Section 12 – Anyone Want To Play Double Jeopardy?: Episode 14 of the Ideablawg Podcast on the Criminal Code of Canada

Double jeopardy, like the presumption of innocence, is a legal term, which is a familiar part of our social discourse. The phrase is at once a movie, a book (actually multiple books), and even a segment of a game show. The concept, that an accused may not be tried or punished for the same offence more than once, is ancient and runs deep in our “fundamental freedoms” psyche. The Greek orator, paid speech writer, and all-around democrat, Demosthenes in his speech of 355 BCE Against Leptines, reminded the Athenian jury that “the laws forbid the same man to be tried twice on the same issue.”  Roman law later codified this concept when they published The Digests or Pandects of Justinian and referred to the maxim ne bis in idem or “not twice in the same” in Book 48, Title 2, Section 7(2). The maxim eventually was subsumed into English common law, however it was strictly defined and originally applied to those acquitted or convicted of capital offences. See Blackstone Commentaries in Book 4, Chapter 26 for more on the English law equivalent.

Not surprisingly, this restricted concept was handed down to us when we codified our Canadian criminal laws. In the 1892 Criminal Code, section 933 codified the Canadian principle under Proceedings After Conviction pertaining to “Punishments Generally.” As it is very similar to our present version under section 12, I will not reproduce it here but please note that the prohibition against double punishment is not limited to capital crimes. Also note that I referred to the concept as “double punishment” and not “double jeopardy.” To explain this difference, let’s read section 12:

Where an act or omission is an offence under more than one Act of Parliament, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

Immediately, it is clear that this section protects double punishment, not double jeopardy – an accused can therefore be charged and tried for similar offences, but once convicted, the accused cannot be punished more than once. This is much different than the American concept of double jeopardy as found in the Double Jeopardy Clause of the Fifth Amendment, in which a person, who is subject to the same offence, is not to be “twice put in jeopardy of life or limb.” In the American version, therefore, even the risk or danger of being convicted is being protected. The Canadian codification in the Code, like the English principle, does not go as far.

In fact, even our Charter protection under section 11(h), albeit broader than section 12 of the Code, is still not as robust as the American conception.  Section 11(h) of the Charter reads: 

Any person charged with an offence has the right if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

The Charter prohibits double punishment, like section 12 of the Code, but also prohibits retrying an already acquitted accused. It is unsurprising that section 12 of the Code does not refer to acquittals considering its antecedents as a section under the punishment part of the original Code. Also, both of these concepts – not to be convicted or tried twice – come from the common law and, as we learned in a previous podcast, common law defences under section 8(3) are still available. Therefore, does section 12 really need to be under the Criminal Code? Those common law defences are known as autrefois acquit and autrefois convict. Autrefois acquit, meaning previously acquitted, and autrefois convict, meaning previously convicted, are actually referred to in the Criminal Code as “special pleas” under s. 607. Yes, we will eventually discuss this section but much much further down this podcast road.

In any event, autrefois convict has been further refined as it only applies after there has been a complete adjudication on a matter including sentence. Before punishment, pursuant to s. 12 of the Code, an accused who has been tried and convicted of offences arising out of the same transaction, can rely on the case law principle prohibiting multiple convictions from the 1975 SCC R v Kienapple. Thus, an accused charged and convicted of driving with over 80 mgs of alcohol (section 253(1)(b)) and driving while impaired (section 253(1)(a)) arising from the same transaction, will not be punished for both offences but will have one of the charges stayed or “kienappled” as defence lawyers like to call it. As an aside there are a few cases, which have become verbs in the legal nomenclature, such as a case being “askoved” or stayed due to a trial not being heard within a reasonable time pursuant to s. 11(b) of the Charter.

The lesson learned from this podcast and the previous podcast on s. 6 the ersatz “presumption of innocence” found in the Code, is that our societal perspective of law is not really reflected in our Criminal Code. Instead our perspective is coloured by the media, by the American experience, and by our own assumptions of what the law is and what the law is not.

Join me for the next podcast when we discuss section 13 of the Criminal Code.

Episode 14 of the Ideablawg Podcast on Section 12 of the Criminal Code of Canada

Ideablawg Weekly Connections: From Twibel to Chaucer

This week, I surfed the Internet and did some reading the old-fashioned way – nothing like holding and having a book - so let’s look at the week in review:

1.   Google Glasses are being talked about and well they should! As the next step in computer/human interface, these glasses would really come in useful in the courtroom when you need to bring up that name of a case – you know that name! Google Glasses could tell you that. Of course, Google Glasses can also keep the lawyers busy as in the case of the California woman, who was charged with distracted driving while wearing her special specs. The California law makes it illegal to “drive a motor vehicle if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating” and, as she was also speeding at the time, a puzzled police officer pulled her and her Glasses over. The Judge, however, acquitted the feckless (not specless) woman, as there was no evidence the Google Glasses were operating at the time of the incident. My only question is: how could you ever prove that? Maybe the police need some new technology? Can that laser catch speeders and readers?

2. Peter Ackroyd, a British writer, historian and biographer, has written numerous fiction and non-fiction books, mostly about his beloved London. I have read a number of his books, most notably London Under, about what is found under the city – you’d be surprised what’s there - and The Casebook of Victor Frankenstein, a fictionalized backgrounder to the good Doctor. I have recently read a raft of his biographies; some from his brief lives series, including Turner, Poe, Newton, and Chaucer. The Chaucer bio was fascinating as Geoffrey Chaucer was a minor Court official, who really only wrote as a side career. He also had some legal training and was used by the Kings (he survived more than one) for delicate diplomatic missions to France and Italy. Not only does Ackroyd give us non-fictional accounts but he usually ties these peregrinations to a fiction book as well. For instance, he did a marvelous re-working (or translation) of The Canterbury Tales and then re-worked them even more to write Clerkenwell Tales. I also recently read his fascinating biography on Charles Dickens. By the way, watch for the Dickens movie to be released with Ralph Fiennes as the venerable, and love-struck (read the book to see why – the movie is called The Invisible Woman) author. Of course, Dickens did work as a law clerk in Chancery Court when he was young and his novel, Bleak House, brings his past experience to life (or death as we are talking wills) with a comedic flare that is both cynical and heartwarming. I have written a couple of blogs on Dickens in the past here and here

3. Back to law and the Internet – this time law and the Smartphone as Courtney Love successfully defends against a defamation case caused by her tweeting that her attorney, in her Kurt Cobain estate case, was “bought off” not to represent her.  Apparently, the tweet was supposed to be “private” and the jurors agreed. A “private” tweet therefore was not considered “twibel,” which is a libelous tweet of course. Not only is this the first twibel case but, I think also the next word to make it as the Oxford Dictionary Word! Selfies is so last month!

4. I have also been reading some law and imagery articles and I have been particularly struck with articles written by Peter Goodrich, who is the Director of the Law and Humanities program at the Cordozo School of Law. His writing is witty, vivacious, and thought provoking. Try reading his article on Specters of Law: Why the History of the Legal Spectacle Has Not Been Written, which speaks of the visible and the not so visible legal tradition that lawyers have constructed. 

Section 11: The Parallel Universe of Criminal and Civil Law: Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada

Today we will step out of our criminal law comfort zone to talk a little bit about the civil law, in particular how criminal and civil law reside in a parallel universe due to section 11 of the Criminal Code.

To start, let’s discuss how civil law and criminal law differ from one another. First, it should be noted that when I speak of “civil law,” I am using this term generously to refer to the legal system controlling private disputes, particularly where there is harm caused either physically (tort law) or through a breach of contractual obligations. Another definition of “civil law” may be the civil law tradition, which comes from the Continental legal tradition (The Napoleonic Code for instance), and involves codified civil statutes governing society, such as found in Quebec.

As you probably already noticed, the main difference between criminal and civil laws is the type of parties engaged in each of these systems. Civil law is between private individuals, whilst criminal is between the state or the government and an individual, although a corporation can also be charged with a criminal offence. Thus, in criminal law we are concerned with public wrongs and harms against society. As, I have mentioned before, the criminal law underlines society’s fundamental values and is reflective of how we view our society at any given time.

As a result of this differing viewpoint, civil and criminal law employ different legal processes, on occasion differing legal rules, and even a different standard of proof. To reflect the specialness of the criminal law, the burden of proof, which is on the state, is beyond a reasonable doubt, and for the civil world it is proof on a balance of probabilities, which is a lower standard of proof than the criminal one.

The civil law also employs some different types of remedies than the criminal law, although sometimes not. Criminal law remedies are about punishment, with the concomitant ideals of retribution and rehabilitation. Typically, civil remedies are about compensation, to ensure the injured party is recompensed for the harm caused. However, there are occasions where these remedies do meet such us in the criminal law when compensation is ordered or in civil law when punitive damages are assessed. This blurring of the lines between civil and criminal law is best seen in the regulatory field of legislation. For further reading on this issue, My Masters Thesis considered the criminalization of regulatory offences and the use of the civil punitive sanction as an alternative.

Now that we understand the differences between civil and criminal, let’s take a look at section 11 of the Criminal Code to try and figure out what it means and what it is doing in our Criminal Code.

Section 11 is entitled Civil Remedy Not Suspended and reads as follows:

No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

As an aside, a similar section can be found in the 1892 Criminal Code under s. 534. It is under the General Provisions of procedure section of the Code, while the present section 11 is under the General Part.

On the face, the meaning of the section is fairly clear: a civil action may proceed despite a parallel criminal action. In other words, a person charged with an offence can also face a civil suit for his or her actions and that civil case can continue at the same time as the criminal prosecution. However, as discussed in the last two previous podcasts, as the court retains an inherent jurisdiction over its process, a judge, in exceptional circumstances, can suspend a civil case until the criminal matter concludes. The circumstances for such abeyance would involve the right of the accused to a fair trial and the prejudicial effect of a continuing civil case. It must be emphasized that this power is discretionary and there is no automatic right to stay a civil case until a criminal matter is completed.

Another concern for an accused facing a civil suit is the civil requirement for questioning the parties on the suit. Such responses may later incriminate the accused at the criminal trial. However, there is protection for the accused under s.13 of the Charter, which prohibits the use of such testimony in a criminal proceeding, except in a prosecution for perjury or “for the giving of contradictory evidence.” Therefore, the state cannot advance such incriminatory evidence at the accused’s trial unless the evidence forms the basis of a perjury charge or unless the accused testifies at the criminal trial and his testimony at the criminal trial is contradictory to the previous testimony in the civil proceeding. In that instance, the civil testimony does not go in for the truth of its content but can be used to cross-examine the accused on a prior inconsistent statement. However, under provisions in the Canada Evidence Act, an accused must still answer the questions put to him when questioned in a civil case.

There are cases where the civil trial judge has stayed the civil proceeding when the accused is facing criminal charges in the United States. In that forum, the accused, as a Canadian citizen, would not be entitled to invoke the protection of the Fifth Amendment of the U.S. Constitution and would not be protected by the Canadian laws.

Our final consideration is why is the section in the Code. I suggest the section is in place to reiterate the differences between criminal and civil law. The sections speaks of civil remedies or the outcome of a civil case and also a civil suit’s purpose – to enforce a right of the party, which has been harmed, or unrecognized by the other party’s actions. This enforcement is between these two parties – not between Her Majesty and the accused - therefore the action is in respect of different parties. The harm is a private one, and again does not underline the social values at stake in a criminal case. Finally, the standard of proof is lower in a civil suit and therefore a civil remedy may be ordered even if an accused is ultimately acquitted of the criminal case – see the O.J. Simpson trial as an example of this.  So they are different proceedings, for a different reason, making parallel proceedings possible. Finally, there is a desire that civil matters, like criminal cases, be heard in a timely manner to ensure the integrity of the civil system. Of course, with the caveat that, in matters of justice, the criminal case will prevail.

Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada: Section 11

A Week of Connections! From Fuentes to Chutzpah

It’s been a busy week but I have managed some time out to take in some pretty interesting websites and readings:

1. The McGill Law Journal Annual Lecture at the Faculty of Law on March 30, 2011 given by Carlos Fuentes, an admired Mexican author, who was also legally trained and was involved in international diplomacy. He passed away almost a year after giving this lecture. I have read a few of Fuentes novels but I have never before made the legal connection. The lecture is a bit of a challenge as he gave parts of the lecture in French with a bit of Spanish but it is a fascinating read, particularly when he recounts his work in 1950 while secretary to the Mexican member, Roberto Cordoba, of the United Nations International Law Commission. The article also has his responses to some of the questions posed by the students in attendance, which gives an excellent insight into Latin-American politics. I also highly recommend his first novel, Where The Air Is Clear.
2. On the “what will they think of researching next” connection is a legal research project tracing the use of the Yiddish term “chutzpah” in American case law, particularly after the film premier of The Fiddler On The Roof. This project comes from Eric Posner, a Professor at the University of Chicago Law School, and yes, indeed, mentions of the word Chutzpah in law decisions jumps significantly after the 1971 film version. Interestingly enough the word “chutzpah” doesn’t even appear in the movie! I have a little “chutzpah” myself and decided to do a quick search of the word using the canlii (The Canadian Legal Information Institute) website and found 35 mentions of the word chutzpah from 1996 to 2013 in court or tribunal decisions. The database does not go back too far for some levels of courts so this search is not overly rigorous. Of those 35 decisions, 3 are from British Columbia, 5 are from Alberta (all from the Queen’s Bench and all different Judges), 5 from Federal or Tax Court, 1 from Saskatchewan Queen’s Bench, 1 from Quebec Superior Court, and 20 Ontario mentions mostly from the Ontario Superior Court of Justice with Master Polika winning the prize at using the term in 6 separate cases. By the way, Leo Rosten’s wildly popular book from 1968, The Joys of Yiddish, which really is the reason why Yiddish terms became so popular in mainstream society, defines chutzpah as “gall, brazen nerve, effrontery, incredible “guts”; presumption-plus-arrogance such as no other word, and no other language can do justice.” In these Canadian cases, the word is used mostly in the derogator sense. My particular favourite use of the word is in the BCCA Doman case where Madam Justice Southin says the following: But for the applicants to complain that the delay, which has been caused by their largely unsuccessful attacks in court on the proceedings of the Commission, constitutes an abuse of process calls to my mind the delightful Yiddish word "chutzpah" which is sometimes explained as a man who has been convicted of murdering his parents seeking mercy on the ground that he is an orphan.
3. You think you’re busy? Well check out Benjamin Franklin’s daily schedule here. I really like Franklin’s morning question, “What good shall I do this day?” and evening question to “What good have I done today?” Good questions for lawyers to keep in mind!
4. Finally, a bit of fun but also a reminder that what you read in the media needs to be check by going to the source, so to speak. This is the news story about the American Niagara Falls icing over due to the polar vortex, which is a mass of bone-chilling arctic air, which usually sits atop the North Pole but can circulate southwards to cool off more than usual whatever lies southward. However, it appears that Niagara did not in fact completely freeze over although it still looked pretty “cool.” Check out this even neater photo from 1969 when the American Falls stopped due to a scientific research, which required the damning of the source. Don’t worry Canada, the Horseshoe Falls were unaffected.

The Ideablawg Connections Of The Week

This week, I am launching a new segment on my blog, The Ideablawg Connections Of The Week, wherein I will recommend items, some law related and some not, connecting them to other areas of interest. These items may be Internet based or print based (yes, there is still such an animal) and may be for viewing, reading, listening, or creating. This week, I recommend the following:

1. A film about Walter Benjamin, philosopher, critic, and prolific writer, whose critical thinking and sharp analysis of the world around him modernized the essay genre. Walter Benjamin, a German Jewish intellectual, committed suicide when he was turned back from a border crossing with Spain and France during the German occupation of France in WWII. This film is nuanced and provocative. For further reading of Walter Benjamin, read his magnum opus entitled The Arcades Project, a blinding riff on life, the universe, and everything inspired by the shopping arcades of Paris, or a compilation of his essays in Illuminations, edited with a forward by Hannah Arendt, which is reason enough to read this. Then read Hannah Arendt’s, Eichmann In Jerusalem, her controversial series of articles for The New Yorker, covering Eichmann’s trial and decide for yourself what “banality of evil” means. To help you decide, read Deborah Lipstadt’s concise analysis of it in The Eichmann Trial and then watch the 2012 biopic, which may mean an Oscar nomination for Barbara Sukowa. For a law connection, read articles on Hannah Arendt as an International Criminal Law theorist.
2. And now for something completely different: A NPR article of an interview John Rizzo, counsel to the CIA after 9/11, who has just written a memoir entitled Company Man: Thirty Years of Controversy and Crisis in the CIA, in which he discusses, among other things, his views on “enhanced interrogation techniques” or what we would call “torture.” Look for his last word on the subject of “waterboarding,” which he states, “…if the Justice Department had concluded — that these techniques constitute torture, we would never have done them. So I can't say they were torture. I didn't concede it was torture then, and I don't concede that it's torture now.” Really? Tell that to a group of Toronto lawyers, who called for Dick Cheney’s arrest for war crimes based on these interrogation techniques, when he was in Toronto in October 2013. Let’s also reflect on the Queen’s Bench of Alberta Justice Yamauchi’s decision in Simpenzwe, that “it is not just a dental drill or waterboarding that extracts confessions out of people. Equally sinister are the “more subtle, veiled threats that can be used against suspects.”
3. Totally unrelated is this article on the 10 “must have” apps for 2014. I like mailbox.
4. Atlantic Cities regularly has articles of interest to the committed urbanite. They also have a number of articles on crime and, although US-centric, they nevertheless remind us of the Canadian experience. The article on “Nearly 50 Percent of Black Men Have Been Arrested by 23” is sobering. Although, Canada does not compile such data, read the consistently excellent and relevant reports issued by the Canada’s Correctional Investigator, Howard Sapers,  and his recent report on “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries.”
5. Finally, go see American Hustle, the Hollywood version of the 1980s ABSCAM – remember those grainy videotapes of payoffs by fake Sheiks – well watching it in Technicolor is so much satisfying and entertaining, including Christian Bale’s not well-disguised impression of the Mel Weinberg, a Bronx fraudster and confidence man. Is it just me or is Bale channeling Rob Reiner’s “Meathead” in All In The Family?