A Long Holiday Read On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?: Episode Eleven Of The Ideablawg Podcast (And The Text Version!) On The Criminal Code of Canada

Codification can be a good thing: instead of searching multiple statutes to find the criminal offence for which your client is charged, as an English barrister must do, the Canadian lawyer just flips through the weighty but convenient Criminal Code. To be fair to England, they did try to codify their criminal law. In fact, our codified criminal law comes from that English attempt by Sir James Fitzjames Stephen. I say the English "attempt" as even though we Canadians embraced the codification concept, the English Parliament did not. For more information on the history of the Criminal Code and possible reform, I invite you to read my previous blog on the subject entitled The Criminal Code of Canada: Codification and Reform from February 12, 2012.

Codification can therefore provide much needed certainty of the law. There is no guess work with codification – we know it is a crime because the Code says so. Thus, the concept of ignorance of the law is no excuse from the Latin maxim of ignorantia juris non excusat, is crystallized in a compendium of sections of the Criminal Code and even is codified in it as we will see when we discuss s.19 of the Code.

Alas, however, this same reasoning can lead to the conclusion that codification can also be a bad thing. Firstly, codification leaves little room for interpretation. The Criminal Code, as a really, really, long statute, abides by the rules of statutory interpretation, which guides us on the application and meaning of this statute. According to another Latin maxim of statutory interpretation expressio unius est exclusio alterius or “expression of one is the exclusion of the other,” means that what is not written in the Criminal Code is not part of the Criminal Code. This principle is supported by other statutory interpretation rules such as the  plain meaning rule of statutory interpretation, which advises us that the words used in the Criminal Code mean what they ordinarily mean.

These rules have not gone unchallenged and there are interesting articles discussing those issues. For instance, the rule raises the question as to whether or not there truly is an “ordinary” meaning of a word when considering the differing cultures and perceptions of our multicultural nation.

Besides critics of these statutory interpretation concepts, there are other rules of interpretation, which seem contrary to these “closed book” rules, such as the ability of a court to “read-in” words or phrases to a statute to ensure its constitutional integrity. To be sure courts through the ages have read-in phrases and meanings in certain sections of the Code but they have not actually read-in a whole section. 

Thus, through the effect of codification, the Criminal Code captures and defines our criminal law, leaving very little room, if any, for change, unless Parliament so chooses. In this way the dynamic nature of society is not reflected through our laws. Certainly, however our Charter has added a fluid dimension to the Criminal Code by superimposing societal change, albeit incrementally, onto the written word. Instead of a closed book, the Code seems to be more akin to an e-reader, in which the internet can be accessed, on occasion, to elucidate the reader.

The second problem with codification is the isolation of the criminal law from the English common law tradition, which brings with it a rich and varied criminal law. Using another metaphor, codification is like a tree without its roots as common law is an important source of our criminal law. However, the whole purpose of codification would be defeated by the uncertainty caused by permitting the common law to exist outside of codification. How would an accused then know the charge for which he or she was facing without reference to a specific charge found in the Code if unwritten common law could still form the basis of a charge?

This last objection, to permitting the common law to stand as a system parallel to the Criminal Code, is also reflected in our Charter as a principle of fundamental justice under section 11(a) wherein a person charged with a criminal offence has a right to be informed of the specific offence without delay.

Thankfully, the framers of the Code did think of these issues and so we finally come to the sections which we will discuss in this podcast: sections 8 and 9 of the Criminal Code. But first we will look at section 9, which restricts the common law and ensures Canadian criminal law is consistent with the Charter. Section 9, under the heading Criminal Offences To Be Under Law Of Canada reads as follows:

Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730

(a) of an offence at common law,

(b) of an offence under an Act of Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or

(c) of an offence under an  Act or ordinance in force in any province, territory, or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction, or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

This section is actually an enabling section as it ensures that the Criminal Code has full force and effect in Canada and that no one can be convicted or discharged with an offence other than an offence under the Code. This was needed as prior to codification, the sources of law were varied and included laws of the United Kingdom, laws particular to pre-Confederation governments, and laws arising from common law.

It is interesting to note that the section bars punishment for these offences as opposed to prohibiting a person from being charged for these offences. I would suggest that the word “charged,” as under s. 11 of the Charter, refers to the laying of an Information against an accused person, an action which comes at the beginning of the criminal process as opposed to “conviction,” which comes at the end. Thus, the protection of this section is triggered at the end of the trial process when an accused is found guilty by the trial judge and a conviction is entered. The triggering words are similar to the ersatz (see my previous podcast/blog where I explain why I use this qualifying adjective) presumption of innocence found under section 6 of the Code. In effect then, someone may be arrested, charged, and tried for an offence under either 9(a) or (b) or (c), and even found guilty, but it is the judicial action after the finding of guilt and immediately before a conviction or a discharge is entered, which section 9 prohibits. As in section 6, the focus is on punishment and is unlike the Charter sections on legal rights, which so assiduously protect the accused throughout the criminal process; from detention to arrest to charges to pre-trial custody to trial and then to acquittal or punishment.

Of note, is section 11(g) of the Charter that gives a person charged with a criminal offence the right

not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

This section seems to parallel section 9 but it may be interpreted as giving a broader protection by using the phrase “not found guilty,” and therefore protects an individual before a finding of guilt is made. After the trial judge makes a finding of guilt, the accused is not convicted as he or she may be discharged under section 730 of the Code. Although a discharge is not a conviction, and therefore the accused does not have a criminal record, it is a “sentence” or punishment under the Code. This does seem to be a question of semantics, yet an interesting one to ponder.

There is, however, an exclusion to this decree as the section permits a court to “impose punishment for contempt of court.” Thus, section 9 preserves the court’s “inherent and essential jurisdiction” to cite and punish someone appearing before it for the common law offence of contempt of court. The purpose of preserving this power, according to Justice McIntyre speaking for the Supreme Court of Canada in the Vermette case, was “necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings.”

However, the jurisdiction of the inferior court or provincial court differed from the inherent powers of the superior courts. While the provincial court could only cite someone for common law contempt where the actus reus or contemptuous conduct occurred in the face of or in the presence of the court, the superior court could also use their contempt power in circumstances where the conduct was outside of court or ex facie. This was due to the inherent jurisdiction of the superior courts to maintain discipline within their courts independent of statute as opposed to the provincial or inferior courts whose jurisdiction was purely statutory.

This common law power is still used in courts today, albeit sparingly, and is available even though there are perfectly appropriate charging sections in the Criminal Code, such as s. 139 obstruct justice and s. 131 perjury. I have represented an individual for common law contempt and the unique aspect of the offence is the ability of the accused to proffer an explanation or an apology for the contemptuous behaviour that may be accepted as “purging” the contempt charge. I say “may” as the apology may negate the mens rea required for conviction but a judge is certainly not required to accept an apology as vacating the contempt finding.

Let’s now return to the second section to be discussed today, section 8. We saw how Parliament ensured that the Criminal Code would safeguard an accused’s rights by limiting common law offences and now, section 8, extends this protection by permitting some common law principles, which inure to the benefit of the accused, such as common law defences. In particular, I will read section 8(3):

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

Therefore, all common law defences, unless they are “altered by or are inconsistent with” the Code are available to an accused. The defences specified by the section are “justifications and excuses,” which are complete defences to a criminal charge but apply even though both the actus reus and mens rea of an offence are proven. Although both of these defences are restricted to a reasonable response by the accused to external pressures, they do differ.

An excuse acknowledges the wrongfulness of the action but holds that the accused should not be punished for his or her actions as Justice Dickson stated in the Perka case,

a liberal and humane criminal law cannot hold people to the strict obedience of the laws in an emergency situation.

Examples of an excuse would be the defence of duress, as in the Paquette case, and the defence of necessity as in the Perka case.

Conversely, a justification is where the accused challenges the wrongfulness of the act  as in the circumstances where “the values of society, indeed of the criminal law itself, are promoted by disobeying the law rather than observing it.”

For a fuller discussion on the present law on excuses see my previous blog on duress and the SCC Ryan case entitled Not To Make Excuses, But The Unresponsiveness of the Supreme Court of Canada To The Defence of Duress.

Returning to the exception in the section, which suggests that if the common law defences alter or are inconsistent with codified defences, then the codified versions prevail, we must consider the defence of duress as codified under s.17. As we will discuss when we arrive at s.17, both the common law defence of duress and the section 17 duress are available to certain accused in certain circumstances. We will see that far from the caution that the common law defence where altered or inconsistent cannot stand in the face of the codified defence, the common law defence of duress has actually altered the codified version as a result of the application of the Charter. But we will come to this in due course.

Of course, there is a world of common law defences outside of the Code and outside of the rubric of justifications and excuses such as the common law defence of mistake of fact and the common law defence of mistake of law. Certainly, the common law defence of mistake of fact has been altered for sexual assault offences pursuant to s. 273.2. There are other common law defences, which sadly are sorely underused such as the de minimus defence, or the defence that the law does not consider trifling breaches of the law. These common law defences receive short shrift unfortunately due to the advent of the Charter and the subsequent Charter-weaned lawyers who believe Charter rights are the only kind of defence worth pursuing.

Finally, a note on the legislative histories of these two sections. Section 8 actually was our present section 9 and our present section 9 was the then section 7 until section 6 was re-enacted as the present section 7. Section 7, as you may recall in the previous podcast, involves offences on aircraft and offences occurring outside of Canada. Our present section 9 was enacted as section 8 in the 1953-54 Code amendments. The reversal occurred in the revisions under the 1985 Code when section 8 became section 9. To make matters even more confusing section 8 was present in our original Criminal Code of 1892 under the then sections 7 and 983. In 1906, the sections were combined and re-enacted as sections 9 to 12. The following revisions made a dizzying number of changes until the 1985 revisions re-enacted the then section 7 to the present section 8.

Confusing? As I have complained before in these podcasts, often the government has placed content over form by changing and adding sections to the Code without consideration for placement or sense.

On that historically obfuscating note, I wish one and all a very happy holidays and a happy new year. This podcast will return in January 2014 as we discuss the next section of the Criminal Code of Canada – section 10 when we revisit the common law offence of contempt of court and the availability of appellate remedies.

Episode 11Of The Ideablawg Podcast On The Criminal Code of Canada: On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?

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"