The Ideablawg Criminal Law Trend for 2013-2014: On Sentencing and On Podcasting

I start my criminal lectures at MRU with a current events “sweep” of criminal cases to ground the principles and the legal “speak,” learned throughout the course, with what is really going on out there in the real world of crime. This connects concept to context, which is so important in law, in order to teach the student to apply principles to a real life fact situation. This acquired aptitude requires the student to be comfortable outside of the academic rigour of law books, a much-needed skill in the lawyering world, which promotes creativity as the context forces the student to visualize alternate solutions for the legal problem.

As I teach in Alberta, I tend to look locally when I scout out the criminal law news of the week. This past week was so full of connections that we spent a good half hour discussing three of these current cases. Interestingly, the cases themselves were connected as they all referred to the sentence imposed in each particular case.

Of course, sentencing is the last act in a criminal case where there is a conviction. Most of the “legal business” of criminal law is concerned with pre-sentence matters such as the elements of a criminal offence and the application of criminal procedure, particularly in the Charter era. Sentencing is not even taught in the mandatory first year criminal law courses and some law schools do not even offer a sentencing law course. And yet, it is the sentence, the punishment to be imposed, which garners the most public attention and hence catches the most media attention as well.

The reason for this preference is varied. My theory on the popularity of sentencing cases in the media is that sentencing tends to be easily understandable to the average citizen. Everyone appreciates the significance of time in jail. No one needs the Criminal Code to explain that. Furthermore, sentencing is the only piece of the case in which the human aspect is so “front and centre,” no longer taking a backseat to the incident itself.

The victim, at a sentencing hearing, has the right to “speak” through the “victim impact statement” and is not merely a piece of evidence required by the prosecution to fulfill the legal requirements. Instead, the victim becomes a true stakeholder in the outcome as the Judge listens to the victim, not as a witness to the events, but as a participant, whose life was irretrievably changed.

The role of the convicted accused is also transformed from the defensive position wherein a legal “wall” is built around the accused to protect but also to minimize intrusion. It is only at the sentencing hearing that the accused steps out of a caricature of an accused and becomes filled in with the life stories all too familiar in the criminal courts of childhood troubles, conditions of abuse, and social failures. No wonder, it is the sentencing arena to which the public can so readily relate and which brings home, literally, the real life angst of the criminal law. 

On that note, it was unsurprising that the class started our current events journey with the Baumgartner case from Edmonton in which twenty-two year old Travis Baumgartner became the first Canadian to be sentenced for consecutive parole ineligibility terms for multiple murders under amendments to the Criminal Code from 2011. Section 745.51 of the Criminal Code permits such a sentence may be imposed by the trial Judge. Note the permissive “may” as the trial Judge is not mandated to impose such a sentence. Indeed, the section also includes the factors to consider in making the decision such as the character of the accused, the nature of the offence, and the circumstances of the incident. If the sentencing arises from a jury trial, the Judge must also consider the jury’s recommendation on whether or not the parole ineligibility should be consecutive under s. 745.21.

Baumgartner, a security guard shot four of his colleagues as they took ATM monies from the busy University of Alberta student HUB Mall.  Three of the guards died and the fourth survived. Baumgartner, as part of a plea negotiation, entered a plea of guilty to one count of first degree murder under s.231(2), two counts of second degree murder, and one count of attempt murder. As indicated by Associate Chief Justice Rooke in his reasons "these assassinations and executions were carried out by a cold-blooded killer, all with the simple motive of robbery." In sentencing Baumgartner to the agreed upon total sentence of life imprisonment with no chance for parole for forty years, Justice Rooke found the offence was “some of the most horrendous crimes that anyone can imagine.” However, it was not a case for the maximum parole ineligibility of seventy-five years, as Baumgartner was not the worst offender, being a young man with no prior criminal record and in recognition of the guilty plea, which showed remorse for his actions.

These amendments to the Criminal Code, part of the tough on crime agenda of Harper’s government, did attract much controversy. Critics voiced concerns over the political motivation of the change, suggesting it was merely a “political stunt” done to assuage the public fear of crime without any hard evidence such a change would in fact change crime statistics. In a word, the changes appeared to be more about “retribution bordering on vengeance” as characterized by D’Arcy Depoe of the Criminal Trial Lawyers’ Association and less about the sentencing principles of rehabilitation and deterrence.

On the other hand, sentencing is a punishment and does have an aspect of retribution for retributions sake. Certainly, the public outrage over concurrent sentences for multiple murders is understandable on a gut-level whereby a murder of one is equated with the murder of many. The controversy over this and the other numerous sentencing changes to the Criminal Code, such as the mandatory minimum sentences, is far from over, hence my suggestion that the hot button criminal law issue for 2013-2014 will focus on sentencing and these new amendments.

The other case we considered in class, another robbery case, was closer to the academic home as we discussed the 18 month jail sentence imposed on the ex MRU President Meghan Melnyk. Unlike Baumgartner, there was no joint agreement on sentence. As an aside, it must be pointed out that a sentencing Judge is not bound by a joint submission on sentence. In any event, considering the maximum sentence for robbery is life imprisonment, the sentence, in the eyes of the class seemed light. However, considering the position of counsel on sentence: defence asked for a conditional sentence or in the alternative ninety days, while the Crown asked for four years imprisonment being the typical “starting point” for such offences, the 18 month sentence appears to be within the range.  The eyebrow raising part of the matter was Melnyk’s concept of community work. Prior to sentencing she appeared at local High Schools discussing her situation and her gambling problem. Judge Brown, in sentencing Melnyk observed that she was paid for each appearance. This will definitely not be case when Melnyk fulfills the other part of her sentence when she is released from prison - 240 hours of community service.

The final case discussed was a sentence appeal argued before the Court of Appeal for Alberta. The Crown appealed the sentence imposed on ex-Stampeder running back, Joffery Reynolds, who was convicted by former Assistant Chief Judge Stevenson (of the provincial court and is now supernumery or a relief judge) of assaulting (actual convictions were for assault causing bodily harm under s. 267, assault under s. 266, and being unlawfully in a dwelling house under s.349) his ex-girlfriend for which he received a ninety-day sentence to be served intermittedly on weekends and two years probation as well as an apology letter and a five thousand dollar donation. The Crown’s position on sentence at trial and at appeal was for a two to three year sentence, an odd range considering a two year sentence is served in a provincial reformatory and a three year sentence is served in the much harsher federal system.

At trial, the defence recommended a non-custodial, particularly as Reynold’s celebrity status caused a media flurry and a diminishment of his public status. The Crown on appeal pointed to the sentencing Judge’s failure to consider the domestic nature of the offence. In discussion, the class clearly agreed with the Crown on that note, believing their relationship to be something more than just “buddies” as submitted by the defence.

This decision will be interesting as it may tackle the difficulty in sentencing the celebrity and it may also clarify the meaning of “domestic assault.” As an aside, the provincial government recently brought forward legislation to end intermittent sentences, which were used to allviate the burden of imprisonment where an offender had gainful employment. This may not be an issue raised on appeal but I believe this will cause a clash in the courts when the jail refuses to fufill a Judge's order to do so. Keep posted on this issue as well.

The other cases I had but were not discussed I will repeat here but I will not elaborate on today. Another sentencing case – the Paxton dangerous offender application is ongoing before Justice Martin. The Court of Appeal also heard an appeal against the conviction of the young offender in the Cavanagh murder case, which involved a “Mr. Big investigation.” Finally, a little off the crime path but still in the public welfare arena is the concern over work-related deaths in Alberta and the need to tighten regulatory laws in the area. The province recently went to the administrative efficiency of ticketing offenders, both employees and employers, in real-time for real-time breaches. However, the call is for more prosecutions, better outcomes, and a more serious consideration of criminal code charges for work-related incidents.

These cases, in my view, also signal some Canadian criminal law trends as the use of dangerous offender applications increase, as the courts struggle with unique investigation techniques in a Charter world, and as the public demands more and better action in the regulatory field. Keep an eye on my future blogs as we trend through the year.

On a final note is a new upcoming addition to this blog as I enter the world of podcasting. I intend to offer a short podcast on sections of the Criminal Code.

Calgary's Rough Ride Through The Emergency Laws

It has been a rough ride in Southern Alberta as the floodwaters subside and the damage becomes visible. The shock of seeing beautiful inner city neighbourhoods in Calgary left looking like war zones as a result of the sludge and mud is indelible. This surreal vision is mirrored by the unusual emergency laws in place during the flood and only recently lifted in Calgary.

Indeed Calgary's municipal bylaw requires the state of emergency to expire no later than 14 days after proclamation, unless the emergency is a pandemic, which expires at the end of 90 days.  Of note is Toronto’s emergency response to the SARS epidemic. The critical review of the response has shown endemic weaknesses in the system, particularly the health care system, which has become a lesson learned for other municipalities.  

As in a time of war, the emergency measures grants the province, municipalities (see Calgary’s emergency management bylaw here), and even the Federal government extraordinary powers. Even though the state of emergency has ended in Calgary, the municipal emergency management plan or MEP is still in place to ensure a smooth transition from immediate emergency to rebuilding. For example, the emergency management plan has been used by the City to bypass the usual red tape of municipal development rules to re-zone swaths of land for possible areas for temporary neighbourhoods for those without shelter and housing alternatives.

Calgary's plan also permits enhanced coordination between agencies through an implementation of three phases: response phase, local authority recovery phase, and community restoration and rehabilitation phase. The response phase, activated during the initial event, is for immediate response and mitigation. This would cover the first two weeks of the state of emergency. The second phase overlaps with the response phase as it ensures critical needs are met and bridges the immediate with short-term needs. Again this phase would have started during the two-week period that Calgary was in a state of emergency. The last phase, for rehabilitation and restoration, focuses on the long-term. The operations also transform during this phase shifting as they turn from an emergency operations centre (EOC) to a recovery operations centre (ROC). Clearly, Calgary is presently in the second phase of recovery and preparing for the rehabilitation phase.

In addition to the coordinated efforts through CEMA (Calgary Emergency Management Agency), there are emergency rules in place for businesses and other organizations, which handle sensitive documents. For example, the Law Society of Alberta sent out a newsletter during the flood to advise lawyers on disaster recovery including information on what to do if client and accounting files are water damaged to managing practice interruptions. The CBA (Canadian Bar Association) also has similar information.

Although, the local media has focused on information about the municipal emergency powers, and to a certain extent, the provincial powers, there has been scant discussion of the federal government’s role in disaster rebuilding. The federal government too has many laws, which they can utilize, when an emergency or a disaster strikes. These laws add support to the Ministry of Public Safety, now headed by The Honourable Vic Toews. The difficulty with this umbrella approach to disasters, such as in the Alberta flood, is the lack of focus on natural disasters in favour of a scheme, which can apply to all disasters including a terrorist threat. Of course the other difficulty with the Federal response is the slowness: funds pledged to support the disaster areas are often slow to come and as a result may be too little too late.

The main response tool is the Federal Disaster Financial Assistance Arrangements or DFAA. New guidelines were revised in 2008 to provide disaster relief to provinces and territories. Although, the principles of the program suggest the primary organization responsible for relief is the provincial government, the federal program is available for “support” or enhancement of the provincial efforts. The program does not, except in certain circumstances, apply to the fighting of forest or grass fires. There is a threshold monetary amount, which when exceeded triggers the federal “cost sharing” program. The program is announced in accordance with the Emergency Management Act and usually requires either a provincial request or a federal determination that assistance is needed through an Order-In-Council.

The Act was implemented in 2007 to “strengthen emergency management in Canada.” Despite this, past disasters in Canada have shown that the federal government’s response, unlike the municipal response, is slow. Of special concern is the lack of a federal mitigation strategy, which may result in funding for the infrastructure for disaster prevention as opposed to disaster relief. This is in stark contrast to the federal government’s response to international disasters, which have been touted as a global model. On the other hand, the provincial response many critics say has been excellent during this flood mostly due to the Premier’s stance on relief. Unfortunately, the quick provincial response this time has much to do with the provincial lack of response with the Slave Lake fire last year. Fortunately, the province reviewed the response and the nineteen recommendations implemented as a result of the review enhanced the provincial reaction and made it possible for flood weary Albertans to move forward.

Today, as the Stampede festivities go on and the City rebounds, there is much to still do. A recent torrential downpour re-flooded some flooded out areas reminding us of the fragility of our successes. A look to our neighbours – High River and the Siksika Nation, remind us that we are still not out of the water yet. Hopefully, all communities will receive the governmental support they need in the days and months to come.

In Remembrance: The Legacy of Mr. Justice Henry Nolan

Today, we remember the wars fought, the men and women lost, and the personal sacrifices, which formed Canada. Today we send our appreciation to those presently in service for our country and we are thankful to live in a country that values democracy and liberty. Last Remembrance Day, my posting was entitled “Lest We Forget,” which offered some profound words from poet/soldiers of WWI and WWII, including a moving passage from F.R. Scott, a Canadian lawyer who was an important civil liberties advocate and past Dean of McGill Law School.

This Remembrance Day, I recall Justice Henry Grattan Nolan, a Justice of the Supreme Court of Canada from March 1956 to July 1957, was born in Calgary, Alberta in 1895. His father, Patrick or Paddy Nolan, was one of the greatest criminal trial lawyers of his time. Paddy Nolan was a flamboyant character. A man of the new west, he was involved in all aspects of Calgary society, even appearing in the Gilbert and Sullivan comic opera “Trial By Jury.”

His son, Henry Nolan, was more serious by nature. A Rhodes Scholar, Henry served in the 49^th Canadian Battalion (from Edmonton, Alberta) in France. There he was wounded fighting in the Battle of Cambrai in November 1917. He received the Military Cross in 1918. After completing his studies at Oxford, England, Henry joined R.B. Bennett’s law firm. Bennett had often been opposing counsel to his father, Paddy. It has been said when Bennett was opposing Nolan in the Supreme Court of Canada in 1908, Bennett entered into the courtroom with his junior, issuing orders: “Boy, give me Phipson on Evidence,” “Boy, give me Kenny on Crimes.” To this, Paddy replied “Boy, get me Bennett on Bologney.”  

Henry Nolan re-enlisted at the outbreak of World War II and served with the Canadian Army. Rising through the ranks, Nolan became a Brigadier as the Vice-Judge Advocate General. From the end of the war to 1948, Nolan served in Tokyo as a Prosecutor for Canada before the International Military Tribunal for the Far East (IMTFE). Since then, Canada has taken a strong role in the prosecution of war criminals, most notably with Louise Arbour, who acted as Chief Prosecutor before the Rwanda and Yugoslavia War Crime Tribunals.

Although, Justice Nolan died prematurely, at the age of 64 and only spent one year on the Supreme Court of Canada, he authored a number of the cases. Most notably however was his commitment to his country as a soldier in World War I and II and as a protector of civil liberties and human rights as a military lawyer and war crimes prosecutor. We remember Justice Nolan as we remember all who contributed to our country in this way.

Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:

I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.

The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:

In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.

In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.

Whatcott In The Courts Again

Last Fall, I discussed the cases of William Whatcott in previous blog postings. I say cases, as William Whatcott is before the Courts in two different, yet related matters.

On October 12, 2011, the Supreme Court of Canada reserved decision on the Whatcott case, which raised the issue of the constitutionality of the hate speech section of the Saskatchewan Human Rights Code. Whatcott, a prolific pamphleteer, was found in violation of the Saskatchewan provisions for delivering his pamphlets at various homes in Regina and Saskatchewan. People complained about the pamphlets some of which were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and "Sodomites In Our Public Schools." As a result, Whatcott was fined for violating s. 14(1)(b) of the Code on the basis the pamphlets “promotes hatred against individuals because of their sexual orientation.”

The Saskatchewan Court of Appeal overturned the Tribunal finding, but not on the basis of Whatcott's Charter claim. Justice Hunter, after analyzing the pamphlets and the freedom of expression protections found within the Saskatchewan Human Rights Code, namely s. 5 and s. 14(2), found the pamphlets were not hate speech under the Code. Although Justice Smith agreed with the analysis, she but did so mainly on the basis of the relationship between the hate speech provisions and the constitutional values of freedom of expression as entrenched in the Charter. The Saskatchewan Human Rights Tribunal appealed the decision to the Supreme Court of Canada.

The other case, presently in the news, relates to Whatcott's pamphleteering efforts in Alberta on the University of Calgary campus in 2008. At the time, Whatcott was banned from the property and was served with a trespass notice for being in violation. Alberta Provincial Court Judge Bascom stayed the proceedings on the rationale the notice violated s.2(b) of the Charter. The Crown has now appealed this decision, which will be heard on March 30, 2012 at the Alberta Court of Queen's Bench. 

Read my previous postings on the issue here:

The Road Taken By The Supreme Court of Canada

A Message of Tolerance

Blog Update: The Limits Of Expression

Law, Literature, And Inherit The Wind