The Hart Case: A Long Way From Wray?

Upon review of the newest Supreme Court of Canada case, the much-anticipated Hart case on the admissibility of confessions resulting from Mr. Big investigations, it is worthwhile to return to the basics. Certainly Mr. Justice Moldaver, in his majority decision, did when he concluded that in the first prong of the applicable evidentiary test is the judicial weighing of the probative value of the evidence against the prejudicial effect. Although Justice Moldaver returns to the 1981 Rothman case as a basis for this “old school” rule, the evidential principle comes from the 1971 Wray case.

John Wray was charged with what was then called non-capital murder – a capital murder was punishable by death and at that time was reserved for the killing of on-duty police officers and prison guards. The victim was shot during the course of a robbery and there were no witnesses to the actual shooting. It was only through the police investigation, namely a lengthy police questioning, that John Wray ultimately signed a statement indicating where he disposed of the rifle used to shoot the victim. The rifle was found in the place so indicated and Wray was charged. At trial, after a voir dire on the admissibility of Wray’s statement, the trial judge ruled the statement inadmissible as it was not voluntarily given. This ruling was not the subject of the subsequent appeals. The issue on appeal was the trial judge’s further ruling that Wray’s involvement in the finding of the rifle was inadmissible as well. The Ontario Court of Appeal unanimously upheld the trial judge’s decision. The majority of the Supreme Court of Canada, with Mr. Justice Martland writing the decision, allowed the appeal and sent the matter back for a new trial.

Although this is a case where the evidence was found to be admissible, it is the principles enunciated in this case which impacted the manner in which trial judge’s viewed admissibility of evidence thereafter. Now, it must be remembered that this case is pre-Charter and yes, there is such an animal. It should also be remembered – and I will not try to sound as if I am nagging – that there are important admissibility issues to consider separate from the usual Charter based arguments. The first consideration when faced with a confession in a case is to review the voluntariness of the statement to ensure the statement was given freely and without hope or advantage. So, although Wary is certainly pre-Charter and if determined today, the analysis under the Charter lens would no doubt differ, the case started a line of reasoning, which can be traced to the Hart decision we have today. What is also fascinating about this line of reasoning is to see how this discretionary evidential principle of exclusion or admissibility – whichever way you want to view it – starts as a very restrictive and rarely to be exercised act to the pro forma requirement of a “new common law rule” as articulated by Justice Moldaver in Hart.

Justice Martland’s reluctance to “approve” of a discretionary exclusion of evidence is palpable. Yet, the English authorities require it.  He clarifies the difference between the “unfortunate” effect on the accused of relevant admissible evidence, which would be prejudicial to the accused and the “allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.” Of special note are the adjectives or qualifiers used by Justice Martland when he finally articlulated the discretion as arising “where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was highly prejudicial.” Notice the emphasis added. The added practical difficulty for Justice Martland with excluding evidence on the basis of “unfairness” was the interpretation of that word. In Martland’s view, therefore, the discretionary exclusion of relevant and probative evidence should be “very limited.” This restrictive view of the discretion was reiterated in the Hogan case, in which Justice Martland was a member of the majority.

Within a decade of the Wray judgment, as per the Rothman case, the limited discretion reluctantly approved of by Justice Martland is referred to as an “exclusionary rule” by the then, Justice Lamer, concurring with the majority. Interestingly, Justice Lamer refers to the Wray principle, while Justice Martland writing for the majority does not. Rothman sets out the test to determine whether or not a person taking a statement from an accused is a “person in authority” and broadened the circumstances in which a statement may not have been given freely and voluntarily.

Post Rothamn, the evidential world changed as common law evidential rules become imbued with Charter values. But this transition was not easily done or easily accepted. In Corbett, the Supreme Court of Canada struggled with the constitutionality of s. 12 of the Canada Evidence Act, which permitted the questioning of any witness, including the accused person, on his or her criminal convictions. Although the decision is unanimous in the sense that all six members agreed that s. 12 of the CEA was constitutional and recognized the trial judge, under common law, had the discretion to exclude admissible evidence (however Justices McIntyre and Le Dain did not see this discretion as permitting a trial judge to circumvent a clear legislative directive as found in s.12), there was disagreement over the exercise of that discretion. Thus, it is in Corbett, where Justice Martland’s reticent discretionary rule becomes a fully recognizable discretion in the trial judge to exclude admissible, yet prejudicial evidence. But Corbett, although not mentioned in the Hart case, seems to raise similar concerns. Through the exclusionary discretion of the trial judge, together with other evidential rules that limit the use to be made of the evidence, the law protects the right of the accused to a fair trial, which includes, as stated by the then Chief Justice Dickson, the right “not to be convicted except on evidence directly relevant to the charge in question.” This protection “strives to avoid the risk of prejudicing an accused’s trial.” These words are echoed by Justice Moldaver in the Hart case as he speaks of the “risks inherent in the Mr. Big confessions,” which require a legal response in order to protect “accused persons, and the justice system as a whole” from “abusive state conduct.” It is, therefore, Martland’s reluctant rule, the seemingly rare discretion, which blossomed under the Charter lens, which the Hart Court turns to as the legal protection needed. Yes, we have come a long way since Wray and there is no looking back.

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

Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test

Last week the Supreme Court of Canada, yet again, restricted access to criminal defences. The Court, in the earlier Ryan case, signaled their desire to limit criminal defences to the realm of the reasonable person. This objectifying of defences, which in the Ryan case involves the defence of duress, places a barrier between the specific accused, as a thinking and feeling person, and her culpable actions by assessing the individual through the lens of the general; that of the reasonable person, who has no fixed address but, apparently, a lot of common sense. This external assessment, which looks outside the confines of the Court for direction, fails to appreciate the humanity before it in the shape of an accused faced with a dire choice whereby breaking the law means survival. For more on Ryan read my blog here.

Now in the Cairney and Pappas cases, the Court has added an additional barrier to all justifications and excuses through the “clarification” of the air of reality test. I have considered the lower Courts decisions on these cases in an earlier blog.

To discuss these decisions, we must first understand the antecedents of the air of reality test in Supreme Court of Canada cases. The phrase “air of reality” comes from the 1980 Pappajohn case. Pappajohn was charged with the rape of a real estate agent who was trying to sell his home. The accused and the complainant had diametrically opposed versions of the incident. According to the complainant, she was violently raped and according to the accused, they had consensual intercourse. The defence argued for the defence of mistake of fact to be left to the jury for their consideration. This mens rea defence, if accepted, would entitle the accused to an acquittal on the basis the accused had an honest but mistaken belief the complainant was consenting and therefore did not have the requisite mens rea to commit the offence. The trial judge refused to leave the defence to the jury and Mr. Pappajohn was convicted of rape.

It is in the majority judgment, written by Justice McIntyre, where the term “air of reality” is first used in relation to defences. In dismissing the appeal, Justice McIntyre finds the trial judge was correct in refusing to consider the defence of honest but mistaken belief as there was no “air of reality” to it. According to Justice McIntyre, for such a defence to be considered there must be “some evidence beyond the mere assertion of belief in consent” found in evidential sources other than the accused.

This air of reality requirement was used two years later in the SCC Brisson case, where self-defence was at issue. In Brisson, although all justices dismissed the accused’s appeal against conviction for first degree murder, there were three concurring judgments, with one such judgment written by Mr. Justice McIntyre who again finds that a trial judge must only instruct a jury on a defence, which has “some evidence sufficient to give an air of reality.” Interestingly, in the later 1985 Sansregret case, again on the application of the defence of mistake of fact in a rape case, Justice McIntyre does not refer specifically to the “air of reality” test but to the “air of unreality” of the defence.

The term “air of reality” is finally elevated to a “test” by Justice McIntyre in another mistake of fact rape case, Bulmer, from 1987. Here, Justice McIntyre fills in the phrase, “air of reality,” with a framework for trial judges to apply. He explains the test as a preliminary step in which the trial judge “is not concerned with the weight of the evidence or with the credibility of the evidence.” The simple question to be answered at this initial stage is: in all of the circumstances of this case, is there an air of reality in the defence?” The accused’s evidence will therefore become a factor but not the determining factor in deciding if there is, on the whole of the evidence, an air of reality. None of the cases I have referred to above were considered in the Pappas and Cairney cases.

After the Bulmer case, most SCC air of reality cases relate to the defence of mistaken belief until the 2002 Cinous case, which considered the defence of self-defence. Six of the nine-member Court in Cinous agreed to allow the appeal and enter a conviction. The majority reasons written by Chief Justice McLachlin and Justice Bastarache emphatically upheld previous enunciations on the test and viewed the air of reality test in the singular with no need to modify it for differing defences. They reaffirmed that the test “does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.”

Even with this clear admonishment, the majority did modify the air of reality test by introducing the concept of the limited weighing of evidence

“where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component.” (underlining added)

It is the last part of this quote which concerns the use of the defences known as justifications and excuses – necessity, duress, self defence and defence of the person including provocation, the defence raised in Pappas and in Cairney. These defences all have subjective and objective elements. All of these defences are subject to the air of reality test and subsequently all of these defences are open to the limited weighing of the evidence to determine whether or not the defence will be available to the accused.

In Cinous, for example, the Court referred to the proportionality requirement of the defence of necessity as requiring the trial judge to balance the various social values at play with public policy in deciding if the harm inflicted was proportionate to the harm avoided. This objective assessment requires the trial judge to draw inferences from the world outside of the accused and thus, according to the SCC, the trial judge must employ the limited weighing of the factors underlying the defence, which may impact this assessment. 

But from where did this concept of “limited weighing” come, if as Chief Justice McLachlin maintains in the majority judgments of Pappas and of Cairney the air of reality test has never changed?

This limited weighing does not come from the assessment of defences but from directed verdict/preliminary hearing cases. The first SCC mention of “limited weighing” comes from the 1998 Charemski case on a directed verdict where the case was based on circumstantial evidence. Unsurprisingly, it is Chief Justice McLachlin who consistently approves of limited weighing and is the torchbearer of Justice McIntyre’s air of reality test. Charemski is a case heard by only a five-member court with the then Justice McLachlin in dissent. Justice McLachlin disagreed with the majority and pointedly suggested that “while some judges,” (hint as to who those “judges” are – just take a look at the majority decision), “have referred to a distinction between “no evidence” and “some evidence”, this distinction is nonsensical.” According to McLachlin, it is the sufficiency of evidence at issue. To determine sufficiency in the circumstantial world, McLachlin further explained, trial judges must “engage in a limited evaluation of inferences.”

In the SCC 2001 Arcuri case, the extent to which the trial judge or, in this case the preliminary inquiry judge, must enter into this limited weighing was clarified by Chief Justice McLachlin on behalf of the full Court. Arcuri wanted the preliminary inquiry judge to weigh the evidence as the evidence was purely circumstantial and the witnesses evidence arguably exculpatory. In dismissing the appeal, the Chief Justice explained that limited weighing did not mean the judge was actually weighing the evidence in determining guilt or innocence but engaged in limited weighing as follows:

In the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. 

This means the trial judge when engaging in limited weighing of the evidence is considering the reasonable possibilities of such evidence and not considering the quality of the evidence. In the Court’s view it is for the trier of fact to decide what inference should be taken in determining guilt or innocence.

The nuances of this test are obvious: the idea the judge must draw a reasonable inference is importing, into yet another stage of a criminal trial, the objective standard. Such limited weighing may go the accused’s benefit such as in the Charmeski case where the then Justice McLachlin would have restored the acquittal. However, to apply the same standard of assessment to defences, may be the way of the Musketeers – all for one test and one test for all – but it fails to recognize the importance and uniqueness of justifications and excuses as the last bastion against the power of the State. Almost akin to a “faint hope” clause, when an accused turns to a justification or excuse as a defence, the case has essentially been made out against the accused as both the mens rea and actus reus, the dual requirements for a crime,  have been established beyond a reasonable doubt. Guilt is nigh and the only reasonable doubt becomes whether or not this accused, faced with dire circumstances, made the only choice available.

These defences are not broadly based and are not a concrete lifeline. They are subject to both subjective and objective elements and if the accused does not fulfill the prerequisites of the reasonable person portion of the defence, the defence fails. To then superimpose the limited weighing concept of the air of reality test, which is also based on an objective assessment, is to further restrict an already narrowly based defence.

Through this limited weighing on an air of reality test, the SCC has effectively increased the standard with which the evidence of the defence is to be assessed. One wonders if this kind of restriction is truly in the spirit of Charter values. It would be worthwhile, in a year from now, to study the impact this case will have on the ability of the accused to make full answer in defence and whether, like a transient puff of air, all of the defences are gone.

Sections 4(4) to (7) – The Three “S” Words: Episode Seven of the Ideablawg Podcasts on the Criminal Code of Canada

Welcome to the Ideablawg Podcasts on the Criminal Code of Canada. This is Episode 7 and today we will finish discussing section 4 and the three “S” words: subjects, sexual intercourse, and service. The actual podcast can be found at the bottom of this text.

First, let’s turn to s. 4(4) and the word “subjects.” Remember that this section is truly a housekeeping section, whereby a variety of topics are covered, such as stamps as chattels, which we discussed in episode 5 or the meaning of possession in s. 4(3) from episode 6. Up to now, although the subject matters have differed, the subsections have had a definitional theme, meaning the subsections are clarifying the meaning or interpretation of each particular subject matter – stamps and possession being the examples already given.

Section 4(4) is also an interpretation section but is broad in aspect and does not refer to any particular subject matter but instead speaks to generalities. This section does seem out of place with the others and I do wonder why this subsection is not placed under the interpretation sections 1 to 3.

Let’s read section 4(4), which is entitled “Expressions Taken From Other Acts:”

(4) Where an offence that is dealt with in this Act relates to a subject that is dealt with in another Act, the words and expressions used in this Act with respect to that offence have, subject to this Act, the meaning assigned to them in that other Act.

It appears then that section is looking for consistency between Acts: if the Code refers to a subject which appears in another Act, then the meaning of that subject from the other Act is also the meaning of the subject under the Code.

Again, this section is a presumption – a presumption of consistency – the same subject referred to in different Acts are presumed to be the same. However, this presumption can be negated for if the Code defines the subject differently, then the differing meaning of that subject, as found in the Code, prevails.

A good example would be the offences in the Criminal Code relating to the subject of air travel, such as hijacking an aircraft under s. 76. The term “aircraft” is not defined anywhere in the Code but is defined in the Aeronautics Act, another piece of federal government legislation. According to section 4(4), the meaning of “aircraft” under the Code is the meaning of “aircraft” under the Aeronautics Act. So too, the meaning of “pilot in command” under the Code would be the meaning of “pilot in command” under the Aeronautics Act. But here is the twist: the term “pilot in command” only appears in the Criminal Code under the interpretation section 2 under the definition of “peace officer.” Section 2 defines “peace officer” under subsection (f) as:

 the pilot in command of an aircraft

(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations,

while the aircraft is in flight.

Thus, the Criminal Code has broadened the definition of pilot in command in certain circumstances to include the power and authorities of a peace officer in dealing with an offender, such as giving the pilot in command arrest powers under s. 495, which are given only to peace officers.

Section 4(5) is also a definitional section, which specifies when sexual intercourse, our second “s” word, has occurred. It reads as follows:

(5) For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.

This is important for a fairly limited purpose: for a present offence in the Code and for a previous offence no longer found in the Code.

To explain this, we need some context so let’s first look at the historical context of sexual assault.

Originally, when the Criminal Code was finalized in 1892, the crime of “rape” was committed by a “male person” who had “sexual intercourse with a female, not his wife” as found in section 266 as follows:

Rape is the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent, which has been extorted by threats or fear of bodily harm, or obtained by personating the woman’s husband, or by false and fraudulent representations as to the nature and quality of the act. 

S. 266(3) of the 1892 Code defined “carnal knowledge” as “complete upon penetration to any, even the slightest degree, and even without the emission of seed,” which is pretty much the same definition we now have for sexual intercourse under s. 4(5). Just a year later in the 1893 Code, the definition of carnal knowledge was moved from s.266 and placed under s. 4, but as the Code was amended, the definition moved from s. 4 to s. 7 to s. 3(6) in the 1953 Criminal Code when “carnal knowledge” was changed to “sexual intercourse.”

The crime of rape was finally abandoned in 1982-83 amendments to be replaced by the more general offence of “sexual assault,” being an intentional application of force, of a sexual nature, without consent. Thus the concept of rape, committed by a man on a woman who is not his wife and requiring sexual intercourse, is simply one example of a sexual assault.

This historical context does not however explain why the definition of “sexual intercourse” still remains on the books. As I said the definition remains for a past and present reason. It remains for the past as past convictions for rape and other specific sexual offences requiring the commission of sexual intercourse, such as sexual intercourse with a female under 14 years of age, are “primary designated offences” and relevant in a long term or dangerous offender application under Part XXIV of the Code. The term is also used in the procedure for gathering DNA samples under 487.05 of the Code and in the procedure for gathering sex offender information under s. 490.011.

There is also a clear connection to the present as there are still offences in the Code, which require proof of sexual intercourse as part of the prohibited act or actus reus of the crime. The offences are under the procuring section of the Code and require the offender to either procure or solicit a person to have “illicit sexual intercourse” under s. 212(1)(a) or to entice a person to a bawdy house to perform “illicit sexual intercourse” under 212(1)(b) or as in s. 212(1)(i), apply and administer a “drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person.”

Sections 4(6), 4(6.01), and 4(7) are all related to the third “s” word, service, and the proof of when documents have been served on an offender. Sections 4(6.1) and (7) were added to the Criminal Code in 2008. Section 4(6.1) reads as follows:

Despite subsection (6), the service of documents may be proved in accordance with the laws of a province relating to offences created by the laws of that province.

This section was added to the Code to provide criminal law consistency with s. 40 of Canada Evidence Act, which provides for a similar rule in civil cases. Section 4(7) permits the court, hearing the matter, to require the attendance of the person who served the documents for examination or cross-examination on the issue of service.

Section 4(6) is not a new section and is important for the prosecution of driving over 80 offences as section 258 permits the admission of a certificate of a qualified breathalyzer technician as proof of the blood alcohol concentration of the accused. However, the document is only admissible if, according to s. 258(7), the accused receives reasonable notice of the intention to produce the document. As the server of this document is a police officer, section 4(6) permits the proof of notice by documentary evidence, which is certified in writing by the police officer. Section 4(6) reads as follows:

For the purposes of this Act, the service of any document and the giving or sending of any notice may be proved

(a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent it; or

(b) in the case of a peace officer, by a statement in writing certifying that the document was served or the notice was given or sent by the peace officer, and such a statement is deemed to be a statement made under oath.

This section, which essentially relieves the Crown from calling the officer who served the documents, has not gone without some controversy in case law. Some cases suggest the written statement as contemplated by s. 4(6)(b) is not enough to show proof of service of the notice of intention to produce a breathalyzer certificate, particularly where the serving officer is called to testify and he has no independent recollection of serving the notice. For further reading on this issue read R v Graham.

That is the end of my discussion of section 4 of the Criminal Code found under Part I, the General Part. In the next podcast, I will onto section 5 where we will consider military matters.

Ideablawg Podcast Episode 7 on sections 4(4) to (7) on The Three "S" Words

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.