Section 3 "For Convenience of Reference Only": Episode Three of the Ideablawg Podcast on the Canadian Criminal Code

The following is the text version of Episode Three of the Ideablawg Podcast on the Canadian Criminal Code. At the end of the text is the actual podcast or, better yet, download the podcast directly from iTunes by searching for ideablawg. Enjoy!

Today we are going to discuss section 3 of the Criminal Code, which is the last section under the interpretation heading. Last week we looked at sections 2 and 2.1, which were definitions of some, but not all, terms used in the Code. As I mentioned last week, the federal Interpretation Act applies to all federal statutes, and therefore the Criminal Code, as long as the provisions found in the Interpretation Act are not inconsistent with the specific statute. If there is a contrary intention, then, the Interpretation Act must give way and the provision found in the specific Act is the rule.

So, this puny interpretation segment in the Code is most definitely not the last word on how to interpret the Code. Indeed, besides legislative interpretation, which is what we are doing here, there is also judge-made interpretation found in case law. Today, we are going to look at case law in understanding section 3 because the puzzle is – what is the significance of this odd section and why, of all the statutory interpretation rules, it is here.

Let’s start with reading this section in order to get our bearings:

First the title of this section – which by the way does not form part of the section but is a way to identify and organize sections in the Code – is “descriptive cross-references.” Far from being “descriptive” this heading is not telling us much. The actual section 3 reads as follows:

Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.

By the way at the end of each section of the Code there is an odd phrase, in this case, “1976-77, c. 53, s. 2.” This phrase denotes the year the section was enacted, in this case 1976-77, and also the chapter number, c.53, of the amending statute with the section, S.2. When the actual amendment is integrated into the Code, the chapter and section number becomes meaningless but it is the year, which gives us valuable information. For example, the previous section, 2.1, which told us that the firearm definitions under s.84(1) apply throughout the Code, was placed in the Code in 2009. So, what we do know about section 3 is that it has been around for quite awhile.

Now getting back to the actual section. What does it mean? Good question. It is one of those sections I call “ugly sections,” which are difficult to understand and require multiple readings before you can glean the meaning. But upon re-reading, the meaning is quite clear: throughout the Code, there may be references to other sections of the Code or even other sections of another statute. There also may be, in parenthesis or brackets, a description of that referred to section following the section number. These parentheses descriptions, so section 3 suggests, may not be completely accurate as they merely act as signifiers of that particular section. Therefore, s. 3 warns the reader that if they do see a description in parenthesis following a section, that description is only there to give us a heads up on what the referred to section means and is not part of the Criminal Code. It’s just a “BTW,” or “By The Way” information for your “convenience of reference only.” Great, thanks for the caution, but that does not explain why, of all the various statutory interpretation rules there are, and there are many, this particular one is integrated into the Code.

Now let’s discuss statutory interpretation. This will be a very superficial discussion as such a talk could and does form a whole course, typically an optional course, offered in law school. “TBH” or “to be honest,” this kind of course should be mandatory for all law students considering the amount of time we all spend, no matter what area of law, reading and trying to understand statutes.

To explain statutory interpretation, I am actually going to go to case law and a recent Supreme Court of Canada criminal law case from 2012 called R v. Dineley. Mr. Dineley was charged with impaired driving and driving with a blood alcohol concentration over the legal limit. Due to amendments to the Criminal Code a particular defence, which permitted the accused to challenge the accuracy of the breathalyzer readings based on an expert’s toxicology report, called the Carter defence, was eliminated. This amendment happened during Mr. Dineley’s trial and his counsel argued that the amendment could not be applied retrospectively, according to rules of statutory interpretation, and therefore the Carter defence was still valid.

The trial judge agreed and acquitted Dineley but the Court of Appeal for Ontario disagreed and ordered a new trial. The Supreme Court of Canada in a split decision agreed with the trial judge, found the new amendment could not be applied retroactively and upheld the acquittal.

Despite this, I am going to take us to the dissent written by Mr. Justice Cromwell, who has an administrative law background and explains in this case what statutory interpretation does. I am going to read some excerpts of Justice Cromwell’s decision to help us:

He first says: “statutory interpretation aims to ascertain legislative intent…”.

Then, he states what is really the first principle of statutory interpretation:

The courts ascertain legislative intent by reading legislative language in context and in its grammatical and ordinary sense, harmoniously with the scheme and purpose of the legislation at issue...

And here is another fundamental interpretation principle: “When the legislator’s words permit it, the courts will take the legislature not to have intended to work injustice or unfairness.”

Hopefully, you get the idea: that the rules of statutory interpretation are supposed to not only help clarify what we read but also to bring us into the parliamentarian heart whereby we can see and feel the purpose of the framers of legislation in writing the Act. However, we are also not supposed to read too much into this intent, instead we should take a balanced approach, which I would suggest involves applying some good common sense. Conversely, in the United States, the concept has taken a life of its own when dealing with the Constitution through the doctrine of “original intent.” This principle has not gone without controversy but certainly the US Supreme Court is much more concerned with the original intent of the founding fathers than we are of the fathers of confederation. Be that as it may, statutory interpretation is a complex and at times, changing area of law.

This does lead us however to the Interpretation Act, which is chock-full of rules of interpretation and construction. It tells us, for example, that the law is “always speaking” meaning that a law may be fashioned in x year but it applies even if it is used in x + 50 years – as long as the law has not been repealed. It even explains the preambles we were discussing in podcast one: section 13 of the Interpretation Act states "The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object."

It does not however tell us what to do if we see words in parentheses. It does, in section 14, advise us that:

Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only.

This sounds like a very similar caution to section 3 of the Code. So in the end section 3 is really only doing what section 14 of the Interpretation Act is doing, except in the Code parentheses are used. By the way, there are also marginal notes in the Code, such as those headings I have been referring to and which form no part of the actual statute but are just there for organizational purposes.

So where do we find these parentheses actually being used in the Code? Typically, where there is a list of offences such as in s. 231. This section sets out in what circumstances murder is classified, for parole ineligibility purposes, as first-degree. Section 231(5) lists the offences for which an offender, who causes the death of another, is found committing or attempting to commit will then be guilty of first-degree murder. For example s. 231(5)(e) states “section 279 (kidnapping and forcible confinement)”. The words in the parenthesis describe summarily the offence found under s. 279 and is there for “convenience of reference only.” In fact, case law suggests that to describe s. 279(2) as “forcible confinement” is inaccurate as the better description is “unlawful confinement.”

Thank you for joining me on this third podcast. Next week, we won’t be going too far as we discuss s. 3.1 of the Criminal Code. The section is a throwback to the interpretation segment but it falls under a completely new heading and is under the first Part of the Criminal Code – Part I – called the “General” Part of the Code.

Episode Three of the ideablawg Podcast on the Canadian Criminal Code: Section 3 "For Your Convenience Only"

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

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

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

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

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

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

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

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

(a) who is not his wife, and

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

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

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

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

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

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

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

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

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

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

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

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

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

 But of course it is not that simple.

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

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

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

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

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

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

Well, no not really.

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

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

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

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

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

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

The Ideablawg Criminal Law Trend for 2013-2014: On Sentencing and On Podcasting

I start my criminal lectures at MRU with a current events “sweep” of criminal cases to ground the principles and the legal “speak,” learned throughout the course, with what is really going on out there in the real world of crime. This connects concept to context, which is so important in law, in order to teach the student to apply principles to a real life fact situation. This acquired aptitude requires the student to be comfortable outside of the academic rigour of law books, a much-needed skill in the lawyering world, which promotes creativity as the context forces the student to visualize alternate solutions for the legal problem.

As I teach in Alberta, I tend to look locally when I scout out the criminal law news of the week. This past week was so full of connections that we spent a good half hour discussing three of these current cases. Interestingly, the cases themselves were connected as they all referred to the sentence imposed in each particular case.

Of course, sentencing is the last act in a criminal case where there is a conviction. Most of the “legal business” of criminal law is concerned with pre-sentence matters such as the elements of a criminal offence and the application of criminal procedure, particularly in the Charter era. Sentencing is not even taught in the mandatory first year criminal law courses and some law schools do not even offer a sentencing law course. And yet, it is the sentence, the punishment to be imposed, which garners the most public attention and hence catches the most media attention as well.

The reason for this preference is varied. My theory on the popularity of sentencing cases in the media is that sentencing tends to be easily understandable to the average citizen. Everyone appreciates the significance of time in jail. No one needs the Criminal Code to explain that. Furthermore, sentencing is the only piece of the case in which the human aspect is so “front and centre,” no longer taking a backseat to the incident itself.

The victim, at a sentencing hearing, has the right to “speak” through the “victim impact statement” and is not merely a piece of evidence required by the prosecution to fulfill the legal requirements. Instead, the victim becomes a true stakeholder in the outcome as the Judge listens to the victim, not as a witness to the events, but as a participant, whose life was irretrievably changed.

The role of the convicted accused is also transformed from the defensive position wherein a legal “wall” is built around the accused to protect but also to minimize intrusion. It is only at the sentencing hearing that the accused steps out of a caricature of an accused and becomes filled in with the life stories all too familiar in the criminal courts of childhood troubles, conditions of abuse, and social failures. No wonder, it is the sentencing arena to which the public can so readily relate and which brings home, literally, the real life angst of the criminal law. 

On that note, it was unsurprising that the class started our current events journey with the Baumgartner case from Edmonton in which twenty-two year old Travis Baumgartner became the first Canadian to be sentenced for consecutive parole ineligibility terms for multiple murders under amendments to the Criminal Code from 2011. Section 745.51 of the Criminal Code permits such a sentence may be imposed by the trial Judge. Note the permissive “may” as the trial Judge is not mandated to impose such a sentence. Indeed, the section also includes the factors to consider in making the decision such as the character of the accused, the nature of the offence, and the circumstances of the incident. If the sentencing arises from a jury trial, the Judge must also consider the jury’s recommendation on whether or not the parole ineligibility should be consecutive under s. 745.21.

Baumgartner, a security guard shot four of his colleagues as they took ATM monies from the busy University of Alberta student HUB Mall.  Three of the guards died and the fourth survived. Baumgartner, as part of a plea negotiation, entered a plea of guilty to one count of first degree murder under s.231(2), two counts of second degree murder, and one count of attempt murder. As indicated by Associate Chief Justice Rooke in his reasons "these assassinations and executions were carried out by a cold-blooded killer, all with the simple motive of robbery." In sentencing Baumgartner to the agreed upon total sentence of life imprisonment with no chance for parole for forty years, Justice Rooke found the offence was “some of the most horrendous crimes that anyone can imagine.” However, it was not a case for the maximum parole ineligibility of seventy-five years, as Baumgartner was not the worst offender, being a young man with no prior criminal record and in recognition of the guilty plea, which showed remorse for his actions.

These amendments to the Criminal Code, part of the tough on crime agenda of Harper’s government, did attract much controversy. Critics voiced concerns over the political motivation of the change, suggesting it was merely a “political stunt” done to assuage the public fear of crime without any hard evidence such a change would in fact change crime statistics. In a word, the changes appeared to be more about “retribution bordering on vengeance” as characterized by D’Arcy Depoe of the Criminal Trial Lawyers’ Association and less about the sentencing principles of rehabilitation and deterrence.

On the other hand, sentencing is a punishment and does have an aspect of retribution for retributions sake. Certainly, the public outrage over concurrent sentences for multiple murders is understandable on a gut-level whereby a murder of one is equated with the murder of many. The controversy over this and the other numerous sentencing changes to the Criminal Code, such as the mandatory minimum sentences, is far from over, hence my suggestion that the hot button criminal law issue for 2013-2014 will focus on sentencing and these new amendments.

The other case we considered in class, another robbery case, was closer to the academic home as we discussed the 18 month jail sentence imposed on the ex MRU President Meghan Melnyk. Unlike Baumgartner, there was no joint agreement on sentence. As an aside, it must be pointed out that a sentencing Judge is not bound by a joint submission on sentence. In any event, considering the maximum sentence for robbery is life imprisonment, the sentence, in the eyes of the class seemed light. However, considering the position of counsel on sentence: defence asked for a conditional sentence or in the alternative ninety days, while the Crown asked for four years imprisonment being the typical “starting point” for such offences, the 18 month sentence appears to be within the range.  The eyebrow raising part of the matter was Melnyk’s concept of community work. Prior to sentencing she appeared at local High Schools discussing her situation and her gambling problem. Judge Brown, in sentencing Melnyk observed that she was paid for each appearance. This will definitely not be case when Melnyk fulfills the other part of her sentence when she is released from prison - 240 hours of community service.

The final case discussed was a sentence appeal argued before the Court of Appeal for Alberta. The Crown appealed the sentence imposed on ex-Stampeder running back, Joffery Reynolds, who was convicted by former Assistant Chief Judge Stevenson (of the provincial court and is now supernumery or a relief judge) of assaulting (actual convictions were for assault causing bodily harm under s. 267, assault under s. 266, and being unlawfully in a dwelling house under s.349) his ex-girlfriend for which he received a ninety-day sentence to be served intermittedly on weekends and two years probation as well as an apology letter and a five thousand dollar donation. The Crown’s position on sentence at trial and at appeal was for a two to three year sentence, an odd range considering a two year sentence is served in a provincial reformatory and a three year sentence is served in the much harsher federal system.

At trial, the defence recommended a non-custodial, particularly as Reynold’s celebrity status caused a media flurry and a diminishment of his public status. The Crown on appeal pointed to the sentencing Judge’s failure to consider the domestic nature of the offence. In discussion, the class clearly agreed with the Crown on that note, believing their relationship to be something more than just “buddies” as submitted by the defence.

This decision will be interesting as it may tackle the difficulty in sentencing the celebrity and it may also clarify the meaning of “domestic assault.” As an aside, the provincial government recently brought forward legislation to end intermittent sentences, which were used to allviate the burden of imprisonment where an offender had gainful employment. This may not be an issue raised on appeal but I believe this will cause a clash in the courts when the jail refuses to fufill a Judge's order to do so. Keep posted on this issue as well.

The other cases I had but were not discussed I will repeat here but I will not elaborate on today. Another sentencing case – the Paxton dangerous offender application is ongoing before Justice Martin. The Court of Appeal also heard an appeal against the conviction of the young offender in the Cavanagh murder case, which involved a “Mr. Big investigation.” Finally, a little off the crime path but still in the public welfare arena is the concern over work-related deaths in Alberta and the need to tighten regulatory laws in the area. The province recently went to the administrative efficiency of ticketing offenders, both employees and employers, in real-time for real-time breaches. However, the call is for more prosecutions, better outcomes, and a more serious consideration of criminal code charges for work-related incidents.

These cases, in my view, also signal some Canadian criminal law trends as the use of dangerous offender applications increase, as the courts struggle with unique investigation techniques in a Charter world, and as the public demands more and better action in the regulatory field. Keep an eye on my future blogs as we trend through the year.

On a final note is a new upcoming addition to this blog as I enter the world of podcasting. I intend to offer a short podcast on sections of the Criminal Code.

What Is Life?: The Unanswered Question In The Supreme Court of Canada’s Levkovic Case

This blog posting is not about Erwin Schrodinger, the famous quantum physicist and winner of the Nobel Prize. Nor is it about his most famous thought-experiment, Schrodinger’s Cat, which illustrates how the quantum world works or doesn’t work, depending on whether the cat is dead or alive. Ah, “alive.” This posting is about what it means to be “alive” or, as our Criminal Code requires, “in a living state” and it just so happens Schrodinger did have something to say about life in his book entitled What Is Life?

First, let’s step back and set up the conundrum, as I see it, caused by the wording of the Criminal Code and the lack of clarification from the Supreme Court of Canada in the Levkovic case on the issue of life. Homicide under s. 222 of the Code is where a person, directly or indirectly, by any means, causes the death of a “human being.” However, it is only culpable homicide, as in murder, manslaughter or infanticide, which can form the basis of a homicide charge. Section 223 specifies when a child becomes a “human being” and therefore when a child can be the “victim” of a culpable homicide. Under that definition, a

child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Thus a child can be a victim of a culpable homicide at the very instance of the completion of the birthing process, when the child has fully exited the mother’s womb but with the caveat that the child must be “in a living state.” This phrase denotes life and suggests the child must be alive to be thus defined as a “human being.” However, the section continues and seems to broaden the definition by making the “living state” independent of breath, circulation, and the umbilicus connection to the mother. This too makes sense in the context of the first moments of birth, when a baby duly born transitions from embryonic fluid to air. It may take a newly born baby up to ten seconds to breathe and for the blood to circulate. In those crucial moments, according to the law, the child is a human being.

But how does this interpretation impact s. 243, an offence requiring the child to be dead? The section creates an offence where the child’s death is concealed even if the child died before or during birth. Clearly if the child dies before or during birth, the child would not be a “human being” in accordance with the definition of s.223, which finds a child is a human being where the child is completely out of the womb and in a living state. Even so, in the Supreme Court of Canada’s decision in Levkovic, Justice Fish, speaking on behalf of the Court, refers to this section to inform the meaning of s. 243 of the Criminal Code, the section creating an offence for concealing the dead body of a child. In order to determine if a newborn child was unlawfully killed, Justice Fish opined, homicide investigators would need to determine if the child would have likely to have been born alive as opposed to a stillbirth. Indeed, Justice Fish suggested

In order to facilitate the investigation of homicides, s. 243 must therefore apply to children that were either born alive or were likely to be born alive and thus capable of satisfying the Criminal Code definition of a human being in s. 223(1). (Emphasis added)

By applying the concepts of s.243 to the definitional section 223, the Supreme Court of Canada has turned life or being “in a living state” into the likelihood of life. To base a required element of an offence on “likelihood,” and to “read down” an interpretation section, which does not require such a reading to be applicable, seems to import the “vagueness,” which the SCC abhors. Instead of taking an opportunity to clarify the meaning of life in the context of death, the SCC choose to apply the catch-all likelihood test as found in the Mabior case and the Whatcott decision (see my previous blog for further discussion). What the Court fails to understand is that being alive is much different than being likely alive.

How does this connect to Schrodinger? Erwin Schrodinger’s 1944 What Is Life? book, based on a series of lectures, is part scientific, part philosophical treatise in which he applies quantum principles to biology in a search for an explanation of life. Many believe his book to be a precursor to the discovery of DNA. Life, in the Schrodinger world, is quantifiable and real as exemplified by genetic “code-script.” Although Schrodinger the quantum physicist would approve, Schrodinger the bio-theorist certainly would not.

The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post.