Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcasts on the Criminal Code of Canada

Reviewing the past few episodes, I have noticed a thematic connection: from section 13 to the section 18, the discussion has focused on the availability of specific defences. Today’s section 19 continues that Code conversation by speaking of the “defence” of “ignorance.” The section reads as follows:

Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

In fact, the section does not set out a defence but seems to take away a defence, the one of – I-did-not-know-that-was-a-crime – kind of defence. We know that mistake of fact is an excuse, which if accepted goes to the mens rea or criminal intention required but why should ignorance of the law not be accepted as an excuse considering there are so many laws. Not even a lawyer can keep track of the myriad of laws and regulations out there so why deem knowledge to seemingly naïve citizens?

This presumption of knowledge has actually been in place a long time: not only since the Code’s inception but also since laws were even glimmers in Hammurabi’s eyes.  The actual section comes from the English common law, which hails from a Latin maxim found in Roman law: ignorantia juris non excusat. Once laws were codified and therefore written down for all to see, this idea, that a breach of the law cannot be excused through lack of knowledge, became an important aspect of the internal workings of the law.

One reason for this presumption is to ensure that people did not become a law unto themselves – one cannot pick and choose the laws he or she wishes to follow. Everyone is considered to be equally knowledgeable and therefore equally liable if the law is breached.

Practically, it is about incentives – ignorance is no excuse so you better inform yourself before you do it. This ensured people did not remain willfully blind. Of course, as already mentioned, to inform oneself of all the laws is an almost impossible burden, but section 19 places the information burden, to a certain extent, on the individual as opposed to the state. The government does inform the general public of our laws through publications on websites, books, and, formally, in the Canada Gazette. It is then the responsibility of the specific individual to take advantage of these publications and inform him or her as needed. Putting it into historical context, if a citizen breaks the law, Hammurabi need only say “there is no excuse, the law is clearly here on the Stele!”

Histrionics aside, as I said earlier in the podcast/posting, section 19 “seems” to take away the defence of ignorance of the law. There are two reasons for this caveat.

First, there are numerous scholarly articles on how ignorance is in fact an excuse, in certain circumstances, and that the blanket statement in section 19, and found in the legal principles of most western legal systems, simply does not reflect the true state of the law. In support of this view, I recommend just some of the following articles: “Ignorance of the Law is No Excuse?,” “Ignorance of the Law is No Excuse, Except for Tax Crimes,” “Ignorance of the Law IS an Excuse, But Only for the Virtuous,” and my favourite, “The Death of a Maxim: Ignorance of the Law is No Excuse (Killed By Money, Guns, and a Little Sex.”

Second, there is a defence known as mistake of law, which I submit is not exactly an ignorance of the law excuse, and has found only limited success in the criminal law arena. This defence, known as the defence of officially induced error, is not so much about ignorance as it is about knowledge and from where that knowledge comes. This defence, which has its origins in the regulatory context, is a form of due diligence, which exonerates an accused who reasonably relies upon an erroneous legal opinion or relies upon incorrect advice from an official responsible for that particular area of law. So, the defence does not revolve around a complete failure to inform but around a mistaken but reasonable belief in the interpretation of the law. This exception to section 19 is permitted, as stated in the Supreme Court of Canada Jorgensen case, to ensure “that the morally blameless are not made criminally responsible for their actions.”

The main conceptual difficulty with s.19 is that knowing the law, as in knowing what the section says, does not mean one understands the law or understands what kind of behaviour a particular section may or may not prohibit. Meaning hinges on interpretation and therefore depends upon case law. To access this judge-made law one must have legal expertise. Surely, s. 19 does not take into account the seemingly endless complexities of our laws and of the legal interpretation of them.

On that note, I leave you to consider another Supreme Court of Canada decision, in the McIntosh case, wherein the then Chief Justice Lamer, on behalf of the majority, disapproved of reading-in words into the then s.34, self-defence section, as:

Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if courts adopt interpretations of penal provisions, which rely on the reading-in of words, which do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?

The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach, which is sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law.

Section 19 may provide certainty in the criminal law but the real question is whether it provides clarity.

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcast on the Criminal Code

Section 4(3) Possession – An Example of Judge-Made Law: Episode Six of the Ideablawg Podcasts on the Criminal Code of Canada

I ended last episode with a bit of a teaser: I said in this episode we would explore the old adage: possession is nine-tenths of the law. Well, sorry to say, this is not the law, particularly in the criminal law meaning of “possession.” What we will explore in this podcast is what section 4(3) tells us about the meaning of “possession” and what it does not.

Once again, we will encounter the difficulty of using the Criminal Code as an inclusive repository of criminal offences. According to section 9 of the Code, which we will be discussing on these podcasts very soon, all crimes in Canada are in the Code, except for the common law crime of contempt of court. However, although all crimes are found under a particular section of the Code, on the plain reading of a particular section one cannot be certain of the requisite elements. Sometimes, we need to look elsewhere in the Code for further illumination, such as s. 2 definitions or the definitions found under the relevant Part.

More often, we need to look at case law for the answer. This reality suggests the concept in s.19 of the Code, that ignorance of the law is no excuse, is a bit of a joke, as certainly the average reasonable person, who has no legal training, could not access with certainty the requirements for each crime. This is even more evident when case law does not just define certain words used in a section but actually reads into the section additional words.

This is the case with the s.4 (3) meaning of “possession.” This section is a perfect example of how the Courts have restricted or narrowed the prohibited act of a crime, as originally conceived by Parliament, through legal interpretation. Of course the courts do not do this whimsically. There is a method to their madness and the modifications ensure the integrity of the criminal law as a whole. In the case of possession the added requirements ensure the law is not overly broad and does not capture those whom we would consider legally and perhaps, although not necessarily, even morally innocent. The big puzzle is why Parliament doesn’t take the hint and, in the next round of omnibus Criminal Code changes, amend the section accordingly. To not do this smacks of “ostrich-in-the-sand” kind of mentality. Or better yet, is to liken the attitude to the Ravenous Bugblatter Beast of Traal from the Hitchhiker’s Guide To The Galaxy– what you can’t see isn’t there.

In any event, with this lengthy introductory rant, let’s look at section 4 (3), which reads as follows:

For the purposes of this Act,(a) a person has anything in possession when he has it in his personal possession or knowingly(i) has it in the actual possession or custody of another person, or(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

What we really want to focus on is the concept of joint or constructive possession under s. 4 (3)(b), which requires “knowledge and consent.” The difficulty with this definition started with the Alberta case, from the sixties, Marshall.  The teenager, Daniel Marshall hitched a ride with some friends from B.C. intending to make his way home to Alberta. During the ride, the other teens smoked a hookah pipe filled with marijuana, which Marshall passed along but did not partake. When the Alberta police stopped the car for a broken headlamp, billows of marijuana smoke drifted out of the open windows. Everyone was charged with joint possession of marijuana on the basis of s. 4(3). Marshall was convicted at trial on the basis there was knowledge and consent per the wording of the section. The Alberta Supreme Court, Appellate Division, as it then was, disagreed, finding that consent required more than the mere presence of Marshall in the car and that although he consented to be in the car, that did not mean he consented to the presence of the drugs. Furthermore, the court, in discussing whether or not Marshall was a party to the possession, noted that Marshall had no power to control the people with the drugs nor was he the driver of the car.

This control aspect was applied directly to the meaning of possession in the 1983 Supreme Court of Canada Terrence case. In this case, the issue was possession of a stolen vehicle and Terrence’s presence in the vehicle as a mere passenger. In referring to and approving of the lower Court of Appeal for Ontario decision in the case, the SCC agreed that an element of control was required for proof of possession. In their view, if control was required for proof of being a party to an offence, then, similarly, control was required for joint possession, which was also a mechanism for deeming multiple parties legally responsible for a crime.

This case law restricting the meaning of joint or constructive possession under s. 4(3) does make sense and does ensure that responsibility is properly meted out. However, the concept can be a bit of a stretch. Take for example the 2001 Mraz case from the Saskatchewan Provincial Court wherein the accused was acquitted of possession of marijuana. There the judge found there was no control, even though the accused shared a “joint,” one of the many euphemisms for a rolled marijuana cigarette and apropos here as we are talking about joint possession, with his co-accused. There was no control because the co-accused had full control of the bagful of marijuana from which the previously smoked “joint” came. There was some dispute as to where the bag was found, as the accused believed his co-accused kept it on his person, while the bag was actually found in the car under the seat.

As a quick aside, this leads me to consider the origin of the slang “joint” used to describe a rolled marijuana cigarette. Although I am loath to use Wikipedia, the webpage on the etymology of the slang “joint” seems credible. “Joint,” which is derived from the French word “joined” was used in the 1800s to refer to an annex to a main room. The term picked up an unsavoury flavour when in the late 1800s it was then used in reference to a run-down bar or even an opium den. In the thirties the slang was used in reference to a heroin hypodermic needle because the needle was often shared. The same reasoning is applied to the use of the word “joint” for a marijuana cigarette, as it too, as seen in the cases of Marshall and Mraz, is usually shared.

Thank you for joining me. In the next podcast we will complete our discussion of section 4 when we look at the three “esses;” subjects, sexual intercourse, and service.

Episode Six Ideablawg Podcasts on the Criminal Code of Canada Section 4(3) Possession as an Example of Judge-Made Law