean a certificate of citizenship and a certificate of naturalization as defined by the Citizenship Act.

The section uses similar language to the previous section 57 in that it applies to all those committing the offence while in or outside of Canada thereby extending the reach of our sovereign authority beyond Canadian borders. Unlike section 57, a section 58 offence does not involve the making or forgery of the document but the giving up of possession or the use of a citizenship document for a fraudulent purpose. This prohibited conduct of use is not as egregious as the creation of a false document under s. 57 as is suggested by the maximum punishment for this offence of two years imprisonment. However, the s. 58 offence is certainly more serious than the offence of making a false statement in relation to a passport under section 57(2), as section 58 is a straight indictable offence while 57(2) is a dual offence.

The documents in question – certificate of citizenship and certificate of naturalization – are defined as per the Citizenship Act. That Act, also of federal origin, is a statute conferring the right of Canadian citizenship on those individuals who attain that status pursuant to s. 3 of the Act. Indeed, there are only three sections to the Act, with s. 3, the application section, containing 24 subsections. Section 3(1) is one of the few sections I have seen which are a drafters’ paradise with the generous use of clauses, sub-clauses, and paragraphs such as in s. 3(1)(f)(i)(A). Needless to say, it is not the clearest of drafting.

To return to the certificates in question in s. 58 of the Criminal Code, the definition of the certificates under s. 2 of the Citizenship Act is not of much assistance. In accordance with that section, “certificate of citizenship” means a certificate of citizenship issued or granted under the Act or the former Act and “certificate of naturalization” means a certificate of naturalization granted under any Act that was in force in Canada at any time before January 1, 1947. I assume that the authorities would simply know the document when they see one.

The offence, as mentioned previously, involves the use of those documents for a fraudulent purpose or knowingly “parts with possession” of the certificate with the intent it be used for a fraudulent purpose. The offence, through the use of the terms “fraudulent,” “purpose,” “knowingly,” “possession” and “intent,” requires proof of a high level of mens rea. One cannot commit this offence through recklessness.

The offence has been in the Criminal Code since 1938 being an offence, as with s. 57, responding to the vagaries of pre-World War II Europe and the waves of immigrants trying to find a safe haven through whatever means possible. As I discuss in the previous podcast on s. 57, the Canadian government’s stand on the immigration “problem” was itself a casualty of the war as persecuted people were refused entrance into the country.

According to a series of British Columbia Court of Appeal decisions interpreting the phrase “fraudulent purpose,” the term “imports dishonesty in accord with community standards” as per R v Gatley, 1992 CanLII 1088 (BC CA), R. v. Long (1990) 1990 CanLII 5405 (BC CA), 61 C.C.C. (3d) 156 (B.C.C.A.), and R v RND, 1994 CanLII 403 (BC CA).

The importance of the section having extra-territorial reach cannot be underestimated. In the 1966 Ontario Court of Appeal decision of Regina v. Stojadinovic; Regina v. Stanojevich, the accused persons, who were facilitating the illegal entry of another person into the United States with the use of a fraudulent certificate of citizenship were acquitted on appeal as the then section did not pertain to an accused committing the offence while outside of Canada. In that case, the two accused planned an illegal entry into the United States but the individual to be sent was otherwise legally in Canada. Mere preparation was not itself fraudulent use per the section requirements. This decision followed earlier cases, in particular the decision of R v Walkem (1908), 14 C.C.C. 122, in which Justice Clement of the British Columbia Supreme Court concluded that “what takes place abroad cannot, in the eye of our law, be an offence against our law (unless indeed made so by statute)." This sentiment follows an even older English decision by Lord Chief Justice de Grey in Rafael v Verelst (1776), 2 W. Bl. 1,055 at p. 1,058 where he states that "Crimes are in their nature local, and the jurisdiction of crimes is local." After the 1966 decision, the section was amended in 1968 to ensure that the offence applied to “every one who, while in or out of Canada.”

The phrase in s. 58(1)(b) “parts with possession” is only found in two other sections of the Code pertaining to property; theft under section 322(1)(c) and section 390 an offence relating to fraudulent receipts under Bank Act. This phrase has a property-related meaning. The phrase is in fact common in landlord and tenant disputes involving “parting with” premises under a lease agreement. This “parting” can occur through bankruptcy or assignment (See Bel-Boys Buildings Ltd. v. Clark, 1967 CanLII 533 (AB CA)) and is akin to sub-letting the premises. However, such parting does not grant the person a right to hand over the premises with tenure. By using this term in defining the offence under s. 58, the handing over of the certificate to another person need not be permanent but can be only for a limited period and yet still be subject to s. 58.

Outside of the Criminal Code, there are other measures the government can take when faced with the misuse of citizenship documents such as refusing the issuance of a passport pursuant to the Canadian Passport Order, SI/81-86 or revoking or canceling fraudulent certificates of citizenship. The use of the Criminal Code provisions are therefore not the only response to this type of conduct but is an expression of the state’s desire to control and protect the status of citizenship through the criminal law.

In addition to the criminal, evidence and advocacy courses I teach, I also teach 1Ls Legislation. Statutory interpretation looms large in that course. One of the analytical tools used in interpreting a statute, albeit in the context of the modern approach, is the concept of absurdity. If the plain reading of the statute would result in an absurdity, then the Courts will look for other interpretations consistent or harmonious with the context and scheme of the Act. Absurdity is a powerful interpretative tool and fits nicely in the legal trope: Law is reasoned and reasonable. It is also logical and helpful. Law is not absurd. This concept of absurdity transcends statutory interpretation and is an overarching principle of law generally. The proper response to Dickens’s Mrs. Bumble should therefore be: the law is not “a ass.” With the recent release of R v Jones, the Court clears up a true absurdity or as Justice Côté for the majority puts it, a “catch-22” situation, relating to whether Jones has standing to argue the Charter issue. Better yet, the Supreme Court clears up this concerning conundrum with the powerful and triumphal use of the presumption of innocence. This summarizes in a nutshell why the recent Supreme Court decision in Jones is a welcome addition to s. 8 case law.

The decision does not have the powerful punch found in the companion decision of Marakah, but it has “legs.” What is this “major major” issue? Put simply, according to previous case law (R v Edwards, 1996 SCC), in order to engage a justiciable Charter issue, the accused must establish a reasonable expectation of privacy (REP) in relation to the thing seized. It must be remembered that s. 8 protects people not places or things. The purpose of the right to be secure from unreasonable search and seizure is to maintain an acceptable societal balance between an individual’s right to be free from state intrusion and the state’s need to intrude into an individual’s private life to maintain public safety and law enforcement. This “push-me pull-you” sense of balance is constantly being recalibrated by the courts in an effort to protect core democratic values underlying the Charter. This recalibration cannot be done in a vacuum but within the context of what currently matters to us as a society. In our courts, context is everything: from the meta-analysis of statutes as found in the modern approach to statutory interpretation to the specific flexibly-applied factors in the REP analysis. In order to argue REP, the accused must be literally or metaphorically standing in ground zero or in the circle of impact. If outside this Charter imbued impact zone, the accused cannot be aggrieved and cannot argue for exclusion of the evidence under s. 24(2).

Typically, it is not difficult to draw a circle of impact around the accused, particularly if the search or seizure are items personally connected to the accused. What does raise standing difficulties is where identity or ownership is in issue. Here’s the rub: once you admit you have standing, as in “you are the person sending the text messages about trafficking in firearms,” you cannot ethically suggest at trial “you are not the person sending the text messages about trafficking in firearms.” This Schrödinger’s cat-like conundrum requires counsel to make tactical decisions which may chip away at an accused’s right to make full answer and defence. The accused by taking the “not me” position is in essence giving up the right to argue a Charter violation. The Jones decision thankfully challenges that presumption and fixes it.

First, let’s start our analysis with the Edwards decision. In that decision, the majority, authored by Justice Cory, were less than impressed with the accused’s position on appeal, which was markedly different than at trial on the issue of ownership. The accused at trial testified that the drugs found in a third-party’s apartment were not his drugs. That position was maintained in the appellate court. It was only in the Supreme Court of Canada that the accused changed a “fundamentally important aspect of the evidence” in admitting that the drugs were indeed his property. This could not be countenanced as by changing the position the Appellant was relying on a different aspect of the REP, namely privacy in the drugs as opposed to REP in the apartment where the drugs were located.

In Jones, the situation was different. The accused did not lead any evidence he was the author and sender of the message. Instead, the defence relied on the Crown’s “theory” that the accused was the author and sender. The application judge found the accused could not rely on speculative “evidence” and therefore he had no standing to raise the s. 8 issue. But, as mentioned, how else could the defence advance a pressing Charter argument without compromising the defence? A legitimate goal of a trial is to put the Crown to the test of its case and to require the Crown prove all essential elements of the offence beyond a reasonable doubt. One of those elements is identity of the owner of the illegal item. If identity is in issue, the defence cannot “have its cake and eat it too” by arguing in the alternative. Once an admission is made on an essential element such as identity of the owner, it is an admission of fact that cannot be admitted for limited purposes only. Law, ethics and the Charter prohibit such a paradoxical stance.

Justice Côté recognizes the unfairness inherent in the standing paradox and soundly rejects the absurdity of the outcome. At paragraph 19 she approves of the defence’s reliance on the Crown’s theory as a foundation for the Charter argument and leans on a purposive, normative approach to the paradox. This approach involves two strands invoking the low hurdle required to overcome the subjective component of the REP analysis and invoking the Charter itself.

First, some background on the REP factors, which are situated in and viewed through the factual circumstances of the case. The factors are a tailored-made, come-as-you-are assessment. Yet, it is an assessment that must be nestled in the social fabric. In a previous blog posting (also a podcast!) on s. 6 of the Criminal Code – the codification of the presumption of innocence – I alluded to the golden thread metaphor of that presumption. That concept of the golden thread, arising from Lord Sankey’s decision in the Woolmington case, maintains the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt by conceptually weaving the presumption of innocence into our social fabric. Similarly, Justice Côté’s solution to the standing paradox connects back in web-like fashion to the presumption of innocence. It does so through an acknowledgment of the generous interpretation of the REP factors as normative ones and through the protective nature of the Charter right against self-incrimination under s. 13.

The nexus point for these justifications to permit an accused to have section 8 standing even where they deny connection to the offence is that golden thread of innocence. It is nice to see its triumphal return as a recognition of the normative values we hold. It is also an essential reminder that at the heart of the REP analysis is the preservation of those societal values. In many ways, section 8 principles and the section 8 analysis of those principles serve as a perfect view into the justice system with the golden thread as the ultimate symbol of why the right of the state to intrude into our lives must be tempered by the right of an individual to be free from such intrusion.

I am starting this blog posting with a pop culture literary reference. As soon as I read paragraph 17 of the Chief Justice’s decision in Marakah, the passage on taking the “holistic view” of the subject matter of the search as an “electronic conversation” transported me through space and time to a reading of Douglas Adam’s Dirk Gently’s Holistic Detective Agency (also now a tv series). The premise of the book is the concept of universal connectiveness through space and time. Dirk appears exactly where and when he should appear. Superficially, there may be no rhyme or reason for his appearances but on a deeper, holistic level there is, as they say, “method in his madness.” What appears chaotic is in fact logical – at least logical when viewing the events holistically. So too the majority in Marakah, authored by our very soon to be retired Chief Justice, looks beyond the heaviness of section 8 case law and clears a holistically-enhanced path toward search and seizure in the digital age.

To be honest, there are no real surprises in the majority’s approach to the s. 8 conundrum of text messages in the hands of a third party. What makes the decision so startling is the stark contrast between the universal, contextual and principled approach embraced by the majority and the law and order, hardware focused, nuts and bolts “modalities of transmission” approach of Justice Moldaver’s dissent. As in Fearon, this contrast between the majority and dissent highlights the divisiveness of technology. Not unlike grammar school where we thought about where to put the proper accent on the syllable (syl-la-ble as opposed to syl-la-ble), Marakah requires us to think about the proper emphasis the rule of law should place on privacy and technology.  Is it, as envisioned by the majority, an emphasis on human interaction involving the everydayness of conversations, which engage the who, what, when, where and how of that interaction? Or, is it, as suggested by the dissent, a matter of hardware choices, like going to the local Best Buy and using the device that is at hand (and fits best in your hand) at the time. The bigger digital question then emerges: how connected are we to our technology and how do we protect our society while in that immersive state?

Although Marakah gives us a crystal clear pixilated picture of section 8, standing, and reasonable expectation of privacy, it does not give us a sense of identity that Justice Karakatsanis did in the dissent in Fearon. I have written in a previous posting on Fearon of the differing linguistic choices employed in the majority and dissent in that case as a precedential device  (see “A Fresh Look at Fearon: How Language Informs The Law”). In Fearon, the public safety, law enforcement objectives trope is used by Justice Cromwell to strike a balance between privacy and state intrusion. The decision looks at the granule in an attempt to provide a teachable moment in the search for the reasonable search and seizure. In that decision, the chalice-like quality of the phone as a container was retained. For Justice Cromwell and the majority, the rule of law is predominant against the backdrop setting of technology. In contrast, Justice Karakatsanis in dissent renders her decision in the digital new world of technology using the aspirational aspect of our Charter values as a guide.

Similarly, Chief Justice McLachlin in Marakah anchors the privacy dimension of s. 8 to who we are as a society as envisioned through our Charter. We bare our souls through our emojis, our Snapchat stickers, and our cartoon inspired Bitmoji doppelgängers. It is no longer Descartes’s simplistic “I think therefore I am” but “I text therefore I am” or better yet, “I press send, that’s who I am.” The Chief Justice in Marakah crystallizes what we all believe, that the future is built on micro-chips, yet the human thumbprint can still be seen in its wires. Marakah sends that message loud and clear and, if our phone is not set to silent, we receive that message just as clearly.

Next blog up – “Keeping Up with the Joneses”: The SCC’s Decision in R v Jones

In the classic Jules Verne novel of 1873, Around the World in Eighty Days, the adventurer, Phileas Fogg, and his trusty side-kick, Jean Passepartout, race across the globe. There are many ways to “read” this text, such as a construct of British colonialization or as a “love letter” to the technological and scientific advances of the day.  For our criminal law purposes, however, we will think of this globe-trotting journey as setting the stage for the next section of the criminal code creating the offence of forging a passport. Specifically, I want us to imagine such a journey in modern terms and the strict requirement for entry into foreign countries. The importance of having a passport cannot be underestimated, not just for entry purposes, but as a symbol of belonging. This is a stark reminder of the refugees’ displacement and the vital need for an effective, efficient, and compassionate immigration regime. But I digress. I also want us to be mindful of the translation of the valet’s surname, Passepartout, which means “go everywhere.” A passport, like a pass key, opens doors and is a commodity in our global market.

Section 57 of the Criminal Code is a multi-purpose section. It protects personal identity, protects nationhood, has an international reach, and punishes falsehoods. It is a section that crosses the criminal equivalent of the “international date line” as it is both private and public in aspect. It involves individual privacy rights, public security and engages international obligations. It involves diplomacy and enforcement of the law. The section creates five different but related falsifying of passport offences. Subsection (1) is a forgery and uttering offence. Subsection (2) is a procuring offence relating to obtaining a falsified passport. Subsection (3) is a possession offence.

Section 57 reads as follows:

57 (1) Every one who, while in or out of Canada,

(a) forges a passport, or

(b) knowing that a passport is forged

(i) uses, deals with or acts on it, or

(ii) causes or attempts to cause any person to use, deal with or act on it, as if the passport were genuine,

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

(2) Every one who, while in or out of Canada, for the purpose of procuring a passport for himself or any other person or for the purpose of procuring any material alteration or addition to any such passport, makes a written or an oral statement that he knows is false or misleading

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

(3) Every one who without lawful excuse, the proof of which lies on him, has in his possession a forged passport or a passport in respect of which an offence under subsection (2) has been committed is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(4) For the purposes of proceedings under this section,

(a) the place where a passport was forged is not material; and

(b) the definition false document in section 321, and section 366, apply with such modifications as the circumstances require.

(5) In this section, passport has the same meaning as in section 2 of the Canadian Passport Order.

(6) Where a person is alleged to have committed, while out of Canada, an offence under this section, proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

(7) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and

(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (6).

Before we discuss the section, a little bit of historical context is worthwhile. The first version of this offence went into the Criminal Code in 1935 Code amendments and was a procurement offence involving a passport and a visa. Note the timing as a measure implemented basically on the eve of war. Only four years later, in 1939, the steamer St Louis would be turned away by the Canadian government to return to Nazi Germany and almost certain death. It is no doubt a response to the desperate attempts to get out of pre-World War II Europe. In 1947, some two years after the end of World War II, the section was again revised to include a definition of passport. In the 1953-54 amendments, the section was again revised, this time adding to the section the forgery and uttering offence and the possession offence. The revised section clarified that the offence could be committed while the accused was in or out of Canada. In 1985, some procedural aspects were added to the section. The section was last revised in 2013 to define passport pursuant to the section 2 definition of the Canadian Passport Order. That definition of passport or in French, passeport, “means an official Canadian document that shows the identity and nationality of a person for the purpose of facilitating travel by that person outside Canada.”

We will first discuss the five offences created in section 57. The first offence under subsection (1)(a), creates a forgery offence in relation to a passport, forged in or out of Canada. The offence, therefore, should be approached as a traditional forgery offence with reference to the general offence of forgery pursuant to s. 366 of the Code. The Crown would need to prove as part of the actus reus components of the offence that the document is in fact a passport pursuant to the definition offered under subsection (5). In terms of proof of the forgery itself, another actus reus requirement, requires a review of the forgery section 366. That section essentially defines forgery as the making of a false document, knowing it to be false and intending the document be “used or acted on as genuine” to the prejudice of another. Section 321, the definition section for Part IX offences, including forgery under s. 366, offers a definition of “false document” which is then extended under section 366(2). Section 57(4) uses this definition of “false document” in proof of the forgery of the passport, with necessary modifications. What those “modifications” may be must be informed by the specific forgery at hand, namely a passport, and as informed by the definition of passport pursuant to subsection (5). Section 57(5) also clarifies that where the forgery was actually performed need not be specifically proven by the Crown. In terms of mens rea, it is clear by a reading of section 57 and by the application of s. 366 to the proof of forgery that the section requires proof of a high level of subjective intention.

The second offence is related to the forgery and is found under subsection (1)(b)(i). It is what we would historically call an uttering offence, requiring the accused, knowing the passport is forged, “uses, deals with or acts on it.” The offence parallels the general uttering a forged document section 368(1)(a). I label this as an “uttering” offence as when looking in the index of the Code for offences relating to forgery, “uttering a forged document” is listed under s. 368. Uttering is defined under section 448 in the Code but for purposes of Part XII relating to offences to currency. That definition of "utter" extends the traditional meaning of “uses, deals with or acts on it” by including as including “sell, pay, tender and put off.”  An argument could be made that those prohibited acts of “sell, pay, tender and put off” are not included in the offence as contemplated under s. 57(1)(b). Again, the offence requires a high level of subjective mens rea as read into the requirement the accused must have knowledge the passport is forged. The third offence under s. 57 (1)(b)(ii) is an offence, that again, appears in its general format under s. 268 and requires the accused, knowing the passport is a forgery, “causes or attempts to cause any person to use, deal with or act on it, as if the passport were genuine.” The only other offence for which the delict is so worded, is the offence under s. 246 involving the administration of a stupefying drug to overcome resistance to the commission of an offence. Of note, is the “attempts” to cause, thus the full offence can be committed based on an attempt.

For the offences of forgery, uttering and causing or attempting to cause another person to utter the forged document, the maximum sentence is imprisonment for 14 years. Both forgery and uttering under sections 366 and 368 respectively are dual offences with the maximum punishment for both, should the Crown elect to proceed by Indictment, of ten years. Clearly, the forgery of a passport, for national security and state integrity reasons, is considered a more serious offence.

The fourth offence created under s. 57 relates to someone making a false or misleading oral or written statement, while in or out of Canada, for purposes of procuring a passport for themselves or another person or for the purpose of altering a material aspect of the passport. This is a less serious dual offence where the maximum punishment under indictment does not exceed two years imprisonment, thus keeping even the worst offender in the reformatory, rather than the federal penitentiary, system. Again, it could be argued that by the use of the word “for the purpose,” the Crown must prove per R v Hibbert a high level of intention by the accused. The Crown must also prove, if the allegation involves altering or adding to the passport that it must be a change to a material aspect of the passport. This parallels the definition of false document under s. 366(2) where a false document includes “making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.” What is “material” would be a question of fact. The phrase “material alteration” is a term often used in civil cases on such as sale of goods or in an action for default of a mortgage where a materially altered document by one party without the other party’s consent is considered void. In the 1909 Saskatchewan Queen’s Bench decision of Gogain v Drackett, 1909 CanLII 97, the court applied the definition of “material alteration” from the 1903 Cyclopedia of Law and Procedure published in the USA and edited by Julian William Mack, an American law professor, lawyer and jurist, and Howard Nash. In that tome, “material alteration” is defined as “Any change in an instrument which causes it to speak a different language in legal effect from what it originally spoke—which changes the legal identity or character of the instrument either in its terms or in the relation of the parties to it, is a material change, or technical alteration, and such a change will invalidate the instrument as against all the parties not consenting to the change.” But “It is not every change which will invalidate an instrument, but only a change which is material according to the principles above stated. In other words, any change in words or form, merely even if made by an interested party which leaves the legal effect and identity of the instrument unimpaired and unaltered, which in no manner affects the rights, duties or obligations of the parties and leaves the sense and meaning of the instrument as it originally stood is not material and will not destroy the instrument or discharge the parties from liability thereon.” Therefore, a material change occurs when the change would affect the rights and obligations of the parties.

The fifth offence under subsection (3) is a possession offence relating to possessing a forged or materially altered or falsified passport. Possession, pursuant to s.4(3), requires proof the accused has knowledge, consent and control of the object and requires proof of a high level of mens rea. This is a straight indictable offence with a maximum of five years imprisonment. A similar offence for possessing a forged document under s. 368 is a dual offence, whereby the prosecutor can proceed by summary conviction if by Indictment then the maximum is ten years.

The final comment is on subsections (6) and (7), which relate to the extraterritorial jurisdiction of the offence. If the person committed the offence out of Canada, the person may be charged, tried and punished for the offence in any territorial jurisdiction of Canada even if they are still out of Canada at the time of the proceedings. The section is therefore aptly named, the “go everywhere” offence and is reflective of the global reach of our criminal law.

We are all conversant with a creation story, be it biblical or cultural. We are less apt, however, to recite a purely legal creation story, where the law is not in itself created but creates. In the decision of Her Majesty The Queen v Named Person A, 2017 ABQB 552, Madam Justice Antonio applies the law and in doing so creates a legally constructed status, as confidential informant, for Named Person A [NPA]. The effect of the law or the privilege that arises, requires NPA’s identity be strictly protected and non-disclosable, subject to the “innocence at stake” exception. This is a status which NPA neither wants nor asks for. Once NPA became this pronounced creation of law, NPA became nameless. The discussion we will undertake will provide us with the ultimate creation story of how certain encounters can transform into a creation of law. With that transformation, comes the full force of the law as legal principles must be and are rigidly applied. The preliminary issue of whether NPA was, in law, a confidential informant is incredibly important. If NPA is not such an informant then the issues flowing from this status are moot. If, however, NPA is a confidential informant, then the court must decide how the Crown can fulfill its Stinchcombe obligations requiring full disclosure of NPA’s criminal file to NPA’s counsel without violating the sacrosanct confidential informant privilege. To disclose or even to edit the disclosure would reveal NPA’s identity. To not disclose would run afoul of NPA’s right to full answer and defence. Alternatively, if NPA’s defence counsel is within NPA’s confidential “circle of privilege,” then disclosure may be made within the safety of that legal privilege. This posting considers the initial decision by Justice Antonio to find, in law, NPA is a confidential informant. It is this finding which engages the law and which matters most to NPA.

First, we will start with a narrative, which is not particularly exceptional. NPA was arrested on various criminal charges. Subsequently, NPA was approached by police officers from the “human sources” unit, who handle police informants, also known as “handlers.” These handlers had been following NPA’s investigation and believed NPA could provide them with useful information to assist the police in other investigations. To induce NPA to be an informant, the handlers offered NPA the usual terms: the handlers “promised” to keep A’s status confidential; NPA, as a “volunteer,” could stop providing information at any time; and NPA was “prohibited” from disclosing the status. On this basis, according to one of the handlers, NPA agreed to be an confidential informant. Notably, there were no promises relating to his outstanding charges (paras 16 to 19).

NPA saw the “relationship” differently. NPA “never wanted” (para 27) to become a confidential informer, although NPA did give the handlers information. In other words, NPA agreed to the “informant” part but not the “confidential” moniker. Consistent with this perception, NPA immediately breached the “terms of the contract” (para 25) by “self-outing” as an informant. NPA told people of his encounter with the handlers. NPA told the police officers investigating his criminal charges and NPA told NPA’s defence lawyer. Justice Antonio does not speculate on why NPA did this, other than to confirm that NPA did not reveal the status as a ploy to force the hand of the Crown in staying the charges (para 79). We, however, can speculate that NPA might have revealed the status thinking there would be some sort of benefit from co-operating with the authorities. For instance, an agreement to plead to reduced charges for a reduced sentence. As insightfully suggested by Justice Antonio, “the police must take [NPA] as they found [NPA], existing charges and all” (para 79).

As a result of the disclosure by NPA, NPA was promptly “terminated” (para 21) as a confidential informant. This “termination” did not affect NPA’s legal status as a confidential informant. Borrowing from the lyrics to Hotel California, NPA could check out any time, but could never leave. Whether this sentiment was made clear to NPA is questionable (para 26). Despite this lack of clarity, Justice Antonio found NPA to be a confidential informant with all the “associated privileges and obligations” (para 25). I would add that those “privileges and obligations” flowed from a legal construction or legally imposed view of NPA’s brief interaction with the handlers. Moreover, once that legal principle was engaged, it was required to be applied in a “nearly absolute” manner (para 37). A few minutes in an interview room, gave NPA status close to an “officer of the court” (para 41).  It is doubtful whether NPA viewed the conferred status as anything but an albatross around the proverbial neck. Something imposed as opposed to something welcomed. As succinctly stated by Justice Antonio, “the role of a confidential informant is a creation of law enforcement, and the privilege that attaches to it is a creation of the common law” (para 41). In this creation story, NPA has a minor role indeed.

Notably, NPA’s counsel did not provide much argument or authority for the position NPA was not a confidential informer (para 23). In concluding that NPA was indeed a confidential informant in fact and in law, Justice Antonio applied the “test” from R v Basi, [2009] 3 SCR 389, 2009 SCC 52 (CanLII). The issue in Basi differed from NPA’s situation. In Basi, the Court was struggling with how a confidential informant could have counsel on a hearing to determine informant privilege when such representation would include disclosing the confidential informant status contrary to that limited and rigidly enforced “circle of privilege” that necessarily includes the handlers and the prosecutor but no one else. Justice Fish, at paragraph 36 of Basi, explained that the status as confidential informant arises when “a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain.” The question of whether the person is a confidential informant is a legal one and the judge must be satisfied of that status on a balance of probabilities (Basi at paragraph 39).

Another decision, Justice Antonio referenced to assist in the “status” hearing was R v Barros, [2011] 3 SCR 368, 2011 SCC 51 (CanLII). In Barros, the issue centered on the scope of the confidential informant privilege and was not focussed on the initial finding of that privilege. As a prelude to that main finding, Justice Binnie, on behalf of the majority, reviewed the purpose of the privilege itself.  It is important to keep in mind, Justice Binnie’s sentiment at paragraph 31 that “of course, not everybody who provides information to the police thereby becomes a confidential informant. In a clear case, confidentiality is explicitly sought by the informer and agreed to by the police.” Justice Binnie then quotes the previously referred to “test” from Basi.

Although both Justice Binnie (para 32) and Justice Antonio (para 25) refer to the “contract-type elements of offer and acceptance” as evidence of the status, confidential informant privilege, as a creature of the law, “was created and is enforced as a matter of public interest rather than contract.” The public interest as outlined by Justice Binnie at paragraph 30, involves the incentives for those in the know to provide information to those who don’t to assist in the goals of public safety and law enforcement (See also Bisaillon v. Keable, [1983] 2 SCR 60, 1983 CanLII 26 (SCC), Beetz J. at page 93). By providing a safe “place” where these vital conversations can be done in the context of an atmosphere of protection is the underlying purpose for rigidly enforcing the privilege once it attaches. This public interest aspect assumes two premises: that the informant wants the protection and that the public interest has no interest in the impact such a status would have on the informant. The Basi “test” does not allow for a reluctant informant nor does it concern itself with the implications of the confidential informant status on an individual. The incentive is to promote law enforcement, which is a valid and convincing objective we all applaud. However, the “test” as fashioned does not encourage the police to fully inform the potential confidential informant of the true implications of the privileged status which will, not might, flow from the agreement. As noted by Justice Antonio at paragraph 26, when the handlers “ended Named Person A’s tenure as an informant, Officers X and Y used final-sounding language that might easily have led him to believe that every aspect of his short-lived role was over and he would never hear about this again.” But not so, Justice Antonio continues, “for obvious reasons, confidential informant privilege persists after the informant’s active role has ended.” Sadly, the forever status is known to the legal segment of society but not so obvious to people like NPA. These realities reveal a weakness in the Basi test as it fails to see beyond the protective veil which flows from the confirmation of the status as confidential informant. Rather, such status is derived from a moment in time when NPA speaks without appreciation of the repercussions which will come in the name of public interest.

To be fair, Justice Antonio is also concerned with NPA’s protection. Although NPA “never wanted to be a confidential informer” (para 27), NPA is “fearful of one person finding out,” namely the person he informed on. But this discussion in the decision comes after the confidential informant status is confirmed and forms part of the alternate issue on whether NPA waived his status. Waiver, presupposes status as a confidential informant.

Returning to the Basi test, it should be noted that the full test as articulated by Justice Fish requires the “useful information” to be given “would otherwise be difficult or impossible to obtain.” There is no discussion of this part of the test in Justice Antonio’s findings. Was this information “useful”? Was it “otherwise difficult or impossible to obtain”? The record is silent. Without inquiring into this aspect of the Basi test, confidential informant status can be conferred broadly by a handler who is “fishing” for information or testing out an informant’s reliability. It could be argued that without this requirement, status could be irrevocably conferred in a “offhanded way” (para 25). Leaving this phrase empty fails to serve the purpose of the informant privilege, which strives to not only encourage people to share information but also to encourage effective and efficient investigatory practices. Additionally, a more restrictive reading of the Basi test would encourage potential informants to give useful information in exchange for status. These informants, I would suggest, would be more prudent in entering into such an “agreement” and subsequently not so flippant or forthcoming with their confidential identity. It would also assist handlers in pre-screening potential informants, who may, as the Crown feared in the case at bar, “self-out” themselves purely for the purpose of forcing the Crown to withdraw any future criminal charges they may face (paras 73 to 81).

Confidential informant status has advantages and disadvantages as starkly seen in Her Majesty The Queen v Named Person A. The key to a robust and successful justice system is to provide protections and incentives for all those who play a role in it. The law of privilege once engaged is a hard-hearted companion as NPA ultimately became to appreciate. But, we, as purveyors of the law and as readers of this creation story should consider the effect of the law and how, within the confines of the Rule of Law, we can be part of that changing narrative. In this way, NPA’s personal story can inform further discussion on the future of the law of privilege in this area and whether, as with other traditional rules of evidence, it is time to re-consider the underlying logic of the rule in favour of a different, more responsive, approach. This creation story may indeed create another story about the law.

The first few 1L Criminal Law classes are dedicated to the “big picture” wherein we discuss the purpose of criminal law in the context of the criminal justice system. Unlike the other 1L doctrinal courses, criminal law is laden with context without which the doctrinal aspects would be meaningless. The context includes, but is not limited to the following: the roles and responsibilities of the Crown, defence and trial judge; respecting the trial narrative as real life situations impacting the lives of real people; trial strategy, professionalism and ethics; procedural “choices” and most importantly, the principles of fundamental justice, which permeates all of these concepts. I try to give them a sense of urgency – how vital all the pieces are to the healthy functioning of the system.

Although I like to use the puzzle piece metaphor to explain how each concept relates to one another and the incompleteness should one piece fail or be absent, in retrospect, that metaphor is too static. It fails to connect to the modern aspect, embedded as it is in technology and imagery. A conventional puzzle is too flat to express the multifarious dimensions of the justice system and the delicacy of the model we uphold. The more appropriate parallel is an interactive 3D environment that has presence, weight and texture. In such an environment, we can more fully appreciate the impact each micro-concept has on the macro-institution. This is the justice system as seen through virtual reality optics in which all the images meld together into a coherent and cohesive whole. This cohesiveness, I suggest, comes from those principles of fundamental justice as embodied in our Charter such as the presumption of innocence, fair trial, and the “specialness” of the criminal standard of proof. Of course, the Charter also supplies dissonance to the imagery as we struggle to overlay onto this reality other protected rights coming not just from the individual charged before the criminal law but also the individual who appears before it as witness. In this sense, the pursuit of justice in this VR lens takes on complex contours and new pathways.

Admittedly, this VR depiction seems a little too much for an explanation as to why the principles of fundamental justice matter in our criminal courts but visualization or depiction of the law is as important as articulation. In my working paper on “The W(D) Revolution”, I make a case for the case by showing why the essence of W(D) still matters and how it has revolutionized the way the courts view the presumption of innocence and burden of proof. I emphasize the need to strip down our trial discourse to the essentials - that assessment of the evidence must be done through the lens of those principles of fundamental justice which underline our core values as a society. We say we do this, however, the W(D) journey is also a cautionary tale, reminding us that espousing a formulaic mantra is meaningless without a true commitment to the content of W(D) and those principles the case enshrines. Without that commitment, we are not giving meaning to those values nor are we creating an image of the criminal justice system worth pursuing. We need to view the justice system through the lens of virtual reality and experience the texture of justice as we dispense it. This is why W(D) still matters and this is why teaching context is everything.

With this episode, we enter a new phase of offences, still under Part II – Offences Against the Public Order, relating to official documents. “Official Documents” is the heading for three offences, found under sections 56.1 to 58, relating to misuse of and falsification of government issued identification. The term “official documents” is not a phrase used in any of these sections and is therefore not defined under the Code. It is however a phrase used and defined in some provincial statutes, such as in the Plant Health Act, RSNB 2011, c 204. Those definitions refer to a document signed by a Minister or other government official. Some federal statutes refer to the term but do not define the full phrase. Although, “document” is often defined in statutes such as in the 2012 federal Safe Food for Canadians Act. These definitions tend to be very broad and define “document” as “anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked.” Other statutes, most notably as under section 5 of the federal Security of Information Act, refer to “official documents” in sections on falsification and forgery of documents, which are similar to the Criminal Code offences we are about to discuss over the next three episodes.

Before we start discussing section 56.1, offences relating to identity documents, I have a comment to make on the numbering of this section. This section was placed in the Code in 2009 as a result of An Act to amend the Criminal Code (identity theft and related misconduct), where a number of new offences and revisions to pre-existing Code provisions were amended. Fair enough. My issue is why this section needed to be numbered as 56.1 and not say, section 57.1, which would connect this new section to the falsification or improper use of documents. Section 56, as I discussed in a previous episode, concerns offences relating to the RCMP as in deserting from your duty. It has nothing to do with official documents or identity. When the Code is amended, numbering should consider placement with like sections. This is another reason, I submit we need a total re-do of the Code, section numbering and all. I say this even though I have such a familiarity with Code sections that a new numbering system would be disarming. Enough said on this subject.

Section 56.1 offers us an offence under subsection (1), exceptions to the offence or what could be considered lawful excuses under subsection (2), and a somewhat lengthy definition under (3), and a punishment under subsection (4).

 Section 56.1(1) sets out the offence as follows:

Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

The phrase “transfers, sells or offers for sale” is found in the older offence under s.368 “use, trafficking or possession of a forged document” which replaced previous versions of that section in the same amendment as the creation of the s. 56.1 offence. Possession is defined in the Code under s. 4(3) and is a subject of an earlier podcast that can be found here as text and here as the podcast audio file. The term “transfers” is used throughout the Criminal Code as an actus reus component of various offences such as those relating to firearms (i.e. s. 117.08) or relating to the transferring of nuclear material with intent such as under s. 82.3. The word “transfer” is the subject of statutory interpretation and the application of Dreidger’s “modern approach” in the 2004 Supreme Court of Canada decision of R v Daoust. Here the court was considering s. 462.31 known as the offence of “laundering” the proceeds of crime. The word “transfer” was examined both in English and in French (transfert) in effort to understand how “transfer” differed from the other prohibited acts listed in the section such as sends or delivers, transports or transmits. In the case, the accused was the purchaser of stolen goods and the issue was whether this act constituted a transfer.  Of interest to statutory interpretation aficionados is the use here of the associated words rule or noscuitur a sociis (say that quickly three times). After applying this rule, the court found that a buyer of stolen goods was not committing any of the prohibited acts under the section. The acts listed, including the “transfers of possession of,” depended on the person committing the acts having control over the stolen property or proceeds of crime. This person would then pass onto another the property and would be the person targeted in the offence, not the so-called receiver. However, the receiver could certainly be charged with other offences found in the Code such as possession of stolen property under section 354 of the Criminal Code.

Besides having to prove the actus reus element or the prohibited act as listed in the section, the Crown would also have to prove that the item is in fact an identity document per the definition under subsection (3) which reads as follows:

For the purposes of this section, identity document means a Social Insurance Number card, a driver’s license, a health insurance card, a birth certificate, a death certificate, a passport as defined in subsection 57(5), a document that simplifies the process of entry into Canada, a certificate of citizenship, a document indicating immigration status in Canada, a certificate of Indian status or an employee identity card that bears the employee’s photograph and signature, or any similar document, issued or purported to be issued by a department or agency of the federal government or of a provincial or foreign government.

That lengthy list of documents could probably be summed up as simply any government issued ID. Further to our previous statutory interpretation segue, note that there is a descriptive list of identity documents and then a broad description encompassing “or any similar document.” Again, the associated word rule could be used to interpret this phrase giving the general phrase “colour” from the more specific terms. Another related rule can also be applied– get ready for another Latin phrase – involving ejusdem generis or the limited class rule. This applies when there are specific terms followed by a more general phrase. The rule limits the general phrase to the same class as the specifically enumerated ones. In this case, one can argue, as I did at the outset that “any similar document” would include any government issued identification.

Another element of the offence requires that the accused commit the offence “without lawful excuse.” There is no definition of this term, which is used liberally throughout the Criminal Code. In a search, the phrase pops up about 53 times. What constitutes a “lawful excuse” is many and varied. Typically, in cases considering the issue, the court says just that. For instance, in R v Osmond, 2006 NSPC 52 (CanLII), in considering s. 145(2)(b) of the Criminal Code, the offence of failing to appear in court, “without lawful excuse,” stated, rather unhelpfully at paragraph 45, that,

I do not need to list all the types of things that could constitute a lawful excuse.  The Crown referred to some possibilities in its submissions.  What can constitute a lawful excuse is usually established by judicial decisions and must be put in the context of the offence in question.

Judge Embree continued to say that what “lawful excuse” is “definitely” not is “forgetting” to attend court. In the context of this section, if the person “lawfully” has the government issued ID of another person or has it for a “lawful” purpose, there is no offence. To perhaps clarify this phrase, we can look to subsection 2 for some “lawful excuses” as contemplated by subsection 1. Subsection 2 reads as follows:

(2) For greater certainty, subsection (1) does not prohibit an act that is carried out

(a) in good faith, in the ordinary course of the person’s business or employment or in the exercise of the duties of their office;

(b) for genealogical purposes;

(c) with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document; or

(d) for a legitimate purpose related to the administration of justice.

There are a couple of items to note. First, the subsection starts with the qualifier “for greater certainty.” This phrase appears 48 times in the Criminal Code. Sometimes the phrase is followed by exceptions to the offence, such as in this section we are considering. Other times, it clarifies what act is included in the offence, such as in the definition of terrorist activity under s. 83.01. Therefore, in accordance with (2), we have a few scenarios to contemplate as not attracting criminal liability. Such as under (2)(b), where the possession of another person’s identity document is permissible if for “genealogical purposes.” What immediately comes to mind are the various websites which provide services to those people interested in finding information on their ancestors, such as ancestry.ca. For example, I have my grandfather’s identity documents issued when he entered the country as an immigrant from Russia in 1912. I found them, by the way, digitized online through Library and Archives Canada, a federal government service. However, this “exemption” and indeed this section does not protect the possession and use of another person’s DNA. Considering the now booming business in collecting and testing DNA for those “inquiring minds” who need to know what percentage of their DNA is Neanderthal, this seems to be a gap in our legislative identity protections. In light of this, section 56.1 seems to be already dated, although a good example of how quickly our technology is expanding and the difficulty with our laws to anticipate or even respond to these increasingly complex issues.

Returning to the original phrase “without lawful excuse,” there is a question as to whether the Crown has the burden to disprove this as an essential element of the offence or not. This would be akin to the Crown’s burden to disprove “without the consent” pursuant to the assault section 265. There is some authority to the contrary (R v Gladue, 2014 ABPC 45 (CanLII) and R v Neufeld, 2014 ABPC 66 (CanLII)), that “without lawful excuse” is not an “essential” element but “incidental” to the offence. This argument, however, relies upon a passage in a Supreme Court of Canada case, R v B(G), [1990] 2 SCR 30, 1990 CanLII 7308 (SCC), wherein the Court found the time of the offence was not an essential element of the offence. This, I suggest, differs greatly from a phrase that appears in the offence creating section. The better approach can be found in R v Plowman, 2015 ABQB 274 (CanLII). There, Justice Nielsen, in considering the phrase in section 56.1, found “without lawful excuse” places an evidential burden on the accused, as a “defence” to the charge. Thus, the accused need only point to evidence on the issue to establish an “air of reality”, thus requiring the trier of fact to consider the evidence in determining whether the Crown has proven the case beyond a reasonable doubt. The legal burden remains on the Crown to disprove the lawful excuse beyond a reasonable doubt.

The next issue is what the phrase in the offence “another person” means and whether it must refer to a “real” person, living or dead. In R v Vladescu, 2015 ONCJ 87 (CanLII), whether the identity documents in question related to a “real” person, was the sole issue. The Crown’s evidence did not touch on this aspect and the defence, arguing that proof of this aspect was an essential element of the offence, urged Justice Watson to acquit. Employing, what I would suggest is a questionable approach to statutory interpretation by focusing on the “plain meaning” of “purport” and comments made in one Senate debate on the new section which referenced “fictitious” identity documents, the Court decided that the Crown did not have to prove that the identity document belonged to a “real” person. Justice Watson convicted the accused despite the cogent argument by the defence that the subsection (2) exceptions, particularly the reference to genealogical purposes, suggests a real person. However, the offence of identity fraud under s. 403 uses the phrase “another person, living or dead” which suggests that Parliament, by omitting the phrase “living or dead” did contemplate fictitious identity documents under s. 56.1. Either way, this is an issue open to argument at trial.

In terms of the fault element or the mens rea required for this section. As indicated earlier, one of the ways of committing this offence is by “possession”, which as indicated is defined under section 4(3) of the Criminal Code. Possession requires proof of a high level of subjective mens rea. However, if the Crown relies on the other modes of committing the offence such as transfer or sells, an argument can be made that the intention, although still requiring subjective liability, does not require the high level of mens rea needed for possession. Therefore, recklessness would be sufficient form of mens rea for those situations.

 Finally, it should be mentioned that subsection (4) sets out the possible penalties for committing the offence. Procedurally, the offence can be either an indictable or summary conviction offence and is therefore a dual or hybrid offence. This means the Crown has the option to elect the mode of proceeding. Although proceeding under indictment carries a longer maximum sentence of five years as opposed to the maximum of 6 months imprisonment (and/or maximum fine of $5000.00 if the accused is an individual). Of course, should the Crown elect to proceed by indictment then the accused would have an election to have a trial in either provincial court or in superior court, with or without a preliminary hearing and with or without a jury pursuant to s. 536(2).

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence.

The answer to all of this may require us to do some navel gazing and philosophizing that takes us outside traditional sentencing principles. It may also require us to explore whether there is a legitimate role in sentencing for the community. When I use the term “community,” I am not referring to bald public opinion as reflected on social media – that, as Justice Wagner cautioned in R v St-Cloud, 2015 SCC 27 (CanLII) at paras 80-84, is far from the considered and reasoned pronouncements of the law. No, community is not who has the most likes on Twitter and speaks the loudest on Facebook. Community or better yet the “community’s sense of justice” can be found in Justice Tilleman’s reasons in the Saretzky sentencing. Community bonds, communal mourning and healing all have a “space” in the Saretzky decision. It is my contention that the community’s place in the bounded space of the courtroom is connected to the judge’s now enhanced and expanded duty to protect the integrity of the administration of justice and to maintain trust and confidence in the criminal justice system. With this shift to community however, we must be ever mindful of our principles of fundamental justice which protect the individual offender as part of that community. We must rely on the delicate balance of sentencing to calibrate the scales of justice to ensure fair and just sentences.

In the first sentence, Justice Tilleman speaks through the offender to the community – not the community writ large but the community of Crowsnest Pass, a small district in southwestern Alberta with a population of a little over 5,500 people consisting of a string of even smaller communities, such as Frank, Blairmore, and Coleman, all hugging Highway 3 as it winds through the pass and into the British Columbia Rockies. It is a small community with big history. It is a community with memory of disaster. It was here in 1903 where the tip of Turtle Mountain tumbled into the town of Frank thereby defining a community through devastation and loss. It is here that Canadian opera found a voice in the tragic story of Filumena, a young woman convicted of the murder of an RCMP officer during the prohibition era. This and many other stories create the community, the community which Justice Tilleman addresses nineteen times throughout the sentencing reasons. These are the people of Crowsnest Pass whom Justice Tilleman, before asking Derek Saretzky to stand for the imposition of sentence, encourages to heal and move forward. He encourages them to “rebuild” and recreate another iteration of themselves as community, an image not defined by inexplicable tragedy (para 58).

Community also speaks to the offender in this decision. The jury of peers, charged with the difficult and awesome task of determining guilt or innocence, are representative of the shared community of the offender and the victims. It is through the jury process that community members, utilizing the legally embossed analytical tools given to them by the trial judge, engage in community decision making. In the words of Justice Addy in R v Lane and Ross, [1970] 1 OR 681, 1969 CanLII 545 (ON SC) (p 279), juries are the “bulwark of our democratic system and a guarantee of our basic freedoms under the law.” They are also part of the sentencing discourse through their parole ineligibility recommendations, and, in the Saretzky case, they unanimously urged the imposition of consecutive terms totalling 75 years of parole ineligibility (para 24).

Community also defines the victims. Justice Tilleman humanizes the deceased (para 48) through the lens of community as he circumscribes their community space and place by describing “Hanne Meketech—a community elder and dear friend,” and “Terry Blanchette—a young man and father,” and lastly “Hailey Dunbar-Blanchette, an innocent child.” Thus, Justice Tilleman monumentally memorializes their lives in relation to what these victims of violence meant to their community.

The approach taken in this sentencing, the bringing in of community to a forum traditionally partitioned off from community, evokes the Indigenous model for restorative justice as envisioned in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) at para 74 and as skillfully employed by Justice Nakatsuru throughout R v Armitage, 2015 ONCJ 64 (CanLII). This model requires more investigation as we learn from and embrace Indigenous culture, thought, and sense of community. It also brings to mind specialized international courts, such as the traditional Rwandan gacaca courts, which empower community as a step to repairing past harms.

These approaches, superficially, differ greatly from the English common law tradition and often sit uneasily within our sentencing principles geared toward the criminal sanction. But on closer examination, all sentencing approaches cause us to investigate the space, place, and boundaries of the judicial function in the larger sense. Hard cases such as Saretzky require us to reconcile the role of the trial judge, who is at once the arbiter of the facts and purveyor of the law whilst also the guardian and representative of the community’s fundamental values. Difficult cases challenge us to consider how we today in our truly Canadian context should read the roles and responsibilities of judgeship. Conversations over hard cases help us create and define our legal system. In this instance, we are required to pause and consider whether Justice Tilleman was fulfilling a legally recognized juridical role when he permitted community to speak in this decision or whether on a strict reading of our legal principles he overcompensated for community when he elevated the crime beyond the worst offence and worst offender nomenclature to describe it as a crime against community (paras 32, 45). It is this hard case that causes us to consider holistically the post-conviction regime set down for us in the Criminal Code including the long-term offender and dangerous offender regimes, which offer an alternate determination of long term risk and dangerousness of an offender like Saretzky who is deemed “a lethal harm to his community” (para 43).

The delicate balance of sentencing requires a steady hand; a community needs to heal, needs to feel in some way part of the application and presence of justice for matters happening in their living space. Principles of sentencing recognize this role of community. Yet, balance requires linkage and proportionality, and the sentencing court must fulfill the objectives of sentencing in such a manner that this offender is sanctioned for his actions and for his level of moral culpability or blameworthiness. Certainly, Justice Tilleman was aware of this when he emphasized the “deliberate and intentional conduct” of Saretzky in committing the offences (para 34-35). To fulfill these principles then, the court must, through the “judicial lens”, know the offender, the offence and the community.

Sentencing is, in my view along with bail, the most important part of the criminal justice system. Release until proven guilty and meaningful, principled and compassionate sanctioning are the bookends of the Criminal Code. Without either, our system will fall. Recently, the spot light has rightly been on the frailties of the justice system with bail as an indicator, like the canary in a coal mine, of the level of crisis facing us. Sentencing principles (R v Lacasse, 2015 SCC 64 (CanLII)) and plea negotiations (R v Anthony-Cook, 2016 SCC 43 (CanLII)) have received jurisprudential scrutiny but without any real integration into the now widespread discussion of what’s wrong with our justice system and how to fix it. Certainly, the Saretzky decision is not a prime example of “what’s wrong” but it reveals to us where the points of legal inquiry intersect and interface with public confidence and trust in the system. Judges, throughout the trial, make decisions based on the rule of law, and jurors too must confine their decision-making to the parameters of legal principle, which involve the application of common sense and reasonable inferences. However, community, in the fullest sense of the term, is, as Jane Jacobs envisioned it in Death and Life of Great American Cities, the legal equivalent of “eyes on the street”, that idiomatic second pair of eyes, which takes the form of the alter ego of the blindfolded goddess embodied as the community conscience or “community sense of justice”. In what form this communal sense or community space unfolds within the halls of justice is a matter for further reflection and consideration. Justice Tilleman in the Saretzky decision challenges us to do just that.

It is mid-August and I am busily writing a paper on W(D). Instantly, all criminal lawyers nod their head. Just the evocation of those initials recalls the penultimate paragraph of Justice Cory where he sets out the “ideally, appropriate instructions on the issue of credibility” and imprints, in words and in precedent, the trial judge’s obligation to assess credibility as an aspect of the presumption of innocence and consistent with the burden and standard of proof in a criminal case. Unsurprisingly, this “idealism” became “the law,” so to speak, as judge’s have taken Justice Cory’s words to heart resulting in over 9000 case citations (CanLii has 8590 mentions to date, while Westlaw finds 9, 133) of W(D) since its release in 1991. The case initials, W(D), have essentially become a constant reminder of the duty of a trial judge in a criminal trial. This transformation from case to icon, is not just about words and precedent, but is about something much more profound. Those two initials, like the madeleine savoured by Marcel Proust in Remembrance of Things Past, conjures up images of the “ideal” democratic society imbued with our principles of fundamental justice, of the impartial and independent trial judge as the gatekeeper extraordinaire, and as a symbol of our “community sense of justice.” Now that’s a heavy burden for one case! Yet, I would suggest, that W(D) does not stand alone in this iconography or more accurately, semiotic state (Umberto Eco, A Theory of Semiotics). Why or how a case attains this status is, I think, an interesting exercise for us to enter into as a different way to understand the development of law and precedent.

First, an admission. I came to this idea from some non-legal reading. Martin Kemp, an art historian and Leonardo Da Vinci “specialist,” not the Martin Kemp who was the bassist for Spandau Ballet, is an engaging and fascinating writer. His authorship glides over the orthodox as in The Oxford History of Western Art, but also wanders into the fringes in The Science of Art: Optical Themes in Western Art from Brunelleschi to Seaurat. His book, Christ to Coke: How Image Becomes Icon, runs through various obvious choices in this image/icon transmutation such as the Coke bottle and E = mc2 but also some non-traditional icons arising from photographic imagery such as the Pulitzer Prize winning photo by Nick Ut of the Vietnamese children running from the napalm blast on June 8, 1972. Although a reading and viewing of this book reveals the many and varied pathways to “stardom” or icon status, it also highlights the element these images share: the ubiquitous-ness of the image in the public psyche. As with Proust’s madeleine, the visual becomes a short hand for an avalanche of memories, facts and emotions. This is one time when a popularity contest works.

So how does all of this translate in the dicta of case law? Those cases which, at the same time are more than their name whilst being represented by just their name, become a short hand or an abbreviation for the case itself. I say, “for the case itself” as these cases go beyond the traditional ratio decidendi of the case and can encapsulate the implementation of that rule of law such as an in-court procedure employed to engage the issues raised in the case as in the Corbett application or as in W(D) an instruction or even more evocative, as a warning such as in Vetrovec. Highest status goes to those cases which become “grammarized” as verbs. Thus, a conviction can be “Kienappled” as referenced by imminent criminal defence lawyer, Alan Gold, at page 302 of his commentary "Appeal Courts - Jurisdiction" in the 1990, Volume 32 Criminal Law Quarterly. Sometimes, grammar changes – instead of a case being “Askoved” (see Alison Hatch Cunningham, North of the 49th Parallel: The Criminal Justice System of Canada, 13 Crim. Just. 21, 27 (1998)), we now, a year after its release, speak of a case being “Jordaned” (see Kelly Egan’s article online from April 28, 2017, Justice ministers focus on five areas to cut court delays). This grammatical construction is also akin to the vocative case in Latin where language directly “calls out” a subject of a sentence, usually done with a judicious use of an exclamation mark. Finally, the “iconizing” of a decision can make what is inanimate an animated object such as the “KGB statement.”

From case to icon means that the dicta or words found in the case are compressed or squeezed into the case name and become part of the verbal lawyerly language we employ in court, in discussions within our profession, and even in the advice we give our clients. Why these particular cases have such impact and such iconic status is a difficult question to answer but may be a result of their instrumentality or even more controversially, their weaponization, as cases which lead to determinative action such as in the Corbett application or as in the Askoved case. Their staying power may also rest on their dual status as used in both the bounded space of the courtroom and the boundless space of social media. As mentioned earlier, icon status also suggests a case meaning which transcends the obvious ratio and implies meaning which touches the inner core of societal ethos.

In a broader view, this inclination for iconography is also about the significance of naming in our society or more accurately our penchant for labelling, categorizing and listing. It leads us to ponder on the purpose of this short hand – are we cutting away too deeply by employing this “sound bite” approach or are we making law more accessible by promoting seminal and pivotal cases into everyday nomenclature? This concept of legal iconography also leads to further speculation on the role of the visual in law and one of my interests in visual jurisprudence as studied by the legal visual theorists, Peter Goodrich at Cardoza School of Law and Richard Sherwin, Director of the Visual Persuasion Project at New York Law School. It finally leads us to even broader considerations of access to justice and the kind of “human-centered design” we must be open to in the next generation of law iconography.  

W(D) is a case but it is more than that but what more it is, I am determined to find out!

Welcome to the fiftieth podcast on the Criminal Code of Canada. I started this project almost four years ago and although my output has slowed down, my commitment to providing you with some insight on every Code section has not changed. In this the fiftieth episode, I would like to generally reflect on the recent proposed changes to the Criminal Code and to specifically discuss the proposed revision to section 55 “Evidence of Overt Acts,” the subject of this podcast.

The new amendments contained in Bill C-51, which received first reading on June 6, 2017, will repeal some of the sections I have discussed in previous podcasts. These are sections which are archaic remnants of the initial 1892 Code and their deletion is welcome. In my opinion, however, repealing sections is not a substitute for badly needed reform of the Code into a readable, understandable and modern reflection of societal fundamental values. Piecemeal revision can lead to anomalous results. It can also lessen public confidence in the criminal justice system. Reform may take time but it is time well spent if the Code is one in which all citizens feel they have had an opportunity to create. I know what I am saying I have said before but, in my view, smart re-visioning of our criminal justice system is a position to be repeated.

Before we discuss section 55, I want to point out that Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, also proposes to repeal section 49, Alarming the Queen. I discussed this section in podcast episode 44, which the text of this episode can be accessed here. Fortuitously, we recently used section 49 in a 1L criminal law final exam. A nice send off to an obsolete section, in which the prohibited behaviour could easily form the basis of other charges such as causing a disturbance under s. 175.

Section 55 “Evidence of Overt Acts” rounds out our discussion of the offences falling under the heading “Prohibited Acts” pursuant to Part II Offences Against Public Order. It is not a substantive section, meaning it does not create a criminal offence. Rather the section is, as the headline promises, related to evidentiary proof but in the context of a procedural rule. The section sets out the parameters of the process required to establish an essential element of the prohibited act or actus reus of any of the enumerated offences.

Section 55 presently reads as follows:

In proceedings for an offence against any provision in section 47 or sections 49 to 53, no evidence is admissible of an overt act unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out therein.

This section will be slightly revised if Bill C-51 passes as presented. The changes are very minimal, deleting the reference to s. 49, as it is repealed, and making slight wording adjustments to make the section more readable. The import of the section remains the same and it will read as follows:

55 In proceedings for an offence against any provision in section 47 or sections 50 to 53, evidence of an overt act is not admissible unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out in the indictment.

Essentially, the section requires an “overt act” to be specified in an Indictment for any of the offences enumerated in section 55 before the court before will admit evidence of such acts at trial. This requirement to specify an overt act in the Indictment is mirrored by section 581(4) of the Criminal Code, a section relating to the form of the counts in the Indictment and the sufficiency of such counts. Subsection (4) requires that where an accused person is charged with the offences, as enumerated under s. 55, “every overt act that is to be relied upon shall be stated in the indictment.”

Although the above explains why we have this procedural/evidentiary section amongst these criminal offences, questions still remain: what exactly is an “overt act” and why is there such a special procedural concern placed on this type of act for these particular offences? These offences are sections we have already encountered in previous podcast episodes and relate to Part II offences against the public order. Section 55, however, does not refer to all offences under the Part but specifically the punishment for treason, the offence of assisting an alien enemy to leave Canada or failing to prevent treason, the offence of intimidating Parliament or the legislature, and the offence of sabotage. These are offences which directly impact our national security interests and are also offences where the modus operandi might include a conspiracy. It is the offence of conspiracy from which the concept of overt acts is most applicable. In order to examine this connection, let’s try to define an “overt act.”

The phrase “overt act” does not appear in any of the enumerated sections found in section 55 but it is found in section 46, which describes the offence of treason, as opposed to section 47, which merely sets out the punishment. The phrase is also found in section 48, another section relating to the charging limitations for treason, requiring that if the charge is based on “an overt act of treason expressed or declared by open and considered speech” the charging document or Information must set out the overt act and the words and the Information must be laid “under oath before a justice” within 6 days of the time the words were spoken. In terms of the rest of the Criminal Code, the phrase is only used in the previously mentioned section 561. See Episode 43 of these podcasts, where I discuss “overt act” as it relates to sections 46, 47 and 48. As I mentioned earlier, treason and overt acts seem to go hand in hand with conspiracy as a treasonable “overt act” for purposes of the section. The crime of conspiracy, under section 46, is therefore a “manifestation” of the intention to commit high treason or treason as required for section 46(2)(d). As I explained in that previous episode, this treatment or really clarification of an overt act as conspiracy is consistent with the original description of treason under English common law and the 1892 Criminal Code.

Before we discuss the phrase itself, now that we wandered through the Criminal Code looking for an overt act, let’s wander a little bit off the path to find where else the phrase “overt act” appears in legislation. Interestingly, and importantly if you are an agriculturalist in the Maritimes, “overt acts” are referenced in the 1990 Newfoundland Poultry and Poultry Products Act, RSNL 1990, the repealed Prince Edward Island Poultry and Poultry Products Act and the repealed and re-enacted Agricultural Development Act of New Brunswick. In the Newfoundland statute, “overt act” is part of the definition of “ship”, “shipping”, “transport” and “transporting” which are defined as the “overt act of a person leading to the movement” of poultry and poultry products by certain specified means or conveyances. Certainly, not the kind of “overt act” contemplated under s. 55.

Now to the definition. An “overt act” is outward behaviour, which consists of readily ascertainable actions. A good example would be the description of the overt act under section 48 as “expressed or declared by open and considered speech.” We can find other examples from three World War One treason cases. In the first case of R v Snyder (1915), 24 C.C.C. 101 (ONCA), the overt act of treason consisted of the acts of the accused in helping people leave Canada to fight with the “enemy” during World War One such as bringing the people to a farm for purposes of then sending them overseas. Rex v Bleiler, a 1917 decision from the then Alberta Supreme Court (Appellate Division), offers another example of overt acts consisting of attempting to sell a “certain device” to the German Emperor or his agents. The case, sadly, never explains exactly what this device is but the overt acts involved the accused writing letters, recommending the device and offering it for purchase, to the German Ambassador to the United States. In these letters, the accused professes his loyalty to Germany and requests the details of the purchase be done secretly. The final case in the trilogy, is from 1918 decision of the Quebec Court of Appeal in The King v Schaefer, a case I referred to previously in the episode 43 podcast on treason. Of interest is the dissenting decision. The facts of the case suggest the cruel effects of wartime prejudices and the use of treason as punishment for ethnic origin and community loyalties rather than for the protection of the public. The facts are best read as excerpted from the dissent of Mr. Justice Lavergne as follows:

1 Israel Schaefer is a Jew who came to reside in Canada some twenty years ago or more. In the first years of his residence here, he became a British subject being naturalized under the Canadian statutes. In October 1914, he had a family of numerous children brought up here. His principal business since many years was to sell transportation tickets, both steamship and railway tickets. He was known as an industrious and very respectable citizen.

2 In October 1914, he sold transportation tickets from Canada to a port in Bulgaria. Bulgaria, at that time, was not at war with any other part of the British Empire. The number of tickets sold is alleged to have been ten. In addition he is alleged to have provided these ten people with documents to further transportation to the boundary line between Roumania and Austria-Hungary. The ten tickets were not all sold on the same date, but at different dates, in October 1914. This was done by Schaefer in the course of his ordinary business...

4 These people or most of them had come from Bukovina, which country formed part of Roumania and part of Austria. Most of these people, if not all of them, spoke Roumanian Language.

5 Schaefer was only charged with assisting the public enemy, but was only charged with assisting ten persons to leave Canada by selling them steamship tickets to a country not at war with Great Britain.

6 He is also charged with counselling these people to speak the Roumanian language. Another charge of furnishing these people monies was not pressed, was virtually abandoned, no attempt whatever was made to establish that allegation. The persons to whom Schaefer sold tickets having been resident in Canada for a few years were in the position of alien amis, and presumed to have paid local allegiance to our Sovereign. The fact that they were not arrested shows that the authorities did not regard them as offenders.

It was the opinion of the dissenting justice in the case that as the overt acts alleged were not connected to “any hostile intention or action,” the charge of treason must fail. Further, the dissent noted that the Indictment set out the acts of the people who left the country as assisting the enemy, not Schaefer, and there was no allegation of conspiracy. Additionally, there was no evidence these people in any way assisted the enemy other than they spoke the language and wanted to go home. Thus, there could be no inference that the overt act outlined in the Indictment manifested an intention for assisting the enemy or any other such treasonable acts. The majority disagreed and upheld the conviction for treason. In their view the Indictment sufficiently described the overt acts of treason being a treasonable design to assist the enemy and the overt acts in furtherance of it. This case presents quite a differing view of the overt acts and highlights the impact of contextual societal events can have on decision-making.

There are several cases, more recent ones, on the sufficiency of counts in an Indictment and specifically, in the case of a conspiracy charge. Certainly, section 55 could engage a sufficiency argument in the appropriate case and therefore this section, although only related to a few offences against the public order, has a relationship to other procedural sections in the Code. We will get to those sections as we continue our journey through the Criminal Code.

R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles.

The facts are startling, sad, and familiar. Cindy Gladue, a young Aboriginal woman, was paid sixty dollars by Mr. Barton to perform sex acts. Two interactions occurred over two days and on the second evening, Ms. Gladue died in the bathtub of Mr. Barton’s hotel room. She bled to death from a perforated vaginal wall. At trial, Mr. Barton admitted he had sexual contact with the deceased that evening. He admitted he repeatedly pumped his fist into Ms. Gladue’s vagina at which point she started to bleed. He maintained that he did not intend to harm her and that he was unaware of her condition until he awoke in the morning and found her immobile in the bathtub. In his evidence, he called the incident an “accident”. After finding her in an injurious state, Barton tried to mop up the blood, fled the scene, and discarded the bloody towel, only to return to the hotel room soon thereafter at which point he called 911. His statements after the incident, to both friends and the police, suggested Ms. Gladue came to his hotel room and asked to shower in his washroom, where he found her dead the next morning. At the time, he denied any physical interaction with the deceased. At trial, medical evidence was called on behalf of the Crown and the defence. The Crown’s expert contended the perforation was caused by a sharp object, while the defence expert disagreed and opined that weakness in the vaginal structure was the operating cause of the injury.

The trial was heard before a judge and jury in the early part of 2015 and Mr. Barton was ultimately acquitted. An application was made by the Crown, during the trial, to admit “real” evidence in the form of the vaginal tissue of Ms. Gladue to assist in understanding the evidence of the medical expert who examined the tissue (R v Barton, 2015 ABQB 159 (CanLII)). Real evidence is directly observable by the trier of fact. Like direct testimonial evidence of a witness who has personally observed an event, it does not require the trier of fact to draw an inference from the evidence, should it be accepted. Unlike direct testimonial evidence of a witness, the trier of fact becomes the direct observer, acting, in some sense, as the witness to the event. This act of “direct self-perception” or “autoptic proference” as Wigmore described it (John Henry Wigmore, Evidence in Trials at Common Law, revised by John T. McNaughton (Boston: Little, Brown and Company, 1961) vol. 4 at 1150), occurs with all real evidence such as photographs, audio and visual recordings, electronic and hard copy communications or the spent cartridges of a firearm. Similarly, application can be made pursuant to section 652 of the Criminal Code, RSC 1985, c C-46  during the course of a jury trial, up until the verdict is rendered, for a “view” of “person, place or thing” located outside of the Courtroom. These direct observations made by the trier of fact become part of the evidence assessed at trial. Often, real evidence or direct observations by the trier can “speak for itself,” such as those spent cartridges but real evidence, in terms of how it fits into the narrative puzzle, is subject to interpretation. Either way, real evidence is admissible at trial if it is relevant and material to the case. Relevancy depends on authenticity. An item that does not reflect its true nature at the time of the incident is worthless and has no probative value. Applications to admit such evidence are usually, therefore, framed in authenticity terms: Is the item unaltered and unchanged? The application, in this instance, was opposed by the defence, not because the tissue was irrelevant or not authentic but because the prejudicial effect of such evidence before the jury would outweigh the probative value. This exclusionary discretion or gatekeeper function of the trial judge is an important safeguard in ensuring a fair trial while ensuring the truth-seeking function of the trial is not inappropriately compromised. This discretion is an example of the balancing done over the course of a trial. In the area of expert evidence, for instance, the trial judge has an ongoing duty to ensure such evidence stays within its scope to ensure trial fairness (White Burgess v Haliburton, 2015 SCC 23 (para 54) and in R v Sekhon, 2014 SCC 15 (para 46)). In this instance, the trial judge admitted the evidence, recognizing the probative value outweighed the prejudicial effect. It was, in the Court’s opinion, evidence to assist the jury in their consideration of the case. The trial judge also reminded the jury to decide the case fairly and dispassionately and not to base the verdict on an emotional response to the evidence. Although, as noted by the Court at paragraphs 127 and 128, standardized cautions to the jury without contextualizing the instruction to the facts of the case are meaningless.

This narrative of the admissibility of the tissue evidence highlights the balancing required throughout the trial in both the admissibility of evidence and the instructions to the jury. But this story of admissibility goes even further than the bounded space of the Courtroom. Ms. Gladue’s family was devastated with the decision to admit the tissue evidence. To the family, it was a decision that required their input and consent to protect Ms. Gladue’s dignity as an Aboriginal woman. To the friends and family of Cindy Gladue, she was “more than a statistic, more than an addict and more than a piece of tissue” (Death and Life of Cindy Gladue by Kathryn Blaze Carlson, May 15, 2015, The Globe and Mail). In the interview for the Globe article, Ms. Gladue’s mother emphasized that Cindy is “still human, she still has a name, not just ‘prostitute’.” This evidentiary application highlights the concern the Court of Appeal has in Barton with the approach this case represents: We in the justice system are attuned to categories of legal issues to which we must respond such as the admissibility of real evidence, the inadmissibility of bad character evidence, the proper use of circumstantial evidence and the correct legal articulation of the substantive law. We are not trained to be mindful of the larger view of the case which involves a self-assessment of how the case, in totality, presents. We are not recognizing that important societal values, some of which are Charter values, must also be reflected in the justice system. This includes the way we refer to a witness as a “prostitute” rather than a “sex worker” or even why that kind of labelling, done throughout the trial by all participants in the case (para 116) is required. We need to constantly ask ourselves when we prepare and present a case, “why”? Why do we need the witness to be called a “prostitute”? How does it advance the case? Is there another way of making our point that does not fall into stereotypes or is the notion simply not required as its sole purpose is just prejudicial and irrelevant? These basic questions are part of the Court of Appeal’s “re-setting” to the modern approach to the contextual appreciation of a case.

The facts of this case do not serve merely as the framework upon which the legal issues are placed but are the essence of this decision. Woven in between these facts are the legal issues, which, to extend the metaphor, become the fabric of our discussion in this post or the “unpacking” of the case. Typically, this term “unpacking” refers to an analytical unfolding of issues that are difficult to ascertain without some sort of roadmap or guide. In essence, “unpacking” suggests an opening up of the folded map or triptych to reveal the whole route. It requires us to also extend ourselves and to examine the big picture. In seeing the whole, we can then consider how these various packets of legal issues fit together to provide the final outcome. But “unpacking” can also mean what it says – that a journey has ended and it’s time to clean out the baggage. We are done but not finished as when we “unpack” we might re-fold in a different or better way or we may clean and re-start again. We may even discard. After reading Barton and after reflecting on it, this post is about both types of “unpacking”. As I have already suggested, we need to ask broader and deeper questions such as: What is the long view of this decision? Where does it lead us? What will it impel us to do?

Admittedly, all of this may seem too existential for a legal blog but as a practitioner and academic, I am enjoying the pure joy of reading a decision which challenges me to set aside a legal response and instead to think about the kind of justice system which appropriately reflects who we are as a society and who we want to be. It sparks a badly needed conversation about our approach to the law and whether it is approachable for all those impacted by it. I can’t say with certainty that I know what the justice system should look like or can look like but I can say that this is something that we all need to be engaged in because change requires hard work and dedication. It also requires all of us to step out of our comfort zone, which cases such as R v Jordan, 2016 SCC 27 (CanLII), and now Barton push us to do. However, change does not mean we give up what is essential to us as a country committed to Charter values. It simply requires us to be mindful of those values in fashioning our justice system. We should not be pressured into cutting corners or rights in the name of expediency. Rather, we should be scrupulous in our desire to see justice done. Complacency or leaving the status quo, be it trial delay or conviction of the innocent, is a dead end to nowhere. Only thought that leads to action makes a difference.

As I first suggested, the Barton decision is nuanced, providing layers of discussion: I suggest at least seven layers which interconnect. Looking at the first layer of the unpacking of issues, there is an overarching theme, which in my mind extends far beyond the case at hand, relating to instructing the jury in a clear, robust and frank manner. We in the legal profession too often rely on the probity of legal nomenclature to get us to where we are going (model jury instructions can be found on the National Judicial Institute website: https://www.nji inm.ca/index.cfm/publications/model-jury-instructions/). Barton reminds us that justice is not only for those in the know but is also for those who really don’t care to know until they are face to face with questions of justice. Clarity of thought, simplicity of explanation, and frank conversation go a long way to inform the non-legal partners in our justice system. To be truthful, this approach goes a long way for those legal minds who are in the know as well. I will call this approach to jury instructions, in legal language, the modern principled approach, which embodies the contextual approach approved of and utilized by the Supreme Court of Canada in other areas of law such as in statutory interpretation (para 21 of Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC)) and in the admissibility of hearsay (see R v Khan, [1990] 2 SCR 531, and R v KGB,[1990] 1 SCR 740 as the foundational cases). This approach is open to doing law differently, within the bounds of legal principles and within the context of the case at hand. To do otherwise would be to detach the decision-making from the unique narrative offered by each case.  

A modern approach to jury instructions sounds grand but in the context of Barton it finds meaning. This is where the Alberta Court of Appeal provides us with guidance and helpful exemplars for the fulfillment of the modern approach. A jury instruction must provide meaningful assistance to the jury by simplifying the complex law on sexual assault while recognizing no two cases are alike. The trial judge’s role is to also “unpack” by unfolding the trial narrative with the concomitant legal issues as they are relevant in the particular case. The trier must ask, is this a case involving consent or no consent? Or is it an issue where consent is given but vitiated? If so, on what basis is there such a vitiation? This deep dive into the facts, this modern contextual approach, requires the trial judge to specifically identify the essential nature of the offence. As discussed throughout Barton, the emphasis in the charge was askew. For example, the focus should not have been on the “application of force” as required for the “assault” element of the offence but on the “sexual activity in question” per s 273.1 of the Criminal Code, which defines consent for the purpose of sexual offences. As recognized in the decision, sex, which is in and of itself a legal activity, is by nature a touching. This case is not one where the accused denied the sexual conduct so the emphasis in the instructions on a finding of an “application of force” was confusing and unhelpful for the jury (para 189). Instead, the focus for the jury should have been on the amount of force used as an aspect of the sexual activity (paras 193, 194).

Creating a jury charge that fits the case is not the only function of this modern jury instruction approach. A modern principled approach requires balance in the instructions to the jury. But balance does not mean the traditional evidential and procedural safeguards are no longer necessary. Instructions on the presumption of innocence and on impermissible inferences must be part of the discourse between trial judge and jury. However, the trial judge, who must remain balanced in thought and impartial in aspect throughout the trial, has a duty to present all evidence in a fair manner. The accused is to be judged on the evidence and not on improper inferences arising from it. In the Barton case, the trial judge admonished the jury to not engage in “reasoning prejudice” or “moral prejudice” that occurs when a trier draws an inference that the accused was a bad person and worthy of conviction because he consorted with an “unsavoury” person, in this case a “Native girl” who was a “prostitute” (para 130). This classic limiting instruction is given to ensure any potential “bad character” evidence, which is presumptively inadmissible, is not used for that impermissible purpose (see R v Mack, [2014] 3 SCR 3; 2014 SCC 58 para 57).  But in this case, the concern to protect the potential “bad character” of the accused was not informed by the gate keeper function of a trial judge that aims to provide balance and fairness into the trial. Here, again, is the problem with the silo approach to law where case approach is embodied by a check-list of issues. By this one-sided appreciation of “prejudice” in this case, as only the accused person’s prejudice, the full meaning of trial fairness, as functionalized by the gate keeper function of the trial judge, was missing.

The missing instruction, according to the Barton Court, was the lack of instruction cautioning the jury to refrain from entering into similar reasoning or moral prejudice in assessing the status of the deceased as a female, Indigenous sex worker. Similar to the instruction regarding the accused, the jury should have been told not to draw the impermissible inference that because the deceased was a “prostitute”, she implicitly consented to all forms of sexual interaction by virtue of her profession (Barton paras 116-132). This connects to the further error, discussed later in this post, relating to the lack of a section 276 application regarding sexual history evidence. The jury would also have benefited from a direction that Ms. Gladue was not less “worthy” as a person because of how she was “labeled” or defined by society as a female, as an indigenous person, and as a sex worker. Defence counsel and Crown counsel in this case should welcome such instruction as it would completely neutralize any suggestion of “bad personhood” on the part of Barton. It would also humanize the case, placing it in real terms. As eloquently referenced in para 128 of the Barton decision, the case is about relationships between race, gender and status. It is also about the trial judge’s relationship with the jury, the relationships between all parties in the case and the relationships between the justice system and the community. These relationships are at the core of the criminal justice system. They are based on trust and confidence. In these relationships we expect a “fair” trial not a “fixed” one as emphasized by the Court of Appeal in Barton (at para 262).

This kind of instruction, I suggest, is also consistent with the Supreme Court of Canada’s position on the editing or excising of an accused person’s criminal record in R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC). There, the Court considered the prejudicial effect of placing an accused’s criminal record before the jury in a situation where the accused will testify, and the resultant moral and reasoning prejudice which may arise from the accused person’s prior criminal convictions. The concern is two-fold; that the jury will find that the accused is a bad person who has a propensity to commit crimes, and therefore likely committed the present crime and is therefore worthy of punishment and that such a prior record could distract the jury from their duty to determine guilt or innocence on the basis of the evidence before them. Although the Corbett Court recognized the discretion of the trial judge to edit or excise a criminal record to ensure trial fairness, Chief Justice Dickson cautioned that such application must not result in a “serious imbalance” where the Crown witnesses may also have previous convictions and where, as a result, their credibility is attacked (Corbett para 34). This requires the judge to look at the context of the case or the long view of the facts which would be before the jury to ensure the case was not reimagined unfairly and that the truth-seeking function of the Court remained intact. This application is an example of the exclusionary discretion or gatekeeper function of the trial judge I mentioned earlier in this post in which the focus is on trial fairness. The Alberta Court of Appeal in Barton was applying the same reasoning in calling for a more balanced and contextual approach in the jury charge.  

The second layer of issues in the case, which flow from the general concern with the jury instructions, are the numerous specific “traditional” legal errors in the charge identified by the Court. I am labeling these issues as “traditional” as they are the kind of legal errors in instructing a jury one regularly argues on a murder appeal. Here too, I would suggest, the errors are connected. For instance, as I will explain further, the misdirection and non-direction to the jury on the use to be made of the post-offence conduct is related to the misdirection on the “defence” of accident. In turn, these errors are compounded by the misdirection in the charge on unlawful act manslaughter and the inadequate charge on the two potential pathways (standard and Jobidon related as I will discuss later in the post) to manslaughter. I caution again that the purpose of this post is not to thoroughly discuss the legal niceties of these errors. These errors, however, serve to highlight the entanglement of issues found in this case.

Post-offence conduct must be approached by the trier of fact with caution to ensure such potentially damning evidence is considered in its proper context (see R v White, [1998] 2 SCR 72, 1998 CanLII 789 (SCC)). There are instances where an accused person’s actions after the incident “look suspicious” but are in fact consistent with an innocent explanation. Of course, it is within the purview of the trier of fact to accept or reject evidence and to determine the weight, if any, to place on evidence. However, as with impermissible character evidence, the trier of fact should not be concerned with evidence that has no probative value and merely distracts the jury from its duty to fairly and objectively assess the evidence. The concern with post offence conduct is the potential illogical “leap in logic” which can occur should the trier unreasonably infer guilt from evidence that merely “looks bad”. This does not mean that such evidence is presumptively inadmissible. On the contrary, post-offence conduct can be useful circumstantial evidence of guilt, of motive and of credibility, as noted by the Alberta Court of Appeal in Barton (paras 57-75). The misdirection and non-direction on the use of such evidence in Barton impacted the jury instructions on Mr. Barton’s position that what happened was an accident, as his “innocent explanation” seemed to negate a proper instruction on the use to be made of the post-offence conduct (paras 63-69).

The Court in Barton raises the “elephant in the room” concern, which is whether “accident” is a positive defence the jury will be specifically instructed to consider like self defence or duress (paras 184-293). Of course, such an instruction would only be given if the defence has an “air of reality.” This test requires the trial judge to determine “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.” (R v Cinous, [2000] 2 SCR 3 paras 47 to 57) Without entering into a thorough discussion here on that issue, put simply, the Barton Court finds that there is no self-contained “defence” of accident as such a position merely negates the essential elements of a crime, be it actus reus or mens rea. Further, the characterization of the defence as “pure accident” in the charge (para 287) was inconsistent with Mr. Barton’s admission at trial that he repeatedly and forcibly entered Ms. Gladue’s vagina with his fist. I would add that even if “accident” is a “defence,” it is arguable whether, on the evidence, the defence had any “air of reality” such that it was properly placed for consideration before the jury. Further, this emphasis on “accident,” as it is mentioned enhances the error in misdirecting the jury on post offence conduct and on the mens rea for unlawful act manslaughter, which is based on an objective foresight of bodily harm per R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), and R v Creighton, [1993] 3 SCR 3, 1993 CanLII 61 (SCC). Additionally, the lack of direction on the objective dangerousness of Barton’s actions in the context of a manslaughter charge is in and of itself worthy of appellate intervention.

These “traditional” errors also led to the third layer of legal errors to be unpacked relating to the law of sexual assault, now so sadly prevalent in the appellate courts. These errors impact the substantive instructions on the law of murder and manslaughter, as the element of sexual assault causing bodily harm is integral to a proper understanding of the homicide instruction. This layer takes us back to the beginning as it reveals the fragility of the model jury instructions, the weaknesses inherent in a categorical “check list” approach rather than the modern contextual holistic approach, and the lack of a “humanity litmus test”, which reminds us that this case is about real people, whose voices (or lack thereof in Ms Gladue’s case) are being heard by real people. This set of errors impacts how we generally and traditionally approach the law of sexual assault but also reminds us of the need to step back and look at the case we are presenting and ask ourselves those “why” questions. For the Crown and the defence those “why” questions should be in the context of their theme/theory, strategic decisions including the thought processes on how to present the best and most effective case before the jury that promotes trial fairness. The Court in Barton identified legal errors in the instructions on the law of sexual assault but also in the manner in which the law of sexual assault was presented as part of a “boiler plate” or “fossilized” (para 8) instruction (paras 173-258).

This misdirection in the charge was preceded by and imbued with the missing procedure under s 276 of the Criminal Code or what is known as the “rape shield” law (paras 85-153 of Barton and for further discussion see R v Seaboyer;R v Gayme, [1991] 2 SCR 577). Again, this fourth layer of error relates to the admissibility of evidence that may lead to impermissible, prejudicial, and illogical inferences. Section 276 prohibits evidence whose sole purpose is to perpetuate the “twin myths” (para 89) relating to sexual assault complainants that prior sexual conduct, including being a “prostitute,” means consent was present at the time of the offence and that prior sexuality is a form of “bad personhood” making such a person of “loose morals” less credible. This prohibition is to ensure trial fairness and balance. The same balance that requires the instructing judge to remind the jury that Ms. Gladue, like all people in the justice system—the accused, the lawyers, the witnesses—must be treated with dignity and respect. A person is not to be “judged” by race, sexual orientation, gender or profession.

An application to use prior sexual history evidence for purposes other than the prohibited twin myths relating to consent and credibility is required whenever the accused is tried on a sexual assault charge. However, s 276 does not specifically reference homicide, which requires, according to s 222(5), an unlawful act. Such an unlawful act can be sexual assault or as in this case, sexual assault causing bodily harm. The Barton Court interprets the s 276 requirement that the application is engaged “in proceedings in respect of an offence” as including a homicide, where the underlying act is a sexual offence. This interpretation, using the modern approach as defined by Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 1998 CanLII 837 (SCC), is consistent with the purpose and objective of the section. To interpret it otherwise would present an absurdity and would be contrary to Parliamentary intention in creating the protection under s 276. The section provides a mechanism whereby the accused can apply to have such evidence admitted if it is connected to a relevant matter that goes beyond the realm of myth and is needed for fair trial purposes and to fulfill the accused’s right to full answer and defence under s 7 of the Charter.

The fifth area to unpack is the obiter comments found in the reasons. There are three areas of concern involving, as already discussed, whether there is a recognized stand-alone “defence” of accident (paras 284-293), the use of public policy in defining or confining consent pursuant to Jobidon, and a call for clarification of the “reasonable steps” requirement for mistaken belief in consent under s 273.2(b). All three of these concerns are valid and worth investigating, particularly the continuing struggle to reconcile R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC), with the much-changed legal landscape on the matter of consent since its release 26 years ago (paras 301-310 and for further discussion see my previous post on Jobidon). Again, these discussions require a detailed response for a later date, however, I would like to acknowledge the pressing issue of the clarification of the “reasonable steps” requirement as raised in Barton (paras 294-300). Section 273.2 enumerates situations where the accused in a sexual assault case cannot rely on the defence of mistake of fact in consent.  Under subsection (b) the mistaken belief in consent defence is unavailable where the accused does not take reasonable steps to ascertain consent. Soon after the release of Barton, the Supreme Court of Canada released R v George, 2017 CanLII 24267 (SCC), involving a charge of sexual interference under s 151 where the accused was 35 years of age and the complainant was 14 and a half years old. Section 150.1(4) of the Criminal Code prohibits a mistake of age defence unless the accused took “all reasonable steps”. In the George case, the Court found that where there is an air of reality to the defence of mistake of fact, the burden is on the Crown to prove beyond a reasonable doubt that either the accused did not honestly believe the complainant was at least 16 or the accused did not take all reasonable steps to ascertain the age of the complainant. Considering the similarity in wording with s 273.2, as recognized by the Barton Court, this obiter issue, which was not raised in the Barton appeal, becomes even more pressing to consider (para 294).

The sixth unpacking involves the notion of appellate review of an acquittal. Section 676(1) of the Criminal Code confines an appeal against acquittal by the Attorney General to a question of law alone. This limitation arises from the core values of our justice system. As articulated by Justice Wilson in the majority decision of R v B(G) [1990] 2 SCR 57, 1990 CanLII 115 (SCC) at 66, the restricted appellate review “reflects the fundamental principle that an accused is presumed to be innocent until proved guilty by proof beyond a reasonable doubt”. In B(G), Justice Wilson reviewed what the term “question of law” entails. Although factual errors alone, as in an unreasonable verdict or sufficiency of the evidence, would not amount to a question of law, a misapprehension of fact could be if it amounted to a misdirection on the law (pages 70-72). Throughout Barton, the Court is careful to characterize the errors as irreversible misdirections and non-directions of law.

As raised earlier in this post, the recent Supreme Court of Canada George decision may have an impact on the obiter legal issues raised by the Court in Barton on the clarification of the “reasonable steps” requirement for a defence of an honest belief in consent under s 273.2(b) of the Criminal Code. George was a case of an appeal against acquittal and it is the comments on the jurisdiction of appellate review of an acquittal, which may pose further discussion points in the review of the Barton decision. For the appellate Court to intervene in an appeal against an acquittal, there must be an error in law and that error must materially impact the not guilty verdict. The threshold for such materiality is quite high. There must be at least an error that with a “reasonable degree of certainty” has a material effect (George para 27). In paras 6 and 52 of the Barton decision, the Court suggests the identified legal errors “might reasonably” have a material bearing on the outcome, which could suggest too low of a threshold. However, later in the reasons the Court clearly finds the specific legal errors did have a material bearing on the acquittal. In any event, although it might seem like semantics, I could see an argument made on a further appeal that the threshold they used was too low. Additionally, the Court in George discussed the concern with conflating what are factual issues with legal issues, whereby the “legal” errors are actually factual ones (George para 17). Again, it would be difficult to suggest the Barton Court entered into the same error.