Section 18 – A Duress Addendum? Episode 20 of the Ideablawg Podcasts On The Criminal Code of Canada

Last week we discussed the codified version of the common law defence of duress or, as it is know in the Code, “Compulsion By Threats.” This week, we have a section, also concerned with compulsion but the specific compulsion, which may arise as a result of marriage. Section 18 faces this possibility and states as follows:

No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.

This section is saying that the criminal law does not presume that a person who commits an offence in the presence of a spouse has been compelled to do the criminal act merely by virtue of their relationship. Immediately, one speculates on why it is the marriage relationship singled out in this fashion. Why does the section not speak to the parent/child relationship, which is also a strong bond between two people or even a sibling relationship? The answer lies in the original version of this section and although the present iteration seems benign enough, the historical version, on today’s standards, is much more contentious.

The section was in the original 1892 Code under the then section 13 and was entitled “Compulsion of Wife.” The section was, as you probably guessed, based on gender stereotypes as it held that “no presumption shall be made that a married woman committing an offence does so under compulsion because she commits it in the presence of her husband.” This one-sided notion was changed to gender-neutral language in the 1980 Code amendments. But this still does not explain why this section was codified in the first place.

As I explained in previous podcasts, there are many common law defences available to an accused and still available through s. 8(3). I have talked about the major types of defences that are regularly used today – such as justifications and excuses and the defence of mistake of fact. However, there are other common law defences, which are not regularly used such as the defence of de minimus non curat lex. This translates to the “the law does not concern itself with trifles” and has been used in many different kinds of scenarios such as in theft cases where the subject matter value and/or the criminal actions are trivial. Leaving that aside, there are, as I said, other common law defences and the defence of marital coercion is just one such common law defence.

The defence, if successful, exonerated a woman of criminal responsibility for criminal acts carried out in the presence of her husband on the reasoning that the wife unquestionably obeys her husband and therefore has no choice but to commit the criminal offence. She is not acting under her own volition and therefore should be excused for her conduct. It is a defence that inures only to the benefit of the married woman as in common law the husband is not so duty bound. Although the defence appears to be very similar to the defence of duress there are differences in application. The accused must be the legal wife of the husband in question and therefore legally married at the time. Even an accused who has an honest but mistaken belief of marriage cannot use the defence. There is some case law in the United Kingdom, which also suggest that the coercion need not be physical but can be moral and psychological as well.

Although this common law defence, in a modified form, is still in use in the United Kingdom (the defence cannot be used for murder or treason, see Section 47 of the Criminal Justice Act 1925), section 18 of the Criminal Code abrogates that defence. As we discussed in earlier episodes, common law defences are only available unless they are “altered by or inconsistent with” the Criminal Code and thus the defence of marital coercion, be it husband or wife, is not available. Even so, this does not preclude the accused person from raising the defence of duress, either under the common law or under s.17 as applicable.

As an aside, there is a move to abolish the defence in the UK as a result of the 2013 Pryce case. Vicki Pryce, a well-known government economist, raised the defence in her trial of perverting the course of justice when, at the behest of her then husband, she lied to the police that she was driving the family car allowing her husband to avoid demerit points. The use of the defence in this case, caused an outrage in British society, particularly in light of Pryce’s elevated position in the government. She and her husband were convicted and sentenced to eight months incarceration. Just recently, the UK government announced plans to abolish the defence.

Episode 20 of the Ideablawg Podcast on the Criminal Code of Canada: Section 18 - A Duress Addendum?

Section 17 – The Statutory Defence of Duress: Episode 19 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts we have discussed the category of legal defences called justifications and excuses. We know that despite codification our criminal law permits an accused person to raise at trial a common law defence, as long as it is not inconsistent with the Code. There are purely common law defences such as the excuse of necessity (which by the way is exemplified in the seminal case taught in every first-year law school criminal law course – Regina v Dudley and Stevenson – where the two accused charged with murder committed cannibalism when their ship floundered in the high seas and they were forced to drift on a lifeboat – think Life of Pi without the animals) but there are also common law defences, which are subject to codification and found in the Criminal Code. The excuse of duress is one such defence from the common law, which appears in the Code under the section we are contemplating today, section 17.

When we first look at this section, and it is a long one, we realize that the word “duress” is never used in section 17. We therefore immediately feel that what we are about to look at and think about is not the same as the common law defence of duress. This is a correct assumption, on the face of this section. When we look behind this section however and look at the case law, which has developed in conjunction with the advent of the Charter on the mechanics of this section, we will see that in reality this section entitled “Compulsion By Threats” is really very similar to the common law version and only differs in terms of what category of accused person can use this section and for which offences.

Section 17 reads as follows:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Before we dissect this section to have a clearer understanding of it, I want to remind you of the key elements of the class of defences we call excuses.

Both the actus reus and the mens rea of the offence must be proved beyond a reasonable doubt by the prosecution before a legal excuse or for that matter a legal justification can be used as a defence. This means that the case against the accused is made out and, but for this defence, the accused would be found guilty. In light of that prerequisite, the class of defences known as excuses acknowledge the wrongfulness of the conduct but as a result of the circumstances facing the accused person, the accused should not be held criminally responsible for his or her criminal actions. However, the circumstances facing the accused must be dire, in other words, the defence of excuse can only be used in emergency situations. It is therefore the accused’s reaction to these dire situations, which cause society to excuse or absolve their conduct.

Excuses are a concession to human frailty and therefore reflect our humanity in two ways. First, this defence realizes that as individuals, as part of our humanity, we may act inappropriately in order to preserve our life or others. Secondly, as humans we understand that we are not perfect and that our laws must bend to this truth in order to have a compassionate society.

Despite the above, the situations in which excuses can be used are very restrictive because we fear that permitting too broad an excuse for criminal conduct will result in cases where we as a society may not be so sympathetic. So, the rule of law draws a line between what is excused and what is not. The difficulty then becomes, where to draw this line in order to remain true to our humanity without losing it.

As I already mentioned, the section is a reflection, albeit as we will see an imperfect one, of the common law defence of duress and thus this section was in the 1892 Criminal Code under section 12. This original section, except for certain language changes, is virtually the same as the now section 17. Not much changed over the years to this section and yet, as I have already mentioned, the section has changed dramatically since 2001 when the Supreme Court of Canada gave this section a constitutional make-over in R v Ruzic.

The Court in Ruzic, under the auspices of section 7 of the Charter, found that the statutory duress defence was too restrictive, particularly in relation to its common law partner, which even with s.17, could be used by parties to an offence. In the Court’s view, the statutory defence, available only to principal offenders, should not be more restrictive than the common law. In order to re-balance s. 17, the Court took out those passages in the section, which did not accord with the common law equivalent. Even so, the Court did not remove the offences for which the defence was available, choosing to leave those changes, if desired, to the government.

In light of this, let’s return to section 17 and this time, I will edit the section to accord with the Ruzic decision:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Even with these changes the defence is a difficult one to employ. According to the newest Supreme Court of Canada case, in Ryan, the defence can only be used on the following bases:

1. There must be a threat of death or bodily harm;
2. The threat can be directed at the accused or a third party;
3. The accused must reasonably believe that the threat will be carried out;
4. There must be no safe avenue of escape, evaluated on a modified objective standard;
5. There must be a close temporal connection between the threat and the harm threatened;
6. There must be proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard;
7. The accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion as long as the accused actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association;
8. The accused must be the principal offender and;
9.  

In closing, there are a few items to note. First, the modified objective test is a creation of the Supreme Court of Canada in the series of cases on the meaning of criminal negligence. A discussion on this “test” and whether it is in fact a modifying one can be found in one of my previous blogs entitled The Subjective/Objective Debate Explained.

Second, the common law defence of duress in Canada is not restricted by type of offence, even though, in the UK the common law defence of duress cannot be used in a homicide charge, be the accused principal or a party.

Third, despite section 8(3) of the Code, which holds that common law defences continue unless they are altered or are inconsistent with the Code, section 17 changed to become more aligned to the common law as opposed to the common law defence changing to become more aligned to the Criminal Code iteration. This is because the common law defence of duress is for parties to an offence and the statutory defence is only for principal offenders. It is this distinction allows the common law defence to stand apart from the Code.

Fourth, even though Ruzic changed section 17, the Code does not reflect this change. One has to read the case law in order to know how the section should actually be implemented. This insistence by the federal government not to reflect court imposed Charter changes to sections is something that will come up again in the Code and in these podcasts. Indeed, there are whole sections, such as s.230 of the Code known as the constructive murder section, which have been struck down by the courts as constitutionally invalid and yet still appear in our Criminal Code. Why this is so is a matter of speculation but one wonders if the government believes that a differently composed court will take a different view or that the Charter may somehow change in the future. Either way, it is an oddity that these sections remain as they do as a vestige of the pre-Charter past.

Finally, there is much to be said about the recent Supreme Court of Canada decision in Ryan, which precluded the use of the duress defence in a situation where the accused was an abused woman who contracted an undercover police officer to kill her husband.  I will not, however, discuss those issues here in this podcast. Instead, I invite you to access my previous blog on the matter entitled Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress. I have also written on the application of the “air of reality test,” which is the threshold test used to determine if, in the circumstances of a case, a legal defence will be available to an accused in my blog entitled Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test. I am currently writing a full article on this issue for publication.

We will of course come to further sections in the Criminal Code codifying common law defences where we will continue to peek back at the common law to frame the statutory doppelganger in the Code. 

Episode 19 of the Ideablawg Podcast on the Criminal Code of Canada: Section 17 - The Statutory Defence of Duress

Section 16: The Defence of Mental Disorder - Episode 18 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 16 describes the defence we now know as mental disorder but which we previously called the insanity defence. It is an incapacity defence, meaning that if successful the accused person is found to be incapable of forming the requisite intent for the crime. Thus, the accused could not even formulate the malicious intent required to commit the crime and is therefore absolved of criminal responsibility. The insanity defence is from English common law; specifically the 1843 British House of Lords Daniel M’Naghten case and thereafter the insanity defence became known as the M’Naghten Rule. This rule was codified into our Criminal Code from the Code’s inception.

In the 1892 Code, the defence was found under s.11. To read the section is a lesson in now inappropriate language as the section absolves those “labouring under natural imbecility” or disease of the mind. Other than this, the section does read very similarly to the present section 16 as a person “labouring” or “suffering,” as we say now, is exempt from criminal responsible if that disease or disorder rendered the person “incapable of appreciating the nature and quality” of his or her actions. However under the 1892 section the accused must also be incapable “of knowing that that the act or omission is wrong.” Let’s quickly look at the present section 16(1) for comparison:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Our present defence requires that the person suffering from a mental disorder must be “incapable of appreciating the nature and quality of the act or omission” or “knowing it was wrong” and not and “knowing it was wrong” as in 1892 version.

The balance of the subsections under the 1892 section 11 is as follows:

2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things, which, if it existed, would justify or excuse his act or omission.

3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

Subsection 2 from the 1892 insanity section qualifies subsection 1 by providing an exception. A person may be “labouring under natural imbecility or a disease of the mind” but if they suffer from specific delusions and are otherwise sane, they cannot use the insanity defence unless those delusions “caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.” Subsection 3 indicates that everyone is presumed sane “until the contrary is proven.” Once an accused is found NCR or not criminally responsible, the person would be held in detention until the “pleasure” of the Lieutenant Governor. This “pleasure” had no time limitation. Although, I will not discuss this here, this indeterminacy was changed in later amendments.

The 1892 version of the defence continued until the 1953-54 amendments at which point the section was re-enacted as s. 16 but this version, again, is quite different from what we have today. The revised section reads very much like the original version except that it changes the “and” “knowing that such act or omission is wrong” to “or.”

In 1975, the Law Reform Commission of Canada, as it then was (it was disbanded in 1993 and re-enacted as the Law Commission of Canada in 1996 but then had its budget cut in 2006 and was closed down), published Working Paper #14 on “The Criminal Process and Mental Disorder.” The significant commissioners at the time were two soon to be Supreme Court of Canada Justices – Antonio Lamer (Vice-Chair and later to be Chief Justice of the SCC) and Gerard La Forest (commissioner) and the Chair, E. Patrick Hartt, who became a Justice of the High Court of Ontario in 1996 and retired in 2001. For more information on the fascinating history of Canada’s law reform agencies, I recommend reading Gavin Murphy’s paper that can be accessed here.

In any event, this Working Paper, although not partially acted upon until the 1991 amendments (which were done in response to the constitutional striking down of the old sections by the Supreme Court of Canada), suggested various fundamental changes to the insanity defence and the procedures surrounding it. As a result, it is with some irony that the Paper opens with the words “It [the Paper] examines many of the important but sometimes neglected problems of mental disorder in the criminal process.” It seems the issue was even further neglected legislatively for a further sixteen years.

However, there was some groundwork done in the intervening time. The government, in 1982, through the Department of Justice, started the Mental Disorder Project as part of a comprehensive review of the criminal process by provincial and federal Minister of Justice officials. In 1983, a discussion paper was published and again the procedural difficulties and inherent unfairness in the system were discussed. Additionally, with the advent of the Charter, the system’s constitutional compliance was questioned. A full report was eventually tabled in 1985 and a draft Bill was introduced in 1986 by the then Minister of Justice John Crosby. The Bill was still under scrutiny when in 1991, the Supreme Court of Canada found the insanity rules and some of the Criminal Code sections unconstitutional in the Swain case. It should be noted that the then Chief Justice Lamer together with Justice Cory and Justice Sopinka wrote what would be the majority decision. Justice La Forest concurred with Justice Gonthier, who agreed substantially with Lamer CJ’s conclusion.

Thus we have the 1991 amendments under which we practice today. Although the new amendments have not anticipated all issues, certainly section 16 is a much better and fairer section than the previous iteration.

The present version retains the presumption of sanity but also clarifies the burden of proof required to overcome the presumption. It must be noted that either the Crown prosecutor or the defence may raise the issue of mental disorder. If this occurs the trier of fact must be satisfied on the civil standard of balance of probabilities that the presumption of sanity does not apply. There is no exception, in the present s. 16, for specific delusions. The balance of the present section 16 (2) and (3) is as follows:

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

 Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

Although section 16 sets out the defence of mental disorder, the presumption of sanity and the burden of proof, it is Part XX.1 of the Criminal Code, entitled Mental Disorders, which sets out the procedure to be followed in considering the defence. It is a lengthy Part and thus the defence of mental disorder is complex and time consuming requiring often-competing experts and the application of circuitous special procedures. A full discussion on this Part will come when we discuss sections 672.1 to 672.9, much further down this Criminal Code journey.

One last comment on the recent controversial nature of this issue, particularly with the finding that Vince Li, who beheaded a passenger on a bus, was found not criminally responsible due to a mental disorder and was sent to a psychiatric institution for treatment. Just recently Li’s terms of segregation at the hospital were relaxed by the Criminal Code Review Board of Manitoba to permit Li to leave the hospital unescorted. This relaxation has resulted in a call to tighten once again the consequences of a finding of mental disorder.

The Federal Government has been most vocal in wanting changes and introduced last year a Bill C-54 to amend the Code to include strict restrictions on a person found mentally disordered under s.16. Critics of the Bill suggest that the further stigmatizing of the mentally ill will not “make society safer.” The Bill received its First Reading in the Senate in June of 2013. Read the presenting speech made by the original sponsor of the Bill, the then Justice Minister Rob Nicholson, as well as the response speeches here. Read also the article by the Canadian Psychiatric Association on the “fundamental flaws” in the new proposal.

It should also be noted that in a recent legal conference on mental disorder and the criminal justice system, questions were raised on the constitutionality of the proposed new amendments. Although, section 16 has come a long way from M’Naghten and the 1892 Code, the future of criminal responsibility and mental disorder is still unsettled and may only be determined, once again, by court intervention.  

Section 16 - The Defence of Mental Disorder: Episode 18 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 15 – De Facto Laws, Criminal Responsibility and War Crimes:Episode 17 of the Ideablawg Podcast

During the Nuremberg trials, many Nazis tried to exculpate themselves by suggesting they were only following superior orders. This was not a valid defence according to the Charter of the International Tribunal under article 8. However, it was a mitigating factor in determining punishment. If the defendant, however, was the superior, according to article 7, the de facto defence was also not available but neither was it to be considered in mitigation. In Canada, prior to the war, obedience to the laws made at the time was a bar to conviction pursuant to English common law and as codified under section 15 of the Criminal Code. However, after the war, in order to conform to international conventions and to ensure the prosecution of war criminals, the Criminal Code was amended to include an exception for war crimes. When the Crimes Against Humanity and War Crimes Act was enacted in Canada in the year 2000 the Code was again amended and the exception was moved from the Code to the new Act under sections 13 and 14.

Section 15 of the Code presently reads as follows:

No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.

 An equivalent to this section has been in the Code since its inception but with different wording. Until the section was re-enacted as s.15 in the 1953-1954 Code amendments, the section “protected” a person from “criminal responsibility” as opposed to barring conviction.

In one of the oldest cases on the issue, the 1911 case of Kokoliadis v. Kennedy from the Quebec Superior Court, Justice Davidson considered to what extent a person was protected from criminal responsibility under the old section. In the case, Justice Davidson turned to the English common law for explanation and determined that laws as an expression of the “will of the legislature” “protects all who obey it and justifies all who do what it authorizes.” Furthermore, the law in question need only be made by persons with de facto or in fact authority, not necessarily legal authority. Thus, even if the authority is ultimately found to be ultra vires under the Constitution Act, the person obeying this law is still within his or her rights. Similarly, when a person is faced with two conflicting laws from two levels of government, he or she cannot be convicted of choosing to follow one over the other.

The purpose of the de facto doctrine, according to case law, “is to preserve law and order and the authority of the government” and “to protect the rule of law.” According to Albert Constantineau, a French-Canadian jurist writing in 1910 on this subject, without this doctrine “insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy.”

For obvious reasons, this de facto doctrine was not applied at the Nuremberg trials and was specifically not accepted at “The Justice Trial,” wherein members of the Reich Ministry of Justice, including the law courts, were tried for their part in upholding Nazi laws.

The applicability and constitutionality of the combined effect of section 15 and the exception to it was at issue in the Supreme Court of Canada Finta case. Both the majority decision written by Mr. Justice Cory and the dissent (in part) written by Mr. Justice La Forest delve extensively into the defence of obedience to superior orders. Both decisions found that the exception to s.15 was not unconstitutional.  In his dissenting reasons, Justice La Forest pointed out that s. 15 was more generous than international law, as we already noted in discussing the International Tribunal Charter. However, the defence under s.15 was available under the military law of other nations and therefore section 15 not only upheld the rule of law as submitted by Constantineau, but also acknowledged the realities of being a member of the military or police force. In La Forest’s view the defence of obedience to superior orders could provide a valid defence “unless the act is so outrageous as to be manifestly unlawful” as in the case of the Nazi atrocities.

When would an order be “manifestly unlawful?” When, according to Justice Cory writing for the majority, “it offends the conscience of every reasonable, right-thinking person” and is “obviously and flagrantly wrong.” According to Justice Cory, if the exception to s. 15 did not exist and obedience to de facto law was permitted in all scenarios “not even the most despotic tyrant, the author and enforcer of the most insidious laws against humanity, could be convicted of crimes committed under his regime.”

Harkening back to Constantineau’s concern that without section 15 chaos would ensue, we can see the tension between upholding the rule of law and the consequences of so doing it. Chaos may reign in not following de facto laws but surely in some situations death will reign in following them. However, in the situation envisioned by Justice Cory and unfortunately realized in our recent past, this conflict resolves itself in favour of using the criminal law as a reflection of society’s fundamental values and the societal abhorrence we feel toward crimes against humanity.

Although we like to believe the age we live in is the most peaceful and civilized, every day as we flip through the news, either digital or in print, we see the fallacy of this belief. Criminal law in Canada is built upon traditions and our Code is no exception but in this case, thankfully, there are exceptions to the rule.

Episode 17 of the Ideablawg Podcast on the Criminal Code of Canada: Section 15 - de facto Laws, Criminal responsibility and War Crimes

Section 14 – Consenting To Death: Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada

Although we have not traversed very far into the Criminal Code, we have already discussed some fundamental principles of English common law, including common law defences. Codification, as we have seen, does not usually change these traditional concepts but crystallizes the customary into the written rule. Even with codification, common law has informed the interpretation and implementation of the Code sections through the application of case law. Later, we will see how codification can and has radically changed common law, but the section we are now discussing, section 14 of the Criminal Code, is a reiteration of the common law rule – that a person cannot consent to their own death. The corollary to that presumption is that even if a victim does consent, an accused person cannot use this consent as a defence and is still legally liable for his or her actions. The section reads as follows:

No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Let’s take a deeper look at what this section is saying and what it is not saying. First, the section is actually speaking to us all – not just to an accused person – and acts as a warning: “no person is entitled to consent to have death inflicted.” But why this wording? Why doesn’t the section simply say, “no person shall consent to death?” By putting in the word “entitled,” I submit that not only can we not consent to our own death but we also have no right to do so. This of course opens up a much larger debate on who has ownership over an individual’s life – is it the person or is it the state as the Code seems to suggest? Or is it a combination of the two?

This debate continues, as the Supreme Court of Canada will reopen the issue of the right of a person to die when they consider the constitutionality of the assisted suicide section 241 of the Code in the British Columbia Carter case. I have written previous blogs on the issue: Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story and Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada. We will further discuss this when we come to the relevant section in the Code but the issue of whether or not society has an interest in the continuance of our individual lives is a weighty one. The difficulty is we do want society to take responsibility for ensuring the necessities of life such as food, clothing and education – all of which by the way have been subject to great constitutional debate. But we do not want society directing the manner in which we live our lives such as our sexual orientation and our decisions around childbirth. Of course, all of these issues are predicated on the decision to live, not on the decision to die. The question “whose life is this anyway?” does not generate an easy or static answer.

The other part of section 14 is a warning to the offender - the victim’s consent cannot be used to relieve the accused of the criminal responsibility for causing the victim’s death. Again, this argument may be raised in an assisted suicide situation but it could also arise in other scenarios such as sporting events. Although we no longer live in a world where a fight to the death is an acceptable spectacle (do we?) this does not mean the issue is dead – excuse my pun. Although dueling under section 71 is a Criminal Code offence, there are contests where death may not be the object but serious bodily harm certainly is and death may be probable if you engage in the “sport” enough times – prize fighting comes to mind. Certainly, in Canada, “blood” sports are either prohibited or highly regulated as in section 83 of the Criminal Code. Recently, the Canadian government changed the meaning of a “prize fight” under this section to permit mixed martial arts events such as the Ultimate Fighting Championships, a highly popular form of entertainment.

Still when death does occur during the course of a sporting event there may be criminal code repercussions. An infamous example is the Todd Bertuzzi – Steve Moore case, when well –known defence man Todd Bertuzzi punched Moore from behind during a hockey game in Vancouver. Moore suffered serious injuries and Bertuzzi was not charged with the more serious criminal negligence, but with the lesser offence of assault causing bodily harm, which is an infliction of bodily harm without consent. Bertuzzi entered a plea of guilty and received a conditional discharge, a lesser punishment available under the Code.  

This brings us to the related consideration of whether one can consent to bodily harm. A much more difficult issue considering many contact sports involve serious injury. It also brings to mind the fistfight or the let’s-take-this outside kind of attitude that is not unknown in bars across the country. Interestingly, this is where common law and codified law intersects. Although we know from section 8(3) that common law defences are available, this seemingly straightforward exception becomes complicated when consent, as in an assault, form an essential element of an offence.

In determining whether or not consent exists as per the Code, how far can a court rely on and apply the common law principles? This was the issue in the Supreme Court of Canada Jobidon case, wherein the accused stepped out of a bar with the victim and engaged in a seemingly consensual fistfight, which left the victim dead and the accused facing a manslaughter charge. Jobidon was acquitted at trial on the basis of the consent but the Ontario Court of Appeal reversed the decision. The majority judgment in the Supreme Court of Canada, written by Mr. Justice Gonthier, found that the common law conception of consent was relevant to whether or not the victim’s consent was applicable in the circumstances. To that end, Justice Gonthier stated at page 738:

If s. 8(3) and its interaction with the common law can be used to develop entirely new defences not inconsistent with the Code, it surely authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.  That sort of language cannot be found in the Code.  As such, the common law legitimately serves in this appeal as an archive in which one may locate situations or forms of conduct to which the law will not allow a person to consent.

In accordance with these comments, the SCC took an expansive view of section 8(3) and did not feel encumbered by the argument that consent forms part of the actus reus or prohibited conduct of an offence. In this instance, the common law restricted consent in fistfights, where there was bodily harm, for reasons of public policy – to ensure good order and appropriate behaviors. The Court however was very clear to restrict this decision to circumstances, which “vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”  This was an important caveat for the court as:

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.  Unlike fistfights, sporting activities and games usually have a significant social value; they are worthwhile. 

Indeed, this comment is puzzling. Although sports such as hockey and football are for some worthwhile pursuits, the issue does not lie in the sports themselves but in the injuries occasioned in these sports. Are these injuries equally worthwhile should be the question. The answer lies in the rules of the sport and certainly Bertuzzi’s criminal responsibility depended upon going outside the rules or norms of the sport.  Although only a certain level and type of harm will be tolerated, this tolerance, as it bends and flows, will have an impact on the future of acceptable violence in Canadian society and in Canadian sport.

Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 14 - Consenting To Death