Age As A Defence – Section 13: Episode 15 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts I have spoken of defences, a legal construct which an accused person can use in answer to the charge. There are two essential elements of a crime: the actus reus or prohibited act, which is the illegal behaviour and the mens rea or the guilty mind, which is the fault requirement. Some defences, negate the actus reus or prohibited act requirement of a crime, meaning that the accused cannot be convicted of the crime as the prohibited act was not committed by the accused voluntarily. This would occur, for example, in the following scenario: a person was driving his car with the window partially open and a wasp flew into the car, attacking the driver, and causing him to drive erratically. In that instance, a charge of dangerous driving under s.249 of the Code would fail as the prohibited act or bad driving was involuntary. The accused did not choose to drive in such as manner but external circumstances, beyond the accused person’s control, caused him to do so.

Another category of defences, known as justifications and excuses, are available even though the accused could be found guilty of the crime. If such a defence is successful, the accused is acquitted of the crime as he or she may be justified in committing the crime or may be excused from responsibility. In Episode 11, I explain these defences more thoroughly and I discuss the defence of duress, an example of the defence of excuse, in my previous blog here. Although these defences, if accepted, typically result in a full acquittal, the exception is the defence of provocation, a form of justification, which is only a partial defence, reducing murder to manslaughter, per s.232 of the Criminal Code. See my previous blog on the issue.

There are also defences, which negate the mens rea or the criminal intention required for a crime. Mistake of fact is such a defence where the accused believes in a set of facts, which, if true, would exonerate the accused. In those circumstances, the accused would not have the intention required to commit the offence.

Still another category of defences, which also relates to the mens rea of an offence, is where the accused is incapable of forming the intent required. Incapacity is difficult to use as a defence and tends to require expert medical evidence to establish the incapacity such as in the defence of intoxication (a common law defence, which has been severely limited by the Code under section 33.1) and mental disorder under s. 16 (or insanity as it was originally called). Another form of incapacity, which does not require medical evidence, is incapacity based on age. This is where section 13 comes into play – in fact, child’s play – as the section reads:

No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

Interestingly, the word “child” is not used in the actual section, although it is used in the descriptive heading for the section, Child Under Twelve. As there is no statute of limitation on criminal offences, meaning that a person is still liable for a crime committed years previously, not using the descriptive word “child” in the actual section does make sense. Also note that although the section states a person under twelve years of age cannot be convicted of an offence, he or she may be charged with an offence. Again, if you have been listening/reading my previous podcasts, the Code seems to be focused on the “end game” of conviction and punishment.

Furthermore, this type of incapacity differs from intoxication and mental disorder as the simple proof of age, which is easily done, bars conviction. Intoxication and mental disorder as a defence, not only may require medical evidence but are complex defences, and in the case of mental disorder, has a complex procedure in the Criminal Code.  Certainly, in the case of mental disorder, an alternate mental health system is available to take over when the criminal law cannot.

So why is there such a limitation and why is it set at under twelve? Perhaps it is time we do a little historical review to find some answers.

In the 1892 Criminal Code, section 9 prohibited conviction of a person under seven years of age. Traditionally, English common law did not attach responsibility to young children for crimes, as children, like the mentally challenged, could not understand the consequences of their actions and therefore could not be held responsible in criminal court. This was the norm until the advent of the 1980 Young Offenders Act, which replaced the Juvenile Delinquents Act, when the present day age of twelve was substituted for the age of seven. This change in age was supported by psychological and medical research, which showed that the neurological development of a young person was not fully advanced until well into the teens. Thus developed the concept that a person under twelve years of age was incapable of forming the criminal intent. The research on this issue is certainly more complex as I have summarized and I invite you to do your own research on this topic. Needless to say, some academics presently question whether the child is truly incapable of forming an evil intent, although most agree that a child, due to developmental factors, should not be treated the same as an adult. Certainly Canada’s Youth Criminal Justice Act is based on that premise.

Politics has also come into the issue as the Conservative Party in 1999, through a private member’s Bill, attempted to change the age of incapacity to a child under ten years of age. This Bill did not survive but this concept has survived and may be raised yet again by the government particularly as the now Justice Minister, Peter McKay, was the sponsor of that 1999 amendment.

Additional pressure to change the age of incapacity comes from media reports of children under the age of 12 committing crimes, usually murder, both here and in the UK. It should however be noted that in terms of statistical evidence, 61% of the offences committed by young offenders are committed by the oldest offenders between the ages of 16 and 17. I know all of this fails to explain why the age barrier is under twelve as opposed to under eleven or under thirteen. I believe much of this is connected to societal perceptions and expectations, which do change over time.

To be sure, even though the criminal justice system is not engaged when a child under twelve commits a crime, the social service system can and will deem such a child in need of protection and he or she will be taken into the child welfare system. The focus is then on the reason why the child acted inappropriately and focuses on treatment and not punishment. However, the difference between these two concepts tends to become blurred in the eyes of a young person. An example of this in Alberta is the Protection of Children Abusing Drugs Act wherein a child using drugs or alcohol may be taken into a protective “safe house.”

Although the child welfare system may seem to be a kinder and gentler way of dealing with a troubled child, the system is rife with problems such as the power of the state to take children from their biological families and the difficulty of treatment without the fair trial procedures as would be required in the criminal courts. On the other hand, the stigma of a criminal charge and the use of the process-oriented criminal justice system, even if it is supposed to look towards rehabilitation of a young person, tend to provide band-aid solutions, where there are consequences, a bit of treatment, but no long-term solutions.

In the end, the criminal justice system is probably not the answer for a troubled child but the child welfare system may not be either. Perhaps, it is time for us to start thinking of alternative ways, proactive ways, to ensure that all children have the opportunity to engage in play and not crime.

Episode 15 - Section 13 Age As A Defence: The Ideablawg Podcasts on the Criminal Code of Canada

Ideablawg’s Weekly Connections: From Justitia to Tupac

Art is the connection this week; art for art’s sake, art as a legal symbol, and art as the spoken word:

1. Art for Art’s sake: One of the best museum in Amsterdam is the Van Gogh Museum – a simple walk through does not do it justice (note – this is a foreshadowing of the next connection). The majestic melancholy of Van Gogh’s work is fully displayed as you walk pictorially through the artist’s troubled life. But wait, there’s more we can do in our digital world, we can actually walk through his paintings in this lovely 3D Animation by artist Luca Agnani. Soon we will actually be able to interact with the subjects of his paintings in “Loving Vincent,” a feature-length painted animation project “kickstarted” by the Oscar-winning studio BreakThru Films. 

2. Art as a Legal Symbol: As mentioned last week, Peter Goodrich’s article on Specters of Law discusses legal imagery and legal obfuscation. A fascinating passage in the article reveals the original image of Justice was not blindfolded. Based originally on the Greek Titan Goddess Themis, Justice was a blend of Greek and Roman female deities centered on law, order, and prophecy. Justice or Justitia was not depicted blindfolded until the Renaissance. In fact, Justitia, with her eyes wide open, viewed the world with utter clarity.  No one can hide from Justice. Why she became blindfolded is a bit of a mystery but whatever the reason, the blindfold became a symbol for the impartiality of the law. Today, there are very few images of Justice without a blindfold but the few are significant. Our own Supreme Court of Canada is pre-figured by the figure of Justice or Ivstitia;cloaked, embracing her sword of Justice, with no impediment to her sight. Even our legal progenitor, the British, have a golden statue of Lady Justice on the top of the Old Bailey criminal courthouse, outstretched with scales perfectly balanced but without blindfold. Banksy’s version of the Lady can be found here – blindfolded and unblindfolded – albeit much differently attired. 

3. Art as the Spoken Word: Lady Justice reminds me of Lady Liberty and Tupac Shakur’s poem Lady Liberty Needs Glasses. “Mrs. Justice” makes a cameo in the poem, which you can read here. Or, if you prefer audio, listen to Malcolm Jamal Warner read it from the “Rose That Grew From Concrete” album.

4. Art as Rhetoric: Finally, I give you the Greek orator, Demosthenes. If you want to learn about him and the reason why I was reading his speeches this week, read/listen to my blog/podcast from January 31. Unfortunately, this “art of persuasion” has not been nurtured in the law schools of today, either in its spoken or written form. Read “The Oration on the Crown" to see what we are missing. 

Section 12 – Anyone Want To Play Double Jeopardy?: Episode 14 of the Ideablawg Podcast on the Criminal Code of Canada

Double jeopardy, like the presumption of innocence, is a legal term, which is a familiar part of our social discourse. The phrase is at once a movie, a book (actually multiple books), and even a segment of a game show. The concept, that an accused may not be tried or punished for the same offence more than once, is ancient and runs deep in our “fundamental freedoms” psyche. The Greek orator, paid speech writer, and all-around democrat, Demosthenes in his speech of 355 BCE Against Leptines, reminded the Athenian jury that “the laws forbid the same man to be tried twice on the same issue.”  Roman law later codified this concept when they published The Digests or Pandects of Justinian and referred to the maxim ne bis in idem or “not twice in the same” in Book 48, Title 2, Section 7(2). The maxim eventually was subsumed into English common law, however it was strictly defined and originally applied to those acquitted or convicted of capital offences. See Blackstone Commentaries in Book 4, Chapter 26 for more on the English law equivalent.

Not surprisingly, this restricted concept was handed down to us when we codified our Canadian criminal laws. In the 1892 Criminal Code, section 933 codified the Canadian principle under Proceedings After Conviction pertaining to “Punishments Generally.” As it is very similar to our present version under section 12, I will not reproduce it here but please note that the prohibition against double punishment is not limited to capital crimes. Also note that I referred to the concept as “double punishment” and not “double jeopardy.” To explain this difference, let’s read section 12:

Where an act or omission is an offence under more than one Act of Parliament, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

Immediately, it is clear that this section protects double punishment, not double jeopardy – an accused can therefore be charged and tried for similar offences, but once convicted, the accused cannot be punished more than once. This is much different than the American concept of double jeopardy as found in the Double Jeopardy Clause of the Fifth Amendment, in which a person, who is subject to the same offence, is not to be “twice put in jeopardy of life or limb.” In the American version, therefore, even the risk or danger of being convicted is being protected. The Canadian codification in the Code, like the English principle, does not go as far.

In fact, even our Charter protection under section 11(h), albeit broader than section 12 of the Code, is still not as robust as the American conception.  Section 11(h) of the Charter reads: 

Any person charged with an offence has the right if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

The Charter prohibits double punishment, like section 12 of the Code, but also prohibits retrying an already acquitted accused. It is unsurprising that section 12 of the Code does not refer to acquittals considering its antecedents as a section under the punishment part of the original Code. Also, both of these concepts – not to be convicted or tried twice – come from the common law and, as we learned in a previous podcast, common law defences under section 8(3) are still available. Therefore, does section 12 really need to be under the Criminal Code? Those common law defences are known as autrefois acquit and autrefois convict. Autrefois acquit, meaning previously acquitted, and autrefois convict, meaning previously convicted, are actually referred to in the Criminal Code as “special pleas” under s. 607. Yes, we will eventually discuss this section but much much further down this podcast road.

In any event, autrefois convict has been further refined as it only applies after there has been a complete adjudication on a matter including sentence. Before punishment, pursuant to s. 12 of the Code, an accused who has been tried and convicted of offences arising out of the same transaction, can rely on the case law principle prohibiting multiple convictions from the 1975 SCC R v Kienapple. Thus, an accused charged and convicted of driving with over 80 mgs of alcohol (section 253(1)(b)) and driving while impaired (section 253(1)(a)) arising from the same transaction, will not be punished for both offences but will have one of the charges stayed or “kienappled” as defence lawyers like to call it. As an aside there are a few cases, which have become verbs in the legal nomenclature, such as a case being “askoved” or stayed due to a trial not being heard within a reasonable time pursuant to s. 11(b) of the Charter.

The lesson learned from this podcast and the previous podcast on s. 6 the ersatz “presumption of innocence” found in the Code, is that our societal perspective of law is not really reflected in our Criminal Code. Instead our perspective is coloured by the media, by the American experience, and by our own assumptions of what the law is and what the law is not.

Join me for the next podcast when we discuss section 13 of the Criminal Code.

Episode 14 of the Ideablawg Podcast on Section 12 of the Criminal Code of Canada

Ideablawg Weekly Connections: From Twibel to Chaucer

This week, I surfed the Internet and did some reading the old-fashioned way – nothing like holding and having a book - so let’s look at the week in review:

1.   Google Glasses are being talked about and well they should! As the next step in computer/human interface, these glasses would really come in useful in the courtroom when you need to bring up that name of a case – you know that name! Google Glasses could tell you that. Of course, Google Glasses can also keep the lawyers busy as in the case of the California woman, who was charged with distracted driving while wearing her special specs. The California law makes it illegal to “drive a motor vehicle if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating” and, as she was also speeding at the time, a puzzled police officer pulled her and her Glasses over. The Judge, however, acquitted the feckless (not specless) woman, as there was no evidence the Google Glasses were operating at the time of the incident. My only question is: how could you ever prove that? Maybe the police need some new technology? Can that laser catch speeders and readers?

2. Peter Ackroyd, a British writer, historian and biographer, has written numerous fiction and non-fiction books, mostly about his beloved London. I have read a number of his books, most notably London Under, about what is found under the city – you’d be surprised what’s there - and The Casebook of Victor Frankenstein, a fictionalized backgrounder to the good Doctor. I have recently read a raft of his biographies; some from his brief lives series, including Turner, Poe, Newton, and Chaucer. The Chaucer bio was fascinating as Geoffrey Chaucer was a minor Court official, who really only wrote as a side career. He also had some legal training and was used by the Kings (he survived more than one) for delicate diplomatic missions to France and Italy. Not only does Ackroyd give us non-fictional accounts but he usually ties these peregrinations to a fiction book as well. For instance, he did a marvelous re-working (or translation) of The Canterbury Tales and then re-worked them even more to write Clerkenwell Tales. I also recently read his fascinating biography on Charles Dickens. By the way, watch for the Dickens movie to be released with Ralph Fiennes as the venerable, and love-struck (read the book to see why – the movie is called The Invisible Woman) author. Of course, Dickens did work as a law clerk in Chancery Court when he was young and his novel, Bleak House, brings his past experience to life (or death as we are talking wills) with a comedic flare that is both cynical and heartwarming. I have written a couple of blogs on Dickens in the past here and here

3. Back to law and the Internet – this time law and the Smartphone as Courtney Love successfully defends against a defamation case caused by her tweeting that her attorney, in her Kurt Cobain estate case, was “bought off” not to represent her.  Apparently, the tweet was supposed to be “private” and the jurors agreed. A “private” tweet therefore was not considered “twibel,” which is a libelous tweet of course. Not only is this the first twibel case but, I think also the next word to make it as the Oxford Dictionary Word! Selfies is so last month!

4. I have also been reading some law and imagery articles and I have been particularly struck with articles written by Peter Goodrich, who is the Director of the Law and Humanities program at the Cordozo School of Law. His writing is witty, vivacious, and thought provoking. Try reading his article on Specters of Law: Why the History of the Legal Spectacle Has Not Been Written, which speaks of the visible and the not so visible legal tradition that lawyers have constructed. 

Section 11: The Parallel Universe of Criminal and Civil Law: Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada

Today we will step out of our criminal law comfort zone to talk a little bit about the civil law, in particular how criminal and civil law reside in a parallel universe due to section 11 of the Criminal Code.

To start, let’s discuss how civil law and criminal law differ from one another. First, it should be noted that when I speak of “civil law,” I am using this term generously to refer to the legal system controlling private disputes, particularly where there is harm caused either physically (tort law) or through a breach of contractual obligations. Another definition of “civil law” may be the civil law tradition, which comes from the Continental legal tradition (The Napoleonic Code for instance), and involves codified civil statutes governing society, such as found in Quebec.

As you probably already noticed, the main difference between criminal and civil laws is the type of parties engaged in each of these systems. Civil law is between private individuals, whilst criminal is between the state or the government and an individual, although a corporation can also be charged with a criminal offence. Thus, in criminal law we are concerned with public wrongs and harms against society. As, I have mentioned before, the criminal law underlines society’s fundamental values and is reflective of how we view our society at any given time.

As a result of this differing viewpoint, civil and criminal law employ different legal processes, on occasion differing legal rules, and even a different standard of proof. To reflect the specialness of the criminal law, the burden of proof, which is on the state, is beyond a reasonable doubt, and for the civil world it is proof on a balance of probabilities, which is a lower standard of proof than the criminal one.

The civil law also employs some different types of remedies than the criminal law, although sometimes not. Criminal law remedies are about punishment, with the concomitant ideals of retribution and rehabilitation. Typically, civil remedies are about compensation, to ensure the injured party is recompensed for the harm caused. However, there are occasions where these remedies do meet such us in the criminal law when compensation is ordered or in civil law when punitive damages are assessed. This blurring of the lines between civil and criminal law is best seen in the regulatory field of legislation. For further reading on this issue, My Masters Thesis considered the criminalization of regulatory offences and the use of the civil punitive sanction as an alternative.

Now that we understand the differences between civil and criminal, let’s take a look at section 11 of the Criminal Code to try and figure out what it means and what it is doing in our Criminal Code.

Section 11 is entitled Civil Remedy Not Suspended and reads as follows:

No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

As an aside, a similar section can be found in the 1892 Criminal Code under s. 534. It is under the General Provisions of procedure section of the Code, while the present section 11 is under the General Part.

On the face, the meaning of the section is fairly clear: a civil action may proceed despite a parallel criminal action. In other words, a person charged with an offence can also face a civil suit for his or her actions and that civil case can continue at the same time as the criminal prosecution. However, as discussed in the last two previous podcasts, as the court retains an inherent jurisdiction over its process, a judge, in exceptional circumstances, can suspend a civil case until the criminal matter concludes. The circumstances for such abeyance would involve the right of the accused to a fair trial and the prejudicial effect of a continuing civil case. It must be emphasized that this power is discretionary and there is no automatic right to stay a civil case until a criminal matter is completed.

Another concern for an accused facing a civil suit is the civil requirement for questioning the parties on the suit. Such responses may later incriminate the accused at the criminal trial. However, there is protection for the accused under s.13 of the Charter, which prohibits the use of such testimony in a criminal proceeding, except in a prosecution for perjury or “for the giving of contradictory evidence.” Therefore, the state cannot advance such incriminatory evidence at the accused’s trial unless the evidence forms the basis of a perjury charge or unless the accused testifies at the criminal trial and his testimony at the criminal trial is contradictory to the previous testimony in the civil proceeding. In that instance, the civil testimony does not go in for the truth of its content but can be used to cross-examine the accused on a prior inconsistent statement. However, under provisions in the Canada Evidence Act, an accused must still answer the questions put to him when questioned in a civil case.

There are cases where the civil trial judge has stayed the civil proceeding when the accused is facing criminal charges in the United States. In that forum, the accused, as a Canadian citizen, would not be entitled to invoke the protection of the Fifth Amendment of the U.S. Constitution and would not be protected by the Canadian laws.

Our final consideration is why is the section in the Code. I suggest the section is in place to reiterate the differences between criminal and civil law. The sections speaks of civil remedies or the outcome of a civil case and also a civil suit’s purpose – to enforce a right of the party, which has been harmed, or unrecognized by the other party’s actions. This enforcement is between these two parties – not between Her Majesty and the accused - therefore the action is in respect of different parties. The harm is a private one, and again does not underline the social values at stake in a criminal case. Finally, the standard of proof is lower in a civil suit and therefore a civil remedy may be ordered even if an accused is ultimately acquitted of the criminal case – see the O.J. Simpson trial as an example of this.  So they are different proceedings, for a different reason, making parallel proceedings possible. Finally, there is a desire that civil matters, like criminal cases, be heard in a timely manner to ensure the integrity of the civil system. Of course, with the caveat that, in matters of justice, the criminal case will prevail.

Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada: Section 11