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

Ideablawg’s Weekly Connections: Inside The Courtroom

Although criminal lawyers have an intimate knowledge of the courtrooms in which they practice, what do we really know about courtrooms elsewhere? We assume other courts would be all fairly similar but having practiced in Ontario and appeared in a myriad of courtrooms from Toronto, to Windsor, to Lindsay, and beyond, I can say courtrooms do differ. But how do courtrooms in other jurisdictions look? What about other countries? What goes on in them anyway? Well, thanks to the Internet, there are options and tools to help anyone peek into the inside of a court and to see, and perhaps understand more clearly, what exactly is going on inside.

1.   The International Criminal Court (ICC): I have written about the International Criminal Court in previous blogs, most notably here. This past week, the ICC trial chamber has been hearing the Ruto and Sang prosecution. William Samoei Ruto, the Deputy President of the Republic of Kenya and Joshua Arap Sang, head of operations of Kalenjin language radio station KASS FM in Nairobi, are charged with crimes against humanity under the Rome Statute. Ruto and Sang are being tried for their role in the ethnic violence ocurring after the 2007-2008 Kenyan elections. The ICC distributes a video summary of weekly cases in their video series called “In The Courtroom.” The Ruto and Sang matter is this week’s installment showing the courtroom and the various members of the court as well as excerpts of the testimony of a witness, whose identity is carefully protected through use of a pseudonym, facial pixilation, and voice distortion. After the hearing summary, there is a short explanation about the court process including the possible prison terms and where such a sentence would be served. Not only does this video give us an opportunity to experience a totally different kind of criminal court but it gives us a better appreciation of the difficulties surrounding the prosecution and defence of international crimes.

2.   You Be The Judge: This is a great online interactive tool created by the Ministry of Justice in the UK to explain how a judge sentences an accused. The website allows the viewer to observe various criminal cases and to make interactive decisions, based on various factors, to determine the length of incarceration. The viewer/player experiences the courtroom setting and benefits from a number of “asides” from the Bench explaining the process. Through polls taken during the hearing, the viewer can see, in a risk-free environment, if their decisions are consistent with other viewers and with the sentencing judge. I have used this website in my undergraduate criminal justice classes to show how a sentencing judge uses his or her discretion with the rule of law to come to an appropriate and fit sentence.

3.   The Model Court: In a previous blog, I wrote a short piece on the intersection of law and art based on readings from a group of essays in Thousand Eyes: Media Technology, Law and Aesthetics published by Sternberg Press. In the journal are photographs of the “Model Court,” which is a collaborative research project involving a group of artists, Sidsel Meineche Hansen, Lawrence Abu Hamdan (who does some fascinating aural work in the area of the political role of voice in law called Aural Contract), Oliver Rees (he’s so supercool I can’t even describe what he does, so just check out his website) and architect, Lorenzo Pezzani. The project “uses the structure and technologies of the courtroom to interrogate the signifying and controlling role architecture plays in contemporary art and society.” By offering a “model court” as a container of ideas of “jurisprudence, evidence, and the hidden apparatuses that become the essential constituents of tribunals,” the project extends us beyond the courtroom into a representative space, which pushes the traditional four-wall envelope to give us an alternative view of justice. 

Ideablawg’s Weekly Connections: The Olympics Edition

Of course, this week is all about the Olympics and when sport and law sometimes intersect.

1.   The Dispute: How does the IOC (International Olympic Committee) decide which sports should be included in the games? Although the Olympics have come a long way since the Ancient Greeks competed in a handful of events, there are a number of sports not included in the games and a few, which have been dropped over the years. Baseball and softball were not on the roster for the London Olympics but considering Tokyo will be hosting in 2020, this may change. Wrestling was off and then on again.  The Olympic rules require all sports to be reviewed after every Olympics with sports to be added or dropped by a two-thirds majority vote. There are, of course, those sports, which have been added to the Olympic lineup, such as golf, rugby (reappearing) and kitesurfing (new) in the 2016 Olympics.   At Sochi there were new events such as team figure skating and the snowboard and ski slopestyle.  Women’s ski jump was a new event this year but not without some controversy. The quest for gender equality in the ski jump event evolved over time, culminating in a legal challenge by high-ranking women ski jumpers before the 2010 Vancouver Olympics and Paralympics. The British Columbia Court of Appeal, in dismissing the women’s case, found that the Charter could not apply to the selection of the 2010 events as and that even if the Charter did apply there was no breach of equality rights under s.15(1). Although, the question of whether VANOC or the Vancouver Olympic Committee was a government entity was easily answered in the negative, however the more difficult question was whether in organizing and staging the event VANOC was carrying out governmental activities. Even though there was governmental support for the Olympics, the Court found that this fact was not decisive on the issue of selection of Olympic events. In deed, neither VANOC nor the governmental agencies supporting the host City were involved in the selection of events. Thus, it could not be said that VANOC was the decision-maker and therefore the Charter could not apply.   Even so, the Court considered the reach of the equality s.15. In finding there was no breach the Court stated, “section 15(1) sets out constitutional guarantees of equality that are broad in scope, but it does not constitute a general guarantee of equality.  Rather, the section guarantees equality only in the way that the law affects individuals.  Where the law is not implicated in discrimination or inequality, is not engaged.” As the law or statutory authority was not engaged by the right or lack thereof to compete in the Olympics, s. 15 was not available and was not breached. A leave application to the Supreme Court of Canada was dismissed with costs. In the end, women’s ski jumping was approved for inclusion in Sochi. Unfortunately, none of the women who brought the court case won a medal in the sport, but what they did, in the end, win a victory for the sport.

2.   The Crime: Remember when Olympic scandals read like soap operas? If your memory needs refreshing, take a backward glance at the Tonya Harding – Nancy Kerrigan incident, when Kerrigan was attacked by a hammer to her knees, before the 1994 Olympics at the Women’s Championship and could not compete. That year Harding won and then lost as it was revealed that she was involved in the conspiracy to assault Kerrigan. But don’t worry, Nancy Kerrigan went on to perform in the Ice Capades while Tonya is now a professional boxer. Irony on ice?

3.   The Sabotage: What is it about skates? The Kerrigan/Harding incident did not stop some members of the American short track team from sabotaging Canadian Olympic gold medalist Oliver Jean’s skates in 2011. Despite this admission, the skater who did the deed accuses the coach for pressuring him to do it. The ISU or International Skating Union’s disciplinary commission considered the case last year and laid the blame for the incident squarely on the coach. This year at Sochi the Canadians were careful to check their skates before competing.

4.   The Dissent: Controversy swirled at the Olympics over the lack of gay rights in the host country and the lack of desire to meet with the Vancouver envoy supporting gay rights. But dissent escalated even further when Pussy Riot, the female punk rock activists, who were jailed last year after performing a “blasphemous” song in the Moscow Cathedral, were arrested but released in Sochi and then whipped by Cossacks – yes, there are still Cossacks. Read about their angry music video on the debacle entitled "Putin Will Teach You To Love Your Country" here. 

Ideablawg’s Weekly Connections: Peace And Violence

This past week there were some defining moments in history all in a background of love, war, violence, and peace.

1. All You Need Is Love: This week we celebrated the anniversary of The Beatles on the Ed Sullivan Show. In this moment of reflection, let us consider the various ways the boys engaged law and authority. Consider Paul’s marijuana as found by the Japanese authorities in 1980 or John’s deportation battle in the USA. If you want something more uplifting – recall John and Yoko’s bed-in at Montreal’s Queen Elizabeth Hotel. Here is a great legal connection – Allan Rock, lawyer and politician (now President of the University of Ottawa) – managed to convince the couple to go from Montreal to Ottawa in 1969 when he was President of the University of Ottawa Students’ Union. Here is a personal connection – Allan Rock taught me Civil Procedure II while I was at Osgoode Hall Law School. Only two degrees of separation between John Lennon and me!

2. War: Sixty-nine years after the end of World War II and we are still learning something new about the events of the War years. The Monuments Men, a movie that opened this past week, enlightens us on how art and architecture was saved or not saved during the war. I also recommend reading the book but if you do, read it with an iPad nearby to reference not only the art pieces but also the places in which the art was found. This further connects to the ongoing struggle for the return of art stolen during the war. I have written a previous blog on the issue. This past week, Germany considered extending the law allowing Jewish families to recover this art as more caches of such art are being found.

3. Peace: One of my personal heroes is Richard Feynman – the Nobel Prize winner in Physics who passed away 26 years ago on February 14, 1988. Not only was Feynman an engaging man and a tremendous mentor and teacher but he was also a clear thinker with a heart of gold. He’s the one who dropped the O-rings into the ice-cold water to demonstrate how the Challenger disaster accident really occurred. He also ended his minority report on the disaster by stating “For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled.” A dramatization of these events aired on the Science Channel last year with William Hurt playing Feynman. Having read all books Feynman, I recommend the autobiographical What Do You Care What People Think? and his lectures on Physics. Although he was one of the young physicist working on the Manhattan project and was at Los Alamos during the War, he had a very strong reaction to the dropping of the bomb on Hiroshima. I strongly recommend watching his interviews on the subject here.

4. Violence: Is the independence of the judiciary something to fight about? In Turkey, a fistfight broke out over the government’s plan to restrain the judiciary. Certainly, this undemocratic move has political overtones in a country rife with such difficulties. This latest move is unsurprising considering the government’s past treatment of free thinkers such as Orhan Pamuk, the Nobel Prize recipient in Literature, who was charged with a criminal offence after speaking out on the Armenian genocide. Ultimately, the government dropped the charges but certainly this was a precursor to the events of Taksim Square and to the latest round of violence. Orhan Pamuk is another one of my role models – read Snow and My Name Is Red to experience Pamuk’s lyric and unforgettable prose.

Ideablawg's Weekly Connections: From Pronouncing to Pronouncements

This week I looked at the dual nature of the word “pronounce.” Although in both meanings to “pronounce” is a speech word, the effects of the meanings are very different.

1. Pronounce: In this meaning – to make a sound of a word or letter with your voice – is something we do everyday. Even in this digital age, the speech act is integral part of being human. However, how we pronounce our words has developed over time and the dialect or way in which we pronounce a word has changed radically in the English language. For example, every teen is required to read Shakespeare, typically Romeo and Juliet, Macbeth, and Hamlet, but inevitably with present-day pronunciation. True we recognize the words and the grammatical structure differs from ours but few of us consider that pronunciation in the 1500s was quite different. Thanks to the linguist, David Crystal, Pronouncing Shakespeare, is possible. Listen here for the correct pronunciation (i.e. as Shakespeare would have pronounced them) in Romeo and Juliet. To follow along, the text is here. Just to connect Shakespeare to law, I remind everyone of the famous passage in Act 4, Scene 2 of Henry the IV, wherein Dick states "the first thing we do, let's kill all the lawyers," which presages the disintegration of society and the beginning of anarchy.

2. Pronounce: Another aspect of pronouncing a word is to speak the word properly. In law, Latin words and phrases are common. Indeed, two such phrases come immediately to mind when I teach criminal law. The first is actus non facit reum nisi mens sit rea, which means there is no guilty act without a guilty mind and from where the terms mens rea and actus reus, the essential elements of a crime, come. As an aside mens rea and actus reus are never used in the Criminal Code of Canada. The second Latin maxim is the causation concept of de minimis non curat lex or the law does not concern itself with trifles. Although the Latin language is liberally sprinkled throughout legal textbooks and case law, Latin is not a required course in law schools. But thankfully there are opportunities for self-study. Just buy Wheelock’s Latin and go online for the correct pronunciations. Your law professor will thank you for it.

3. Pronounce: The second meaning of the word is to declare or announce something formally or officially. A Judge, when he or she renders a decision, is making a pronouncement. How the Judge or trier of fact comes to a decision is a matter of much academic speculation and argument. Critical legal theorists spend much of their academic career trying to articulate this seemingly inarticulable process. Is decision making predictable? Is it based on preconceived views of the trier of fact? Is it random or guided by an innate sense of justice? These heady questions are still being deconstructed in legal jurisprudence. As a primer, read Benjamin Cardoza on The Nature of the Judicial Process for an enlightened view on the subject.

4. Hazmat Modine: to end this week’s connections, I decided to move completely away from my theme and leave you with some excellent music and an example of how our world seamlessly mixes all genres to produce new sound – kind of like how our pronunciations have changed over time. Enjoy!