Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

Let’s Talk About the Canadian Criminal Code: Episode Two Section 2 (and s. 2.1) - Definitions

Welcome to episode two of the Ideablawg Podcast entitled: Let’s Talk About the Canadian Criminal Code.

Last week we discussed the short but complete section 1 “naming section.” This week we will talk about its polar opposite: the hefty yet incomplete section 2.

As discussed in the last podcast, there is a method to the madness of writing legislation. Indeed the framework or structure of a statute is not whimsical but follows certain prescribed formats. These formats may differ slightly from statute to statute and from levels of government as we learned when we talked about preambles to an act as opposed to a purpose section found within a statute. But in essentials, statutes tend to look very similar.

One of these similarities is found in section 2 of the Criminal Code – found under the interpretation segment of the Code, entitled “definitions.” These words and phrases are definitions of key terms used within the Criminal Code.

Now I called this section hefty yet incomplete. Hefty, because this section 2, which is not broken down into subsections as other sections of the Code are, provides us with a long alphabetical list of words in which some terms are defined quite lengthily. In fact, there are 73 words listed under section 2 from “Act” to “Writing.” Of the 73, 2 are repealed: the term “feeble-minded person” was repealed in 1991 and “magistrate” in 1985 as these terms are no longer used in the Criminal Code. Of course, Canada no longer has any “magistrates” as they are now known as “provincial court judges.”

The term “feeble-minded person,” however, comes from the old rape provisions in the Criminal Code, namely s.148, and came into force through the 1922 Code amendments.   It is difficult to read this old section without cringing:

s. 148. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person

(a) who is not his wife, and

(b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,

is guilty of an indictable offence and is liable to imprisonment for five years.

The term also applied when considering the old insanity defence under the now amended (as of 1991 there is no insanity defence but an offender may be found NCR or “not criminally responsible” as a result of a mental disorder) s.16 of the Criminal Code. Unlike the rape provisions, this term when used in the context of insanity, applied equally to men and women. Interestingly, in the 1984 Supreme Court of Canada decision, rendered a year before the term was repealed, Justice Dickson, as he then was, in the Ogg-Moss case, agreed that the term was “somewhat disturbing to modern sensibilities” but was really equivalent to saying “mentally retarded” or “developmentally handicapped.” Of course, both of those terms today are deemed completely inappropriate as well. The term “mental disability” is now the preferred adjective. There is still a sexual offence related to this: sexual exploitation of person with mental or physical disability under s.153.1 and it applies to both men and women, married or not.

Amazing that the term, “feeble-minded person,” was only repealed in 1985.

I also call out this so-called definition section as being incomplete. Incomplete, because not all words used in the Code are defined. This has a twofold significance: as not every word which we would like to be defined is defined and not every word which is defined is found under this section.

Let's tackle the first thought: not every word we would like to be defined is defined in the Criminal Code. As we ramble through the Code, we will be faced with some crimes for which some essential elements of the prohibited act are not defined for us. At this point our only recourse is to go to the case law. Case law produced, by judges, interpret statutes together with principles found in the common law and come up with legal interpretations or definitions of the words used.   If there is no case law on the word or phrase then a lawyer is forced to be creative and come up with a definition, which they hope the trial judge will accept. To be frank, the best starting point to do this is the dictionary. How is this word defined in Webster or Oxford? Then, how is it defined in case law? In other jurisdictions? And so on. To me this is the fun part of being a lawyer – when you can be part of the creation of the law.

An example would be the phrase “planned and deliberate” under s.231(2) of the Code, which is the section outlining when murder is deemed first-degree. The term is only important for sentencing classification and comes into play only after the Crown has proved beyond a reasonable doubt the intention required for murder as found under s.229. This phrase is not defined in the Code but is neatly defined in case law to mean the follows: planned - a scheme or design previously formed, and deliberate - considered and not impulsive.

Now the second thought: not every defined word is found under this section, tells us that there are other places in the Code where words are defined. For instance, there are definitions, as referred earlier, at the beginning of some Parts of the Code such as Part VI Invasion of Privacy.

There are also definitions found within sections of the Code such as the term “crime comic” under s.163(7).

Then there are the hidden gems such as the term “negligence,” an extremely important term as it signifies the level of intention required to commit an offence and is used for one of the most serious offences in the Code s.222(5)(b) manslaughter. Yet, “negligence” is defined only by reference to a title of a section. In section 436, entitled Arson By Negligence, a fairly recent offence in the Code from 1990, the actual section setting out the crime does not use the word “negligence” but instead defines it as follows:

“Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.”

“As a result of a marked departure from the standard of care that a reasonably prudent person would use” is the definition, found in case law, of criminal negligence. I leave it to you to decide if this is indeed a “hidden gem” or merely another example of the complexities of our Criminal Code.

So, in the end, section 2 is not only a list of some definitions but is also a list of what is not defined in the Criminal Code.

 But of course it is not that simple.

For example, let’s look at a recent definition added to section 2 – “justice system participant.” The definition is a list of very specific categories of people who come under this term, such as under

(a) “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.”

Caution is required, however, as the definition is also very broad: under (b) it is also

“a person who plays a role in the administration of criminal justice.”

The definition does go on to list examples, but clearly this definition is not exhaustive. Imagine if we went to the dictionary for a definition of a word and it said etc, etc, etc.. Not overly helpful is it – so again we are down to case law and a possible argument in court in order to define the definitions and give them boundaries.

Before I close, I would like to discuss s. 2.1, which is a new section added in 2009. This section also provides us with definitions; in fact it is entitled “further definitions – firearms.” Okay, so instead of amending section 2, the government simply added a section 2.1 with firearm specific definitions.

Well, no not really.

Section 2.1 merely points us to the place where the listed terms are actually defined. The section lists words such as “ammunition” and “replica firearm” and tells us that those listed words have the same meaning as in s. 84(1). If we go to s. 84(1), we see a section defining a number of terms, including the ones listed under s. 2.1. This s. 84(1) is in fact the definition section for Part III of the Code on Firearms and Other Weapons. As mentioned earlier a Part may start with definitions of words found within the particular Part. Certainly, there are no definitions in the Code, which contradict, meaning there are no definitions of a term for one Part of the Code and then a different definition for the exact same term in another Part. So why did the government add this s. 2.1? For clarification? For extra emphasis? Why?

Well, in my view, Section 2.1 instead of clarifying actually does the reverse as it leaves the impression that if the word is only defined under a particular Part, that does not necessarily mean that word, if found elsewhere, has the same meaning.

And to make us even more confused, there is a federal statute with definitions, which apply to all federal legislation, as long as it is consistent with that legislation, called the Interpretation Act.

Now that’s confusion for you, that’s the Criminal Code for you, and that is the podcast for this week.

Next week we will discuss this Interpretation Act a bit more when we look at the last of the interpretation sections in the Code: section 3. 

Please note: This is the text of the Episode Two of my podcast. I do not have the audio file attached but will be sending out the actual podcast in a separate file.

THOUGHTS ON THE INTERSECTION OF LAW AND ART: LEGAL ARCHITECTURE

I recently read a compilation of essays, in a work from an outstanding publishing house Sternberg Press, Thousand Eyes: Media Technology, Law and Aesthetics, on the connection between contemporary art and law, particularly courts of law, where the art theory concept of “representation” and the physical and legal attributes of law intersect through the courtroom. From that connection the comparative analyses are many and varied: the courtroom as theatre, evidence as iconoclastic images, and the changing role of new media. But what struck me was the concept of the law court as a bounded space, which reinforces the separateness of the law world from the real world.

In his essay In Between: Power and Procedure Where the Court meets the Public Sphere, Richard Mohr observes the fixity of our courts within a self-constructed bounded space and the resultant tension between those inside, the legal players, and those outside, the public. He argues this border between the two is not just physical but conceptual as well. Not only does the courtroom have a fixed address with an enclosed space but the rules or procedures too emphasis closure through the rules of evidence, which permit only certain forms of approved facts into its space. This closing off of the law not only impacts public access but also public perception.

Other essays in the collection go further and suggest the advent of new media and the relaxation of media in the courtroom has expanded the courtroom walls and changed the static concept of law. However, one of the editors, Judy Radul for whom the essays were published to celebrate her World Rehearsal Court exhibition, in her essay, Video Chamber, argues to the contrary: in her view, the ability of the courts to be connected elsewhere through, for example, CCTV, makes the court an even more enclosed space “monolithic and unmovable” as the court hunkers down, forever fixed in place, as the images come to it.

This legal architecture then becomes an impactful aspect of the law, particularly in light of the access to justice issues Canada has been recently facing. It may also impact how the Supreme Court of Canada view evidentiary rules: should they unbind the courtroom or provide further enclosure?

The connections between art and law may, at first glance, appear superficial: yes, the lawyers are like actors in a Shakespearean play, albeit their backs are usually to the audience. However, when viewed through the lens of art theory, the representational force of the law cannot be doubted. This is something to think about when arguing in the bounded space of the law.

The Peter Goldring Case and the Mens Rea For Drinking And Driving Offences

Today, I am continuing the blog conversation on the subjective/objective mens rea debate in criminal law. This continues that discourse but with a twist as we discuss the mental element of the drinking and driving offences. The recent acquittal of Peter Goldring MP on refusing to comply with a demand of a police officer to provide a breath sample raises the issue of the criminal liability of these offences and leaves one wondering if the trial judge, in that case, applied the appropriate standard of assessment.

Last posting, I introduced the debate in criminal law on the standard of liability or mens rearequired to commit a criminal offence in Canada. The debate focuses on the two liabilities or fault elements: subjective mens rea, where the trier of fact will assess the accused’s liability on the basis of what was in this particular accused’s mind when he or she committed the offence or objective liability, which removes the focus from the accused in favour of an assessment based on what the reasonable person, in the circumstances of the accused, ought to have known.

There is another form of liability, according to the Supreme Court of Canada, which should never be found in the criminal law: absolute liability.  This form of liability, commonly found in the regulatory enforcement arena, requires no fault for a conviction. Once the prosecutor establishes the defendant committed the prohibited act, a conviction follows. The mens rea or intention of the defendant is irrelevant. As the intention, be it on a subjective basis or an objective basis, is a required element of a crime, absolute liability is not an option and not constitutionally permissible. However, an argument can be made that in fact, there are offences in the Criminal Code, which are essentially absolute liability offences: drinking and driving offences.

This argument, involves a two-pronged approach to the fault requirements of drinking and driving offences. The first prong harkens back to the Supreme Court of Canada and Mr. Justice Cory’s decision in Hundal. In this case, the majority of the court held that licensed activities, like driving, require the driver to meet a standard of care as delineated by the licensing provisions. This standard applies to all individuals holding the license and is not dependent on the personal characteristics of the individual person driving. This denotes a standard based on the reasonable person and therefore, driving offences, like dangerous driving, require objective liability. This decision was applied to all driving offences.

The second prong focuses on the consumption of alcohol as opposed to the driving aspect. In Bernard, the Supreme Court of Canada found the act of drinking an alcoholic beverage as a voluntary act. This reasoning was extended further to the mental requirement, as the accused, in making the choice to become inebriated, was therefore also accepting the risks of such behaviour. This case lead to the change in the intoxication defence and the amendment of theCriminal Code under s. 33.1 to exclude the use of the defence for certain offences, such as manslaughter and sexual assault.  Thus, the act of voluntarily consuming intoxicants took the place of the mental element of a crime.

When viewing the decisions on intoxication and the decisions on driving offences, the objective standard appears to give way to an even lower standard of liability, which approaches absolute liability. If the fault element can be found in an act, or even an intention to drink alcohol, and not in an intention to commit the offence or even requiring a reasonable person to be aware of the risks of doing so, there is no fault element needed for conviction, merely the accused’s voluntary consumption of alcohol.

Certainly the SCC in Penno agreed, albeit in a split decision. The case centered on the application of the intoxication defence for an impaired driving charge. Although the use of the defence, as mentioned earlier, was restricted through new Code amendments, at the time of the Penno case there was no case law restricting its use for drinking and driving offences. The majority decision written by Justice McLachlin, as she then was, discussed the absurdity of impairment being both an “offence” and a “defence” if the intoxication defence applied. She stated “in enacting s. 234(1) of the Code, Parliament has made impairment itself an element of the offence notwithstanding the possible absence of criminal intent, thus giving paramountcy to the public interest.” Clearly, as in public welfare offences, the mens rea required for drinking and driving offences is greatly reduced in order to protect the public of the risks attached to drinking and driving. As Justice Cory will say later in the Hundal case, driving offences extract a huge social cost and “there is therefore a compelling need for effective legislation which strives to regulate the manner of driving vehicles and thereby lessen the carnage on our highways.” Importantly, Hundal was not a case of dangerous driving involving alcohol and yet the SCC found the application of an objective standard of liability for driving offences was “not only appropriate but essential.” I would argue that driving offences as inherently dangerous licensed activities, compounded with the voluntary use of intoxicants, requires the strictest form of mens rea, approaching the absolute liability found in public welfare cases.

Similarly, I would argue that the related charge of failing to provide a breath sample under s. 254(5) has a diminished fault element. Firstly, the words of the offence, requiring a failure in a duty, strongly suggests an objective standard as found in the SCC Naglik case on the mens reafor the offence of failing to provide the necessities of life. However, of note, is the most recent SCC case of A.D.H. wherein the court found subjective mens rea is required for an offence under s.218 of abandoning a child, even though the offence is found under the part on “duties tending to preservation of life.” This decision seems to contradict this previous SCC authority, but whether this is so and what the case means generally for the subjective/objective debate will be the essence of my next blog on the issue.

Secondly, s. 254(5) specifically sets out a defence of “reasonable excuse.” The “reasonable” tag immediately suggests a reasonable person or an objective standard of assessment.  In Therens,Justice Le Dain explained the unique character of the section, which requires one to comply with a police officer’s statutory demand. Therefore a person investigated for drinking and driving is not “free” to choose not to provide a sample but must provide one, short of a “reasonable excuse.” Case law has filled in the definition by providing examples of what a “reasonable excuse” can be or cannot be for purposes of the section. Typically, the reason must be one in which the accused had no choice but to refuse, such as in a medical condition. In this respect, I would argue that such a reasonable excuse actually goes to the voluntariness of the act of refusing as opposed to the intention to refuse. Again this would suggest a no-fault approach to drinking and driving offences, including the charge of refuse to blow.

In the Goldring case, Provincial Court Assistant Chief Judge Anderson cited as a primary issue at trial whether the accused had “the necessary intent to make his failure to provide a sample of breath criminal.” Even by framing the issue thusly, the trial judge elevates the level of intent required by suggesting the assessment is a personal one to the accused and therefore subjective.  Further in his discussion, the trial judge did not rely on the series of cases I referred to in this blog, preferring to emphasize the criminal nature of the charge, which, in his view, required subjective mens rea. In acquitting the accused, Chief Judge Anderson stated he was not satisfied that Goldring’s refusal was “a conscious decision or willful act.” The high level of intention required by Judge Anderson is a far cry from the wording of the offence and the weight of the SCC case law where “reasonableness” is at issue and “willfulness” is irrelevant.  Certainly, the finding is contrary to the court’s emphasis on the public interest as opposed to the private interest. It remains to be seen if the Crown will appeal this decision considering Goldring has already been welcomed back into the government’s fold. What will be even more interesting is to see if anyone else will be acquitted of this offence following the same reasoning. In a government where tough on crime issues and public safety is supreme, the incongruity of this decision is palpable.

The Magnotta Case And The Exclusion of the Public

The details of the allegation are disturbing: a scandalous luring of a University student, a gruesome murder, a grisly dismemberment, and then a twisted disposal of the body parts, via mail, to elementary schools. Then the chase across Europe and odd sightings of a man, we know as Luka Magnotta, until the capture is made, almost innocently, as Magnotta in a German Internet Café surfed the web for the disturbing details of his own case. In a previous post, I discussed the extradition issues with the case but Magnotta, by consent, returned quietly to Canada to face a number of charges, including  first-degree murder under s. 231 of the Criminal Code, committing indignities to a human corpse under s.182 of the Criminal Code, mailing obscene materials under s.168 of the Criminal Code, publishing obscene materials under s.163 of the Criminal Code and threatening Prime Minister Stephen Harper under s.264.1 of the Criminal Code.

Now, with the start of Magnotta’s preliminary inquiry, the case is back in the media spotlight as Magnotta’s defence attempts to exclude the media and public from hearing the preliminary inquiry evidence. Today, Quebec Court Judge Lori-Renée Weitzman denied the defence request.

But what was this request all about?

A preliminary inquiry, as I explained in a previous post, is a procedure to determine if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This vetting process is permitted for only those indictable offences, which the accused has elected to be tried before a superior court judge. The hearing is heard before a provincial court judge who hears the evidence and decides whether to commit the accused for trial on the charges or any other charges arising out of the evidence or to discharge the accused for the lack of evidence on an essential element of any of the charges. It should be noted that the “right” to a preliminary inquiry is not absolute. The accused can waive the preliminary inquiry and consent to committal on all or some of the charges. The Attorney General can also circumvent a preliminary inquiry by preferring a direct indictment under s.577 of the Criminal Code. In that case, no preliminary inquiry takes place and the matter proceeds directly to trial in superior court.

The powers of a judge sitting as a preliminary inquiry judge are many and varied and set out in s. 537 of the Criminal Code. As a matter of course, the preliminary inquiry judge will order a ban on publishing the evidence heard under s.539 of the Criminal Code. This is done to preserve the integrity of the trial process, particularly where the trial will be before a judge and jury. A publication ban will ensure that the public remains impartial and ensures that evidence, which might become inadmissible at trial, is not within the public domain. However, such a ban on publication does not include a ban on the public attending the inquiry to hear the evidence first hand. It merely bans publication or distribution of such evidence heard.

The Magnotta defence, however, wanted the judge to go that extra step by banning the public from attending the inquiry under s.537(1)(h), which gives the judge the power to “order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing.” There is also a general power to exclude the public under s. 486 of the Criminal Code on the basis that the judge “is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.”

Although the reasons for dismissing the application has yet to be released online, it is instructive to review two other equally disturbing infamous cases of Paul Bernardo and Robert Pickton, where somewhat similar requests were made, in an attempt to understand the dynamics of such an application. In Pickton, the defence made a motion for exclusion of the public on the basis the case was so media intensive and with thestate of modern-day publication technology,

” a simple ban on publication of the evidence would not serve the ends of justice and would not preserve the accused’s right to be tried before a fair and impartial tribunal. This was particularly so, submitted the defence, as the American media was not bound to the order and could, therefore, publish the evidence thereby tainting the jury pool once the matter came to trial. In dismissing the application, except for permitting the usual ban on publication, and leaving open the defence’s right to re-open the application, Judge Stone recognized “the conflicts which arise between our tradition of open access to the courts and the principles encompassed by the right of freedom of expression versus the rights provided to an accused person in order to ensure that he or she receives a fair trial.” Even in that context, Judge Stone recognized, as emphasized in the Supreme Court of Canada Dagenais case that such an order was “exceptional.” Ultimately, Judge Stone agreed with Justice Oppal of the British Columbia Supreme Court, wherein Justice Oppal stated in the Murrin case: We live in an era that is often marked by high degrees of pretrial publicity which often features revelations of prejudicial pretrial evidence. In fact, it can be safely said that sometimes media coverage can be described as frenzied. However, I do not think that the justice system is so fragile that appropriate corrective measures cannot be taken in certain cases so as to ensure that an accused's right to a fair trial is not jeopardized.

In the end, the Judge released a very specific ban on publication, specifically prohibiting the information to be placed on the Internet. As an aside, in the 1996 SCC Canadian Broadcasting Corp. v. New Brunswick (Attorney General) case, the SCC sets out specific factors in considering such a ban in light of the conflicting Charter rights of an accused's right to fair trial and the right to public access to our criminal justice system as well as freedom of the press under s.7 and s.2(b).

Conversely, in the Bernardo case, it was the Crown and the families of the victims, which requested an order prohibiting the public from hearing and watching the videotape recordings of the crime when presented as evidence in court.  The court permitted this limited ban out of public decency and respect for the victims. Ultimately, the tapes were destroyed.

Of course, although the application was dismissed for Magnotta, this will not be the end of the matter. As the case goes to trial, there will, no doubt, be a revisiting of this issue of publicity and publication of the case in the media. At that time, the issue will be whether or not an impartial jury can indeed be found in light of the intense media exposure of the case and ultimately whether even the worst allegations can produce a fair trial.