Section 21- Modes of Participation By Being A Party To An Offence Part One: Episode 23 of the Ideablawg Podcasts on the Criminal Code of Canada

In the next few sections, we are leaving behind the housekeeping/general sections of the Code and moving into modes of participation or the various ways an accused can participate in a crime. The general section heading is called “Parties To Offences,” although it is section 21, which deals with the specific concept of parties to an offence. Yet, the general heading is apt as “party” means to participate in an event, while s. 21 specifies, in legal terms, what is required to be a party under that section.

Before we go to that section, we must step back and consider the concept of “secondary liability.” Secondary liability is where one party (participant in an event) is not directly involved but assumes or is deemed responsible for the actions of another party who is directly involved. This type of liability, in the civil arena, has long been recognized at common law. Examples of such liability are vicarious liability and corporate liability, particularly in the area of copyright and patents.

In the criminal law, however, secondary liability has limited application, partly due to the Charter, which prohibits criminal liability and punishment on those individuals who are deemed responsible for the actions of others on the basis the individual has no mens rea for the crime or often no actus reus as well. Traditionally, in criminal law, as stated by Justice Estey in the 1985 Canadian Dredge & Dock Co case, “a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization.” This was reinforced through the application of section 7 of the Charter, when the SCC, in the 1985 Re B.C. Motor Vehicle Act, emphasized the minimum mens rea requirement for a crime required some form of mens rea, which could be found in objective liability. Thus, secondary liability, which required no mens rea on the part of the person deemed responsible, was contrary to the fundamental principles of criminal law and, therefore, contrary to the Charter.

An example of permissible vicarious liability can be found in the quasi-criminal or regulatory field such as speeding offences based on photo radar. A license plate of a speeding vehicle is caught on camera but the speeding ticket is sent to the owner of the vehicle, whether or not the owner was the actual perpetrator. Thus the owner has neither the mens rea (which in the regulatory field, depending on the punishment, is considered Charter appropriate) or the actus reus for the offence yet is still deemed guilty for purposes of the highway traffic regulation. Such a deeming of liability would be unacceptable in the criminal law as the components of a crime (criminal intention and prohibited act) would be absent and as the Charter requires some form of mens rea be present where an accused person may be subject to incarceration upon conviction. However, in the regulatory field, where public safety is at a premium and the stigma of a criminal conviction is absent, as long as the possibility of jail is not an option upon conviction, vicarious liability is acceptable.

Although this form of secondary liability is not found in the criminal law the traditional common law concepts of parties is acceptable as the accused person, in the party scenario, is criminally liable based on his or her participation in the crime albeit not as the principal or main offender. Parties may have lesser roles in the crime but their participation, in terms of criminal intention and action, is directly connected to them and to the commission of the crime, making them personally criminally responsible.

The parties sections in the Code therefore anticipate two situations of persons deemed parties: one situation as found in the following section 22 of the Code embrace those accused who induce others to commit crimes, with or without that accused person’s direct involvement in the criminal act and the other situation, as in s. 21 involve those accused persons who help others commit crimes.

Now let’s turn to section 21. There are four types of parties to an offence as outlined in this section.

The first type of party is found under section 21(1)(a) and is as follows:

s. 21. (1) Every one is a party to an offence who

         (a) actually commits it;

This may seem contrary to the party principles I just outlined but in fact it is a prosecutorial aide. This subsection, by making a principal or main offender (in other words the accused person who actually commits the offence) a party to an offence, relieves the Crown from specifying in the Information or at trial whether an accused person is the principal offender or a party. Thus, the Crown need not prove at trial that any specific accused was the principal offender as long as the Crown proves each accused knowingly assisted or abetted the other. This means multiple accused can be convicted as parties without anyone being convicted as a principal.

The second type of party is as follows:

s. 21. (1) Every one is a party to an offence who

(b) does or omits to do anything for the purpose of aiding any person to commit it;

Here, the person becomes a party by “aiding” another person, be that person a party or principal, in the commission of the offence. Here, the word “aid” means providing assistance. The party may “aid” by doing something or by failing to do something. The Crown must prove the accused aided as the actus reus or prohibited act of being a party. Remember that the Crown must not only prove an accused is a party but must also prove the elements of the offence to which the accused is a party.

The third way of becoming a party is under s. 21(1)(c):

s. 21. (1) Every one is a party to an offence who

(b) abets any person in committing it.

The actus reus here is abetting, which, according to the SCC in R v Greyeyes, includes "encouraging, instigating, promoting, and procuring" the crime.

To “aid” or “abet” are distinct forms of liability but what is the difference? The best way to explain the difference is through the following example: a person who distracts a security guard in a store so another person can steal an item, is acting as a party to the offence of theft by “aiding” the principal who took the item. Conversely, a sales clerk who encourages and allows another person to take an item is “abetting.”

However, in both of these forms of liability, the mere presence of the accused at the scene of the crime is not enough to convict the accused as a party nor is the mere inaction or passive acquiescence of the accused enough to convict. In the seminal Supreme Court of Canada (SCC) case on the issue, Dunlop and Sylvester v The Queen from 1979, the two accused were charged, with others, for a “gang” rape but were acquitted by the majority of the SCC as, according to the evidence, the two saw the rape but they did not encourage or assist in the act. Neither did they try to stop it, they simply left. Morally wrong - yes -but not legally responsible.

Mere presence and passive acquiescence may be enough if accompanied by other factors such as prior knowledge of the principal’s intention or if the presence of the accused prevents the victim from escaping or receiving assistance. Also, a failure to render assistance may be enough to make an accused person a party if that person was under a legal duty to act. For example, merely watching a crime being committed does not make someone a party unless the person is a police officer (let’s make this easy and say on duty and in the execution of that duty) and is therefore under a legal duty to stop the crime.

The Crown must also prove the mens rea requirement for s. 21(1) by showing the accused intended to assist or encourage the principal accused. However, the Crown need not prove that the accused knew the exact details of the crime to be committed. The accused need only be aware of the type of crime to be committed and must be aware of the circumstances necessary to constitute the offence. A final caution: motive is not intention. The accused need not desire the end result for the mens rea requirement.

If the accused is charged as a party to a murder, the mens rea requirements for murder are applicable. Therefore, the Crown must prove that the accused party intended death or was reckless whether or not death ensued. This requirement is Charter based and requires the Crown prove the accused person had subjective foresight of death. Due to this high level of liability, an accused party may be acquitted of being a party to the murder, even if the principal offender is convicted of murder, but convicted as a party to a manslaughter, which requires a much lower level of mens rea found in the objective foresight of bodily harm. (Click on the hyperlinks for the case authority)

The fourth type of liability as a party under section 21(2), common intention, will be the subject of our next podcast!

Episode 23 of the Ideablawg Podcast on the Criminal Code of Canada: Section 21(10 - Parties - Modes of Participation

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

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

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

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

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

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

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

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

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

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

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

Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:

I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.

The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:

In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.

In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.

Public Disasters and the Criminal Law

The tragic and unfortunate Costa cruise ship disaster is a good example of how popular social activities, which are inherently legal and legitimate, can turn, on a dime, into a textbook criminal case. It is no surprise the Captain of the ill-fated ship is being investigated for a number of offences, including manslaughter. Indeed, after reading the victims’ accounts of the disaster, it should be expected. But caution is required when demanding “justice” for public disasters through the aegis of the criminal law.

Usually, government uses regulation to control legitimate and desirable activities, which if carried out improperly or without due care, would result in harm to individuals or the public at large. Any breach of regulation may result in a charge under the statute, which is then known as a public welfare offence. Thus, our local dry cleaner, which provides us with clean shirts and starched collars, must conform to government rules regarding the safe and proper use and disposal of chemicals.

When the failure to fulfill regulatory requirements is significantly outside of the public welfare scheme, the conduct becomes criminal and must be framed by the Criminal Code. When the Exxon Valdez struck a reef in 1989 and spilled 11 million gallons of crude oil into the Alaskan waters, the criminal law was invoked. In 2000, the Walkerton tainted water scandal, which left seven people dead and scores ill from e-coli­ bacterial ingestion, resulted in criminal charges of public endangerment, fraud, and breach of public trust against the two town managers. So too, when the British Columbian Ferry, Queen of the North, ran aground in 2006 causing both an environmental and social disaster (2 people died), the navigation officer, who had control of the ship at the time, was charged with criminal negligence causing death.

However, when these public welfare matters are criminalized, they are treated like any other criminal case. The conduct, which initially arose from legal activities, becomes part of the criminal law nomenclature as it is labeled as manslaughter, criminal negligence, or even murder. By labeling and identifying this conduct as criminal, the matter leaves the public opinion arena and enters a legal one where the case must adhere strictly to all relevant legal principles. Consequently, what appears to be an open and shut case of manslaughter may, in a courtroom, deteriorate into a plea to a lesser charge or even an acquittal.

Not only are legal requirements at issue in such a case, but other factors may impact the prosecution’s ability to prove a case beyond a reasonable doubt such as the credibility of witnesses, the conduct of the police, and the availability of institutional resources.  Admittedly, these factors are present when dealing with any criminal case, but when dealing with a public welfare crime, it is very difficult to prove the essential fault element or required criminal intention, which typically deals with a failure of a person to act in accordance with a required standard of care.

In a public welfare case the alleged offender is under a duty or standard of care, which would require him to fulfill his duties and responsibilities with all due care and attention. For a Crown to establish a failure of care, to the criminal standard needed for conviction would require evidence relating to the standard of care and a detailed examination of what those duties and responsibilities are in the circumstances.  Prosecutors would need to delve into corporate culture and industry standards. As a result, such trials can be lengthy and complicated with unsatisfying results.

That explains why the Exxon Valdez’s Captain, charged originally with criminal mischief, operating the Exxon Valdez while intoxicated, and reckless endangerment, and a misdemeanor charge of negligently discharging oil, was only convicted of the misdemeanor and was sentenced to $50,000 restitution order and 1000 hours of community service. It also explains why the town managers in the Walkerton case pleaded guilty to the lesser offence of common nuisance with one accused receiving a conditional sentence of nine moths and the other, a one-year jail term. Finally, it explains why the BC ferry navigator, Karl Lilgert, has yet to be tried on his charges, although the incident occurred in 2006. Lilgert’s preliminary hearing was heard in May 2011 and he is now in the Supreme Court system as he awaits a jury trial.

So, for those awaiting a speedy outcome from the Costa tragedy, or indeed, any other public disaster, they will be disappointed. For the few who actually stick with the case to the bitter end, the result may be even more socially disconcerting. All of this may lead us to wonder if our criminal law can appropriately respond to crimes of such epic proportions and make us re-consider if it even really should in the first place. The problem is: what’s the alternative?

Update on Sunday, January 15, 2012 at 4:28PM by Lisa A. Silver

For more discussion on the criminalization of public welfare offences and the use of the civil sanction as an alternative to the criminal justice system, read my Masters Thesis.

Is "Innocent Nudity" Expression?

When is a nude a nude and when is being nude, contrary to the Criminal Code? When you walk through a local park sans clothing or when you go through a Tim Horton's drive-through with nothing but your charms to recommend you.

Today, in my human rights class, we talked about just that. Is nudity expression? And if so, does s. 174 of the Criminal Code, which prohibits public nudity, violate s.2(b) of the Charter? 

It appears Ontarians, Mr. Coldin and Mr. Cropper, would answer yes to both. Both men are charged with public nudity under s.174  of the Criminal Code and their counsel have argued a Charter violation. According to these avowed naturists, their nudity is an expression of a oneness with nature, in other words going au natural for nature. This "innocent nudity," they argue has expressive content and should not attract criminal penalties. 

First, the class tackled the issue of expression: is nudity expression? Well, it turns out the answer is not so clear. What is the expressive content of nudity? Is wearing nothing able to express anything? Let's just ask the Emperor who thought he wore new clothes. Was he "expressing" something when he waltzed down main street in his natural born state? Perhaps. And Coldin and Cropper, are they saying something through their nudity? I say yes. An expression of "getting back to nature" and an expression of "let's get back to the basics in this overly material world." Could this be a call to arms (uncovered of course) for an Occupy Nature movement? 

Now we have determined expression. How about the restriction? See anything wrong with the Criminal Code section? The class did.

s.174(1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

As Arnold Horshack would say, hand raised, "Ooh-ooh-ooooh."  How about this. It harkens back to the basic principles of criminal law, which require a minimum mens rea requirement.This offence may not be a true crime and attract a subjective liability requirement but does this section even permit an objective liability standard? Section reads more like an absolute liability offence: you are nude, you are guilty.

Aha, you say. How about that lawful excuse? What kind of "lawful" excuse could there be for being nude? Okay, you sleep in the nude, fire alarm goes off in the middle of the night and you jump out of bed and run outside stark naked. So the lawful excuse seems to be: I did not intend to be publically nude. A lack of mens rea, which is a required element of an offence, as a lawful excuse?

I could go on, but I will stop here.

What kind of offence is this anyway? Is it Charter bad or Charter good? What do you think?

Update on Wednesday, October 12, 2011 at 6:27PM by Lisa A. Silver

A student in my human rights class reminded me of the 1991 Guelph, Ontario woman who took her shirt off on a warm day. She was charged with an idecent act contrary to s.173 of the Criminal Code. CBC recently did a follow-up story of the case. The Ontario Court of Appeal acquitted Gwen Jacob on the basis that her actions did not amount to an indecent act, which required a sexual context. The Charter was not invoked. This decision did open the way for breast feeding in public, however it did not start a female shirtless movement, either on a hot day or otherwise. You will have to go to Europe for that.