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

Let’s Be Clear: The Supreme Court of Canada and the Enhanced Credit Cases

The enhanced credit trilogy cases released by the Supreme Court of Canada are truly a lesson in clarity on many levels. First, the main judgment in the Summers case, written by Madame Justice Karakatsanis, is clear, concise (at least for a SCC judgment) and readable. Second, the main basis for dismissing the Crown appeal is the government’s lack of clarity in defining the meaning of “circumstances” that justify enhanced credit under s. 719(3.1). Conversely, third, is the seemingly clear intention of the government to “cap” the credit at a 1:1.5 ratio. However, fourth, are the clearly defined and “well-established” and “long-standing” sentencing principles, which included enhanced credit for the lack of parole eligibility during pre-trial custody. In order to “overturn” these principles, Parliament must, fifthly, use clear and explicit language in the legislation.

What is also clear about this judgment (sixth) is that the Court is engaging in a dialogue with the government. If the government wants to change the law, they must do so, well, clearly – the government cannot hide behind value-laden words such as “truth” and “transparency.” However, the Court, albeit in an aside in paragraph 56 of the Summers judgment, also places a caveat on the government’s ability to change entrenched legal principles when Justice Karakatsanis states “Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge).” Certainly, this advice is clear: if the government chooses to change legislation, then any changes must be consistent with the Charter.

Parliament, the ball is now in your “court!”

Making A Split-Decision In The Supreme Court of Canada

Last month the Supreme Court of Canada released their statistics covering the last decade of decisions. The graphs make interesting reading if you want to know how long it takes for decisions to be rendered or which provinces send the most appeals. If those issues are not at the top of your must-know list, the graph on the number of unanimous decisions versus split decisions may be the graph to pique your interest. The lowest percentage of split decisions in a given year was in 2006, where 20% of the cases heard resulted in a dissenting decision. The highest percentage of dissenting decisions occurred in 2007 with 38% of the cases. Last year, 32% of the cases produced dissents.

What could have made these statistics even more enticing would be a break down on who sits in dissent most often and why. Are there thematic connections? Well, of course there are: a justice dissenting on a specific issue would not be expected to change his or her mind if the same or even similar issue arises. However, change does occur, as we know when reviewing the decade of cases from the 1990s on the mens rea requirements for criminal negligence. This change or shift in the court’s decision-making is appropriate and welcome: we want our courts to be reflective of societal fundamental values and this ability for change in legal principles permits this. We also want our jurists to be open to this change, in a principled way, of course. So, analyzing SCC decisions is a way to track change and to better understand the court’s position or change in position on any given issue.

Instead of waiting another decade for these interesting numerical tidbits, I crunched the criminal law numbers for this year. From January to mid-March there have been 13 criminal cases in which written decisions were rendered. Out of the 13 cases, nine of the cases resulted in unanimous decisions. Quite frankly these unanimous decisions are very short and merely the Court agreeing with the lower level appeal courts. Four cases, however, were split decisions. Roughly, 30.7% of the cases are therefore split or dissent decisions. This percentage is fairly consistent with last year.

Now, let’s move away from the empirical side and look at these four decisions for meaning. What kind of split decisions are these?

I have spoken about the Babos case in a previous blog entitled When Dissent In The Supreme Court Matters. This type of split decision, where there is only one Justice in dissent, signifies a fundamental difference in opinion between the majority written by Justice Moldaver, on behalf of the five other justices on the panel, and the lone dissenter, Justice Abella. As such, the dissent is heartfelt and invokes value-laden terms such as the “exceptional assault on the public’s sense of justice” in the face of “egregious state conduct.” Justice Abella, with her background in human rights, is speaking out in a case where her dissent may not really matter in legal principle terms but is a matter with which she disagrees “on principle.” I would call this a “moral/ethical” decision.

The MacDonald case is more benign. It is a “true application” decision. The disagreement does not involve a direct disagreement on the issue at hand but a disagreement on the true or correct application of previously decided legal principles. Thus, the dissent written by Justice Moldaver and Justice Wagner with Justice Rothstein concurring takes umbrage with the majority’s application or misapplication of the Mann case, decided a decade earlier, on the reasonableness of protective police searches. Ironically, Justice LeBel, who wrote the majority decision, was a member of the majority Mann decision. The dissent does not fail to appreciate this irony when they write:

The majority in this case purports to apply Mann.  Respectfully, however, it does not.  Instead, it renders Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often unpredictable situations of potential danger.

Such a case leaves the legal profession wondering if the Court can’t apply its own case properly, who can? Keep an eye on how this decision, which did not cause the flurry of attention in the legal profession it should have, will affect trial matters in the lower courts.

In Sekhon, the court considered the admissibility of a police officer’s “expert” evidence on drug couriers pursuant to the Mohan criteria. Although, both the majority decision, written by Justice Moldaver, and the dissent, written by Justice LeBel (notice how quickly the tables turn in the SCC in terms of who is in the dissent and who is in the majority!), agree that the evidence was inadmissible, the differences come in the application of s. 686(1)(b)(iii) and whether the appeal should be dismissed as there was no substantial wrong or miscarriage of justice. Again, both the majority and dissent agree on the basics: that the admission of the evidence was not a trivial error. However, in Justice Moldaver’s view the evidence of guilt was overwhelming and therefore it is within the public’s interest not to send the matter back to trial considering the costs to the criminal justice system. Justice LeBel agreed “that ordering a new trial places demands on judicial resources,” however, “this cannot override the appellant’s right to a fair trial based solely on admissible evidence.” In Justice LeBel’s view, the inadmissible evidence went to the very issue before the court – the guilt or innocence of the accused. This kind of decision is the “tug of war” decision.

Finally, the Hutchinson case is the “throw-back” decision. What did we say in Mabior again? While this case does not re-litigate the issues, as Mabior was a unanimous decision written by Chief Justice McLachlin, it does build upon some of the key pronouncements in that case. Thus, in Hutchinson, the majority, written by Chief Justice McLachlin and Justice Cromwell, agree that sexual assault offences protect sexual autonomy but not absolutely as the “blunt instrument of the criminal law” must be used with “appropriate restraint.” On the other hand, the dissent written by Justice Moldaver and Justice Abella view the protection of the sexual integrity of a person, as the controlling issue in the meaning of consent, within the broader context of public policy. Interesting to see the majority speak of traditional criminal law principles in the context of offences, which, for public policy reasons, are the least traditional criminal law offences in the Code. Clearly, there is much more to be said on the issue and a further “throw-back’ decision would not be unlikely.

So, there is a lot to be said about the court’s decisions over and beyond the simple statistical graphs we review every ten years. I wonder what the next few weeks will tell us? 

When Dissent In the Supreme Court of Canada Matters

Have you ever wondered about the significance of a dissenting opinion in the Supreme Court of Canada? To use one of their favoured terms, dissenting decisions may be signifiers of “incremental change.” Overtime, however, these dissenting opinions may become the majority decision. Certainly, some of Chief Justice McLachlin’s dissents are an example of this – most recently in the air of reality line of cases – see my previous blog on the issue here. Of course, sometimes a dissenting opinion does not signify change but simply signifies dissent – a vocalization of a differing viewpoint or to use probably a trite yet apt Robert Frost analogy “the road not taken.”  The recent Supreme Court of Canada Babos case on prosecutorial misconduct is an example of when dissent for dissent's sake matters.

Justice Abella’s dissent on the issue makes for powerful reading, invoking the sanctity of the justice system and the high standard we expect from our quasi-judicial prosecutors, who stand on behalf of the state as upholders of society’s fundamental values. Even in the adversarial system, the duties of the Crown prosecutor transcend the arena of dispute, as they must defend the law in the pursuit of justice. Justice does not have a stake in the ultimate outcome of guilt or innocence but does impact how the ultimate outcome is achieved.

This role is, as suggested by Madame Justice Abella, timeless and does not crystallize at particular points of a prosecution but must permeate every action or inaction of the Crown.  As she so eloquently said, “Time is not a legal remedy for a fundamental breach of the Crown’s role, and cannot retroactively cure intolerable state conduct.”  Difficult balancing must be done to fulfill this duty but it is of utmost importance in the viability and credibility of the criminal justice system.

So I encourage you to read the dissent and envision an alternate view where “an exceptional assault on the public’s sense of justice” is deemed worthy of dissent.

Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test

Last week the Supreme Court of Canada, yet again, restricted access to criminal defences. The Court, in the earlier Ryan case, signaled their desire to limit criminal defences to the realm of the reasonable person. This objectifying of defences, which in the Ryan case involves the defence of duress, places a barrier between the specific accused, as a thinking and feeling person, and her culpable actions by assessing the individual through the lens of the general; that of the reasonable person, who has no fixed address but, apparently, a lot of common sense. This external assessment, which looks outside the confines of the Court for direction, fails to appreciate the humanity before it in the shape of an accused faced with a dire choice whereby breaking the law means survival. For more on Ryan read my blog here.

Now in the Cairney and Pappas cases, the Court has added an additional barrier to all justifications and excuses through the “clarification” of the air of reality test. I have considered the lower Courts decisions on these cases in an earlier blog.

To discuss these decisions, we must first understand the antecedents of the air of reality test in Supreme Court of Canada cases. The phrase “air of reality” comes from the 1980 Pappajohn case. Pappajohn was charged with the rape of a real estate agent who was trying to sell his home. The accused and the complainant had diametrically opposed versions of the incident. According to the complainant, she was violently raped and according to the accused, they had consensual intercourse. The defence argued for the defence of mistake of fact to be left to the jury for their consideration. This mens rea defence, if accepted, would entitle the accused to an acquittal on the basis the accused had an honest but mistaken belief the complainant was consenting and therefore did not have the requisite mens rea to commit the offence. The trial judge refused to leave the defence to the jury and Mr. Pappajohn was convicted of rape.

It is in the majority judgment, written by Justice McIntyre, where the term “air of reality” is first used in relation to defences. In dismissing the appeal, Justice McIntyre finds the trial judge was correct in refusing to consider the defence of honest but mistaken belief as there was no “air of reality” to it. According to Justice McIntyre, for such a defence to be considered there must be “some evidence beyond the mere assertion of belief in consent” found in evidential sources other than the accused.

This air of reality requirement was used two years later in the SCC Brisson case, where self-defence was at issue. In Brisson, although all justices dismissed the accused’s appeal against conviction for first degree murder, there were three concurring judgments, with one such judgment written by Mr. Justice McIntyre who again finds that a trial judge must only instruct a jury on a defence, which has “some evidence sufficient to give an air of reality.” Interestingly, in the later 1985 Sansregret case, again on the application of the defence of mistake of fact in a rape case, Justice McIntyre does not refer specifically to the “air of reality” test but to the “air of unreality” of the defence.

The term “air of reality” is finally elevated to a “test” by Justice McIntyre in another mistake of fact rape case, Bulmer, from 1987. Here, Justice McIntyre fills in the phrase, “air of reality,” with a framework for trial judges to apply. He explains the test as a preliminary step in which the trial judge “is not concerned with the weight of the evidence or with the credibility of the evidence.” The simple question to be answered at this initial stage is: in all of the circumstances of this case, is there an air of reality in the defence?” The accused’s evidence will therefore become a factor but not the determining factor in deciding if there is, on the whole of the evidence, an air of reality. None of the cases I have referred to above were considered in the Pappas and Cairney cases.

After the Bulmer case, most SCC air of reality cases relate to the defence of mistaken belief until the 2002 Cinous case, which considered the defence of self-defence. Six of the nine-member Court in Cinous agreed to allow the appeal and enter a conviction. The majority reasons written by Chief Justice McLachlin and Justice Bastarache emphatically upheld previous enunciations on the test and viewed the air of reality test in the singular with no need to modify it for differing defences. They reaffirmed that the test “does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.”

Even with this clear admonishment, the majority did modify the air of reality test by introducing the concept of the limited weighing of evidence

“where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component.” (underlining added)

It is the last part of this quote which concerns the use of the defences known as justifications and excuses – necessity, duress, self defence and defence of the person including provocation, the defence raised in Pappas and in Cairney. These defences all have subjective and objective elements. All of these defences are subject to the air of reality test and subsequently all of these defences are open to the limited weighing of the evidence to determine whether or not the defence will be available to the accused.

In Cinous, for example, the Court referred to the proportionality requirement of the defence of necessity as requiring the trial judge to balance the various social values at play with public policy in deciding if the harm inflicted was proportionate to the harm avoided. This objective assessment requires the trial judge to draw inferences from the world outside of the accused and thus, according to the SCC, the trial judge must employ the limited weighing of the factors underlying the defence, which may impact this assessment. 

But from where did this concept of “limited weighing” come, if as Chief Justice McLachlin maintains in the majority judgments of Pappas and of Cairney the air of reality test has never changed?

This limited weighing does not come from the assessment of defences but from directed verdict/preliminary hearing cases. The first SCC mention of “limited weighing” comes from the 1998 Charemski case on a directed verdict where the case was based on circumstantial evidence. Unsurprisingly, it is Chief Justice McLachlin who consistently approves of limited weighing and is the torchbearer of Justice McIntyre’s air of reality test. Charemski is a case heard by only a five-member court with the then Justice McLachlin in dissent. Justice McLachlin disagreed with the majority and pointedly suggested that “while some judges,” (hint as to who those “judges” are – just take a look at the majority decision), “have referred to a distinction between “no evidence” and “some evidence”, this distinction is nonsensical.” According to McLachlin, it is the sufficiency of evidence at issue. To determine sufficiency in the circumstantial world, McLachlin further explained, trial judges must “engage in a limited evaluation of inferences.”

In the SCC 2001 Arcuri case, the extent to which the trial judge or, in this case the preliminary inquiry judge, must enter into this limited weighing was clarified by Chief Justice McLachlin on behalf of the full Court. Arcuri wanted the preliminary inquiry judge to weigh the evidence as the evidence was purely circumstantial and the witnesses evidence arguably exculpatory. In dismissing the appeal, the Chief Justice explained that limited weighing did not mean the judge was actually weighing the evidence in determining guilt or innocence but engaged in limited weighing as follows:

In the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. 

This means the trial judge when engaging in limited weighing of the evidence is considering the reasonable possibilities of such evidence and not considering the quality of the evidence. In the Court’s view it is for the trier of fact to decide what inference should be taken in determining guilt or innocence.

The nuances of this test are obvious: the idea the judge must draw a reasonable inference is importing, into yet another stage of a criminal trial, the objective standard. Such limited weighing may go the accused’s benefit such as in the Charmeski case where the then Justice McLachlin would have restored the acquittal. However, to apply the same standard of assessment to defences, may be the way of the Musketeers – all for one test and one test for all – but it fails to recognize the importance and uniqueness of justifications and excuses as the last bastion against the power of the State. Almost akin to a “faint hope” clause, when an accused turns to a justification or excuse as a defence, the case has essentially been made out against the accused as both the mens rea and actus reus, the dual requirements for a crime,  have been established beyond a reasonable doubt. Guilt is nigh and the only reasonable doubt becomes whether or not this accused, faced with dire circumstances, made the only choice available.

These defences are not broadly based and are not a concrete lifeline. They are subject to both subjective and objective elements and if the accused does not fulfill the prerequisites of the reasonable person portion of the defence, the defence fails. To then superimpose the limited weighing concept of the air of reality test, which is also based on an objective assessment, is to further restrict an already narrowly based defence.

Through this limited weighing on an air of reality test, the SCC has effectively increased the standard with which the evidence of the defence is to be assessed. One wonders if this kind of restriction is truly in the spirit of Charter values. It would be worthwhile, in a year from now, to study the impact this case will have on the ability of the accused to make full answer in defence and whether, like a transient puff of air, all of the defences are gone.