Section 24 - Attempting the Impossible: Episode 29 of the Ideablawg Podcasts on the Criminal Code of Canada

In the previous podcast we tackled the possibilities but in this podcast we will discuss the impossibilities. Section 24 of the Criminal Code pertains to attempts to commit an offence in an “attempt” to clarify what it means under our criminal law to commit an attempt of a crime. The difficulty with an attempt crime can be traced back to the essential elements of a crime and to the reluctance of the criminal law to attach liability to “evil thoughts.” Thus, in criminal law is the requirement that for a crime to be committed there must be both a prohibited act or actus reus and a criminal intent or mens rea as highlighted by the Latin maxim actus non facit reum, nisi mens sit rea, which translates to “there is no guilty act, without a guilty mind.” Not only must these two elements be present for a crime but they must also coincide.

A good example is the entertaining 1968 UK case of Fagan v Metropolitan Police Force in which Fagan accidentally rolled onto a police officer’s foot but once he realized he had done so, he swore at the police officer and turned off his car. After a few agonizing moments, Fagan turned on his car and rolled off of the officer’s foot. Fagan was charged and convicted of assault police. On appeal, Fagan tried to argue that there was no assault in law as his criminal intent or mens rea did not manifest itself until after the prohibited act or actus reus of rolling onto the officer’s foot. The House of Lords found this argument too narrow and explained that the prohibited act can be a continuing action and indeed in Fagan’s case they found that from the time Fagan rolled onto the foot to the time he subsequently rolled off was one continuing transaction, during which  Fagan formed the criminal intent.

So what does this great case narrative have to do with attempts? In the case of attempts it becomes very difficult to know when the actus reus and the mens rea coincide as the prohibited act is a subtle one and falls short of the actual criminal act. Indeed, attempts are known as incomplete or inchoate (not fully formed) crimes. There are other crimes, which fall under this incomplete or unfulfilled category such as counseling to commit a crime not committed under s. 464 and conspiracy under s. 465. The issue then is identifying when an act of attempt occurs as it is not the completed act and yet it is also not the mere thinking of the act as that would criminalize mere evil intentions. Thus, an attempt takes place before the completion of the intended crime but the Courts must decide at what point the attempt is complete and criminal liability will attach. Something more is required and section 24 instructs us on how that “something more” is determined in a criminal case.

Section 24 has two subsections and reads as follows:

24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

Other than s. 463, which we will get to much much later and deals with the punishment for an attempt, s. 24 is the only section in the Code dealing with attempts. The difficulty is that this section doesn’t exactly tell us what it means to commit an attempt of an offence. The section does however give some legal clues, which the courts have then used together with common law interpretations of attempts to fill in the doctrinal meaning of “attempt.” From subsection (2), and from case law, we can say that an attempt is complete when the accused person’s actions go beyond “mere preparation.” This usually means the next step done with the intent to commit the crime, after preparation is complete. There also must be proximity in time between the act and the intention.

Who decides when preparation is complete? Subsection 2 tells us that it is the trial judge, who determines this issue as a question of law. Therefore, if a jury tries the matter, the trial judge will instruct the jury on this issue. The jury, as triers of fact, will then apply the legal principles to the facts to determine if the accused is guilty or not guilty of the attempt.

Not only does the prohibited act for an attempt require specific findings based in law but the intention required for an attempt is specific as well. The mens rea required for an attempt is the mens rea required for the completed offence. But in the case of attempt murder, the intention required is the highest level of subjective mens rea under s.229(a)(i), intention to kill, and not the slightly relaxed intention under s. 229(a)(ii).

I am now going to add my own narrative to this issue by relating the circumstances of the first case I did as a lawyer. I was called to the Bar in March and within the week, I was representing a client charged with an attempt break and enter. Certainly, one can envision an attempt break and enter – for example here are the facts from the 1986 Alberta Court of Appeal Gochanour case wherein a homeowner was awakened by noises at her living room window and when she looked out the window she saw the exterior screen was ripped open and someone was running from her residence. In my client’s case, the allegation was that the client, who was under the influence of alcohol at the time, was found in a fairly upscale neighbourhood with a stick in his hand. The police found scratches around the lock of a front door of a nearby house. The client was discharged at the preliminary hearing but as we can see from s.24(1), not on the basis of impossibility – as it is impossible to open a locked door with a stick – but because a properly instructed jury acting reasonably could find no evidence that the client used the stick for the purpose of committing a break and enter of a residence.

Impossibility is therefore not a defence to an attempt and therefore one cannot argue that because the completed offence was not possible, the accused must be acquitted of the attempt to commit the impossible offence. This proposition holds true whether or not the offence was legally or factually possible. But, as we will discover this does not necessarily hold true, for practical purposes, for every charge.

Let me wrap up the discussion of section 24 by offering some thought-provoking examples. A pickpocket who attempts to steal from an empty pocket is still liable to be charged for an attempt theft. Although this is legally fair, the question may be is it morally right? Should someone in that position face a possible criminal record and/or jail?

Here are some offences in which one may not be able to be charged with an attempt – even though according to s. 24 charges are possible. It is difficult to conceive of an attempt to commit a criminal negligence under s.219 – although this may be a too simplistic conundrum - it is hard to imagine how someone can attempt to be negligent. It is also difficult to conceive an attempt to be found in a common bawdy house according to s. 201(2)(a). How can someone attempt to be found in a place as required by the section? We can also apply this concept outside of the Criminal Code and to the quasi-criminal regulatory field. Can someone attempt to speed? Can someone attempt to commit an absolute liability offence, which requires no intention at all? Or in the regulatory field, can the defence argue that attempt charges are indeed not possible as they would be inconsistent with the spirit and purpose of those regulatory acts or that pursuant to, the enabling provincial statutes such a concept is inconsistent with the Act. For example, the defence could rely on s. 3 of the Provincial Offences Procedure Act or for federal acts s. 5 of the Contraventions Act, which provide for the application of the Criminal Code to regulatory offences as long as such sections are not inconsistent with the regulatory Acts. Of course, the contrary argument might be that those regulatory statutes are procedural while the concept of an attempt is a substantive issue. What has been made clear by case law is that someone cannot be charged with an attempt to commit an incomplete crime such as mentioned earlier in this podcast – counseling to commit a crime not completed and a conspiracy. So in the end, perhaps there is a defence to the impossible!

Episode 29 of the Ideablawg Podcast on the Criminal Code of Canada - Section 24 - Attempting the Impossible

The Hart Case: A Long Way From Wray?

Upon review of the newest Supreme Court of Canada case, the much-anticipated Hart case on the admissibility of confessions resulting from Mr. Big investigations, it is worthwhile to return to the basics. Certainly Mr. Justice Moldaver, in his majority decision, did when he concluded that in the first prong of the applicable evidentiary test is the judicial weighing of the probative value of the evidence against the prejudicial effect. Although Justice Moldaver returns to the 1981 Rothman case as a basis for this “old school” rule, the evidential principle comes from the 1971 Wray case.

John Wray was charged with what was then called non-capital murder – a capital murder was punishable by death and at that time was reserved for the killing of on-duty police officers and prison guards. The victim was shot during the course of a robbery and there were no witnesses to the actual shooting. It was only through the police investigation, namely a lengthy police questioning, that John Wray ultimately signed a statement indicating where he disposed of the rifle used to shoot the victim. The rifle was found in the place so indicated and Wray was charged. At trial, after a voir dire on the admissibility of Wray’s statement, the trial judge ruled the statement inadmissible as it was not voluntarily given. This ruling was not the subject of the subsequent appeals. The issue on appeal was the trial judge’s further ruling that Wray’s involvement in the finding of the rifle was inadmissible as well. The Ontario Court of Appeal unanimously upheld the trial judge’s decision. The majority of the Supreme Court of Canada, with Mr. Justice Martland writing the decision, allowed the appeal and sent the matter back for a new trial.

Although this is a case where the evidence was found to be admissible, it is the principles enunciated in this case which impacted the manner in which trial judge’s viewed admissibility of evidence thereafter. Now, it must be remembered that this case is pre-Charter and yes, there is such an animal. It should also be remembered – and I will not try to sound as if I am nagging – that there are important admissibility issues to consider separate from the usual Charter based arguments. The first consideration when faced with a confession in a case is to review the voluntariness of the statement to ensure the statement was given freely and without hope or advantage. So, although Wary is certainly pre-Charter and if determined today, the analysis under the Charter lens would no doubt differ, the case started a line of reasoning, which can be traced to the Hart decision we have today. What is also fascinating about this line of reasoning is to see how this discretionary evidential principle of exclusion or admissibility – whichever way you want to view it – starts as a very restrictive and rarely to be exercised act to the pro forma requirement of a “new common law rule” as articulated by Justice Moldaver in Hart.

Justice Martland’s reluctance to “approve” of a discretionary exclusion of evidence is palpable. Yet, the English authorities require it.  He clarifies the difference between the “unfortunate” effect on the accused of relevant admissible evidence, which would be prejudicial to the accused and the “allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.” Of special note are the adjectives or qualifiers used by Justice Martland when he finally articlulated the discretion as arising “where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was highly prejudicial.” Notice the emphasis added. The added practical difficulty for Justice Martland with excluding evidence on the basis of “unfairness” was the interpretation of that word. In Martland’s view, therefore, the discretionary exclusion of relevant and probative evidence should be “very limited.” This restrictive view of the discretion was reiterated in the Hogan case, in which Justice Martland was a member of the majority.

Within a decade of the Wray judgment, as per the Rothman case, the limited discretion reluctantly approved of by Justice Martland is referred to as an “exclusionary rule” by the then, Justice Lamer, concurring with the majority. Interestingly, Justice Lamer refers to the Wray principle, while Justice Martland writing for the majority does not. Rothman sets out the test to determine whether or not a person taking a statement from an accused is a “person in authority” and broadened the circumstances in which a statement may not have been given freely and voluntarily.

Post Rothamn, the evidential world changed as common law evidential rules become imbued with Charter values. But this transition was not easily done or easily accepted. In Corbett, the Supreme Court of Canada struggled with the constitutionality of s. 12 of the Canada Evidence Act, which permitted the questioning of any witness, including the accused person, on his or her criminal convictions. Although the decision is unanimous in the sense that all six members agreed that s. 12 of the CEA was constitutional and recognized the trial judge, under common law, had the discretion to exclude admissible evidence (however Justices McIntyre and Le Dain did not see this discretion as permitting a trial judge to circumvent a clear legislative directive as found in s.12), there was disagreement over the exercise of that discretion. Thus, it is in Corbett, where Justice Martland’s reticent discretionary rule becomes a fully recognizable discretion in the trial judge to exclude admissible, yet prejudicial evidence. But Corbett, although not mentioned in the Hart case, seems to raise similar concerns. Through the exclusionary discretion of the trial judge, together with other evidential rules that limit the use to be made of the evidence, the law protects the right of the accused to a fair trial, which includes, as stated by the then Chief Justice Dickson, the right “not to be convicted except on evidence directly relevant to the charge in question.” This protection “strives to avoid the risk of prejudicing an accused’s trial.” These words are echoed by Justice Moldaver in the Hart case as he speaks of the “risks inherent in the Mr. Big confessions,” which require a legal response in order to protect “accused persons, and the justice system as a whole” from “abusive state conduct.” It is, therefore, Martland’s reluctant rule, the seemingly rare discretion, which blossomed under the Charter lens, which the Hart Court turns to as the legal protection needed. Yes, we have come a long way since Wray and there is no looking back.

Section 23.1: The "Limitless" Criminal Law - Episode 28 of the Ideablawg Podcasts on the Criminal Code of Canada

One of the interesting learning moments for me, resulting from this Criminal Code podcast, is the realization that the criminal law has changed in the past three decades, which, in common law time, is a fairly short period of time. Certainly, this section, which we will consider today, s. 23.1 of the Criminal Code, is an example of how the Code can and does change the practice of criminal law. To give perspective, s. 23.1 was added to the Code in the 1985 amendments, while I was in law school. I recall those amendments mostly because I had to “re-learn” the section numbers of the Criminal Code. I particularly recall how the assault section, s. 244, was changed to the section number we use today – s. 265 - and my fear that I would never be able to remember the new section numbers. Considering I needed to look up what the old section number was to write this blog, I wonder how I could have been so worried. What I was not too concerned with at the time was the change caused by s. 23.1, which in hindsight was certainly a much bigger deal than the mere section number changes.

Section 23.1 reads as follows:

For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

Therefore, it is possible for an accused to be convicted of counseling a crime even if the person actually committing the crime is not guilty or cannot be tried and/or convicted. For example, an adult who involves children under twelve in the drug trade can still be convicted as a party even though the children, who are actually committing the crime, cannot be convicted, according to s. 13 Code, as they are statutorily debarred on the basis of age. For more on section 13 of the Code, read or listen to my previous podcast. Additionally, even though an accused who commits a counseled crime while under duress would have a valid legal defence, the person who counseled such an offence under s. 22, may still be convicted. It is also possible for an accused to be convicted as an accessory after the fact even if the fugitive offender is ultimately acquitted of the crime from which he or she was escaping. I will return to accessory in a moment as this particular mode of crime has been viewed as different than the other modes and has caused more legal controversy despite s. 23.1.

Based on the above, particularly the “Oliver Twist” example, it does make sense that the Crown be able to prosecute secondary participants on a separate basis than the main offenders. However, prior to 1985 this was not the case. This did not mean that a person involved in a crime, in circumstances where they might be a party or a counselor or an accessory, could not be charged. Indeed, prior to these amendments the charge of conspiracy was usually laid against the secondary accused. However, as we will see when we finally do arrive at the conspiracy section 465, to found a conviction under the conspiracy section is quite complicated. Certainly, more complicated than basing the offender’s participation through the party section.

Although this concept or ability to prosecute was easily accepted after 1985 for participating as a party or as a counselor to a crime, the issue of being tried as an accessory after the fact, where the fugitive offender was not convicted, was not. To understand the special status of being an accessory after the fact, we must consider the Supreme Court of Canada Vinette case from 1975. In the Vinette case, the accused Vinette was charged as an accessory after the fact to a murder committed by Vincent by assisting Vincent to dispose of the victim’s body. Vincent entered a plea of guilty to manslaughter and at Vinette’s trial, Vincent’s plea, as a “confession,” was admitted against Vinette. Vinette was convicted by the jury but the conviction was quashed by the Court of Appeal on the basis that Vincent’s plea was not admissible against the co-accused Vinette. Mr. Justice Pigeon, writing on behalf of the majority, allowed the Crown’s appeal and upheld the conviction. In Justice Pigeon’s view, the elements of being an accessory after the fact differs from the main offence and therefore is a separate charge. Thus, the usual evidentiary rules pertaining to admissions made by co-accused do not apply and Vincent’s statements are admissible. According to Justice Pigeon, not only was a charge of accessory separate from the main offence but also by its very nature must be committed after the main offence. This chronological requirement also suggested that the main offender must be tried and convicted before the accessory could be found guilty. However, after a line of cases which tried to decipher Justice Pigeon’s suggestion, it was determined that as the Vinette decision made no mention of the now s. 592, which permitted an accessory to be indicted before the main offender, the chronological argument carried no validity. We will eventually come to s.592 and revisit this conundrum.

In any event, the idea that being an accessory after the fact was a unique charge, which was intimately tied to the main offence resulted in a line of cases questioning s. 23.1 in relation to s. 23. In fact, in the delightful decision of the Honourable Justice Woods, on behalf of the British Columbia Court of Appeal in the 1993 Camponi case, the historical common law significance of being charged as an accessory after the fact was traced in light of s. 592 and s. 23.1. Again, I want to keep back some discussion of this for the much, much later s. 592 podcast but needless to say Justice Woods found no problem with trying an accessory after the fact before the main offender and no problem finding an accessory guilty even if the main offender was acquitted. To that end, and in reference to s.23.1, Justice Woods remarked at paragraph 25 of the decision that:

This section was enacted in 1986, c. 32, s. 46. with what must be regarded as an unusually confident legislative tone, it announces an intention to bring greater certainty to the law relating to ss. 21-23 of the Code. Whether it has achieved that lofty goal will be for history to decide. Suffice it to say that in the context of the present discussion its intent seems to have been to put the quietus to any lingering notion that s. 592 preserved, or was intended to preserve, the essence of the common law rule relating to accessories after the fact.

Finally the matter appeared to be truly put to rest when the 1997 Nova Scotia Court of Appeal FJS (also known as Shalaan) case came to the same conclusion as Camponi and this decision was affirmed with brief reasons by the Supreme Court of Canada. Interestingly, the controversy continued, not in the law courts per se but between the lines in the annotated Criminal Codes. In the commentary under s. 23.1, Martin’s Annual Criminal Code references the Supreme Court of Canada FJS case in support of the position that an accessory after the fact could be convicted even if the main offender was acquitted, while in Allan Gold’s The Practitioner’s Criminal Code, as least as of the 2008 version, the commentary dismissed the Supreme Court of Canada’s decision as decided per incuriam.

But we are not finished with this section and the myriad of case law this section has garnered. Recently, on April 3, 2014, the Supreme Court of Canada dismissed the leave application in the Huard case, which raised the constitutionality of the well-established principle, as really encapsulated by s. 23.1, that a party may be convicted of a more serious offence than that of the main offender. In that case, Mr. Huard was convicted as a party to a first-degree murder even though the principal offender was only convicted of second-degree murder. Counsel argued that the principles of fundamental justice, as guaranteed under s. 7 of the Charter, requires that those less morally culpable should not be punished more severely than those more morally culpable. Mr. Justice Watt, on behalf of the Ontario Court of Appeal, dismissed the argument as he found the “mere common law rule” relied upon was not a principle of fundamental justice and s. 23.1 “makes it clear” that a party can be convicted even if the main offender is acquitted or not even tried. As an aside, the Appellant in the Camponi case relied upon an article written by Justice Watt, which he wrote prior to his appointment to the Bench, on accessory after the fact and the ambiguities found in s. 592. This shows that the connections in the Canadian criminal law are indeed endless and it appears that they may be unlimited too!

Episode 28 of the Ideablawg Podcasts on the Criminal Code - Section 23.1

Section 23 – Accessory As A Mode of Participation: Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous episodes we discussed the party sections of the Criminal Code, a mode of participating in a crime as a participant who is not the main offender but assists the main offender in the commission of a crime. An accused can also participate in a crime as an accessory after the fact under section 23 of the Code. This is not a party section as the accused is not participating in the commission of the actual offence but is assisting an offender after the offence has been committed. This assistance, however, takes on a very specific form. Additionally, it should be noted that as the accused under this section is not participating in the main offence, the punishment for being found an accessory after the fact is less than the punishment of participating in the actual offence pursuant to s. 463 of the Code.

Section 23 reads as follows:

^{23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.}

It should first be noted that in the present section is a reference to subsection 2, which was repealed in 2000. The section also initially contained a further subsection, which was also repealed at an earlier time. Both of these original subsections provided exemptions to the section as a result of marriage. You may recall an earlier podcast wherein we discussed section 18, which also originally contained similar exemptions. In that podcast, I refer to s. 18 as an addendum to the s. 17 compulsion by threats or duress section. Presently, s. 18 clarifies that duress cannot be presumed merely on the basis that the offence was committed in the presence of a spouse. Turning to the original iteration of section 23, what was in the original 1892 Code as section 63, is very similar in essentials to section 23(1) but the additional subsections exempted a married couple from the effects of the section. Thus, under subsection 2 a spouse could not be charged as an accessory after the fact by assisting the other spouse. Further, under subsection 3, no “married woman” could be charged with being an accessory by assisting, on the direction and authority of her husband, another offender or her husband. It was only in the mid-1970s that the Statute Law (Status of Women) Amendment Act removed this subsection 3, which was clearly based on stereotypical presumptions that a husband has certain authoritative “rights” over his wife. At the time, this amending legislation was hailed as a huge step toward gender equality as it was created in response to the recommendations from the 1970 Royal Commission on the Status of Women. Subsection 2, however, which may be viewed as a more gender-neutral exemption, stayed in the Code until 2000 when the amendments found in the Modernization of Benefits and Obligations Act removed the subsection exemption.

What is left of the section is, as already mentioned, quite specific. The actus reus requires the accused to “receive, comfort, or assist” a person who has committed a crime. Although “assist” and “comfort” have specific meanings, the addition of the word “receive,” which is quite broad in aspect, captures a wide range of activity. However, the accused must “receive” for a specified purpose as part of the mens rea of the section. Returning to the actus reus, the Supreme Court of Canada in the Morris case has found that the section requires more than a mere failure to advise the authorities of an offender’s whereabouts. This position is consistent with the traditional common law reluctance to punish omissions and failures. However, advising an offender that the police have the offender’s name and licence plate number may be enough to fulfill the prohibited act requirements. Furthermore, an accused can be convicted of being an accessory even if the offender assisted is not convicted of offence from which he or she was fleeing. Also, due to the amendments repealing subsection 2 and 3, an accused can be an accessory even if they helped a spouse or his or her child.

The mens rea requirements require a high level of subjective mens rea. The accused must have subjective knowledge that the person being assisted has been a party to or has committed an offence. Also, the assistance, comforting or receiving of the fugitive must be for the specific purpose of assisting the fugitive’s escape from the authorities. As a result, proof that the accused was reckless is not enough. The Crown must prove subjective knowledge or deemed knowledge through the doctrine of willful blindness. Therefore, it is not enough for a finding of accessory that the acts of assistance have the effect of helping a person escape the law. Nor is it enough that the acts were undertaken for the purpose of not being suspected of the crime itself. It is therefore difficult to prove an accused participated as an accessory after the fact. As a result, the police tend to charge an offender with other more easily proven offences such as obstruct justice under s.139 or harbouring a suspected terrorist under s. 83.23. 

Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 23 - Accessory After the Fact

Sections 22.1 & 22.2 – When Corporations Are Criminal: Episode 26 of the Ideablawg Podcast on the Criminal Code of Canada

In the early morning hours of May 9, 1992, the small mining village of Plymouth, Nova Scotia witnessed a disaster. The Westray coal mine, which opened only eight months previously, exploded with such ferocity houses shook and windows shattered. In the aftermath, twenty-six miners, working near the end of their shift, perished.  

The mine had a storied history even before it was opened on September 11, 1991. Politics and big business played a large role in the founding of the mine: multi-million dollars worth of Federal and Provincial funds and loans were secured and lucrative agreements with the provincially owned utility company were negotiated. In other words, much was riding on the success of this mine in the heart of Pictou County. So much so that the owners of the mine were eager to portray the mine as a “state of the art” operation even if the realties were very different.  It would be these realities which foretold the tragedy: the Inquiry, headed by Mr. Justice Richards, found the mine was grossly mismanaged, violated numerable safety standards and simply failed to protect the health and safety of its workers. Westray was an “accident” waiting to happen and yet Westray received a safety award a mere eleven days prior to the explosion.

Certainly, Pictou County experienced methane gas explosions before but nothing to match the loss of human life at Westray. This time, something needed to be done. It was clear that the explosion was no mere “accident” but was the inevitable consequence of heedless corporate behaviour. However, out of the whole organization, including the various subsidiaries, two Westray middle managers, who were not even at the mine prior to the disaster, were charged with manslaughter and criminal negligence causing death.  After slowly making their way through court, the charges against the two men were stayed as a result of a Stinchcombe application for a failure to disclose the prosecutorial evidence in a timely manner. In 1997, the Supreme Court of Canada ordered a retrial of the case based on the trial judge’s conduct creating a reasonable apprehension of bias.  The Crown decided not to re-prosecute as there was, in the opinion of the Crown, insufficient evidence to connect the men to the crimes charged. There was also no conclusive evidence to show how or why the methane ignited to cause the explosion. The Crown simply could not prove the men were criminally liable even though the Inquiry report was clear the explosion would not have happened if the corporate body would have followed proper safety measures and if the government had enforced safety regulations.

The question is not how this could have happened but how to ensure that it could not happen again. This is where the story ends but the legislative response begins.

In the last few episodes, we discussed liability and modes of participation: how an individual accused can be criminally responsible for a crime even though he or she was not the principle offender.  The story of Westray extends this theory of participation to corporations and to employer-employee relationships. This legislative story essentially starts on May 9, 1992 but does not come to fruition until June 12, 2003, when the federal government introduced legislation holding corporations criminally responsible for failing to provide a safe workplace. The legislation has three parts, necessitating two categories of amendments to the Code. The first category relates to connecting the corporation to the prohibited conduct. Amending the Code in two areas does this: the first, which concerns us in this podcast, provides the corporate connection to a crime. The second area, which we will discuss further down this Criminal Code road when we come to s. 217.1, provides the legal duty to which corporations must be held. The final category of amendments is the sentencing piece, under s. 718.21, outlining the unique factors to be considered in sentencing a corporation.

Sections 22.1 and 22.2 read as follows:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

(i) one of its representatives is a party to the offence, or

(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

Both sections provide a mechanism for an organization to be considered a party to an offence. Section 22.1 outlines the liability in cases of criminal negligence – as would have been the case in the Westray charges of manslaughter and criminal negligence causing death. Please remember that the actual corporate body was not charged in the Westray incident – only those two managers. Section 22.2 outlines liability as a party where the charges are fault based such as fraud or theft.

For negligence based offences a corporation is deemed a party to an offence on the basis of the actions of one or more representatives of the organization, who are acting within the scope of their authority, as long as the senior officer or officers in charge of that aspect of the organization relevant to the offence markedly departs from the standard of care reasonably expected to prevent the representatives or representative from engaging in that prohibited conduct. Similarly under s. 22.2, a corporation would be a party to an offence if a senior officer, with the intent to benefit the corporation, while acting within the scope of their authority, directs other representatives of the corporation to commit the offence or knowing that a representative is or will commit an offence and that officer fails to take reasonable steps to prevent the offence.

As I am sure you have realized these are very complicated sections and it is a difficult way to deem participation but there are reasons for this based on prior case law. Before we come to this I want to highlight some features of these sections for future reference and thought.

First, the sections do not refer to “corporations” but to “organizations.” “Organization” is a defined term under the Criminal Code pursuant to s. 2 and it means:

 a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

(b) an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons

This definition is extremely broad and under (b) captures really any gathering of people who have come together for a common organized purpose. There is also in the Code the concept of a “criminal organization,” also defined under section 2 and referring to organizations created mainly for a criminal purpose (see s. 467.1) such as a criminal gang or in media nomenclature a biker gang, drug cartel or mafia. So, “organization” would capture both criminal organizations and legitimate organizations, hence the broad definition. Another reason for the broad definition may be the need to ensure an organization cannot “opt out” by tailoring its structure to fall outside of the definition.

Looking back at the sections, although the definition of “organization” is broad, the section operates in very limited circumstances. The sections are very careful to capture only prohibited conduct, which arises out of an individual’s corporate authority and duties. Those criminal actions unconnected to the organization are not relevant. In those circumstances the individual alone would be charged for their actions.

Another limitation in the sections is the distinction between “representatives” of the organization and “senior officer.” Again, looking at the section 2 interpretation section, “representative” means director, partner, employee, member, agent or contractor of the organization and “senior officer” is “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.” The “senior officer” is therefore a specialized representative of the corporation. Thus, the sections are structured around the corporate hierarchy with the senior officers in charge of the representatives, be they director or employee, with the senior officer having an enhanced placement in the organizational structure. To understand why the sections make this distinction and have this requirement, we now must look at the doctrinal dimension of corporate criminal liability.

Traditionally, as criminal law was concerned with intentional or subjective mens rea offences, criminal liability did not attach to the corporation but only to those individual employees who had the required subjective criminal intent. These employees essentially represented the corporation. Thus the “identification theory” was created to attach liability to the corporation but via an actual corporal body in the form of an individual player. This principle, arising from English common law and a 1915 case from the House of Lords provided that the corporation is only liable for what is done by “the directing mind and will of the corp., the very ego and centre of the personality of the corporation.” Case law thus formulated the test to identify the corporation with the senior official who acts as the “directing mind” or “alter ego.” If the directing mind has the requisite fault for the crime, the corporation would be guilty but if not the corporation would be acquitted.  To ensure that the corporation could not “hide behind the corporate veil,” a corporation would still be criminally liable even with no formal delegation of authority to the directing mind, even if the directors were unaware of the actions of the directing mind, and in certain circumstances, even if the corporation expressly prohibited the conduct in question. A corporation, however, would not be liable if the directing mind acted wholly fraudulently and wholly against the interest of the corporation.

Originally the term “directing mind” was defined broadly as in the 1985 SCC Canadian Dredge and Dock case. Due to the size of Canada, there could be, therefore, more than one directing mind could include board of directors, managers or anyone delegated the “governing executive authority” as in regional heads. Since this line of cases, the courts have placed some limits on who is a directing mind. The person must be an officer or manager of a corporation acting in the scope of work duties and responsibilities and must have the authority to “design and supervise the implementation of corporate policy” rather than merely carrying out policy. The problem became that the designers of corporate policy may be so far from the criminal acts that the court cannot find fault with the “directing mind.”

As a result of these weaknesses, critics have called to the end of the “identification theory” in favour of a more individualistic approach. For large multi-national corporations, critics have suggested replacing the theory with liability based on a “corporate culture” which encourages or condones the crime. This is where the new amendments come in as they do go far to reimagining the Identification Theory in favour of a corporate culture aspect. Thus, under section 22.1 a corporation would be guilty of manslaughter if within its organizational structure there was an objective foresight of an unlawful act which could cause bodily harm or if there was a marked departure from the reasonable corporate behaviour.

As an aside, there are further difficulties with section 22.1 on a conceptual basis as it relies upon objective mens rea, which is a marked departure from the standard of care required, and is very different from the traditional criminal law concepts of subjective mens rea. I have discussed in previous blogs (most notably here) the various issues with the importation of objective mens rea into the criminal law through the regulatory field (here wherein I discuss the Costa cruise ship tragedy, and here wherein I discuss laboratory safety and here wherein I discuss the criminalization of prediction -  as in weather and earthquake). It becomes an even wider societal issue as we, as a society, struggle with what kind of behaviour we want to be considered as criminal. This struggle is framed by the special stigma and loss of liberty attached to the criminal law. As a result, only those behaviours we deem egregious should be criminalized. The import of regulatory type behaviour into the criminal law should cause us to pause and question whether these types of behaviour are best addressed in the criminal law as opposed to the regulatory field. Concomitantly, we should be constantly reviewing those crimes presently in the Criminal Code, which no longer reflect societal norms and realities. Similarly, we should question whether the correct response to certain corporate behaviour is the criminal sanction, with its traditional fair trial and due process provisions originally created to protect the individual from the more powerful state. Corporations are not an easy fit into that system and yet certain behaviours, as exemplified by the Westray incident, require that special response of the criminal law.  

Thus, this podcast ends as it started with the story of twenty-six men who died while doing their job. The legacy these men left is found in the Westray memorial found in New Glasgow in Pictou County, in the poem written by a surviving son, and in the legislative amendments, which reflect society’s desire to protect the vulnerable worker through the full force of the criminal law.

Episode 26 of the ideablawg Podcast on the Criminal Code of Canada - Sections 22.1 and 22.2 - When Corporations Are Criminal