Part I. Fundamentals & FrameworksChapter 2. Theories and Concepts of PunishmentA. TheoriesR. v. C.A.M. The judgment of the Court was delivered by I. Factual Background2 The
respondent is a 55-year-old man with no prior history of
criminal conduct. In 1972, after two previous marriages,
the respondent married his third wife (now deceased).
During that marriage, he fathered nine children. The
children included an older pair of female twins, E.M.M.
and J.P.M., born in 1974, and a number of younger male and
female children. For most of his life, the respondent
worked as a labourer across the Western provinces,
alternatively employed as a hard rock miner, a truck
driver, a mechanic and an oil field worker. As a result of
the transient nature of his employment, the family was
somewhat itinerant and moved frequently from locations in
Manitoba, Alberta, Saskatchewan and British Columbia. In
or about February 1987, the family moved to Fort Nelson,
B.C., and in or about February, 1988, the family relocated
again to Saanich, B.C. II. Sentencing Submissions… A. Submissions of the Crown16 [I]n light of the devastating pattern of physical, sexual and emotional abuse the respondent inflicted upon his children, and in light of the respondent’s questionable prospects for rehabilitation, the Crown requested a stringent term of imprisonment in excess of 20 years. The Crown was of the view that a term of 30 years might even be warranted by the crimes of the respondent. B. Submissions of Counsel for the Defence18 Counsel
[spent] considerable effort in calling attention to the
mitigating circumstances surrounding the respondent’s
crimes. To begin, counsel underscored the respondent’s
dysfunctional childhood and troubled youth. As a result of
recently revived memories which had allegedly been
repressed, C.A.M. contends that he has discovered that he
himself was a victim of sexual abuse at a very early age.
He also emphasized the long-term trauma he has suffered in
relation to two near-death experiences, one in relation to
a serious automobile accident, and one in relation to
“mine gassings” which occurred while he was working as a
miner. III. Judgments BelowA. Provincial Court20 At the
outset, Filmer Prov. Ct. J. commented that the crimes of
the respondent were “as egregious as any offences that I
have ever had the occasion to deal with, either as counsel
or in these courts”. … B. British Columbia Court of Appeal (1994), 28 C.R. (4th) 106… The [respondent’s] crimes against his children were such as to bring forth in all decent and right thinking people a natural desire to see the most severe form of punishment imposed upon him. But the law stands between the convicted felon and such natural emotions. The law requires a principled approach to sentencing, one that restrains the urge to punish by its adherence to definable and rational sentencing objectives, as well as by its acceptance of such guidance as Parliament has offered in the Criminal Code and in other statutes such as the Corrections and Conditional Release Act, S.C. 1992, c. 20. 26 To
illustrate his point, Wood J.A. proceeded to examine
whether or not a marginal increase in sentence of five
years beyond a sentence of 20 years would, in this
instance, result in a significant advancement of the
sentencing goals of deterrence, denunciation,
rehabilitation and the protection of society. To begin, he
argued that an increased sentence of 25 years imprisonment
would not better promote the objectives of general and
specific deterrence; … Wood J.A. further argued that
the incremental deterrent effect of an increased sentence
drops off sharply past the 20-year mark. Wood J.A. also
argued that the incremental returns to societal
denunciation follow a similar path of diminishing returns.
As he stated: “it does not seem realistic to assume that
the measure of society’s denunciation of this appellant’s
crimes would be lessened in any way by imposing a sentence
of twenty years” (p. 116). On that point, he noted that
denunciation ought to be distinguished from its
“illegitimate retributive cousin”, as “retribution is not
a legitimate goal of sentencing”, citing R. v. Hinch
and Salanski, [1968] 3 C.C.C. 39 (B.C.C.A.). IV. Grounds of Appeal32 The Crown
sought leave to appeal the Court of Appeal’s reduction of
sentence on the basis of the following grounds: 2. That the Court of Appeal for British Columbia erred in law in finding that retribution is not a legitimate principle of sentencing…. V. Analysis33 As a matter of established practice and sound policy, this Court rarely hears appeals relating to the fitness of individual sentences. As Dickson J. expressed in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 404: Although I am of the view that the Court has jurisdiction to assess the fitness, i.e. the quantum of a sentence, I am equally of the view that as a matter of policy we should not do so. It is a rule of our own making and a good rule.34 In my view, the most important issue posed by this appeal concerns whether the Court of Appeal erred in holding that there is a legal ceiling on fixed-term sentences under the Criminal Code, albeit qualified with an exception for special circumstances. Accordingly, I will address this issue first and in the most depth. A. Did the Court of Appeal err in holding that there is a qualified ceiling on numerical sentences under the Code?35 Before
dealing with the crux of this issue, it would be
instructive to survey both the general principles
governing fixed-term sentences and parole eligibility
under the Code and the Corrections Act, as well as the
evolution of the qualified legal ceiling developed by the
British Columbia Court of Appeal … It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. Cory J. similarly acknowledged the
importance of "the principle of proportionality" in
speaking for the Court in R. v. M. (J.J.),
[1993] 2 S.C.R. 421, at p. 431, noting that "[i]t is true
that for both adults and minors the sentence must be
proportional to the offence committed". Indeed, the
principle of proportionality in punishment is
fundamentally connected to the general principle of
criminal liability which holds that the criminal sanction
may only be imposed on those actors who possess a morally
culpable state of mind. In discussing the constitutional
requirement of fault for murder in R. v. Martineau,
[1990] 2 S.C.R. 633, at p. 645, I noted the related
principle that "punishment must be proportionate to the
moral blameworthiness of the offender", and that "those
causing harm intentionally [should] be punished more
severely than those causing harm unintentionally". On the
principle of proportionality generally, see R. v.
Wilmott, [1967] 1 C.C.C. 171, at pp. 178-79 (Ont.
C.A.); Sentencing Reform: A Canadian Approach, supra,
at p. 154. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”. 43 Whether
under the rubric of the “totality principle” or a more
generalized principle of proportionality, Canadian courts
have been reluctant to impose single and consecutive
fixed-term sentences beyond 20 years. See M. E. Rice,
“Fixed-Term Sentences of More Than 20 Years Versus Life
Imprisonment” (1994), 36 Crim. L.Q. 474, at p. 474, n. 1.
… 120. (1) Subject to sections [746.1] and [761] of the Criminal Code and to any order made under section [743.6] of that Act ... the portion of a sentence of imprisonment that must be served before an offender may be released on full parole is the lesser of one third of the sentence of imprisonment, and seven years. … 2. The Jurisprudence 47 In response
to the silence of the Criminal Code on maximum numerical
sentences, through the course of a number of cases, the
British Columbia Court of Appeal has fashioned a rule
which limits fixed-term sentences to a period of 20 years,
barring special circumstances warranting a more onerous
term of imprisonment. In justifying this qualified rule,
the Court of Appeal has placed considerable reliance upon
inferences drawn from the mechanics of the parole
eligibility provisions of the Code and Corrections Act.
For a cogent summary of this line of judicial authority,
see Rice, “Fixed-Term Sentences of More Than 20 Years
Versus Life Imprisonment”, supra. B. Did the Court of Appeal err in holding that retribution is not a legitimate principle of sentencing?76 As a second and independent ground of appeal, the Crown argues that the Court of Appeal erred in law by relying on the proposition that “retribution is not a legitimate goal of sentencing” (p. 116) in reducing the sentence imposed by Filmer Prov. Ct. J. to 18 years and 8 months. In my reading of the judgment of the Court of Appeal below, I find little evidence that the passing remarks of Wood J.A. in relation to the legitimacy of retribution played a significant role in his conclusion that the respondent’s sentence ought to be reduced to 18 years and 8 months’ imprisonment. It should be noted that Rowles J.A., in her concurring reasons, did not even discuss retribution as a principle of sentencing. Similarly, there is no evidence that Filmer Prov. Ct. J. placed any explicit reliance on the objective of “retribution” in initially rendering his stern sentence. Accordingly, whether or not Wood J.A. erred as a strict matter of law in his discussion of the philosophical merits of retribution as a principle of sentencing, I conclude that Wood J.A.’s discussion of retribution was not a decisive element in the majority of the Court of Appeal’s conclusion that the sentence of the respondent ought to be reduced to below 19 years. Therefore, I am persuaded that the remarks of Wood J.A. in relation to retribution did not constitute a reversible error. However, given the continued judicial debate over this
issue, particularly in recent judgments of the British
Columbia Court of Appeal (see, e.g., R. v. Hicks
(1995), 56 B.C.A.C. 259, at para. 14 (rejecting
retribution), R. v. Eneas, [1994] B.C.J. No.
262, at paras. 45 and 46 (endorsing retribution); R.
v. M. (D.E.S.) (1993), 80 C.C.C. (3d) 371, at p.
376 (rejecting retribution); R. v. Hoyt, [1992]
B.C.J. No. 2315, at paras. 21 and 22 (rejecting
retribution); R. v. Pettigrew (1990), 56 C.C.C.
(3d) 390, at pp. 394-95 (endorsing retribution)), it would
be prudent for this Court to clarify briefly the existing
state of Canadian law in this important area.
This Court has since re-endorsed this passage on a number of occasions as a proper articulation of some of the guiding principles of sentencing in a number of subsequent cases. See Luxton, supra, at p. 721; Goltz, supra, at p. 503; and Shropshire, supra, at para. 23 78 The Canadian Sentencing Commission in its 1987 Report on Sentencing Reform also endorsed retribution as a legitimate and relevant consideration in the sentencing process. While the Commission noted that strict retributivist theory on its own fails to provide a general justification for the imposition of criminal sanctions, the Commission argued that retribution, in conjunction with other utilitarian justifications of punishment (i.e., deterrence and rehabilitation), contributes to a more coherent theory of punishment (supra, at pp. 141-42, 143-45). More specifically, the Commission argued that a theory of retribution centred on “just deserts” or “just sanctions” provides a helpful organizing principle for the imposition of criminal sanctions (at p. 143). Indeed, as the Commission noted, retribution frequently operates as a principle of restraint, as utilitarian principles alone may direct individualized punishments which unfairly exceed the culpability of the offender. As the Report stated at pp. 133-34:The ethical foundation of retributivism lies in the following principle: it is immoral to treat one person as a resource for others. From this principle it follows that the only legitimate ground for punishing a person is the blameworthiness of his or her conduct. It also follows that sanctions must be strictly proportionate to the culpability of a person and to the seriousness of the offence for which that person has been convicted. ... According to these principles, all exemplary sentences (i.e. the imposition of a harsher sanction on an individual offender so that he or she may be made an example to the community) are unjustified, because they imply that an offender’s plight may be used as a means or as a resource to deter potential offenders.See, similarly, B. P. Archibald, Crime and Punishment: The Constitutional Requirements for Sentencing Reform in Canada (August 1988), at p. 18. With these considerations in mind, the Commission explicitly defined the fundamental purpose of sentencing with reference to the normative goal of imposing “just sanctions”. As the Commission cast the guiding purpose of criminal sentencing, at p. 153: In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions. [Emphasis added.] A majority of this Court has since expressed approval of this passage as an accurate statement of the essential goals of sentencing. See R. v. Jones, [1994] 2 S.C.R. 229, at p. 291 (although I dissented on the merits of the case). 79 Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be “just and appropriate” under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. With regard to the attribution of criminal liability, I have repeatedly held that it is a principle of “fundamental justice” under s. 7 of the Charter that criminal liability may only be imposed if an accused possesses a minimum “culpable mental state” in respect of the ingredients of the alleged offence. See Martineau, supra, at p. 645. See, similarly, Re B.C. Motor Vehicle Act, supra; R. v. Vaillancourt, [1987] 2 S.C.R. 636. It is this mental state which gives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishment associated with a criminal sentence. See Martineau, at p. 646. I submit that it is this same element of "moral blameworthiness" which animates the determination of the appropriate quantum of punishment for a convicted offender as a "just sanction". As I noted in Martineau in discussing the sentencing scheme for manslaughter under the Code, it is a recognized principle of our justice system that "punishment be meted out with regard to the level of moral blameworthiness of the offender" (p. 647). See the similar observations of W. E. B. Code in "Proportionate Blameworthiness and the Rule Against Constructive Sentencing" (1992), 11 C.R. (4th) 40, at pp. 41-42.80 However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. See, e.g., R. v. Hinch and Salanski, supra, at pp. 43-44; R. v. Calder (1956), 114 C.C.C. 155 (Man. C.A.), at p. 161. But it should be clear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. See Ruby, Sentencing, supra, at p. 13. Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to the offender's deserts." 81 Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. 82 As a closing note to this discussion, it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justification for criminal punishment. As Gonthier J. emphasized in Goltz, supra, at p. 502, the goals of the penal sanction are both “broad and varied”. Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles. And as La Forest J. emphasized in Lyons, the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. … D. Did the Court of Appeal err in reducing the sentence from 25 years to 18 years and 8 months?88 In addition
to relying on the sentencing principles it had developed …
the Court of Appeal also justified its reduction of the
respondent’s sentence on the grounds of fitness. More
specifically, the Court of Appeal concluded that the
sentence of 25 years imposed by the sentencing judge ought
to be reduced as it was “unfit” under the circumstances.
Accordingly, the Court of Appeal exercised its power of
review under s. 687(1) of the Code to vary the sentence of
the respondent from 25 years to 18 and 8 months,
incorporating credit for time served in custody. An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [Emphasis added.] As my learned colleague noted, this standard of review traces part of its lineage to the jurisprudence of the British Columbia Court of Appeal. As Bull J.A. described the nature of a trial judge’s sentencing discretion in R. v. Gourgon (1981), 58 C.C.C. (2d) 193, at p. 197: ... the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trial Judge.90 Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. As s. 717(1) {now s. 718.3} reads: 717. (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis added.] 91 This
deferential standard of review has profound functional
justifications. As Iacobucci J. explained in Shropshire,
at para. 46, where the sentencing judge has had the
benefit of presiding over the trial of the offender, he or
she will have had the comparative advantage of having seen
and heard the witnesses to the crime. But in the absence
of a full trial, where the offender has pleaded guilty to
an offence and the sentencing judge has only enjoyed the
benefit of oral and written sentencing submissions (as was
the case in both Shropshire and this instance),
the argument in favour of deference remains compelling. A
sentencing judge still enjoys a position of advantage over
an appellate judge in being able to directly assess the
sentencing submissions of both the Crown and the offender.
A sentencing judge also possesses the unique
qualifications of experience and judgment from having
served on the front lines of our criminal justice system.
Perhaps most importantly, the sentencing judge will
normally preside near or within the community which has
suffered the consequences of the offender’s crime. As
such, the sentencing judge will have a strong sense of the
particular blend of sentencing goals that will be “just
and appropriate” for the protection of that community. The
determination of a just and appropriate sentence is a
delicate art which attempts to balance carefully the
societal goals of sentencing against the moral
blameworthiness of the offender and the circumstances of
the offence, while at all times taking into account the
needs and current conditions of and in the community. The
discretion of a sentencing judge should thus not be
interfered with lightly. VII. Disposition99 For the foregoing reasons, I find that the British Columbia Court of Appeal erred in law in reducing the respondent’s sentence through its application of sentencing principles and through its standard of review for reviewing the fitness of sentence. I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal, and restore the trial judge’s sentence of 25 years….
* * * R. v. Christie SULLIVAN J.:— Introduction1 Richard David Christie pled guilty[2] to robbery contrary to s. 344(b) of the Criminal Code, and to having his face masked during the course of the robbery, contrary to s. 351(2). He was sentenced to two years less one day to be served conditionally for the robbery, and was given a six month concurrent conditional sentence on the s. 351(2) charge. The judge declined to issue an order requiring Christie to provide a sample of his DNA pursuant to s. 487.051(1). Facts2 The
circumstances of the offence warrant review. Christie was
19-years old when, on the 29th of June 2003, he and three
others attended a service station in Lethbridge. One
co-accused, a woman who had previously worked at the gas
station and had supplied information regarding its layout
and the location of money within the store, waited in a
car in the alley. The other three, including Christie,
donned balaclavas and latex gloves and entered the store
through a door at the rear. Once inside, they confronted
the store clerk with knives and ordered him to open the
till. Issues14 This Appeal raises several issues:
Standard of Review15 An appellate
court may vary a sentence imposed at trial only if that
sentence is demonstrably unfit, if there has been an error
in principle or if there has been a failure to consider a
relevant factor or an over-emphasis on an appropriate
factor: R. v. M.(C.A.), [1996] 1 S.C.R. 500, R.
v. McDonnell [1997] 1 S.C.R. 948. This Court cannot
substitute its own view as to what is appropriate in the
circumstances unless it can be said that the sentence
imposed was "clearly excessive or inadequate", falling
outside of the acceptable range of sentences for similar
offences. Guideline Sentences22 Sentencing
is guided by the provisions of the Criminal Code; in
particular, s. 718, which provides that the fundamental
purpose of sentencing is “ to contribute ... to respect
for the law and the maintenance of a just, peaceful and
safe society ...” The section then sets out the six main
objectives of sentencing: deterrence (both general and
specific); denunciation; the separation of the offender
from society; rehabilitation; reparation to the victim and
the community; and the promotion of a sense of
responsibility in the offender. The primacy of these
objectives will vary according to the circumstances of the
case; for example, for some offences, denunciation and
deterrence have been held to be essential considerations,
while for some first-time offenders, rehabilitation is
seen as the most desirable goal. ... this Court held in R. v. McDonnell [citation omitted] that “starting point sentences” may be set out as guides to lower courts in order to achieve greater uniformity and consistency. He continued (at para. 87): That said, I do not find it necessary to resort to starting points in respect of specific offences to provide guidance as to the proper use of conditional sentences. In my view, the risks posed by starting points, in the form of offence- specific presumptions in favour of incarceration, outweigh their benefits. Starting points are most useful in circumstances where there is the potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Code is particularly broad.28 Contrary to some commentary, I am of the view that the above quoted statement of Lamer C.J.C. was not intended to dispense with guideline sentences. In fact, they are of greater utility than ever before, now that the potential for gross disparity in sentencing, particularly in serious crimes, is being realized. In these circumstances a consideration of guideline sentences is essential. Instead, the reference made to starting point sentences in Proulx must be read in the context of conditional sentences, which can only be imposed in relation to offences where there is no statutorily prescribed minimum sentence and for which a sentence of two years less a day would be appropriate. 29 Specifically, where a judge is considering whether to allow a sentence to be served in the community, a guideline sentence will have limited utility, as the judge will have already narrowed the range of appropriate sentences sufficiently to bring it under the two-year limit for a conditional sentence. But it is in the initial narrowing or fixing of the appropriate range that a guideline sentence for a particular offence is valuable. 30 Guideline sentences enable the sentencing judge to determine where on the continuum of seriousness the particular offence lies and to what objectives a sentence for that offence should be tailored. They provide the judge with a foundation from which the judge can move up or down to reflect the circumstances of the offence and the offender. … 31 The importance of guideline sentences was also affirmed by this Court in R. v. Ostertag (2000), 83 Alta. L.R. (3d) 20, 2000 ABCA 232, where Veit J. stated (at para. 11): The principle of equality of treatment before the law, a constitutional imperative in Canada, has application in sentencing. A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed on others who are similarly situated; the community has the right to expect that a person convicted of an offence will not receive a more favourable sanction than others who are similarly situated and have committed similar offences. Starting-point sentencing guidelines support the principles of equality and uniformity.32 To be sure, guideline sentences are meaningless if there is no respect for them. To have resonance, the sentences must reflect current societal conditions (as they did when Johnas and R. v. Maskell (1981), 58 C.C.C. (2d) 408 (Alta. C.A.) were heard, for example). They must be understood in the social context in which they arise and must reflect the current available sentencing options. From time to time, guideline sentences will warrant review and perhaps reconsideration. But the effluxion of time, on its own, does not eliminate their appropriateness or utility. On the other hand, public confidence in their relevance would be reinforced were they to clearly address prevailing societal issues. 33 Guideline sentences will also be meaningless where they are seemingly ignored in particular cases. Thus, legitimate factors warranting departure from a guideline sentence must be articulable. As Hetherington J.A., writing for the Court, noted in R. v. Bonneteau (1994), 24 Alta. L.R. (3d) 153 (at para. 17): Guideline judgments on sentencing from this court are invariably reserved judgments. They are binding on trial judges [citation omitted]. They do not eliminate a trial judge’s discretion in sentencing, but they guide it. A trial judge must exercise this discretion within the guidelines, unless the circumstances of the case justify a departure from them. There is no such thing as unfettered discretion. I agree. Indeed, unfettered discretion is the antithesis to the rule of law. 34 In McDonnell, the Supreme Court of Canada considered the validity of starting point sentences. The majority of the Court noted that merely departing from a starting point sentence does not itself attract appellate intervention. Nevertheless, the Court went on to state that the question is: is the sentence a substantial and marked departure from the sentences customarily imposed for similar offenders in similar circumstances? The Court relied on several decisions that indicated the test for intervention was whether a sentence was within an acceptable range. 35 It has been suggested that guideline sentences unduly limit the discretion of the sentencing judge and cannot stand alongside the sentencing objectives of proportionality and individuality. However, McLachlin J, as she then was, writing for the minority in McDonnell, noted (at para. 80): “A properly chosen starting point does not fetter discretion, but confines it to legitimate considerations.” 36 What then are legitimate considerations? In every case, there will be numerous factors particular to the offender and the circumstances of the offence. There will always be variations in the age, education, background and reputation of the offender. The guidelines themselves assume certain of these circumstances. 37 A sentence must be proportionate to the gravity of the offence. Thus, sentences must be crafted based on the crime itself and not simply whether or not there is a criminal record. Where deterrence and denunciation have been determined to be essential considerations in sentencing for a particular offence, they should not be improperly discounted in the quest for individualized sentences. The absence of a prior criminal record cannot mitigate the imposition of an otherwise appropriate sentence where the starting point already assumes its absence. 38 The 1996 amendments to the Criminal Code, permitting a judge to order that a term of imprisonment of less than two years could be served in the community on conditions, made available additional sentencing options designed in part to reduce incarceration when reasonable alternatives exist. Further, The Supreme Court of Canada in Proulx held that unless the Code imposes a minimum sentence, no offence is presumptively excluded from the conditional sentence regime…. Parity in Sentencing40 Parity is a principle which must be taken into account in any sentence, and particularly where the offence was a joint venture. There will, of course, be cases where the circumstances of the co-accused are sufficiently different to warrant significantly different sentences, such as where one co-accused has a lengthy related criminal record or played a much greater role in the commission of the offence. However, as noted by the Nova Scotia Court of Appeal in R. v. Chisholm (1985), 18 C.C.C. (3d) 518 (at p. 529): Sentencing is, of course, an inexact science involving a blend of many factors with aims that often conflict, and competing interests that can not always be harmonized. Generally speaking, however, a court should try to make its sentence conform with that imposed on a co-accused for the same offence by some other court. The reason, of course, is more than just to achieve equality of treatment. Similar sentences under such circumstances avoid bitterness and resentment that otherwise might be harboured by the recipient of the more severe sentence - such feelings or sentiments can lessen the chances of rehabilitation. Sentences imposed upon a co-accused that appear to be totally inadequate or excessive should be ignored. The point simply is that if all the relevant circumstances are similar the sentence imposed upon an accused and his co-accused should be the same.41 In considering whether sentences are disparate, regard should be had both to the length and type of sentence imposed. It is necessary to consider the conditions imposed on a conditional sentence and to measure its severity against a custodial sentence. For example, conditions which permit generous exceptions to a house arrest or a curfew are generally more lenient than incarceration. Christie’s circumstances, serving a conditional sentence, contrast sharply with those of his co-accused, who are now residing in penitentiaries. Christie’s accomplices can be offered no explanation or justification for this. Moreover, it is the administration of justice itself that suffers when the public expresses cynicism about the fairness and integrity of the sentencing process. 42 Complete uniformity in sentencing is an impossible goal; moreover, it is undesirable. Sentences based solely on the nature of the offence, which do not take into account appropriate circumstances surrounding the offence and the offender, will weaken respect for the administration of justice as much as widely disparate sentences. 43 What we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together, particularly in cases involving joint ventures. This can only be achieved through the use of guideline sentences and a willingness of appellate courts to intervene to minimize disparity when it occurs. Christie’s conditional sentence of two years less one day, versus his co-accused sentences of two or more years in a federal penitentiary, is an extremely disparate sentence. … Conclusion… * * * 2009 FEDERAL SENTENCING GUIDELINES
MANUAL
CHAPTER 1 - PART B - GENERAL APPLICATION PRINCIPLES §1B1.1. Application Instructions Except as specifically directed, the provisions of this
manual are to be applied in the following order: PART A - SENTENCING TABLE The Sentencing Table used to determine the guideline range.B. Concepts
R. v. Lyons The judgment of Dickson C.J. and Estey, McIntyre and Le
Dain and La Forest JJ. was delivered by Facts and Procedural History2 On September
23, 1983, the appellant, Thomas Patrick Lyons, was
arraigned on an information containing four charges:
unlawfully breaking and entering a dwelling house contrary
to s. 306(1)(b) {now s. 348(1)(b)} of the Criminal Code;
unlawfully using a weapon or imitation thereof in
committing a sexual assault, contrary to s. 246.2(a) of
the Code {now s. 267(a)}; unlawfully using a firearm while
committing an indictable offence, contrary to s. 83(1)(a)
{now s. 85(1)(a)} of the Code; and unlawfully stealing
property of a total value exceeding $200, contrary to s.
294(a) {theft provision now s. 322(1)} of the Code. These
offences were alleged to have been committed approximately
one month after the appellant’s sixteenth birthday. History and Analysis of Part XXI12 Part XXI of
the Criminal Code establishes a scheme for the designation
of certain offenders as “dangerous offenders” and for
sentencing such persons to a penitentiary for an
indeterminate period. It is the product of frequently
amended legislation that has existed in Canada, in one
form or another, since 1947. It has its genesis in the
Prevention of Crime Act, 1908, 8 Edw. 7, c. 59, ss. 10-16
(U.K.), under which a person convicted of a crime was
subject to a “further sentence” of not less than five or
more than ten years as preventive detention if he or she
was found to be an habitual criminal. During the debates
in Parliament on that Act, its author, Lord Gladstone,
“made it clear that it was intended to deal not with the
generality of ‘habituals’ but only with that more limited
body of ‘professional criminals’ or ‘persistent dangerous
criminals’ engaged in the more serious forms of crime”
(Fox, The Modern English Prison (London, 1934),
at p. 168). Notwithstanding the best methods of punishment and reformation that may be adopted, there will always remain a residue of the criminal class which is of incurable criminal tendencies and which will be unaffected by reformative efforts. These become hardened criminals for whom “iron bars” and “prison walls” have no terrors, and in whom no hope or desire for reformation, if it ever existed, remains. It thus recommended
that legislation be enacted to identify this residual
class of criminals and to provide for their indeterminate
detention in a special prison. The purpose of such
detention was conceived of as “neither punitive nor
reformative but primarily segregation from society” (at p.
223). It appears to the Committee that the protection of the public from unlawful violence, or from unlawful conduct which represents a serious threat to the physical safety of citizens, is one of the most urgent problems of the criminal law. The Commission thus recommended that the extant legislation be replaced by better tailored “dangerous offender” legislation. Its concerns were reflected in the decision of this Court in Hatchwell v. The Queen, [1976] 1 S.C.R. 39, where the present Chief Justice stated, at p. 43: Habitual criminal legislation and preventive detention are primarily designed for the persistent dangerous criminal and not for those with a prolonged record of minor offences against property. The dominant purpose is to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb.16 The present legislation, enacted in 1977, clearly pursues the historical purpose of protecting the public, but is now carefully tailored so as to be confined in its application to those habitual criminals who are dangerous to others. In brief, Part XXI provides that where a person has been found guilty of a “serious personal injury offence”, the court may, upon application, find the offender to be a dangerous offender and may thereupon impose a sentence of indeterminate detention in lieu of any other sentence that the offender might have received for the offence. The key provision is s. 688 {now s. 753 and amended} which reads as follows: 688. Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court17 To trigger the operation of this procedure, it is necessary by virtue of the opening words of paras. (a) and (b) that the accused have been found guilty of a “serious personal injury offence”. The offences falling within this expression are very serious violent crimes defined in s. 687 {s. 752} as follows: 687. ... 18 In addition to having been convicted
of a serious personal injury offence, s. 688(a) and (b)
{now s. 753(1)(a) and (b)} provides that to qualify as a
dangerous offender, it must also be established that the
offender constitutes a threat to the life, safety or
well-being of others on the basis of evidence of the
dangerous and intractably persistent or brutal behaviour
described in subparas. (i) to (iii), or that the offender
has shown an inability to control his sexual impulses and
a likelihood that he will thereby cause injury, pain or
other evil to other persons. The findings of the courts
below that the behaviour described in s. 688 existed was
not contested here. The Issues…A. Does Part XXI by Imposing Indeterminate Detention Offend Against Fundamental Justice Under s. 7 of the Charter?23 [T]o
determine whether Part XXI violates the principles of
fundamental justice by the deprivation of liberty suffered
by the offender, it is necessary to examine Part XXI in
light of the basic principles of penal policy that have
animated legislative and judicial practice in Canada and
other common law jurisdictions. B. Does Part XXI Constitute Cruel and Unusual Punishment Under s. 12 of the Charter?37 The
appellant contends that Part XXI violates s. 12 of the
Charter in that it imposes a punishment that is unusually
severe and serves no valid penological purpose more
effectively than a less severe punishment (e.g., a
determinate sentence).…
41 It is clear
from the foregoing that s. 12 is concerned with the
relation between the effects of, and reasons for,
punishment. At the initial stage of the inquiry into
proportionality, those effects are to be balanced against
the particular circumstances of the offence, the
characteristics of the offender and the particular
purposes sought to be accomplished in sentencing that
person in the manner challenged. If, in light of these
considerations, the punishment is found to be grossly
disproportionate, a remedy must be afforded the offender
in the absence of social objectives that transcend the
circumstances of the particular case and are capable of
justifying the punishment under s. 1 of the Charter. 695.1 (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, forthwith after the expiration of three years from the day on which that person was taken into custody and not later than every two years thereafter, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.The criteria in light of which an application for parole is considered are specified in s. 10(1)(a) of the Parole Act, R.S.C. 1970, c. P-2:
51 While the
criteria embodied in s. 10(1)(a) do not purport to
replicate the factual findings required to sentence the
offender to an indeterminate term of imprisonment, they do
afford a measure of tailoring adequate to save the
legislation from violating s. 12. …
* * * R. v. L.M. English version of the judgment of McLachlin C.J. and
Bastarache, Binnie, LeBel, Deschamps, Abella, Charron and
Rothstein JJ. delivered by I. IntroductionA. Nature of the Case2 The respondent, L.M., was convicted of sexually assaulting his daughter and of making, distributing and possessing child pornography. The trial judge imposed the maximum sentence on him for the count of sexual assault and a consecutive sentence for the counts of making, distributing and possessing child pornography. She also found him to be a long-term offender and ordered him to be supervised in the community for a period of 10 years. L.M. appealed the sentence to the Court of Appeal. The majority of that court allowed the appeal and reduced the global sentence imposed by the trial judge. For the reasons that follow, I would restore that sentence. B. Origin of the Case3 In 2002,
Switzerland’s federal police were investigating an
international ring of pedophiles that included groups
suspected of distributing child pornography on the
Internet. In the course of this investigation, Swiss
police officers contacted the Sûreté du Québec (“S.Q.”)
after identifying two Quebeckers in Internet user groups
whose names included the root “sampi” (for “sans
pilositè”, meaning “hairless”). The first of these
men revealed L.M.’s identity to the S.Q. Upon entering
L.M.’s home, S.Q. officers noted that several items found
there confirmed the origin of photographs discovered on
the Internet, not to mention that the child who opened the
door, R.M., the daughter of the accused, L.M., appeared in
some of those photographs. II. Analysis… D. Finding That the Offender Is a Long-Term Offender38 This appeal
… raises the issue of the relationship between sentencing
and the procedure for finding an offender to be a
long-term offender. When the Crown applies to have an
offender found to be a long-term offender, must the judge,
in determining the length of the term of imprisonment,
take the subsequent period of community supervision into
account? I do not think so. In my view, a distinction must
be made between sentencing per se and the
procedure for imposing a period of post-sentence
supervision.
41 This Court
has previously stated that a sentencing judge must, if
satisfied that a community supervision order will make it
possible “to reduce the threat to the life, safety or
physical or mental well-being of other persons to an
acceptable level”, consider the option of finding an
offender to be a long-term offender before
finding him or her to be a dangerous offender
(see Johnson, at para. 40; see also C. Ruby, Sentencing
(6th ed. 2004), at p. 541). This is the only situation in
which the Criminal Code requires a judge to
consider the possibility of supervision before determining
the appropriate sentence. The decision is thus based on
controlling a serious risk: if this objective can be
attained in the community, an offender cannot be found to
be dangerous and, as a result, be imprisoned for an
indeterminate period (see Ferris, at pp. 301-3). Although it may be argued that a mandatory community supervision order ... is not a sentence, in my view, as a matter of principle, the principles of sentencing in ss. 718 to 718.2 should apply when measuring the combined effect of a mandatory custodial sentence and mandatory community supervision order. This would include the fundamental principle of proportionality in s. 718.1... .44 Of course, a period of community supervision cannot be any longer than is necessary to obviate the risk that the offender will reoffend and thus to protect the public. In my view, however, to adopt the general rule the respondent wishes to draw from Archer would be to disregard the distinction between the sentence of imprisonment and the period of supervision, which have different objectives. (3) Distinction Between the Function of the Finding and That of Sentencing 45 This Court has held that the procedure for finding an offender to be a dangerous offender forms part of the sentencing process (Lyons, at pp. 350 and 374; Jones, at p. 294; Johnson, at para. 23). Can it be said that the procedure for finding an offender to be a long-term offender also forms part of the sentencing process? Obviously, since the sentencing judge is the same judge who would make the order so finding. However, the similarities between that finding and a sentencing proceeding end there. 46 These two types of decisions can be distinguished on the basis of the objectives and methods, and certain technical aspects, of the sentencing process. The principal objective of a prison sentence is punishment, although the sentence must be determined in accordance with the principles set out in the Criminal Code. On the other hand, the objectives of and rationale for the supervision of an offender in the community are to ensure that the offender does not reoffend and to protect the public during a period of supervised reintegration into society. The British Columbia Court of Appeal mentioned this distinction in a recent judgment:
47 Furthermore,
the sentencing judge will not calculate the length of each
of these steps in the same way. A number of factors are
considered in determining the length of a prison sentence,
including, to name but a few, the gravity of the offence,
the degree of responsibility of the offender, the parity
principle and the possibility of imposing a less
restrictive sanction. In contrast, the length of a period
of community supervision is based on an offender’s
criminal past and on the likelihood that he or she will
reoffend, which are addressed in the assessment report. 49 Nevertheless,
the judge determining the length of an offender’s sentence
of imprisonment will also receive the application to find
the offender to be a long-term offender before passing
sentence. As a result, the judge will quite likely tend to
consider both decisions at the same time. He or she may
accordingly find it difficult to observe the conceptual
distinction between the two decisions. Despite these
practical difficulties, it is important to remain faithful
to the distinction between sentencing and the imposition
of a supervision period. A judge who confuses these two
processes risks straying from the normative principles and
the objectives of sentencing. A judge who does so would
also neglect the specific objective of the procedure for
finding an offender to be a long-term offender, which
requires the application of different principles.
Parliament intended that the judge determine the
appropriate sentence first. After doing so, the judge is
to ask, in light of Parliament’s objective of protecting
the public, whether a period of supervision is warranted.
The period of community supervision cannot therefore be
equated with a new period of deprivation of liberty
consecutive to the one resulting from the sentence. III. Conclusion53 Judge Wilhelmy imposed an appropriate sentence on L.M. The sentence is proportionate to the gravity of his acts, and the mitigating and aggravating circumstances and the objectives of the Criminal Code have been accounted for. As there was no reviewable error in Judge Wilhelmy’s decision, the Court of Appeal was wrong to vary the sentence. In my opinion, the trial judge correctly applied the law, placing the appropriate emphasis on the specific objectives of the finding that an offender is a long-term offender. IV. Disposition54 For the foregoing reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the sentence imposed by the Court of Québec. APPENDIX a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
R. v. Cross 1 N.J. BATEMAN J.A.:—This
is an appeal from the Order of Judge James H. Burrill of
the Provincial Court refusing an application by the Crown
for an order requiring Mr. Cross to comply with the
requirements of the Sex Offender Registration Information
Act which are contained in S.C. 2004, c. 10. The decision
is reported as R. v. Cross (2005), 235 N.S.R.
(2d) 93; [2005] N.S.J. No. 263 (Q.L.).
3 "S.O.I.R.A." in the extract
above refers to the Sex Offender Information Registration
Act. That Act creates a sex offender registry, specifies
the information to be collected in the registry and
addresses the control of that information. Related
sections of the Criminal Code authorize an application for
a sex offender registration order and provide an exemption
provision. In this judgment I will use SOIRA to refer,
collectively, to the Act and the companion provisions of
the Criminal Code. The judge concluded that a SOIRA order
is a "punishment" and could not be made in relation to Mr.
Cross as it would violate s. 11(i) of the Charter…. ANALYSIS6 The SOIRA sections of the Code
which are relevant here provide:
7 A SOIRA order imposes an
ongoing obligation on an offender to provide contact
information to the authorities for lengthy periods after
sentence…. The Decision of the Application Judge11 Burrill, J. was persuaded that a SOIRA order was punitive in effect. He found such an order to be "a severe infringement of the individual's liberty." He said: [23] ... The requirements of a registration order are, in my opinion, a severe infringement of the individual's liberty which is undiminished by attempting to call it an administrative consequence of conviction rather than a punishment. In the case at bar, Mr. Cross would be required to comply with the order for twenty (20) years. He would have to report in person, at least annually, to the Registration Center closest to his primary residence. I am advised that there are eight Registration Centers in Nova Scotia and depending on the location of his residence this could require the offender to undertake significant travel in order to meet his reporting obligations. While the order imposes no geographical restrictions nor it does prevent the offender from engaging in any particular activity, it does place restrictions on the activities that they can engage in without providing information to the state. The offender can not, for example, take a vacation for more than fifteen (15) days unless they provide what is essentially their itinerary to the authorities. 12 In reaching this conclusion the judge adopted the following definition of punishment: [21] The fact that the registration order is not part of the formal sentence is not dispositive. I agree with the court in Lambert, (supra), [R. v. Lambert (1994), 93 C.C.C. (3d) 88 (Nfld. C.A.) at p. 93] that "punishment" is not confined to the narrow legal definition that corresponds exclusively to the formal sentence of the court. Considering the authorities to which I have referred I conclude that "punishment" within the meaning of section 11(i) also means any deprivation or hardship that places a limit on the future behaviours of an offender and severely impairs restricts their liberty. The SOIRA Reporting Requirements13 The obligations on a sex
offender who is subject to a SOIRA order are set out in
ss. 4 through 6 of the Act. Summarizing, the offender must
report to a registration centre within 15 days of making
the order or release from custody and not leave Canada
until he has done so. On that reporting he must provide
his full name and any alias(es) used; date of birth;
gender; the address and telephone number of his main and
any secondary residence; his employment address; if
enrolled in an educational institution, that address; any
mobile telephone number; his height, weight and any
distinguishing marks. The Nature of a SOIRA Order19 The starting point in this
inquiry is to ascertain the purpose, principles and effect
of the legislation in question. The purpose and principles
of the SOIRA are set out in the Act as follows:
20 Counsel have not suggested
that the SOIRA's purpose is broader than that stated
above. Mr. Cross's focus is on the effect of the order. On
this appeal we must decide whether the judge erred at law
in finding that a SOIRA order has a punitive effect. This
requires that the effect of such orders be assessed
objectively, in accord with basic Charter principles…. The word
"punishment" is defined in Murray's New English
Dictionary at p. 1604 as follows: The infliction of a penalty in retribution for an offence; that which is inflicted as a penalty; a penalty imposed to insure the application and enforcement of a law. The word "punish" is defined at p. 1603 as follows: To cause to suffer for an offence; to subject to judicial chastisement as retribution or requital or as a caution against further transgressions. 24 In R. v. T.R. (No. 2)
(1984), 7 D.L.R. (4th) 263; [1984] A.J. No. 1 (Q.L.)
(Alta.Q.B.) McDonald, J., also considered whether the
Juvenile Delinquents Act prescribed "punishment" in the
context of a s. 11(h) Charter challenge. In an earlier,
related, decision (reported as R. v. T.R.,
[1983] A.J. No. 483 (Q.L.) at para. 7) he expressed
disagreement with the approach of the court in R. v.
S.B., supra, where it was held that the legislative
purpose alone determines whether a provision is
"punishment". In endorsing an objective analysis he said
in relation to punishment at pp. 268-269:
25 The meaning of punishment in
the context of s. 11(i) of the Charter was considered by
Steele, J.A. in R. v. Lambert (1994), 93 C.C.C.
(3d) 88; [1994] N.J. No. 328 (Q.L.) (Nfld. C.A.). The
court held an order requiring the appellant to serve
one-half of his sentence before parole eligibility (s.
741.2 of the Criminal Code) constituted a greater
"punishment". In so deciding Steele, J.A. wrote at p. 93:
26 In R. v. Wigglesworth,
[1987] 2 S.C.R. 541; [1987] S.C.J. No. 71 (Q.L.), the
Court was called upon to decide whether s. 11(h) of the
Charter was applicable to certain R.C.M.P disciplinary
consequences so as to preclude a criminal trial for the
same conduct for which the member had been internally
disciplined.
28 The R.C.M.P. officer in Wigglesworth
had allegedly assaulted a prisoner in custody. He was
charged with a major service offence under the Royal
Canadian Mounted Police Act, R.S.C. 1970, c. R-9. The
officer in question was fined $300, although the maximum
penalty for such an offence was one year in prison. He was
subsequently charged with common assault under the
Criminal Code and succeeded in having the Information
quashed by the trial judge. This was upheld on appeal. On
further appeal to the Supreme Court of Canada the question
was whether the proceeding under the R.C.M.P. Act amounted
to a "trial" within s. 11(h) which would preclude the
subsequent Criminal Code prosecution. The Court looked at
the R.C.M.P. Act to determine whether, under the
discipline code, the officer faced "a true penal
consequence," answering that question in the affirmative.
The appeal was allowed, however, with the majority holding
that the proceeding under the R.C.M.P. Act and that under
the Criminal Code were not "the same offence" within s.
11(h).
31 This lends support to the
objective analysis adopted by McDonald, J. in R. v.
T.R., supra. The nature of the consequence is
initially assessed in the context of the purpose of the
measure in question, which in Wigglesworth was
the regulation of conduct within the R.C.M.P.
Notwithstanding its stated purpose, if the sanction is of
such magnitude that it appears to be directed at
redressing a wrong done to society it will be considered
"a true penal consequence."
37 The issue was whether the 1986
amendment to the Parole Act amounted to a denial of the
appellant's liberty contrary to the principles of
fundamental justice under s. 7 of the Charter. The Court
concluded that Mr. Cunningham had been deprived of a
liberty interest but in accord with the principles of
fundamental justice. The Court commented, however, that
every alleged infringement of a Charter right does not
attract scrutiny, only those that are "... sufficiently
serious to attract Charter protection" (per McLachlin J.,
as she then was, at p. 148).…
40 Thus, every measure impacting
upon the behaviour of an individual need not be regarded
as punitive rather than preventative. … Is the taking of fingerprints any more serious an invasion of the right of a person in custody than examining the person's body for birthmarks and the like? I do not think so and, as I noted, being arrested and charged for an offence seems to me to be more serious. As Augustus Hand J. stated in United States v. Kelly, 55 F. 2d 67 (2nd Cir. 1932), at p. 70: 45 [W]hile the assessment is an
objective one, the "effect" of the consequence cannot be
evaluated in complete isolation from its purpose. Whether
a measure is, in fact, "a true penal consequence" is not
determined simply by assessing the seriousness of the
impact on the individual. Relatively minor consequences of
a criminal offence may be considered "penal" yet those
with a more serious impact on the person may be
"non-punitive". The question cannot be answered in the
abstract, divorced from the context in which the measure
arises. I conclude that if the impact of the sanction
aligns with its legislative purpose and is not of such
magnitude that it reveals, instead, a punitive intent, it
is not "punishment".
47 To assist in resolving the
issue here I would therefore ask: 'Objectively, is the
impact of the SOIRA requirements on an offender such that
they appear to be imposed for the purpose of redressing
the wrong done to society rather than to further the
objective of helping police services investigate crimes of
a sexual nature'?
para. 70 It seems to me, prima facie, when one considers all the aforementioned factors cumulatively, given that reporting orders are sanctioned by law under the Criminal Code and S.O.I.R.A., such orders result in an interference with liberty as I have described and clearly impose an extra burden on an accused with respect to reporting and the providing of information, which is coercive in the sense that it is required on pain of criminal sanction; ... 54 In support of this finding the judge relies upon a number of presumed effects of the legislation (at para. 68): (i) the potential that by reporting in person to the police station the offender may be "marked" or "tracked" by the police; (ii) the "stigma" attached to identifying oneself as a sex offender to the police, annually"... will undoubtedly attract the attention of the officer or officers which has the real potential of leaving the individual open for greater scrutiny in all activity, not just with respect to investigation of sexual misconduct in society"; (iii) the "stigma" may undermine treatment, rehabilitation and reintegration into society. LeGrandeur, J. equates the order's impact to that of a supervision order applicable to a long term offender or to the supervisory requirements attached to a probation order, noting that the time frame for the SOIRA reporting exceeds that for either of those two orders. 55 With respect, I disagree with this reasoning. Any "stigma" suffered by the offender arises from the fact of the sexual assault conviction and is not attributable to the requirement to provide the information required by SOIRA. Nor, should there be a stigma, does it render the provisions "punitive" rather than "preventative" (see Budreo, infra, para. 28 "Nor does the stigma that undoubtedly accompanies a s. 810.1 proceeding make the proceeding punitive. That stigma will attach whether the section is preventive or punitive."). 56 LeGrandeur, J.'s concern that the offender will be "tracked" or scrutinized by police ignores the significant statutory limitations placed on the use of the information. Sections 8 through 13 of the Act address, in detail, the management of the information provided by the offender. Section 8 strictly limits the information which may be registered; the person collecting the information must ensure the offender's privacy is respected and that the information is kept confidential (s. 9(4)); s. 10 reinforces the limits on the information that may be registered and the requirement that confidentiality be ensured; s. 11 entitles the offender to a copy of all information relating to them that is contained in the database; the offender may request correction of any misinformation (s. 12); the person who collects the information is obliged to make the correction without delay (s. 12); the information relating to a person who is subsequently exempted, acquitted or pardoned must be permanently removed from the database (s. 15); the database is maintained by the Royal Canadian Mounted Police (s. 14); under s. 17(2) it is an offence punishable by fine or imprisonment to use the information in any way not authorized by s. 16 of the Act. Registered information may be used only to assist in ongoing investigations of crimes thought to be sexual in nature. Consequently, the judge's concern that registration would lead to the "marking" and "tracking" of the offender is unwarranted speculation and inconsistent with the provisions of the legislation. 57 LeGrandeur, J.'s opinion that the reporting requirement would hinder "recovery" of the sex offender, is speculative as well. With respect, there was no evidence before him to that effect, nor, in my view, is it an inevitable consequence of an order. 58 I do not agree that the SOIRA registration requirements equate to "continuing community supervision." As it affects the offender, s. 16(4) of the Act strictly limits the use of the information to investigation of a specific sexual crime. The provisions do not licence community supervision of an offender. 59 In summary, with respect, I do not find the reasoning of LeGrandeur, J. persuasive…. 66 [A] SOIRA order does not, in any direct way, put limits on an offender's future behaviour. He must annually appear in person to provide current contact information. Objectively, that obligation is not burdensome. A significant measure of privacy and confidentiality attaches to the reporting and preservation of the information provided. The informational content is not highly personal, indeed, no more than what may be required to obtain a credit card or driver's licence or on the filing of an income tax return. The fact that the databank contains current information about the offender's residence may be a factor which dissuades some from re-offending. I am not persuaded, however, that such is a direct, intended or inevitable consequence of the order. 67 Mr. Cross says the reporting required under a SOIRA order renders it the equivalent of a probation order. I disagree. There are important distinctions. Firstly, a probation order contains, at least, the statutory conditions to keep the peace and be of good behaviour; to appear before the court when required and to notify the court or a probation officer of any change of address (in advance) and of any change in employment or occupation (promptly) (s. 732.1(2) Criminal Code). The offender who breaches the requirement to keep the peace and be of good behaviour is subject to the double risk of prosecution for breach of that condition and alteration of his original sentence (s. 732.2(5) Criminal Code). Breach of a SOIRA order exposes an offender only to prosecution for that offence. 68 Secondly, a SOIRA order does not authorize the probing inquiries that may be made of an offender by a probation officer. Under the reporting provisions of a probation order, an offender may be required to disclose details of his associates, his movements in the community, his consumption of alcohol or illegal substances, his employment plans and prospects and to generally account for his daily activities. Foreign Sex Offender Legislation....
79 He opined that the
registration and reporting duties were comparable to those
imposed on other convicted offenders during periods of
supervised release. He said:
…. Summary:84 A number of factors cause me to conclude that a SOIRA order is not "punishment" within s. 11(i) of the Charter:85 There may be an unusual case where, due to the unique circumstances of the offender, the impact of the order could constitute the "severe handling" or "harsh treatment" that is characteristic of punishment. In such an event, the exemption provision would suffice to relieve the offender from such effect: 490.012.(4) The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act. 86 The exemption section succeeds in striking an appropriate balance between individual rights and societal interests. It is a "constitutional compromise" which, in this context, addresses the need to assist and streamline criminal investigations yet protect offenders from the unfairness of subjecting them to harsh or severe sanctions not contemplated at the time of the offence (see R. v. Araujo, [2000] 2 S.C.R. 992 at para. 26; R. v. Duarte, [1990] 1 S.C.R. 30 at para. 23 to 25; and R. v. R.C., supra, at para. 21). I am satisfied that the exemption clause provides adequate protection in the exceptional situation where the impact of the order on the offender could otherwise be punitive. DISPOSITION * * * * * * Tatjana Hörnle, “Human-Rights Issues in the General Part of Substantive Criminal Law:German Constitution, Penal Code and Court Practice”
German penal law permits very severe reactions to crimes
not based on the principle of culpability. The German
Penal Code knows different preventive reactions of a
non-blaming, future-oriented nature. They are called
“Maßregeln der Besserung und Sicherung” [measures of
rehabilitation and incapacitation]. The German Penal Code
provides for the preventive detention
(Sicherungsverwahrung, § 66 German Penal Code) of
dangerous offenders in addition to the punishment for the
crime and after they have served their penalty. Preventive
detention as well is executed in ordinary prisons
(although in separate wards, see § 140 I German Law on
Imprisonment, StVollzG). From the offender’s perspective,
the difference between criminal punishment and preventive
detention thus is marginal. Preventive detention under the German Penal Code is
mandatory if the offender shows a tendency to serious
crimes which considerably harm victims or cause serious
economic harm, and if he has previously been sentenced
twice to at least one year imprisonment for misdemeanours
(or once to three years for felonies, misdemeanour sex
offences or assault), and if he has been in prison once
for at least two years (§ 66 I, III German Penal Code).
Preventive detention is not limited to certain offence
types and has no time limits. Offenders just causing
economic crimes have to be released after ten years, but
if the tendency to harm victims physically or
psychologically is found to persist, preventive detention
may be life-long (§ 67 d III German Penal Code). Thus, the
threshold for “two or three strikes and you’re out” is
high, but for serious repeating offenders § 66 allows
outcomes which are closer to efforts in the US than most
German lawyers probably are aware of. A second armed
robbery would do. Critics rightly argued that such a far-reaching
preventive measure should at least be limited to highly
dangerous sex-offenders who kill or gravely injure their
victims. Fortunately, German courts have been very
reluctant with the required prediction of dangerousness:
in 1997, 46 offenders were sentenced to preventive
detention, in 1998, 61 offenders. The number might,
however, increase, as modifications to facilitate
preventive detention came into effect with a 1998 law
labelled “Law for the Combat of Sexual Offences and Other
Serious Offences” , which despite its title did not
attempt to tailor preventive detention to serious sex
crimes. The Bundesverfassungsgericht [Federal Constitutional
Court] and the majority of German scholars have no general
objections to preventive detention, which is justified by
the state’s duty to protect citizens against dangerous
behaviour by others. According to the leading opinion,
preventive measures are not limited by the “Schuldprinzip”
[guilt principle] because they serve public interests and
are not criminal punishment. The principle of
“Verhältnismäßigkeit” [proportionality] applies to
preventive measures (§ 62 German Penal Code), that is,
they must be appropriate in view of the danger the
offender poses to public security. Preventive measures are
not limited to prevent most serious crimes; petty offences
are, however, not sufficient.… Preventive detention furthermore can be in a psychiatric
hospital (§ 63 German Penal Code), or in an institution
for alcohol or drug addicts, the latter independent of the
culpability question and limited to two years (§§ 64, 67 d
I German Penal Code). If he was criminally responsible,
the offender is sentenced to both punishment and
treatment. However, he usually is admitted to the hospital
first and the time there is deducted from the
punishment—not from the total, but from 2/3 of it (§ 67 I,
II, IV German Penal Code). The problem with overly long
detention time thus is somewhat less pressing than in the
§ 66-cases, but it exists…. [Consider also recent] addition[s] to the area of
preventive detention [such as the]
“Straftäter-Unterbringungsgesetz” [Law for the Detention
of Offenders]. It provides for continued incarceration
after an offender has served his sentence, merely on
preventive grounds, if he endangers the life, physical
integrity and sexual autonomy of others, e.g., [by
refusing] to participate in psychotherapy or social
therapy (§ 1 StrUBG). The prison [warden] proposes
preventive detention, the decision is made by judges (the
so-called Strafvollstreckungskammer [punishment execution
court], see §§ 3, 4 StrUBG). The length of preventive
detention is not limited, the Schuldgrundsatz does not
apply as this detention comes after the criminal
punishment. This law was not drafted as part of the criminal law, as the federal legislature has to decide about criminal law issues. Rather, the Baden-Württemberg [state] legislature (... not content with the “too liberal” criminal policy of the federal government...) claimed its competence on the grounds of police law. To pass a law allowing unlimited detention under the heading “police law” permitsone to focus solely on the dangerousness of the offender and to neglect the criminal law background. Chapter 3. Sources and Limits of the Power to PunishA. POGG and Criminal Law Power
Reference re: Dairy Industry Act
(Canada) s. 5(a) RAND J.:—His Excellency in Council has referred to this Court the following question:
The section is as follows:
To a proper understanding of the controversy, a statement of the history of the legislation is necessary.… Chapter 42 of the statutes of 1886 [provided]:
Ordinarily a preamble indicates the purpose of the
statute and it may be a guide to the meaning and scope of
the language where that is doubtful or ambiguous. But when
the question is the real character of the legislation for
the purposes of jurisdiction between two legislatures
under a federal constitution, different considerations
arise. A legislation cannot conclude the question by a
declaration in a preamble: at most it is a fact to be
taken into account, the weight to be given to it depending
on all the circumstances…. But whatever might have been the case of the 1886
legislation, the situation now is that not only has the
preamble disappeared, but its recital of fact is
admittedly no longer true of either margarine or
oleomargarine. It is conceded that both of them--the
latter containing animal fat other than milk added to the
ingredients, chiefly vegetable oils, of the former--are
substantially as nutritious, possess as much energy value
and are as free from deleterious effects as butter itself;
and that I take to have been the state of things in 1914.
… To ascertain then the true nature and substance of the
legislation—which is the initial determination—I deal with
it as free from any such indication of purpose. The appearance of the provision in a statute dealing
comprehensively with the dairy industry and the inclusion
of prohibition of importation, the ordinary mode of
protection of industry in its ultimate form, are, for this
initial purpose, of considerable significance. On the
other hand, the scope and importance of agriculture in the
economy of this country, the part played by the dairy
industry as an essential branch of it, and the
desirability of maintaining a market demand for butter to
meet the seasonal exigencies of that industry, are beyond
controversy. What, then, in that whole background is the
true nature of the enactment? Mr. Varcoe argues that it is simply a provision of
criminal law, a field exclusively Dominion, and the issue,
I think, depends upon the validity of that contention. In
The Proprietary Articles Trade Association v.
Attorney-General of Canada, [[1931] A.C. 310], Lord
Atkin rejected the notion that the acts against which
criminal law is directed must carry some moral taint. A
crime is an act which the law, with appropriate penal
sanctions, forbids; but as prohibitions are not enacted in
a vacuum, we can properly look for some evil or injurious
or undesirable effect upon the public against which the
law is directed. That effect may be in relation to social,
economic or political interests; and the legislature has
had in mind to suppress the evil or to safeguard the
interest threatened. In examining the question, we are to consider not only
the matters and conditions upon which the legislation will
operate but as well its consequences…. Is the prohibition then enacted with a view to a public
purpose which can support it as being in relation to
criminal law? Public peace, order, security, health,
morality: these are the ordinary though not exclusive ends
served by that law, but they do not appear to be the
object of the parliamentary action here. That object, as I
must find it, is economic and the legislative purpose, to
give trade protection to the dairy industry in the
production and sale of butter; to benefit one group of
persons as against competitors in business in which, in
the absence of the legislation, the latter would be free
to engage in the provinces. To forbid manufacture and sale
for such an end is prima facie to deal directly with the
civil rights of individuals in relation to particular
trade within the provinces. The public interest in this regulation lies obviously in
the trade effects…. But to use it as a support for the
legislation in the aspect of criminal law would mean that
the Dominion under its authority in that field, by
forbidding the manufacture or sale of particular products,
could in what it considered a sound trade policy, not only
interdict a substantial part of the economic life of one
section of Canada but do so for the benefit of that of
another. Whatever the scope of the regulation of
interprovincial trade, it is hard to conceive a more
insidious form of encroachment on a complementary
jurisdiction…. It would appear to result from these decisions that the regulation of trade and commerce does not comprise, in the sense in which it is used in section 91, the regulation of particular trades or occupations or of a particular kind of business such as the insurance business in the provinces, or the regulation of trade in particular commodities or classes of commodities in so far as it is local in the provincial sense; while, on the other hand, it does embrace the regulation of external trade and such ancillary legislation as may be necessarily incidental to the exercise of such powers. … Finally, it was said the legislation related to
Agriculture. Its object, I agree, is to benefit the trade
in a product of agriculture; but that is a mere
consequential effect and does not of itself relate the
legislation to agriculture. The Natural Products
reference, supra by ruling out of the
scope of Dominion power the regulation of local trade in
the products of agriculture has done so likewise in
respect of the manufacture of substitute products. There is next the prohibition of importation of these
substances. … Only Parliament can deal with foreign
commerce; provincial power cannot in any mode, aspect, or
degree govern it: and it would be anomalous that the
jurisdiction to which regulation is committed, which alone
can act, and which in this segment of trade is in
substance sovereign, should be powerless to employ such an
ordinary measure of control. The remaining question is whether manufacture, sale, etc.
and importation can be taken as severable. Having regard
to the purpose of the legislation, the restrictions are
undoubtedly intended to be cumulative. They are in no
sense dependent upon or involved with each other, though
no doubt both are necessary to the complete benefit
envisaged. But distinct in operation and effect, they are
to be taken as enacted distributively and not with the
intention that either all or none should come into force.
* * * R. v. Hydro-Québec The judgment of La Forest, L’Heureux-Dubé, Gonthier, Cory
and McLachlin JJ. was delivered by
86 The
all-important duty of Parliament and the provincial
legislatures to make full use of the legislative powers
respectively assigned to them in protecting the
environment has inevitably placed upon the courts the
burden of progressively defining the extent to which these
powers may be used to that end. In performing this task,
it is incumbent on the courts to secure the basic balance
between the two levels of government envisioned by the
Constitution. However, in doing so, they must be mindful
that the Constitution must be interpreted in a manner that
is fully responsive to emerging realities and to the
nature of the subject matter sought to be regulated. Given
the pervasive and diffuse nature of the environment, this
reality poses particular difficulties in this context. D. Constitutional Questions97 On December 21, 1995, Lamer C.J. framed the following constitutional question:
… Overview of the Legislative Structure of the Canadian Environmental Protection Act99 The Canadian
Environmental Protection Act was adopted by Parliament in
1988 with a view to consolidating and replacing several
other laws dealing with different types of environmental
protection. Sections 34 and 35 appear in Part II, entitled
“Toxic Substances”. This Part is, in large measure, an
adaptation of the Environmental Contaminants Act, R.S.C.,
1985, c. E-12 (which was abrogated when the present Act
came into force). It should not be overlooked, however,
that other parts of the Act are relevant to toxic
substances. The subject of toxic substances is introduced
in the preamble, which after declaring that the protection
of the environment is essential to the well-being of
Canada sets forth the following clauses that are of direct
relevance in this case:
As well, the first substantive provision of the Act, s.
2, in para. 2(j) imposes the following duty on the
Canadian government:
…
Above all, the respondent is concerned with the term
“toxic” as it is used in s. 11, which, together with the
definitions just quoted, it contends, constitute an
impermissibly broad interference with provincial
legislative powers.... The Issues108 In this
Court, the appellant Attorney General of Canada seeks to
support the impugned provisions of the Act on the basis of
the national concern doctrine under the peace, order and
good government clause of s. 91 or under the criminal law
power under s. 91(27) of the Constitution Act, 1867. The
respondent Hydro-Québec and the mis en cause Attorney
General of Quebec dispute this. In broad terms, they say
that the provisions are so invasive of provincial powers
that they cannot be justified either under the national
dimensions doctrine or under the criminal law power. The
attack on the validity of the provisions under the latter
power is also supported, most explicitly by the intervener
the Attorney General for Saskatchewan, on the ground that
they are, in essence, of a regulatory and not of a
prohibitory character. … AnalysisIntroduction117 …There was a marked attempt to raise concerns appropriate to the national concern doctrine under the peace, order and good government clause to the criminal law power in a manner that, in my view, is wholly inconsistent with the nature and ambit of that power …. The Criminal Law Power118 Section
91(27) of the Constitution Act, 1867 confers the exclusive
power to legislate in relation to criminal law on
Parliament. …
As the final
clause in the passage just cited indicates, the listed
purposes by no means exhaust the purposes that may
legitimately support valid criminal legislation. … In
short, in a case like the present, all one is concerned
with is colourability. Otherwise, one would, in effect, be
reviving the discarded notion that there is a “domain” of
criminal law, something Rand J. … was not prepared to do.
… 127 What the foregoing underlines is what I referred to at the outset, that the protection of the environment is a major challenge of our time. It is an international problem, one that requires action by governments at all levels. And, as is stated in the preamble to the Act under review, “Canada must be able to fulfil its international obligations in respect of the environment”. … 132 One last matter requires comment. The specific provision impugned in this case, the Interim Order, would seem to me to be justified as a criminal prohibition for the protection of human life and health alone. … So if the protection of the environment does not amount to a valid public purpose to justify criminal sanctions, it would be simply a question of severing those portions of s. 11 of the Act that deal solely with the environment to ensure the validity of the Interim Order and the rest of the enabling provisions. After all, the protection of the environment, as we earlier saw, is closely integrated, directly or indirectly, with the protection of health. But for my part, I find this exercise wholly unnecessary. The protection of the environment, through prohibitions against toxic substances, seems to me to constitute a wholly legitimate public objective in the exercise of the criminal law power. Humanity’s interest in the environment surely extends beyond its own life and health. … 151 What Parliament is doing in s. 34 is making provision for carefully tailoring the prohibited action to specified substances used or dealt with in specific circumstances. This type of tailoring is obviously necessary in defining the scope of a criminal prohibition, and is, of course, within Parliament’s power. As Laskin C.J. noted in Morgentalerv. The Queen, [1976] 1 S.C.R. 616, at p. 627: “I need cite no authority for the proposition that Parliament may determine what is not criminal as well as what is”. … B. Harm Principle
R. v. Malmo-Levine; R. v. Caine The judgment of McLachlin C.J. and Gonthier, Iacobucci,
Major, Bastarache and Binnie JJ. was delivered by II. Relevant Statutory and Constitutional Provisions… Canadian Charter of Rights and Freedoms
Constitution Act, 1867
V. AnalysisE. Section 7 of the Charter… 102 The
appellants contend that unless the state can establish
that the use of marihuana is harmful to others,
the prohibition against simple possession cannot comply
with s. 7. Our colleague Arbour J. accepts this
proposition as correct to the extent that “the state
resorts to imprisonment” (para. 244). Accordingly, a
closer look at the alleged “harm principle” is called for.
107 Thus Mill’s
principle has two essential features. First, it rejects
paternalism -- that is, the prohibition of conduct that
harms only the actor. Second, it excludes what could be
called “moral harm”. Mill was of the view that such moral
claims are insufficient to justify use of the criminal
law. Rather, he required clear and tangible harm to the
rights and interests of others.
To the same effect, see Professor J. Feinberg, The
Moral Limits of the Criminal Law (1984), vol. 1: Harm
to Others, at p. 12; vol. 4: Harmless
Wrongdoing, at p. 323. (ii) Is the Harm Principle a Principle of Fundamental
Justice? 110 The
appellants submit that the harm principle is a principle
of fundamental justice for the purposes of s. 7 that
operates to place limits on the type of conduct the state
may criminalize. This limitation exists independently of
the division of powers under ss. 91 and 92 of the Constitution
Act, 1867. In other words, the appellants contend
that there is a double threshold. Even if the Crown is
able to establish that the creation of a particular
criminal offence is a valid exercise of the criminal law
power, there is a second level of constraint on the type
of conduct that can be made criminal by virtue of s. 7 of
the Charter. A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles.... While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are “fundamental” in the sense that they would have general acceptance among reasonable people. [Emphasis added.] 113 The requirement of “general acceptance among reasonable people” enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental “in the eye of the beholder only”: Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. (iii) Is the Harm Principle a Legal Principle?114 In our view, the “harm principle” is better characterized as a description of an important state interest rather than a normative “legal” principle. Be that as it may, even if the harm principle could be characterized as a legal principle, we do not think that it meets the other requirements, as explained below. (iv) There Is No Sufficient Consensus that the Harm Principle Is Vital or Fundamental to Our Societal Notion of Criminal Justice115 Contrary to
the appellants’ assertion, we do not think there is a
consensus that the harm principle is the sole
justification for criminal prohibition. There is no doubt
that our case law and academic commentary are full of
statements about the criminal law being aimed at conduct
that “affects the public”, or that constitutes “a wrong
against the public welfare”, or is “injurious to the
public”, or that “affects the community”. No doubt, as
stated, the presence of harm to others may
justify legislative action under the criminal law power.
However, we do not think that the absence of
proven harm creates the unqualified barrier to legislative
action that the appellants suggest. On the contrary, the
state may sometimes be justified in criminalizing conduct
that is either not harmful (in the sense contemplated by
the harm principle), or that causes harm only to the
accused.
121 However,
Stephen himself was a prominent critic of Mill’s harm
principle. He believed that “immoral” behaviour can
be a proper subject for the criminal law. Clearly, his
reference to “evils” inflicted on the community includes
the idea of moral harm, which Mill specifically excluded
from the scope of his “harm principle”. Stephen thus
supported a much larger view of the legitimate purposes of
the criminal law than is permitted by the appellants’
argument. may be caused or threatened to the collective safety or integrity of society through the infliction of direct damage or the undermining of what the Law Reform Commission terms fundamental or essential values—those values or interests necessary for social life to be carried on, or for the maintenance of the kind of society cherished by Canadians. [Emphasis added.]Such a definition of “harm” is clearly contrary to Mill’s harm principle as endorsed by the appellants. (v) Nor Is There Any Consensus that the Distinction Between Harm to Others and Harm to Self Is of Controlling Importance 123 Our
colleague Arbour J. takes the view that when the state
wishes to make imprisonment available as a sanction for
criminal conduct, it must be able to show the potential of
such conduct to cause harm to others (para. 244). With
respect, we do not think there is any such principle
anchored in our law. As this Court noted in Rodriguez,
supra, attempted suicide was an offence under
Canadian criminal law (found in the original Code
at s. 238) until its repeal by S.C. 1972, c. 13, s. 16.
Sopinka J. emphasized, at p. 597, that
124 Putting
aside, for the moment, the proper approach to the
appropriateness of imprisonment (which, as stated, we
think should be addressed under s. 12 rather than s. 7),
we do not accept the proposition that there is a general
prohibition against the criminalization of harm to self.
Canada continues to have paternalistic laws. Requirements
that people wear seatbelts and motorcycle helmets are
designed to “save people from themselves”. There is no
consensus that this sort of legislation offends our
societal notions of justice. Whether a jail sentence is an
appropriate penalty for such an offence is another
question. However, the objection in that aspect goes to
the validity of an assigned punishment -- it does not go
to the validity of prohibiting the underlying conduct. 127 Even those who agree with the “harm principle” as a regulator of the criminal law frequently disagree about what it means and what offences will meet or offend the harm principle. In the absence of any agreed definition of “harm” for this purpose, allegations and counter-allegations of non-trivial harm can be marshalled on every side of virtually every criminal law issue, as one author explains: The harm principle is effectively collapsing under the weight of its own success. Claims of harm have become so pervasive that the harm principle has become meaningless: the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate. Today, the issue is no longer whether a moral offense causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms compare. On those issues, the harm principle is silent. [Emphasis in original.]Professor Harcourt goes on to point out that it is the “hidden normative dimensions ... [that] do the work in the harm principle, not the abstract, simple notion of harm” (p. 185). In other words, the existence of harm (however defined) does no more than open a gateway to the debate; it does not give any precise guidance about its resolution. 128 Harm, as interpreted in the jurisprudence, can take a multitude of forms, including economic, physical and social (e.g., injury and/or offence to fundamental societal values). In the present appeal, for example, the respondents put forward a list of “harms” which they attribute to marihuana use. The appellants put forward a list of “harms” which they attribute to marihuana prohibition. Neither side gives much credence to the “harms” listed by the other. Each claims the “net” result to be in its favour. 129 In the result, we do not believe that the content of the “harm” principle as described by Mill and advocated by the appellants provides a manageable standard under which to review criminal or other laws under s. 7 of the Charter….. * * * James Fitzjames Stephen, Liberty, Egality, Fraternity (2d ed. 1874) [Stephen was not only the drafter of the code that became the blueprint for the Canadian Criminal Code; he was also one of the most vociferous and widely read critics of Mill’s harm principle, and of On Liberty in general. Here is a sample.]
[I]t is remarkable that, having thus fully and carefully
enunciated his doctrine, Mr. Mill never attempts to prove
it, as a whole. … Why draw so strongly marked a line between social and legal penalties? Mr. Mill asserts the existence of the distinction in every form of speech. He makes his meaning perfectly clear. Yet from one end of his essay to the other I find no proof and no attempt to give the proper and appropriate proof of it. His doctrine could have been proved if it had been true. It was not proved because it was not true. [T]he object of morally intolerant legislation … is to establish, to maintain, and to give power to that which the legislator regards as a good moral system or standard. [T]his object is good if and in so far as the system so established and maintained is good. How far any particular system is good or not is a question which probably does not admit of any peremptory final decision; but I may observe that there are a considerable number of things which appear good and bad, though no doubt in different degrees, to all mankind. For the practical purpose of legislation refinements are of little importance. In any given age and nation virtue and vice have meanings which for that purpose are quite definite enough. In England at the present day many theories about morality are current, and speculative men differ about them widely, but they relate not so much to the question whether particular acts are right or wrong, as to the question of the precise meaning of the distinction, the manner in which the moral character of particular actions is to be decided, and the reasons for preferring right to wrong conduct. The result is that the object of promoting virtue and preventing vice must be admitted to be both a good one and one sufficiently intelligible for legislative purposes. If this is so, the only remaining questions will be as to the efficiency of the means at the disposal of society for this purpose, and the cost of their application. Society has at its disposal two great instruments by which vice may be prevented and virtue promoted—namely, law and public opinion; and law is either criminal or civil. The use of each of these instruments is subject to certain limits and conditions, and the wisdom of attempting to make men good either by Act of Parliament or by the action of public opinion depends entirely upon the degree in which those limits and conditions are recognized and acted upon. [T]ake the case of criminal law. What are the conditions under which and the limitations within which it can be applied with success to the object of making men better? In considering this question it must be borne in mind that criminal law is at once by far the most powerful and by far the roughest engine which society can use for any purpose. Its power is shown by the fact that it can and does render crime exceedingly difficult and dangerous. Indeed, in civilized society it absolutely prevents avowed open crime committed with the strong hand, except in cases where crime rises to the magnitude of civil war. Its roughness hardly needs illustration. It strikes so hard that it can be enforced only on the gravest occasions, and with every sort of precaution against abuse or mistake. Before an act can be treated as a crime, it ought to be capable of distinct definition and of specific proof, and it ought also to be of such a nature that it is worthwhile to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it. These conditions are seldom, if ever, fulfilled by mere vices. It would obviously be impossible to indict a man for ingratitude or perfidy. Such charges are too vague for specific discussion and distinct proof on the one side, and disproof on the other. Moreover, the expense of the investigations necessary for the legal punishment of such conduct would be enormous. It would be necessary to go into an infinite number of delicate and subtle inquiries which would tear off all privacy from the lives of a large number of persons. These considerations are, I think, conclusive reasons against treating vice in general as a crime. Chapter 4. Legality PrincipleA. Rule of Law/RechtsstaatLon L. Fuller, The Morality of Law (rev’d ed. 1969) ... eight distinct routes to disaster. The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes are: (2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, (8) a failure of congruence between the rules as announced and their actual administration. B. Legislativity
Frey v. Fedoruk The judgment of the Chief Justice and of Taschereau,
Rand, Kellock, Locke and Cartwright, JJ. was delivered by:
The learned trial Judge dismissed the action against all
three Defendants. The Court of Appeal [95 Can. C.C. 206.]
unanimously allowed the appeal as to the Defendant Watt
and awarded the Plaintiff $100 damages against him, and
from this award no appeal was taken. The majority of the
Court of Appeal dismissed the Plaintiff’s appeal as
against Fedoruk and Stone. Robertson, J.A. dissenting
would have allowed the appeal as to these Defendants also
and would have awarded the Plaintiff damages of $10
against Fedoruk and $50 against Stone. Leave to appeal was
granted to the Plaintiff by the Court of Appeal. The majority of the Court of Appeal were of opinion that
the Plaintiff was guilty of a criminal offence at Common
Law, and that the Defendants were justified in the
circumstances in arresting him without a warrant.
Robertson, J.A. was of the view that on the facts as
found, no criminal offence was committed by the Plaintiff.
There is no question on the facts but that the Plaintiff
was imprisoned first by Fedoruk and afterwards by Stone,
and in order to succeed it was therefore necessary for
each of them to plead and prove that the imprisonment was
legally justifiable. The justification pleaded by Fedoruk
consists of a brief statement of the facts outlined above
followed by the allegation that fearing that the Plaintiff
was under the circumstances in question, doing an act
which was likely to cause a breach of the peace, to wit,
peeping without any lawful excuse into the windows of his
mother’s bedroom while hiding outside, he pursued the
Plaintiff through his property and arrested the Plaintiff
because of the violation of law committed by the said
Plaintiff. The justification pleaded by Stone is that he placed the
Plaintiff under arrest by reason of the commission of an
act by the said Plaintiff that was likely to cause a
breach of the peace by reason of the said Plaintiff
peeping at night through the window of the home of Stephen
Fedoruk, and in particular through the window of the
bedroom of the said Defendant’s mother while she was
undressing and preparing for bed and only after having
investigated the explanation given by the Plaintiff and
having found that the same could not be in accordance with
the facts. It will be observed that the Defendant Stone does not
plead that he believed a breach of the peace had been
committed or that such breach had in fact been committed.
He limits his plea to the allegation that the Plaintiff
had committed an act likely to cause a breach of the
peace.
On this charge the Plaintiff was convicted by a police magistrate sitting for the summary trial of an indictable offence. The formal conviction concludes with the words:
This conviction was quashed by the Court of Appeal on
the ground that the evidence on the record did not support
the conviction, without that court finding it necessary to
decide whether or not the acts charged constituted a
criminal offence. This is stated in the judgment of
O’Halloran, J.A. who was a member of the Court which
quashed the conviction. O’Halloran, J.A., with whom Sidney Smith, J.A. agrees,
stated his conclusion that the Plaintiff had committed an
offence at Common Law in the following words:
No attempt is made to define completely the Common Law
offence of “breach of the King’s Peace”, except to say, it
is not used here in its common and more narrow sense.
While O’Halloran, J.A. takes the view that the Criminal
Code does not expressly make the Plaintiff’s conduct
criminal and that at Common Law merely looking through a
window at night is not in itself a criminal offence, he
goes on to hold that the circumstances in which the act is
done may change its character, and continues:
Robertson, J.A. dissenting, was of opinion that the
Plaintiff did not commit an actual breach of the peace. He
points out that “an indictment will not lie for a bare
trespass not amounting to an actual breach of the peace.”
This statement of the law is amply supported by the
authorities cited by Robertson, J.A. all of which were
decided long after the passing of C. 8 of 5 Rich. II
(1381), referred to in the judgment of O’Halloran, J.A. as
making unlawful entry into any lands a criminal offence
even if unaccompanied by violence. In my view that statute
contemplates entry with the intention of taking possession
and has no reference to an isolated and temporary act of
trespass such as occurred in this case. I agree with the
conclusion of Robertson, J.A. that the Plaintiff did not
commit any criminal offence. We have been referred to no reported case in which the
conduct of a “peeping tom” was held to be a criminal
offence. It is well settled that, while the rule may not
be so strict as in criminal cases, in a civil case where a
right or defence rests on an allegation of criminal
conduct a heavy onus lies upon the party alleging it, and
questions that are left in doubt by circumstantial
evidence must be resolved in favour of innocence. There is no suggestion in the evidence of any attempt on
the part of the Plaintiff to offer violence to anyone. A
reasonable inference to be drawn from the facts recited
above is that the Plaintiff had no intention of himself
doing any violent act and hoped that he would not be
discovered. When he was discovered he at once ran away. In
my opinion, the mere fact that his presence at night in
close proximity to the window would have the probable
effect of frightening the inmate of the room does not make
such conduct criminal at Common Law. While I agree with the view expressed by O’Halloran, J.A.
that such conduct, if discovered, would naturally frighten
the inmates of the house and that it would tend to incite
them to immediate violent action against the intruder, I
am doubtful whether such action could be properly
described as defensive. I would describe it rather as
offensive and retributive. I do not think action is
defensive when the person against whom it is taken has
given no indication of any intention to attack and is
already in flight. I do not think that it is safe to hold
as a matter of law, that conduct, not otherwise criminal
and not falling within any category of offences defined by
the Criminal Law, becomes criminal because a natural and
probable result thereof will be to provoke others to
violent retributive action. If such a principle were
admitted, it seems to me that many courses of conduct
which it is well settled are not criminal could be made
the subject of indictment by setting out the facts and
concluding with the words that such conduct was likely to
cause a breach of the peace. Two examples may be
mentioned. The speaking of insulting words unaccompanied
by any threat of violence undoubtedly may and sometimes
does produce violent retributive action, but is not
criminal. The commission of adultery has, in many recorded
cases, when unexpectedly discovered, resulted in homicide;
but, except where expressly made so by Statute, adultery
is not a crime. If it should be admitted as a principle that conduct may
be treated as criminal because, although not otherwise
criminal, it has a natural tendency to provoke violence by
way of retribution, it seems to me that great uncertainty
would result. I do not think it safe by the application of
such a supposed principle to declare an act or acts
criminal which have not, up to the present, been held to
be criminal in any reported case. This would be my view if the matter were not covered by
authority, but it also appears to me to be supported by
authority. In my view it has been rightly held that acts
likely to cause a breach of the peace are not in
themselves criminal merely because they have this
tendency, and that the only way in which such conduct can
be dealt with and restrained, apart from civil proceedings
for damages, is by taking the appropriate steps to have
the persons committing such acts bound over to keep the
peace and be of good behaviour. I do not understand O’Halloran, J.A. to suggest in his
elaborate reasons that there is precedent for the view
that the Plaintiff’s conduct in this case was criminal.
Rather he appears to support the finding of the trial
Judge to that effect on the grounds stated in the
following paragraph:
In my opinion when it is read against the background of
the rest of the Reasons of O’Halloran, J.A., it appears
that, in relation to the facts of this case, the “generic
principle” which the learned Judge has in mind is too wide
to have any value as a definition. The genus appears to be
“a breach of the King’s Peace” in the wider signification
which is attached to that expression elsewhere in the
Reasons. It appears to me that so understood, the genus is wide
enough to include the whole field of the criminal law. As
it is put in Pollock and Maitland, History of English
Law (1895) Volume 1, page 22: “All criminal
offences have long been said to be committed against the
King’s peace. And in Volume 2 of the same
work at page 452, it is stated: to us a breach of the
King’s peace may seem to cover every possible crime.” Once the expression “a breach of the King’s Peace” is
interpreted, as O’Halloran, J.A. undoubtedly does
interpret it, not to require as an essential ingredient
anything in the nature of “riots, tumults, or actual
physical violence” on the part of the offender, it would
appear to become wide enough to include any conduct which
in the view of the fact finding tribunal is so injurious
to the public as to merit punishment. If, on the other
hand, O’Halloran, J.A. intended to give to the expression
a more limited meaning so that it would include only
conduct of a nature likely to lead to a breach of the
peace in the narrower sense of which he speaks, the
authorities referred to elsewhere in this Judgment seem to
me to show that this is not an offence known to the law. I am of opinion that the proposition implicit in the
paragraph quoted above ought not to be accepted. I think
that if adopted, it would introduce great uncertainty into
the administration of the Criminal Law, leaving it to the
judicial officer trying any particular charge to decide
that the acts proved constituted a crime or otherwise, not
by reference to any defined standard to be found in the
code or in reported decisions, but according to his
individual view as to whether such acts were a disturbance
of the tranquillity of people tending to provoke physical
reprisal. To so hold would, it seems to me, be to assert the
existence of what is referred to in Stephen’s History
of the Criminal Law of England, Volume 2, Page 190,
as:
The writer continues: “this power, if it exists at all,
exists at Common Law.” In my opinion, this power has not been held and should
not be held to exist in Canada. I think it safer to hold
that no one should be convicted of a crime unless the
offence with which he is charged is recognized as such in
the provisions of the Criminal Code, or can be established
by the authority of some reported case as an offence known
to the law. I think that if any course of conduct is now
to be declared criminal, which has not up to the present
time been so regarded, such declaration should be made by
Parliament and not by the Courts. Having reached the conclusion that the Plaintiff’s
conduct did not amount to any criminal offence known to
the law, the question whether the Defendants were
justified in arresting Frey presents little difficulty.
The justification put forward in argument was based on
certain sections of the Criminal Code all of which, with
the exception of Section 30, would require as a condition
of their affording justification to the Defendants the
fact that some criminal offence had been committed. Section 30 {now repealed} would be of no avail to Fedoruk who was not a peace officer, but it must be examined in regard to Stone. The section reads as follows: Every peace officer who, on reasonable and probable grounds, believes that an offence for which the offender may be arrested without warrant has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed that offence, is justified in arresting such person without warrant, whether such person is guilty or not. It may be that Stone’s Statement of Defence is not aptly
framed to raise this section as a defence but I do not
think it necessary or desirable to decide this point upon
the precise form of the pleadings. In my opinion,
assuming, without deciding, that the form of the pleadings
permits Stone to rely upon it, this section does not
afford any justification for his arresting the Plaintiff. I think that this section contemplates the situation
where a Peace Officer, on reasonable and probable grounds,
believes in the existence of a state of facts which, if it
did exist would have the legal result that the person whom
he was arresting had committed an offence for which such
person could be arrested without a warrant. It cannot, I
think, mean that a Peace Officer is justified in arresting
a person when the true facts are known to the Officer and
he erroneously concludes that they amount to an offence,
when, as a matter of law, they do not amount to an offence
at all. “Ignorantia legis non excusat”. I would not vary the assessment of the damages proposed
by Robertson, J.A. The Plaintiff’s counsel does not ask
that they be increased and I do think that the amounts
suggested are excessive. While I agree with Robertson,
J.A. that in a sense “the whole matter was brought upon
the Plaintiff by himself”, the facts remain that his
arrest was effected by Fedoruk by the threatening use of a
deadly weapon, he was deprived of his liberty for several
hours and subjected to some minor indignities at the
police station, all without any justification in law. In the result I would allow the appeal and direct that
judgment be entered against Fedoruk for $10 and against
Stone for $50 with cost of the appeal to the Court of
Appeal and of the appeal to this Court. There should be no
costs of the action against the Respondents unless the
Appellant is able to secure an order under section 77 of
The Supreme Court Act of British Columbia, allowing him
costs of the action so far as the issue of false arrest is
concerned. Appeal allowed with costs. * * * Shaw v. Director of Public
Prosecutions The appellant published a booklet, the
Ladies’ Directory, of some 28 pages, most of which were
taken up with the names and addresses of prostitutes; the
matter published left no doubt that the advertisers could
be got in touch with at the telephone numbers given and
were offering their services for sexual intercourse and,
in some cases; for the practice of sexual perversions. The
appellant’s avowed purpose in publication was to assist
prostitutes to ply their trade when as a result of the
Street Offences Act, 1959, they were no longer able to
solicit in the street. The prostitutes paid for the
advertisements and the appellant derived a profit from the
publication. The appellant pleaded not guilty to an
indictment charging him with (1) conspiracy to corrupt
public morals in that he conspired with the advertisers
and other persons by means of the Ladies’ Directory and
the advertisements to debauch and corrupt the morals of
youth and other subjects of the Queen; (2) living on the
earnings of prostitution contrary to section 30 of the
Sexual Offences Act, 1956; and (3) publishing an obscene
article contrary to section 2 of the Obscene Publications
Act, 1959. The jury convicted the appellant on all three
counts and he was sentenced to nine months imprisonment.
The Court of Criminal Appeal upheld the
convictions and the sentence and the accused was granted
leave to appeal to the House of Lords, which likewise
affirmed. VISCOUNT SIMONDS:…I am
concerned only to assert what was vigorously denied by
counsel for the appellant, that such an offence is known
to the common law, and that it was open to the jury to
find on the facts of this case that the appellant was
guilty of such an offence. I must say categorically that,
if it were not so, Her Majesty’s courts would strangely
have failed in their duty as servants and guardians of the
common law. Need I say, my Lords, that I am no advocate of
the right of the judges to create new criminal offences? I
will repeat well-known words: “Amongst many other points
of happiness and freedom which your Majesty’s subjects
have enjoyed there is none which they have accounted more
dear and precious than this, to be guided and governed by
certain rules of law which giveth both to the head and
members that which of right belongeth to them and not by
any arbitrary or uncertain form of government.” These
words are as true today as they were in the seventeenth
century and command the allegiance of us all. But I am at
a loss to understand how it can be said either that the
law does not recognise a conspiracy to corrupt public
morals or that, though there may not be an exact precedent
for such a conspiracy as this case reveals, it does not
fall fairly within the general words by which it is
described. … The fallacy in the argument that was
addressed to us lay in the attempt to exclude from the
scope of general words acts well calculated to corrupt
public morals just because they had not been committed or
had not been brought to the notice of the court before. It
is not thus that the common law has developed. We are
perhaps more accustomed to hear this matter discussed upon
the question whether such and such a transaction is
contrary to public policy. At once the controversy arises.
On the one hand it is said that it is not possible in the
twentieth century for the court to create a new head of
public policy, on the other it is said that this is but a
new example of a well-established head. In the sphere of
criminal law I entertain no doubt that there remains in
the courts of law a residual power to enforce the supreme
and fundamental purpose of the law, to conserve not only
the safety and order but also the moral welfare of the
State, and that it is their duty to guard it against
attacks which may be the more insidious because they are
novel and unprepared for. That is the broad head (call it
public policy if you wish) within which the present
indictment falls. It matters little what label is given to
the offending act. To one of your Lordships it may appear
an affront to public decency, to another considering that
it may succeed in its obvious intention of provoking
libidinous desires it will seem a corruption of public
morals. Yet others may deem it aptly described as the
creation of a public mischief or the undermining of moral
conduct. The same act will not in all ages be regarded in
the same way. The law must be related to the changing
standards of life, not yielding to every shifting impulse
of the popular will but having regard to fundamental
assessments of human values and the purposes of society.
Today a denial of the fundamental Christian doctrine,
which in past centuries would have been regarded by the
ecclesiastical courts as heresy and by the common law as
blasphemy, will no longer be an offence if the decencies
of controversy are observed. When Lord Mansfield, speaking
long after the Star Chamber had been abolished, said (Rex
v. Delaval (1763) 3 Burr. 1434, 1438, 1439) that
the Court of King’s Bench was the custos morum
of the people and had the superintendency of offences contra
bonos mores, he was asserting, as I now assert,
that there is in that court a residual power, where no
statute has yet intervened to supersede the common law, to
superintend those offences which are prejudicial to the
public welfare. Such occasions will be rare, for
Parliament has not been slow to legislate when attention
has been sufficiently aroused. But gaps remain and will
always remain since no one can foresee every way in which
the wickedness of man may disrupt the order of society.
Let me take a single instance to which my noble and
learned friend Lord Tucker refers. Let it be supposed that
at some future, perhaps, early, date homosexual practices
between adult consenting males are no longer a crime.
Would it not be an offence if even without obscenity, such
practices were publicly advocated and encouraged by
pamphlet and advertisement? Or must we wait until
Parliament finds time to deal with such conduct? I say, my
Lords, that if the common law is powerless in such an
event, then we should no longer do her reverence. But I
say that her hand is still powerful and that it is for Her
Majesty’s judges to play the part which Lord Mansfield
pointed out to them…. I will say a final word upon an aspect of
the case which was urged by counsel. No one doubts—and I
have put it in the forefront of this opinion—that
certainty is a most desirable attribute of the criminal
and civil law alike. Nevertheless there are matters which
must ultimately depend on the opinion of a jury. In the
civil law I will take an example which comes perhaps
nearest to the criminal law—the tort of negligence. It is
for a jury to decide not only whether the defendant has
committed the act complained of but whether in doing it he
has fallen short of the standard of care which the
circumstances require. Till their verdict is given it is
uncertain what the law requires. The same branch of the
civil law supplies another interesting analogy. For,
though in the Factory Acts and the regulations made under
them, the measure of care required of an employer is
defined in the greatest detail, no one supposes that he
may not be guilty of negligence in a manner unforeseen and
unprovided for. That will be a matter for the jury to
decide. There are still, as has recently been said,
“unravished remnants of the common law.” (Lord Radcliffe:
“The Law and its Compass,” p.53) LORD REID (dissenting):…My
Lords, I turn to the first count. … It appears to be generally accepted that the
offence of criminal conspiracy was the creature of the
Star Chamber. So far as I am able to judge the summary in
Kenny’s Outlines of Criminal Law, section 59,
17th ed., p. 88, is a fair one. There it is said that the
criminal side of conspiracy was “emphasised by the Star
Chamber which recognised its possibilities as an engine of
government and moulded it into a substantive offence of
wide scope whose attractions were such that its principles
were gradually adopted by the common law courts.” The Star
Chamber perhaps had more merits than its detractors will
admit but its methods and principles were superseded and
what it did is of no authority today. The question is how
far the common law courts in fact went in borrowing from
it. I think that Lord Goddard C. J. was
repeating the generally accepted view when he said: “A
conspiracy consists of agreeing or acting in concert to
achieve an unlawful act or to do a lawful act by unlawful
means.” (Reg. v. Newland [1954] Q.B. 158) But
what is “an unlawful act?” To commit a crime—yes, and what
about offences which can only be dealt with summarily and
punished lightly: they are certainly unlawful acts but (I
quote from the Law of Criminal Conspiracies, by
R.S. Wright J., p. 83) they “are not in themselves of
grave enough consequence to be matters for indictment;
and, if so, it must in general be immaterial whether the
results are produced by one person or by two or more
persons. To permit two persons to be indicted for a
conspiracy to make a slide in the street of a town, or to
catch hedge sparrows in April, would be to destroy that
distinction between crimes and minor offences which in
every country it is held important to preserve.” To commit
a tort—yes in certain cases, but for somewhat similar
reasons it seems to be at least doubtful whether it is an
offence to conspire to commit a tort which is neither
malicious nor fraudulent nor accompanied by violence. Then there is undoubtedly a third class of
act which an individual can do with impunity but a
combination cannot. Perhaps the best known example is
conspiring to injure a man in his trade if done without
justification. I need only refer to the series of cases in
this House from Mogul S.S. Co. v. McGregor, Gow &Co.
([1892] A.C. 25) to the Harris Tweed case
([1942] A.C. 435). No one has ever attempted to define
what makes an act “unlawful” so as to bring it within this
class; the law seems to be haphazard, depending largely on
historical accident. Perhaps as good a summary as any is
that which goes back to early editions of Professor
Kenny’s book (now [17th ed.], section (iv), pp. 393, 451):
“. . . certain other acts, which . . . are not breaches of
law at all, but which nevertheless are outrageously
immoral or else are, in some way, extremely injurious to
the public.” One thing does, however, appear to be
reasonably clear. So far as I have been able to trace all
who took part in the Mogul S.S. Co. series of
cases and who mentioned the matter, except Lord Esher,
were of opinion that to make or carry out a contract which
is unenforceable by reason of immorality or otherwise is
not an unlawful act in this sense. There are two competing views. One is that
conspiring to corrupt public morals is only one facet of a
still more general offence, conspiracy to effect public
mischief; and that, like the categories of negligence, the
categories of public mischief are never closed. The other
is that, whatever may have been done two or three
centuries ago, we ought not now to extend the doctrine
further than it has already been carried by the common law
courts. Of course I do not mean that it should only be
applied in circumstances precisely similar to those in
some decided case. Decisions are always authority for
other cases which are reasonably analogous and are not
properly distinguishable. But we ought not to extend the
doctrine to new fields. I agree with R.S. Wright J. when he says (op.
cit. p. 86): “There appear to be great
theoretical objections to any general rule that agreement
may make punishable that which ought not to be punished in
the absence of agreement.” And I think, or at least I
hope, that it is now established that the courts cannot
create new offences by individuals. So far at least I have
the authority of Lord Goddard C. J. in delivering the
opinion of the court in Newland: “The dictum in
Rex v. Higgins ((1801) 2 East 5) was that all
offences of a public nature, that is, all such acts or
attempts as tend to the prejudice of the public are
indictable, but no other member of the court stated the
law in such wide terms. It is the breadth of that dictum
that was so strongly criticised by Sir Fitzjames Stephen
in the passage in his History of the Criminal
Law (vol. 3, p. 359) . . . and also by Dr. Stallybrass in
the Law Quarterly Review, vol. 49, p. 183. In effect it
would leave it to the judges to declare new crimes and
enable them to hold anything which they considered
prejudicial to the community to be a misdemeanour. However
beneficial that might have been in days when Parliament
met seldom or at least only at long intervals it surely is
now the province of the legislature and not of the
judiciary to create new criminal offences.” Every argument
against creating new offences by an individual appears to
me to be equally valid against creating new offences by a
combination of individuals. But there is this historical difference. The
judges appear to have continued to extend the law of
conspiracy after they had ceased to extend offences by
individuals. Again I quote from R.S. Wright J. (p. 88):
“In an imperfect system of criminal law the doctrine of
criminal agreements for acts not criminal may be of great
practical value for the punishment of persons for acts
which are not, but which ought to be made punishable
irrespectively of agreement.” Even if there is still a vestigial power of
this kind it ought not, in my view, to be used unless
there appears to be general agreement that the offence to
which it is applied ought to be criminal if committed by
an individual. Notoriously, there are wide differences of
opinion today as to how far the law ought to punish
immoral acts which are not done in the face of the public.
Some think that the law already goes too far, some that it
does not go far enough. Parliament is the proper place,
and I am firmly of opinion the only proper place, to
settle that when there is sufficient support from public
opinion, Parliament does not hesitate to intervene. Where
Parliament fears to tread it is not for the courts to rush
in. Finally I must advert to the consequences of
holding that this very general offence exists. It has
always been thought to be of primary importance that our
law, and particularly our criminal law, should be certain:
that a man should be able to know what conduct is and what
is not criminal, particularly when heavy penalties are
involved. Some suggestion was made that it does not matter
if this offence is very wide: no one would ever prosecute
and if they did no jury would ever convict if the breach
was venial. Indeed, the suggestion goes even further: that
the meaning and application of the words “deprave” and
“corrupt” (the traditional words in obscene libel now
enacted in the 1959 Act) or the words “debauch” and
“corrupt” in this indictment ought to be entirely for the
jury, so that any conduct of this kind is criminal if in
the end a jury think it so. In other words, you cannot
tell what is criminal except by guessing what view a jury
will take, and juries’ views may vary and may change with
the passing of time. Normally the meaning of words is a
question of law for the court. For example, it is not left
to a jury to determine the meaning of negligence: they
have to consider on evidence and on their own knowledge a
much more specific question - Would a reasonable man have
done what this man did? I know that in obscene libel the
jury has great latitude but I think that it is an
understatement to say that this has not been found wholly
satisfactory. If the trial judge’s charge in the present
case was right, if a jury is entitled to water down the
strong words “deprave,”“corrupt” or “debauch” so as merely
to mean lead astray morally, then it seems to me that the
court has transferred to the jury the whole of its
functions as censor morum, the law will be whatever any
jury may happen to think it ought to be, and this branch
of the law will have lost all the certainty which we
rightly prize in other branches of our law. Appeal dismissed.
C. Specificity
R. v. Nova Scotia Pharmaceutical
Society The judgment of the court was delivered by I. Facts and proceedingsThe 12 appellants were indicted on May 31, 1990, with two
counts of conspiracy to prevent or lessen competition
unduly, contrary to s. 32(1)(c) of the Combines
Investigation Act, R.S.C. 1970, c. C-23. Both
counts related to the sale and offering for sale of
prescription drugs and pharmacists’ dispensing services
between January 1, 1974 and June 16, 1986, for the first,
and between July 1, 1976 and June 16, 1986, for the
second. The trial was set to begin in October, 1990. On August 21, 1990, the appellants made a motion for an order to quash the indictment, on the basis that s. 32(1)(c), (1.1) and (1.3) of the Act violated ss. 7, 11(a) and (d) of the Canadian Charter of Rights and Freedoms and were therefore invalid. The arguments raised revolved essentially on the issues of vagueness and mens rea. On September 5, 1990, Roscoe J. of the Nova Scotia Supreme Court, Trial Division, allowed the motion and quashed the indictment: 32 C.P.R. (3d) 259, 73 D.L.R. (4th) 500, 59 C.C.C. (3d) 30, 98 N.S.R. (2d) 296. The respondent appealed to the Nova Scotia Supreme Court, Appeal Division. On April 24, 1991, a unanimous bench (Clarke, C.J.N.S., Jones and Hallet JJ.A.) allowed the appeal: 36 C.P.R. (3d) 173, 80 D.L.R. (4th) 206, 64 C.C.C. (3d) 129, 7 C.R.R. (2d) 352, 102 N.S.R. (2d) 222. A notice of appeal was filed in this court on May 22, 1991. II. Relevant statutory provisionsCombines Investigation Act
These sections are now respectively know as s. 45(1)(c), (2) and (2.2) of the Competition Act, R.S.C., 1985, c. C-34.… V. Sections 32(1)(c) and 32 (1.1) of the Act and Vagueness under S. 7 of the CharterA. Vagueness under the Canadian Charter of Rights and Freedoms1. The Case Law of this Court
… As was said by this court in Osborne and Butler,
the threshold for finding a law vague is relatively
high. So far discussion of the content of the notion has
evolved around intelligibility. The two rationales of fair notice to the citizen and
limitation of enforcement discretion have been adopted as
the theoretical foundations of the doctrine of vagueness,
here (Prostitution Reference, Committee for the
Commonwealth of Canada) as well as in the United
States (see Grayned v. City of Rockford, 408
U.S. 104 (1972) at pp. 108-9) and in Europe, as will be
seen later. These two rationales have been broadly linked
with the corpus of principles of government
known as the “rule of law”, which lies at the core of our
political and constitutional tradition. a. Fair Notice to the Citizen Fair notice to the citizen, as a guide to conduct and a
contributing element to a full answer and defence,
comprises two aspects. First of all, there is the more formal aspect of notice,
that is acquaintance with the actual text of a statute. In
the criminal context, this concern has more or less been
set aside by the common law maxim, “Ignorance of the law
is no excuse”, embodied in s.19 of the Criminal Code:
see R. v. MacDougall (1982), 142 D.L.R.
(3d) 216, I C.C.C. (3d) 65, [1982] 2 S.C.R. 605. In the
civil context, the maxim does not apply with equal force:
see J.-L. Baudouin, Les obligations, 3rd ed.
(Cowansville, Quebec: Editions Yvon Blais, 1989), at p.
122, and Chitty on Contracts: General Principles, 25th
ed. (London: Sweet & Maxwell, 1983), at paras. 314 and
353. Some authors have expressed the opinion that this
maxim contradicts the rule of law, and should be revised
in light of the growing quantity and complexity of penal
legislation: see E. Colvin, “Criminal Law and The Rule of
Law”, in P. Fitzgerald, ed., Crime, Justice &
Codification: Essays in commemoration of Jacques Fortin
(Toronto: Carswell, 1986), p. 125, at p. 151, and
J.C. Jeffries, Jr., “Legality, Vagueness, and the
Construction of Penal Statutes” (1985), 71 Va. L. Rev. 189
at p. 209. Since this argument was not raised in this
case, I will refrain from ruling on this issue. In any
event, given that, as this court has already recognized,
case law applying and interpreting a particular section is
relevant in determining whether the section is vague,
formal notice is not a central concern in a vagueness
analysis. As Lamer J. pointed out in Re B.C. Motor Vehicle
Act, supra, principles of fundamental justice,
such as the doctrine of vagueness, must have a substantive
as well as procedural content. Indeed, the idea of giving
fair notice to citizens would be rather empty if the mere
fact of bringing the text of the law to their attention
was enough, especially when knowledge is presumed by law.
There is also a substantive aspect to fair notice, which
could be described as a notice, an understanding that some
conduct comes under the law. Jeffries, op. cit., calls
this the “core concept of notice” (at p. 211). Let me take homicide as an example. The actual provisions
of the CriminalCode dealing with homicide are
numerous (comprising the core of ss. 222 to 240 and other
related sections). When one completes the picture of the Code
with case law, both substantive and constitutional, the
result is a fairly intricate body of rules.
Notwithstanding formal notice, it can hardly be expected
of the average citizen that he know the law of homicide in
detail. Yet no one would seriously argue that there is no
substantive fair notice here, or that the law of homicide
is vague. It can readily be seen why this is so. First of
all, everyone (or sadly, should I say, almost everyone)
has an inherent knowledge that taking the life of another
human being is wrong. There is a deeply rooted perception
that homicide cannot be tolerated whether one comes to
this from a moral, religious or sociological stance.
Therefore, it is expected that homicide will be punished
by the state. Secondly, homicide is indeed punished by the
state, and homicide trials and sentences receive a great
deal of publicity. I used homicide as an example because it lies so at the
core of our criminal law and our shared values that
substantive notice is easy to demonstrate. Similar
demonstrations could be made, at greater length, for other
legal provisions. The substantive aspect of fair
notice is therefore a subjective understanding that the
law touches upon some conduct, based on the substratum of
values underlying the legal enactment and on the role that
the legal enactment plays in the life of the society. I do not wish to suggest that the state can only
intervene through law when some non-legal basis for
intervention exists. Many enactments are relatively narrow
in scope and echo little of society at large; this is the
case with many regulatory enactments. The weakness or the
absence of substantive notice before the enactment can be
compensated by bringing to the attention of the public the
actual terms of the law, so that substantive notice will
be achieved. Merit point and driving license revocation
schemes are prime examples of this; through publicity and
advertisement these schemes have been “digested” by
society. A certain connection between the formal and
substantive aspects of fair notice can be seen here. Fair notice may not have been given when enactments are
in somewhat general terms, in a way that does not readily
permit citizens to be aware of their substance, when they
do not relate to any element of the substratum of values
held by society. It is no coincidence that these
enactments are often found vague. For instance, the
vagrancy ordinance invalidated by the United States
Supreme Court in Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972), or the
compulsory identification statute struck down in Kolender
v. Lawson, 461 U.S. 352 (1983), fall into this
group. Hence, aside from a formal aspect which is in our current
system often presumed, fair notice to the citizen
comprises a substantive aspect, that is an understanding
that certain conduct is the subject of legal restrictions. b. Limitation of Law Enforcement Discretion Lamer J. in the Prostitution Reference used
the phrase “standardless sweep”, first coined by the
United States Supreme Court in Smith v. Goguen, 415
U.S. 566 (1974) at p. 575, to describe the limitation of
enforcement discretion rationale for the doctrine of
vagueness. It has become the prime concern in American
constitutional law: Kolender, at pp. 357-8.
Indeed, today it has become paramount, given the
considerable expansion of the discretionary powers of
enforcement agencies that has followed the creation of the
modern welfare state. A law must not be so devoid of precision in its content
that a conviction will automatically flow from the
decision to prosecute. Such is the crux of the concern for
limitation of enforcement discretion. When the power to
decide whether a charge will lead to conviction or
acquittal, normally the preserve of the judiciary, becomes
fused with the power to prosecute because of the wording
of the law, then a law will be unconstitutionally vague. For instance, the wording of the vagrancy ordinance
invalidated by the United States Supreme Court in Papachristou,
and quoted at length in the Prostitution Reference at
p. 86, was so general and so lacked precision in its
content that a conviction would ensue every time the law
enforcer decided to charge someone with the offence of
vagrancy. The words of the ordinance had no substance to
them, and they indicated no particular legislative
purpose. They left the accused completely in the dark,
with no possible way of defending himself before the
court. This leads me to synthesize these remarks about
vagueness. The substantive notice and limitation of
enforcement discretion rationales point in the same
direction: an unintelligible provision gives insufficient
guidance for legal debate and is therefore
unconstitutionally vague. Legal provisions by stating certain propositions outline certain permissible and impermissible areas, and they also provide some guidance to ascertain the boundaries of these areas. In his survey article “La teneur indécise du droit” (1991),107 Rev. dr. publ. 1199, P. Amselek rightly underlines the etymological and metaphorical relationship between law and geometry and writes at pp. 1200-1 (translation): Legal rules are mental tools…authoritatively introduced, given effect by public authorities placed at the head of human communities to govern them: such rules are thought content with a specific purpose, to be used as a tool to guide conduct, thought content which determines the boundaries of possible action depending on the circumstances—for the Romans, these boundaries were the meaning of the very concept of jus in its earliest sense and are also reflected in our concept of “law”, implying the very idea of possibility, of latitude. These boundaries impose limits on the will of those to whom they apply, serving as a support, a yardstick enabling them to remain within the area of right conduct, of rectitude, within the parameters of conduct which the concept lays down and which it then gives effect to, setting the process in motion. These rules, as Amselek later points out, are
characterized by their unresolved nature, inasmuch as they
are neither objective nor complete. Legal rules only provide a framework, a guide as to how
one may behave, but certainty is only reached in instant
cases, where law is actualized by a competent authority.
In the meanwhile, conduct is guided by approximation. The
process of approximation sometimes results in quite a
narrow set of options, sometimes in a broader one. Legal
dispositions therefore delineate a risk zone, and cannot
hope to do more, unless they are directed at individual
instances. By setting out the boundaries of permissible and
non-permissible conduct, these norms give rise to legal
debate. They bear substance, and they allow for a
discussion as to their actualization. They therefore limit
enforcement discretion by introducing boundaries, and they
also sufficiently delineate an area of risk to allow for
substantive notice to citizens. A vague provision does not provide an adequate basis for
legal debate, that is for reaching a conclusion as to its
meaning by reasoned analysis applying legal criteria. It
does not sufficiently delineate any area of risk, and thus
can provide neither fair notice to the citizen nor a
limitation of enforcement discretion. Such a provision is
not intelligible, to use the terminology of previous
decisions of this court, and therefore it fails to give
sufficient indications that could fuel a legal debate. It
offers no grasp to the judiciary. This is an exacting
standard, going beyond semantics. The term “legal debate”
is used here not to express a new standard or one
departing from that previously outlined by this court. It
is rather intended to reflect and encompass the same
standard and criteria of fair notice and limitation of
enforcement discretion viewed in the fuller context of an
analysis of the equality and limits of human knowledge and
understanding in the operation of the law. e. Vagueness and the Rule of Law The criterion of absence of legal debate relates well to
the rule of law principles that form the backbone for our
polity. Here one must see the rule of law in the
contemporary context. Continental European studies on the
“État de droit” or “Rechtsstaat” are relevant: see L.C.
Blaau, “The Rechtsstaat Idea Compared with the Rule of Law
as a Paradigm for Protecting Rights” (1990), 107 S. Afr.
L.J. 76 at pp. 88-92, for an exposition of the historical
differences between these concepts. In theoretical terms, the état de droit is a system of organization in which all social and political relations are subject to the law. This means that relations between individuals and authority, as well as relations between individuals themselves, are part of a legal interchange involving rights and obligations.See also J. Chevallier; “L’État de droit” (1988), 104 Rev dr. publ. 313 at pp. 330-1, and R. Carré de Malberg, Contribution à la théorie générale de l’Etat (1920), vol. 1, at pp. 488-90. At the core of the “Etat de droit”, as under the rule of law, lies the proposition that the relationship of the state to the individuals is regulated by law. One must move away from the non-interventionist attitude
that surrounded the development of the doctrine of the
rule of law to a more global conception of the state as an
entity bound by and acting through law. The modern state
intervenes in almost every field of human endeavour, and
it plays a role that goes far beyond collecting taxes and
policing. The state has entered fields whence the
positions are not so clear-cut; in the realm of social or
economic policy, interests diverge, and the state does not
seek to enforce a definite and limited social interest in
public order, for instance, against an individual. Often
the state attempts to realize a series of social
objectives, some of which must be balanced against one
another, and which sometimes conflict with the interests
of individuals. The modern state, while still acting as an
enforcer, assumes more and more of an arbitration role. Indeed, as the [European Court of Human Rights] has
recognized in Sunday Times, supra, and
particularly in the Barthold case, judgment of
March 25, 1985, Series A, No. 90, at p. 22, and in the
case of Müller and others, judgment of May
24,1988, Series A, No.133, at p. 20, laws that are framed
in general terms may be better suited to the achievement
of their objectives, inasmuch as in fields governed by
public policy circumstances may vary widely in time and
from one case to the other. A very detailed enactment
would not provide the required flexibility, and it might
furthermore obscure its purposes behind a veil of detailed
provisions. The modern state intervenes today in fields
where some generality in the enactments is inevitable. The
substance of these enactments remains none the less
intelligible. One must be wary of using the doctrine of
vagueness to prevent or impede state action in furtherance
of valid social objectives, by requiring the law to
achieve a degree of precision to which the subject-matter
does not lend itself. A delicate balance must be
maintained between societal interests and individual
rights. A measure of generality also sometimes allows for
greater respect for fundamental rights, since
circumstances that would not justify the invalidation of a
more precise enactment may be accommodated through the
application of a more general one. What becomes more problematic is not so much general
terms conferring broad discretion, but terms failing to
give direction as to how to exercise this discretion, so
that this exercise may be controlled. Once more, an
unpermissibly vague law will not provide a sufficient
basis for legal debate; it will not give a sufficient
indication as to how decisions must be reached, such as
factors to be considered or determinative elements. In
giving unfettered discretion, it will deprive the
judiciary of means of controlling the exercise of this
discretion. The need to provide guidelines for the
exercise of discretion was at the centre of the E.C.H.R.
reasons in Malone, supra, at p. 32-.3,
and the Leander case, judgment of March 26,
1987, Series A, No. 116, at p. 23. Finally, I also wish to point out that the standard I
have outlined applies to all enactments, irrespective of
whether they are civil, criminal, administrative or other.
The citizen is entitled to have the state abide by
constitutional standards of precision whenever it enacts
legal dispositions. In the criminal field, it may be
thought that the terms of the legal debate should be
outlined with special care by the state. In my opinion,
however, once the minimal general standard has been met,
any further arguments as to the precision of the
enactments should be considered at the “minimal
impairment” stage of s. l analysis. The doctrine of vagueness can therefore be summed up in
this proposition: a law will be found unconstitutionally
vague if it so lacks in precision as not to give
sufficient guidance for legal debate. This statement of
the doctrine best conforms to the dictates of the rule of
law in the modern state, and it reflects the prevailing
argumentative, adversarial framework for the
administration of justice.
R.
v. Heywood Supreme
Court of Canada [1994]
3 S.C.R. 761 [Heywood was convicted of vagrancy for
“loitering in or near…a playground” after having
photographed young children; the police had been alerted
when he had brought photos of the crotch area of young
girls to be developed. Section 179(1)(b) of the Criminal
Code provides: “Every one commits vagrancy who … (b)
having at any time been convicted of an offence under
section 151, 152 or 153, subsection 160(3) or 173(2) or
section 271, 272 or 273, or of an offence under a
provision referred to in paragraph (b) of the definition
‘serious personal injury offence’ in section 687 of the
Criminal Code, chapter C‑34 of
the Revised Statutes of Canada, 1970, as it read before
January 4, 1983, is found loitering in or near a school
ground, playground, public park or bathing area.” The definition
of "serious personal injury offence" in s. 687 of the
Criminal Code, as it read before January 4, 1983, was as
follows: “an offence mentioned in section 144 (rape) or
145 (attempted rape) or an offence or attempt to commit
an offence mentioned in section 146 (sexual intercourse
with a female under fourteen or between fourteen and
sixteen), 149 (indecent assault on a female), 156
(indecent assault on a male) or 157 (gross indecency).” In 1987
Heywood had been convicted of two counts of sexual
assault; these prior convictions made him subject to s.
179(1)(b). The British Columbia Court of Appeal
overturned the vagrancy conviction; the Crown appealed.] CORY
J. (Lamer C.J.,
Sopinka, Iacobucci, and Major JJ. concurring):—Overbreadth
and vagueness are different concepts, but are sometimes
related in particular cases. As the Ontario Court
of Appeal observed in R. v. Zundel (1987),
58 O.R. (2d) 129, at pp. 157‑58, cited with
approval by Gonthier J. in R. v. Nova Scotia
Pharmaceutical Society, supra, the meaning
of a law may be unambiguous and thus the law will not be
vague; however, it may still be overly broad. Where a
law is vague, it may also be overly broad, to the extent
that the ambit of its application is difficult to
define. Overbreadth and vagueness are related in
that both are the result of a lack of sufficient
precision by a legislature in the means used to
accomplish an objective. In the case of vagueness,
the means are not clearly defined. In the case of
overbreadth the means are too sweeping in relation to
the objective. Overbreadth analysis looks at
the means chosen by the state in relation to its
purpose. In considering whether a legislative
provision is overbroad, a court must ask the
question: are those means necessary to achieve the
State objective? If the State, in pursuing a
legitimate objective, uses means which are broader than
is necessary to accomplish that objective, the
principles of fundamental justice will be violated
because the individual's rights will have been limited
for no reason. The effect of overbreadth is that in
some applications the law is arbitrary or
disproportionate. In summary, s. 179(1)(b)
is
overly broad to an extent that it violates the right to
liberty proclaimed by s. 7
of the Charter
for a number of reasons. First, it is overly broad
in its geographical scope embracing as it does all
public parks and beaches no matter how remote and devoid
of children they may be. Secondly, it is overly
broad in its temporal aspect with the prohibition
applying for life without any process for
review. Thirdly, it is too broad in the number of
persons it encompasses. Fourth, the prohibitions are put
in place and may be enforced without any notice to the
accused. GONTHIER
J. (La Forest,
L’Heureux-Dubé, and McLachlin JJ. concurring (in
dissent)):—The interpretation I advocate
eliminates Cory J.’s concern that the prohibition
is overbroad. A lifetime prohibition of activities
with a malevolent or ulterior purpose related to
re-offending is in no way objectionable or
overbroad. Such a prohibition would impose a
restriction on the liberty of the affected individuals
to which ordinary citizens are not subject, but that
restriction is directly related to preventing
re-offending. The affected persons’ history of
offending, the uncertainties prevalent in treating
offenders and a desire to disrupt the cycle of
re-offending justify what is in effect a minor intrusion
which does not breach the principles of fundamental
justice. D. Strict Construction/Lenity
R. v. Robinson The judgment of the Chief Justice and of Kerwin,
Taschereau, Estey and Fauteux, JJ. was delivered by: The opposing contentions of the parties, which are now to be considered, may more clearly be stated once the relevant part of section 575(c) is quoted:
The submission of respondent, which prevailed in the
Court of Appeal, rests on an argument, centred solely on
the meaning of the words "at least"—twice
appearing in the above provision—and
purporting to implement the rule of literal
interpretation. In both instances the words are said to
mean "not less than". "Not less than"—it
may be pointed out—is the qualifying
phrase used by Parliament in relation to minimum mandatory
sentences, which are few in number. Paraphrasing the
relevant part of the provision, in a manner strictly
consistent with the submission made, the provision would
read: "A person shall not be found to be a habitual
criminal unless it is found on the evidence that, since
attaining the age of eighteen years, he has not less than
three times, previously to the conviction of the crime
charged in the indictment, been convicted of an indictable
offence for which the minimum mandatory punishment enacted
is not less than five years' imprisonment." In this
category, it may immediately be noted, there is only one
offence in the Criminal Code. The offence is dealt with in
section 449: Stopping the mail with intent to rob. In the appellant's view, the words "at least", in the
context, mean "as much as" and the questioned part of the
provision should read: "... unless... he has... been
convicted of an indictable offence for which he was liable
or exposed to suffer as much as five years' imprisonment."
Thus, it is said, that, in the context -- and not detached
therefrom -- these words are indicative of a minimum
manifestly related to the maximum number of years of
imprisonment which the offender is liable or exposed to
suffer as punishment. There are, in the Criminal Code,
some one hundred and eighty indictable offenses for which
the offender is liable to receive as a maximum punishment
a sentence of at least five years' imprisonment…. In my respectful view, the submission of the respondents
cannot rest, as alleged, on the rule of literal
construction.
In Canada, section 15 of the Interpretation Act disposes
of all discussion in the premises. This section, by force
of section 2, extends and applies to the Criminal Code and
the following words in section 15: "or to prevent or
punish the doing of anything which it deems contrary to
the public good," make it clear that its provisions
embrace penal as well as civil statutory provisions in any
Canadian statute except if there is inconsistency or a
declaration of inapplicability. The judgment of Rand, Kellock and Locke, JJ. was
delivered by: Since no mention is made of section 15 of the
Interpretation Act, R.S.C. 1927, c. 1, in the reasons for
the judgment appealed from or in the factum of either
party, I judge that it was not argued in the Court of
Appeal that the rules of statutory construction prescribed
by that section were to be applied. Mr. Justice O'Halloran
refers to the common law rules of construction but, while
the result may not be affected, I am of the opinion that
it is to the statute we must look. Section 15[4] reads:
This section appears to have had its origin in section 5
of c. 10, Statutes of Canada 1849 which was, with minor
differences which do not affect the meaning, expressed in
the same terms. It was reproduced in substantially the
same form in section 6 of c. 5 Consolidated Statutes of
Canada 1859 and appeared as the 39th paragraph of section
7 of the Interpretation Act, passed at the First Session
of the Parliament of Canada in 1867, and has been
continued in language identical in meaning up to the
present time. Section 3 of the Act as passed in 1867
provided that section 7 and each provision thereof should
extend and apply to every Act passed in the session held
in that year and in any future session of the Parliament
of Canada, except in so far as the provision was
inconsistent with the intent and object of the Act or the
interpretation which such provision would give to any
word, expression or clause inconsistent with the context
and except in so far as any provision thereof in any such
Act is declared not applicable thereto. Section 2 of the
Interpretation Act, R.S.C. 1886, c. 1, declared that the
Act and every provision thereof should extend and apply to
every Act of the Parliament of Canada then or thereafter
passed, with the like exceptions, and the legislation was
in this state when the Criminal Code was first enacted in
1892. Section 2 of the present Act is in like terms and
its application does not, in my opinion, restrict in any
way the application of section 15 to the language here to
be construed. Section 15 appears to me to be substantially a
restatement of the rules for the construction of statutes
contained in the Resolutions of the Barons in Heydon's
Case [(1584) 3 Co. Rep. 7(a)].… In my opinion, the requirement that statutes and their
provisions are to be deemed remedial and that they shall
accordingly receive "such fair, large and liberal
construction and interpretation" as will best ensure the
attainment of the object of the Act does not mean that the
object of the Act is not to be clearly manifest from the
language employed. The object of these amendments to the
Criminal Code is to be ascertained by determining the
identity of the persons against whom they are directed. In
accordance with the canons for the interpretation of
statutes the Act as a whole may be examined as an aid to
the construction of the language of the amending sections.
As appears from section 575B the legislation is designed
for the protection of the public against the danger
inherent in permitting habitual criminals being at
large.... The persons to whom the habitual criminal sections of the
Criminal Code are applicable are, if the respondents'
contention be accepted, only those who have on three
occasions or more been convicted of offenses against
section 449, dealing with the offence of stopping a mail
with intent to rob or search the same, and presumably such
other offenses for which there may hereafter be prescribed
a minimum term of five years' imprisonment. Construing the
subsection in the manner contended for by the Crown means
that conviction on three or more occasions of any of the
many other offenses described in the Code for which the
maximum imprisonment might be five years or more would
comply with the subsection…. It is inconceivable to me that these new sections of the
Code were directed against the very limited class of
criminals who would be affected if the respondents'
contention were correct. We are required by section 15 to
interpret the subsection in such manner as will best
ensure the attainment of its object according to its true
intent, meaning and spirit, and to construe this language
in this manner is, in my judgment, not to legislate but to
comply with the directions of the statute. CARTWRIGHT J.:—The only question raised
on this appeal is as to the proper interpretation of
section 575C of the Criminal Code.… The controversy is as to the proper construction of the
words "been convicted of an offence for which he was
liable to at least five years' imprisonment."…. The meaning which I ascribe to the word "liable" is given
in the Oxford English Dictionary (1933) Volume
VI, page 235. In Black's Law Dictionary, 3rd
Edition (1933), page 1103, the meaning given is: "Exposed
or subject to a given contingency, risk or casualty which
is more or less probable". Inre Soltau's Trusts
[(1893) 2 Ch. 629.], North J. agreeing with a decision of
Stirling J. in an earlier case held that the expression
"is liable to be laid out in the purchase of land" does
not mean "has to be laid out in the purchase of land" but
means "subject to some disposition under which it may be
laid out in the purchase of land". If the words of the section only were to be considered it
would be my view that their natural meaning is that
attributed to them by the appellant…. In my opinion if the words of an enactment which is
relied upon as creating a new offence are ambiguous, the
ambiguity must be resolved in favour of the liberty of the
subject, but whether or not such ambiguity exists is to be
determined after calling in aid the rules of construction.
I have reached the conclusion that the words of the
section construed with the aid of the applicable rules,
mentioned above, leave no room for doubt as to the
intention of Parliament, and that such intention is that
for which the appellant contends….
* * *
R. v. Paré The judgment of the Court was delivered by (iii) Strict Construction 24 Counsel for
the respondent argue that the doctrine of strict
construction of criminal statutes requires that this Court
adopt the interpretation most favourable to the accused.
According to this argument the words “while committing”
must be narrowly construed so as to elevate murder to
first degree only when the death and the underlying
offence occur simultaneously. In order to assess the
validity of this position we must examine the doctrine of
strict construction. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication. The continued vitality of the doctrine is further
evidenced by the decision in R. v. Goulis
(1981), 60 C.C.C. (2d) 347 (Ont. C.A.) and Paul v.
The Queen, [1982] 1 S.C.R. 621. The question,
therefore, is not whether the doctrine of strict
construction exists but what its implications are for this
case. (iv) Applying the Doctrine 27 [I]t is
clearly grammatically possible to construe the words
“while committing” in s. 214(5) as requiring murder to be
classified as first degree only if it is exactly
coincidental with the underlying offence. This, however,
does not end the question. We still have to determine
whether the narrow interpretation of “while committing” is
a reasonable one, given the scheme and purpose of the
legislation. [Wilson, J., concludes that it is not, and instead finds
“an organizing principle for s. 214(5)”:] This principle is that where a murder is committed by
someone already abusing his power by illegally dominating
another, the murder should be treated as an exceptionally
serious crime. Parliament has chosen to treat these
murders as murders in the first degree. 4. Conclusion35 The
respondent murdered Steeve Duranleau two minutes after
indecently assaulting him. The killing was motivated by
fear that the boy would tell his mother about the indecent
assault. The jury found the respondent guilty of first
degree murder. They were entitled to do so. The murder was
temporally and causally connected to the underlying
offence. It formed part of one continuous sequence of
events. It was part of the same transaction.
R. v. McIntosh The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci
and Major JJ. was delivered by Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.... Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island, [1921] 2 A.C. 384, at p. 387, put it this way: …. Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal ... I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.
R. v. Sharpe The judgment of McLachlin C.J. and Iacobucci, Major,
Binnie, Arbour and LeBel JJ. was delivered by
R. v. L.B. The judgment of the Court was delivered by
52 I take the "modern principle" of statutory interpretation to mean that the words of a statute, like any other words, derive their meaning from their context in the broadest sense of that word: R. v. Sharpe, [2001] 1 S.C.R. 45, at para. 33; Redeemer Foundation v. Canada (National Revenue), [2008] 2 S.C.R. 643, at para. 15; R. v. Ahmad, 2011 SCC 6, at para. 28.
E. Prospectivity
Application under s. 83.28 of the
Criminal Code The judgment of McLachlin C.J. and
Iacobucci, Major and Arbour JJ. was delivered by I. Introduction… IV. Issues26 … V. AnalysisA. Introduction28 The
following recital to the Act expresses the basic issue
before us in this case, namely the tension between
responding to terrorism in the interest of national
security and respect for the Charter’s rights
and freedoms:
… B. Statutory and Constitutional Interpretation Generally... D. Discussion of Issues(1) Retrospectivity
63 This
presumption will yield where the contrary intent of
Parliament has been evinced: R. v. Ali, [1980] 1
S.C.R. 221, at p. 235. Relevant Constitutional and Legislative ProvisionsA. Constitutional ProvisionsCanadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. B. Legislative ProvisionsCriminal Code, R.S.C. 1985, c. C-46, as amended
by S.C. 2001, c. 41 2. In this Act... INVESTIGATIVE HEARING
(ii) there are reasonable grounds to believe that a person has direct and material information that relates to a terrorism offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit a terrorism offence referred to in that subparagraph, and
(a) order the examination, on oath or not, of a
person named in the order; (7) The judge who made the order under subsection (4), or another judge of the same court, may vary its terms and conditions. (8) A person named in an order made under subsection (4) shall answer questions put to the person by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to non-disclosure of information or to privilege. (9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing. (10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate the person or subject the person to any proceeding or penalty, but (a) no answer given or thing produced under
subsection (8) shall be used or received against the
person in any criminal proceedings against that person,
other than a prosecution under section 132 or 136; and
F. Publicity
R. v. Furtney The judgment of the Court was delivered by Facts3 The
appellants were charged in an information that, on five
occasions, they counselled licensees of bingo lottery
schemes to violate the terms and conditions of their
licences relating to bingo lotteries, contrary to s.
190(3) of the Criminal Code, R.S.C. 1970, c. C-34 {now s.
207(3)}. In particular, they were accused of counselling
the breaking of the so-called 15%-20% rule (a maximum of
15% of the revenues can go to management costs and a
minimum of 20% of the revenues must go to the charity).
The terms and conditions for such lotteries are set out in
Order-in-Council 2797/82 and other rules, regulations and
directions issued by the Ministry of Consumer and
Commercial Relations of Ontario. The allegation was that
the substantive offence of breaching the terms and
conditions of the licences was an offence under s. 190(3)
of the Code and that, therefore, s. 22 applied
(counselling an offence). Judgments …Court of Appeal …14 The Court of
Appeal was of the view that the essential elements of the
offence are found not in the terms and conditions of the
licences but, rather, in the wording of s. 207(3) of the
Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 190(3)).
In other words, it was incumbent upon the Crown to
establish that the appellants counselled the licensees,
for the purpose of a lottery scheme, to do something not
authorized by a provision of s. 207 in connection with the
conduct, management or operation of the lottery scheme. Relevant LegislationCanadian Charter of Rights and Freedoms18
Criminal Code, R.S.C., 1985, c. C-46 207. (1) Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful 44 … In my view
s. 11(g) of the Charter is directed towards the need that
impugned conduct be criminal at the time of its
commission. That proposition is fundamental, but has
nothing to do with the question of how the law is to be
made known. Indeed, s. 11(g) embraces criminal law
recognized by the community of nations, international law,
which is not by its very nature subject to requirements of
domestic publication. Disposition48 I would dismiss the appeal. G. Codification
United Nurses of Alberta v.
Alberta (Attorney General) The reasons of Lamer C.J. and Cory J. were
delivered by The Law of Criminal Contempt(a) Are Unions Subject to Criminal Contempt?3 There can be no doubt that unions have the legal status to sue and to be sued in civil matters. They can and do present and defend cases before the courts. They make full use of the courts and the remedies they provide. If unions avail themselves of court facilities, they must be subject to the court’s rules and restraints placed on the conduct of all litigants. It follows that they are subject to prosecution for the common law offence of criminal contempt. There can be no question that unions fall within the scope of the term “societies” in the Criminal Code’s definition of person and they must be equally liable for prosecution for a common law crime. (b) Definition of Criminal Contempt4 What is
criminal contempt? The common law recognizes two separate
species of contempt. That which is civil and that which is
criminal in nature. Contempt of court may arise in many
different ways and may take many different forms. This
case of course deals with the disobedience of a judicial
order. The United Nurses of Alberta violated a directive
of an administrative board (the Labour Relations Board of
Alberta) which had been filed with the court. For the
purpose of this case it can be taken that the union defied
an order of the court. There can be no doubt that such
defiance brings a party into civil contempt. However, both
civil and criminal contempt may apply and attach to the
same activity. In this case it must be determined what
element transforms civil into criminal contempt.
6 The
distinction drawn by Oswald makes eminently good sense.
The purpose of the criminal law is to protect society
whereas the civil law regulates and facilitates private
relationships. The sole reason for the existence of a
separate category of criminal contempt is to answer the
need to discourage and to punish those acts which occasion
serious injuries to the public interest. Where the injury
caused by disobedience to an order is private in nature,
the civil contempt powers suffice. In order to determine
whether by their conduct individuals are subject to
criminal contempt, the court should ask: who has been
injured and what are the extent of the injuries caused by
the contumacious conduct? (c) The Effect of Publicity11 My colleague
McLachlin J. concludes that in essence all that is
necessary to transform a defiance of a court order into
criminal contempt is that the conduct occur in public.
With respect, I cannot agree. To accept such a standard
would be to ignore the basis of the distinction between
criminal and civil contempt. It would replace a functional
distinction derived from the separate interests which the
law of civil and criminal contempt are designed to protect
with an arbitrary distinction based on the public profile
of a dispute which has resulted in the breach of a court
order. I would certainly agree that the intentional
defiance of a court order, which takes place in full
public view, may well be a significant factor in leading a
court to conclude that there had been an injury to the
public interest. However, to make it the sole determining
factor expands the scope of criminal contempt powers far
beyond the limits necessary to achieve their end. Criminal
contempt provides the court with an awesome power which
may have devastating consequences. It should be exercised
with the greatest restraint and caution. Penal sanctions should be reserved for very serious cases and used with moderation in order to reaffirm fundamental values solemnly. Criminal law must thus set tolerance thresholds. In matters of contempt, these thresholds must be established on the basis of the values to be protected, and must take into account the fact that civil contempt is often sufficient to reaffirm the values contravened, or to restore peace, efficacy and impartiality to a situation jeopardized by the act of an individual.13 I agree that criminal contempt power should be used sparingly, with great restraint and only in those circumstances when it is required to protect the rule of law. The response of the court to a party in defiance of its order must be proportionate to the harm caused. If the penalty is of undue severity and disproportionately greater than that which is appropriate then it will diminish rather than enhance respect for the administration of justice. 14 If civil contempt is to be transformed into criminal contempt solely because it has occurred in a public forum, then it will have a very severe impact on all labour relations. Labour disputes culminating in strikes and picketing must necessarily take place in the public eye. Both unions and management rely on publicity to raise public awareness of the issues involved in the dispute. Both sides will seek public support. Court orders pertaining to a labour dispute will attract more attention to it. A defiance of such a court order is bound to attract still further public attention. In the usual course of events the breach of an order of a labour relations board during the course of union organizing, contract negotiations or a strike can, and should be, subject to monetary and legal consequences. The consequences should as a general rule be those provided by the applicable labour relations act or those which would result from civil contempt. It should rarely attract the penalties flowing from criminal contempt. … (d) Alternate Remedies21 It is clear
that alternate methods were available for enforcing the
compliance of the provisions of the Labour Relations Board
order. First the defiance of the court order automatically
invokes liability for civil contempt. Rule 704(1) of the
Alberta Rules of Court provides:
22 Although the
fines are limited, to $1,000 a day, nevertheless that fine
on a daily basis imposed upon an individual with a
prospective jail term if it is not paid, must have a
deterrent effect.
24 These
provisions clearly indicate that the legislators turned
their minds to the issue of enforcement of board
directives. They designed a comprehensive and balanced
scheme to deal with any infringement of orders. Ceilings
are fixed on the amount of the fines that may be levied by
these sections. This suggests that the imposition of huge
fines in labour disputes such as the $400,000 fine in the
case at bar is contrary to the intent of the Labour
Relations Act. The use of criminal contempt proceedings
and the imposition of such crushing penalties are
inappropriate except in circumstances of violence or
threats of serious violence. The concerns voiced by the
respondent that, without the criminal contempt power, the
courts and labour boards will have difficulty enforcing
their orders and that respect for the rule of law will be
threatened are, in my view, groundless in light of the
effective alternate remedies that were available. Disposition34 I would allow the appeal and set aside the conviction. The judgment of La Forest, Gonthier, McLachlin and
Iacobucci JJ. was delivered by
Facts37 On January
22, 1988 the Alberta Labour Relations Board declared that
the appellant union, the United Nurses of Alberta, had
failed to comply with s. 105(3) of the Alberta Labour
Relations Act (as amended by S.A. 1983, c. 34) by
threatening to strike or cause a strike prohibited by the
Act. The Board also issued a directive pursuant to s.
142(5) of the Act ordering that the union cease and desist
from causing a strike or threatening to strike, that it
refrain from conducting a strike vote, and that the union
and its officers notify the members of the union of the
directive and their obligation to comply. On that same day
the members of the union voted to strike, and the
following day the union gave notice to the employer of
most of the union members, the Alberta Hospital
Association (AHA), that it would commence strike action on
Monday, January 25, 1988. On Sunday, January 24, the Board
declared that the union had breached the directive of
January 22, again declared that the union had breached s.
105(3) of the Labour Relations Act, and specifically
declared that the strike scheduled to commence on Monday
morning was illegal. The union was again directed to cease
threatening strike action, and was specifically directed
not to strike on Monday, January 25. This directive also
gave notice to the union that the directives would be
filed as an order of the Court of Queen’s Bench. The first
directive was so filed, pursuant to s. 142(7) of the Act,
on January 24, the day before the strike was scheduled to
commence. The second directive was filed with the court
forthwith.[6] Analysis1. Status of the Union40 The Court of
Appeal (1990), 73 Alta. L.R. (2d) 152, Veit J. dissenting,
found that the union possessed the necessary status to be
found in criminal contempt. The union is an unincorporated
association. It is recognized under the Alberta Labour
Relations Act as a bargaining agent and given various
powers related to that status. The Locals are legal entities capable of being sued and of being brought before the Court to answer the claims being made herein for an injunction prohibiting the participation in the activities found to constitute an illegal strike.I see nothing in the authorities to suggest that the general applicability of the law to unions should not extend to the common law offence of contempt. In so far as the common law denied unions legal status, it was to impede the effective enforcement of collective agreements: see Young v. C.N.R., [1931] 1 D.L.R. 645 (P.C.). That notion has long since died. Having been given legal status for collective bargaining purposes, unions now find themselves subject to the responsibilities that go with that right. If they exercise their rights unlawfully, they may be made to answer to the court by all the remedies available to the court, including prosecution for the common law offence of criminal contempt. … 43 The union argues that while the Criminal Code, R.S.C., 1985, c. C-46, includes “societies” in its definition of “person”, the union is not a society because it is not so defined under the Alberta Societies Act, R.S.A. 1980, c. S-18. This argument depends on defining “societies” in the Code as limited to those entities recognized by provincial legislation. It also assumes that the definition of society in the Alberta Act is exhaustive. In fact, it is not. Section 1(c), provides that “In this Act ... (c) ‘society’ means a society incorporated under this Act”. This clearly implies that there may exist societies which are not incorporated under the Act. Thus it appears that the union may be a “society” under the Code. If the union may be prosecuted for a criminal offence under the Code, there appears to be little basis for suggesting that it cannot be prosecuted for a criminal offence at common law. 2. The Constitutionality of the Law of Criminal Contempt44 It is argued that the offence of criminal contempt violates s. 7 of the Charter because it is not codified and is vague and arbitrary. Sections 11(a) and 11(g) of the Charter are also raised. Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.45 There is no doubt that criminal contempt may result in imprisonment, constituting a denial of liberty. Assuming for the purposes of this appeal that the Charter is applicable, (see comments of Dickson C.J. in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at pp. 243-44) the only issue is whether it effects this denial in accordance with the fundamental principles of justice. 46 The union’s first position is that all uncodified common law crimes are unconstitutional. It is a fundamental principle of justice, it submits, that all crimes must be codified. Criminal contempt, although mentioned in s. 9 of the Code, is not codified, both its actus reus and mens rea being defined at common law. 47 We were referred to no authority in support of the proposition that fundamental justice requires codification of all crimes. The union cites the principle that there must be no crime or punishment except in accordance with fixed, pre-determined law. But the absence of codification does not mean that a law violates this principle. For many centuries, most of our crimes were uncodified and were not viewed as violating this fundamental rule. Nor, conversely, is codification a guarantee that all is made manifest in the Code. Definition of elements of codified crimes not infrequently requires recourse to common law concepts: see R. v. Jobidon, [1991] 2 S.C.R. 714, where the majority of this Court, per Gonthier J., noted the important role the common law continues to play in the criminal law. The union also relies on the fact that this Court has said it is for Parliament, not the courts, to create new offences: Frey v. Fedoruk, [1950] S.C.R. 517, s. 9 of the Code. But this does not mean that the courts should refuse to recognize the common law crime of contempt of court which pre-dated codification and which is expressly preserved by s. 9 of the Code. I conclude that lack of codification in itself does not render the common law crime of criminal contempt of court unconstitutional. 48 The next argument is that the crime of criminal contempt is so vague and difficult to apply that it violates the fundamental principle of justice that the law should be fixed, pre-determined and accessible and understandable by the public. This argument focuses on the alleged impossibility of distinguishing between civil and criminal contempt. 49 It is my view that a clear distinction exists between civil and criminal contempt and that the law of criminal contempt is sufficiently certain to meet the requirements of fundamental justice. The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt. 50 Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. 51 These same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, at p. 527, per Kellock J.: The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or a trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. [Emphasis added.]52 What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that “transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole”: B.C.G.E.U. v. British Columbia (Attorney General), supra, at p. 237, per Dickson C.J., Lamer, Wilson, La Forest, and L’Heureux-Dubé JJ. concurring. The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court. 53 The trial judges on the motions giving rise to this appeal focused on these concepts of public disobedience and public defiance. Sinclair J., after quoting from Poje stated: “... the public disobedience of a court order is a criminal contempt because it involves a public challenge to the Court’s authority.” [Emphasis added.]54 O’Byrne J. identified the same element of public disobedience and public defiance: The disobedience of the order was public, indeed it was notorious. The union knew of the previous conviction and the penalty imposed. Their actions constitute an open defiance of the law with full knowledge of the consequences. [Emphasis added.]55 To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). The Crown must prove these elements beyond a reasonable doubt. As in other criminal offences, however, the necessary mens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate the authority of the court. Therefore when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt. On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public. While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt. 56 In this case there was ample evidence to support the conclusion that the union chose to defy court orders openly and continuously, with full knowledge that its defiance would be widely publicized and, even putting the union’s case at its best, it did not care whether this would bring the court into disrepute. 57 Criminal contempt, thus defined, does not violate the Charter. It is neither vague nor arbitrary. A person can predict in advance whether his or her conduct will constitute a crime. The trial judges below had no trouble applying the right test, suggesting that the concept is capable of application without difficulty. Thus the case that the crime of contempt violates the principles of fundamental justice has not been made out. For the same reasons, violation of s. 11(a) and (g) of the Charter is not established, assuming arguendo that these provisions are applicable in the circumstances of the case. … Disposition75 I would
dismiss the appeal. The following are the reasons delivered by The Nature of Contempt77 The criminal law of contempt must be distinguished from civil contempt. The purpose of criminal contempt was and is punishment for conduct calculated to bring the administration of justice by the courts into disrepute. On the other hand, the purpose of civil contempt is to secure compliance with the process of a tribunal including, but not limited to, the process of a court. A useful summary of the two forms of contempt can be found in Black’s Law Dictionary (6th ed. 1990), at p. 319: Contempts are also classed as civil or criminal. The former are those quasi contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect. A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court was issued, and a fine is imposed for his indemnity. But criminal contempts are offenses upon the court such as wilful disobedience of a lawful writ, process, order, rule, or command of court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment.… 89 … I have concluded that on the basis of the ordinary rules of construction, s. 142(7) does not authorize the imposition of punishment for criminal contempt. At minimum, the equivocal or ambiguous nature of the words “enforceable as a judgment” leave a reasonable doubt with respect to this issue. The appellant is entitled to the benefit of this doubt. In Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 246, this rule of construction is expressed or follows: The effect of the rule of strict construction might be summed up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other.90 This is a rule that is applied by this Court and was recently applied in R. v. Green, [1992] 1 S.C.R. 614, to resolve an ambiguity in the interpretation of s. 254 of the Criminal Code, R.S.C., 1985, c. C-46. … 92 In the result, I would allow the appeal and quash the two convictions for contempt. Chapter 5. Jurisdiction
R. v. Stucky The following judgment was delivered by No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect. [Emphasis added.]3 The trial judge found Mr. Stucky not guilty of the charges because he held that the phrase "to the public" means "to the Canadian public" and none of the mailings were made to persons in Canada. … 24 Based on Criminal Code jurisprudence, it is our view that the meaning of "the public" is not restricted to the Canadian public where there is a real and substantial link or connection between the offence and Canada. … 26 [I]n Libman v. The Queen, [1985] 2 S.C.R. 178, the accused was charged with seven counts of fraud and one count of conspiracy to commit fraud arising from a telephone solicitation sales scheme operated from Canada, whereby residents in the United States were induced to purchase shares in Central American companies. Purchasers sent money to the Central American countries and, eventually, some of the proceeds returned to Canada. La Forest J., on behalf of the court, began by noting that the presumption against extraterritoriality in criminal law was codified in s. 5(2) (now s. 6(2)) of the Criminal Code, R.S.C. 1970, c. C.34, which states that no person "shall be convicted in Canada for an offence committed outside of Canada". However, he concluded that the offences in question had taken place in Canada. The commission of the offences had a real and substantial connection to Canada, in that the scheme was devised in Canada, and the operation and directing minds were situated in Canada. In coming to this conclusion, La Forest J. discussed and approved the holding in the Chapman decision. 27 The reasoning La Forest J. followed is equally applicable to this case and may be summarized along these lines: Canada has a legitimate interest in prosecuting persons for unlawful activities that take place abroad when the activities have a "real and substantial link" or connection to Canada. The fact that the only victims are outside of Canada does not make the activity any the less unlawful or mean that no crime has been committed in Canada when there exists "a real and substantial link" or connection to this country. The court must take into consideration all the facts that give Canada an interest in prosecuting the offence and then consider whether international comity would be offended in the circumstances. The principle of extraterritoriality has not prevented courts from taking jurisdiction over transnational offences whose impact is felt within the country. The purpose of criminal law is to protect the public from harm. That purpose is not achieved only by direct means, but also by underlining the fundamental values of our society and, in so doing, reinforcing the law-abiding sentiments of our society. La Forest J. reflected at p. 212 that utilizing a "real and substantial link" approach is necessary in order to reinforce the fundamental values of society: It would be a sad commentary on our law if it was limited to underlining society's values by the prosecution of minor offenders while permitting more seasoned practitioners to operate on a world-wide scale from a Canadian base by the simple manipulation of a technicality of the law's own making. What would be underlined in the public's mind by allowing criminals to go free simply because their operations have grown to international proportions, I shall not attempt to expound.… 35 In addition to the criminal law jurisprudence outlined above, the principles of statutory interpretation support an interpretation of "to the public" which is not restricted to the Canadian public. 36 The trial judge purported to follow the "modern approach" to statutory interpretation as articulated by Sullivan at p. 1 of her text. This formulation has been accepted by the Supreme Court in numerous cases: see, for instance, R. v. Bell ExpressVu Limited Partnership, [2002] 2 S.C.R. 559, at para. 26 and Rizzo v. Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at para. 21. The modern approach states that: [T]he words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.37 As the trial judge noted, the modern approach to statutory interpretation serves as an appropriate analytical framework. What the trial judge did not appreciate, however, is that judges are required to interpret a statute by using that framework to achieve a result that promotes the purposes of the legislation and produces harmony both within the statute itself and legislation dealing with the same subject matter. Instead, his interpretation led to a result which is not in keeping with the purpose of the Act and is not in harmony with the Criminal Code, our international agreements, or other provisions within the statute itself. … 57 Our analysis of the words "to the public" would not limit "the public" exclusively to persons within Canada. We, therefore, reject the trial judge's interpretation of the phrase "to the public" in s. 52(1), and hold, instead, that it should be interpreted as meaning "a group of persons" with whom the accused has a real and substantial link or connection.
Davidson v. British Columbia
(Attorney General) The judgment of the Court was delivered by LEVINE J.A.:— Introduction1 The
appellants, Gail Davidson and Lawyers Against the War,
attempted to bring a prosecution under the Criminal
Code against George W. Bush, the President of the
United States, for counseling, aiding and abetting torture
in the Abu Ghraib prison in Baghdad, Iraq, and at the U.S.
Naval Base at Guantanamo Bay, Cuba. Statutory and Factual Background5 Section 6(2)
of the Code sets out the general rule of
jurisdiction in criminal matters: “Subject to this Act and
any other act of Parliament, no person shall be convicted
or discharged under section 730 of an offence committed
outside Canada.”
9 President
Bush was present in Ottawa on November 30, 2004, at the
invitation of the Government of Canada.
11 When an
information is laid under s. 504 by a person who is not a
peace officer, a public officer, the Attorney General or
the Attorney General’s agent, the justice who receives the
information must refer it to a provincial court judge to
consider whether to compel the appearance of the accused
(ss. 507.1(1), 507(1)). (5) If the judge ... does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge ... to issue a summons or warrant, the information is deemed never to have been laid.15 On June 1, 2005, Ms. Davidson filed an application in the Supreme Court of British Columbia seeking, among other orders, an order in the nature of certiorari quashing the ruling of the Provincial Court judge that the information was a nullity. The application did not include an application in the nature of mandamus, compelling the Provincial Court judge to issue a summons or warrant to compel the attendance of President Bush. 16 Crown counsel on behalf of the Attorney General of British Columbia raised a preliminary objection to Ms. Davidson’s application for judicial review, claiming the proceedings were moot, and the court did not have jurisdiction because the consent of the Attorney General of Canada to continue the proceedings had not been obtained. After receiving written and oral submissions on the issues raised by the Crown’s application, the Supreme Court justice dismissed the proceedings as an abuse of process, [2005] B.C.J. No. 2760, 2005 BCSC 1765. The chambers judge determined that Ms. Davidson intended to use the criminal process to express her political views, which the chambers judge found (at para. 11) to be an attempt to use the process of the court “for some ulterior or improper purpose or in an improper way”. 17 Ms. Davidson filed an appeal in this Court on January 17, 2006. The appeal is brought under s. 784(1) of the Code: an appeal “from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari, or prohibition.” 18 Ms. Davidson alleges various errors by both the Provincial Court judge and the Supreme Court justice in their decisions. She claims that the Provincial Court judge erred in law in finding that President Bush has head of state immunity from the charges alleged against him, and erred in deciding that matter when no notice had been given of the Crown’s application to have the information declared a nullity. The primary alleged error of the Supreme Court justice is that she decided the information was an abuse of process, when that issue had not been raised by the Crown or addressed in submissions by either the Crown or Ms. Davidson. Preliminary Application to Dismiss19 The Attorney General of British Columbia raised a preliminary objection to the appeal in this Court, under R. 17(1) of the Court of Appeal Criminal Appeal Rules. He claimed that the Court has no jurisdiction to hear the appeal, on three bases:
20 During the
hearing of the Crown’s application, Crown counsel
abandoned the second ground for claiming the Court has no
jurisdiction to hear the appeal. Section 7(3.7) – Prosecution for Torture22 Section 7(3.7) of the Code, which provides for the prosecution of any person for torture, wherever committed, was Canada’s response to its international commitments under Articles 4 and 5 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), Can. T.S. 1987 No. 36, (entered into force June 26, 1987):
23 On introduction of Bill C-28, to amend the Code to implement the Convention, the Government recognized that extraterritorial jurisdiction was required in order to effectively implement the Convention. Mr. François Gèrin (Parliamentary Secretary to Minister of Justice and Attorney General of Canada) said (House of Commons Debates, 33rd Parliament, 2nd Session, 1987, vol. IV, March 26 (Ottawa: Canadian Government Publishing, 1997) at 4601): In order to enforce the convention, a system of extraterritorial jurisdiction is created to prevent safe havens for torturers or for their accomplices. States are obligated to investigate allegations of torture and to prosecute alleged torturers. With respect to a foreign torturer found on its territories, each state is obligated to either extradite or prosecute the alleged torturer. Section 7(7) – Consent of the Attorney General of Canada24 The expanded jurisdiction provided in s. 7 is qualified by the requirement in s. 7(7) that the consent of the Attorney General of Canada be obtained. This requirement is not specific to the offence of torture. It also applies to other offences that extend Canadian criminal jurisdiction beyond its borders and thus have an international aspect, such as air piracy, offences against diplomats, terrorist offences, and protection of nuclear material. Purpose of s. 7(7)25 The consent
of the Attorney General to the prosecution of offences
with international implications recognizes the importance
of Canada’s relationships with other states, and the role
of the federal government in managing those relationships. Obviously the intention was that international friction should not be provoked unknown to the central Government.… 29 David Matas provides a slightly different perspective on the purpose of obtaining the consent of the Attorney General in the context of the prosecution of war crimes, in his article “From Nuremburg to Rome: Tracing the Legacy of the Nuremburg Trials”, (2006) 10 Gonzaga Journal of International Law 17. He notes (at 30): The law requires that the Attorney-General of Canada both consent to and conduct the prosecution of war crimes and crimes against humanity. However, that requirement is there to stop politicized private prosecutions, not to allow the Attorney-General to refrain from prosecuting sound cases for political reasons. Application of s. 7(7)30 The issue
between the parties with respect to the application of s.
7(7) is the proper interpretation of when “the proceedings
are commenced”. The Crown argues that the laying of the
information is the commencement of proceedings for the
purpose of s. 7(7). Thus, Crown counsel says that the
consent of the Attorney General of Canada must be obtained
not later than eight days after the information is sworn.
The appellant contends that the proceedings do not
commence until after process (a summons or warrant) is
issued, relying on the authority of R. v. Dowson,
[1983] 2 S.C.R. 144. Subsequent to that comment in the Supreme Court of Canada the Criminal Code was amended. S. 732(1) was repealed and at the same time s. 508(1) was amended. Previously s. 508 provided that a stay could be entered “at any time after an indictment has been found”. That phrase was deleted in the amendment and now with respect to both summary conviction offences and indictable offences the Attorney General may enter a stay at any time after proceedings are commenced.35 It is worth noting that other provincial courts of appeal interpreted the amendments to the Code in the same way. In R. v. Campbell (1987), 35 C.C.C. (3d) 480, the Ontario Court of Appeal dismissed an appeal, adopting the reasons of Craig J. of the Ontario High Court (1987), 31 C.C.C. (3d) 289 at 299 where he said: It was decided in Dowson that a summons or warrant must first be issued before the power to stay may be exercised. Subsequent amendments to the Code permit the Attorney-General to direct a stay any time after an information is laid.36 The Quebec Court of Appeal came to the same opinion in R. v. Pardo (1990), 62 C.C.C. (3d) 371 at 373, where Gendreau J.A. for the Court, after quoting s. 579(1) of the Code, said: I completely share the opinion of the Superior Court judge when he stated that a person is an accused as of the laying of the information, which constitutes the beginning of the proceedings. He concluded, with reason, that this new disposition is the legislative response to the case of R. v. Dowson [citations omitted] ...37 Thus, if the principles in Dowson may have applied to interpret when “proceedings are commenced” for the purpose of s. 7(7), it is clearly not applicable since the Code was amended, and this Court decided in Wren that proceedings commence when an information is laid. 38 That is the complete answer to the appellants’ argument that they were not required to obtain the consent of the Attorney General of Canada to continue the proceedings against President Bush until after the hearing under s. 507.1(1) of the Code. The proceedings commenced when Ms. Davidson laid the private information on November 30, 2006. In the absence of the Attorney General of Canada’s consent having been obtained not later than December 8, 2006, the proceedings cannot continue, and no court has jurisdiction to consider them. Conclusion39 The
appellants failed to obtain the consent of the Attorney
General of Canada to continue the proceedings as required
by s. 7(7) of the Code, with the result that
this Court does not have jurisdiction to hear the appeal.
Canadian
Criminal Code § 7 Space
Station — Canadian crew members (2.3) Despite anything in this Act or any
other Act, a Canadian crew member who, during a space
flight, commits an act or omission outside Canada that
if committed in Canada would constitute an indictable
offence is deemed to have committed that act or omission
in Canada, if that act or omission is committed (a) on, or in relation to, a flight element
of the Space Station; or (b) on any means of transportation to or
from the Space Station. Space
Station — crew members of Partner States (2.31) Despite anything in this Act or any
other Act, a crew member of a Partner State who commits
an act or omission outside Canada during a space flight
on, or in relation to, a flight element of the Space
Station or on any means of transportation to and from
the Space Station that if committed in Canada would
constitute an indictable offence is deemed to have
committed that act or omission in Canada, if that act or
omission (a) threatens the life or security of a
Canadian crew member; or (b) is committed on or in relation to, or
damages, a flight element provided by Canada. … (2.33) No proceedings in relation to an
offence referred to in subsection (2.3) or (2.31) may be
instituted without the consent of the Attorney General
of Canada.
NATIONAL DEFENCE ACT (R.S., 1985, c. N-5) PART IIICODE OF SERVICE DISCIPLINE Division 1 Disciplinary Jurisdiction of the Canadian Forces Application Place of Commission of Offence Place of Trial Limitations with respect to Certain
Offences Jurisdiction of Civil Courts Disgraceful Conduct
* * * German Criminal Code
§ 3
Offences committed on the territory of the Federal
Republic of Germany § 4
Offences committed on German ships and aircraft § 5
Offences committed abroad against domestic legal
interests § 6
Offences committed abroad against internationally
protected legal interests § 7
Offences committed abroad-other cases § 8
Time of the offence § 9
Place of the offence
Chapter 6. Analysis of Criminal LiabilityA. Three Levels of Liability
Dubber, Comparative Analysis of Criminal Liability[7] It is generally assumed that the analysis of criminal
liability differs widely in common law and civil law, with
one system requiring actus reus and mens rea, and the
other Tatbestandsmäßigkeit (tipicidad, tipicità),
Rechtswidrigkeit (antijuricidad, antigiuridicità), and
Schuld (culpabilidad, colpevolezza). The
significance of these structural matters tends to be
exaggerated; nonetheless, they are worth one’s attention
if only because supposed structural incompatibility is an
unnecessary impediment to comparative
analysis. This scheme is easily mapped onto the traditional common
law scheme. It is impossible to crystallize a single
coherent liability analysis from hundreds of years of
Anglo-American common law. Let’s assume, for
present purposes, that a crime in the common law sense
consists of two “offense” elements, (1) actus reus (the
guilty act) and (2) mens rea (the guilty mind). Actus
reus and mens rea are necessary, but not sufficient,
prerequisites of criminal liability under the common law;
criminal liability requires both a criminal “offense”
(consisting of actus reus and mens rea) and the absence of
“defenses.” Particularly in the law of homicide,
which has always managed to attract the lion’s share of
doctrinal attention, courts generally divided these
defenses into two types, justifications and excuses. Criminal
liability thus attached to an offense committed (2)
without justification and (3) without excuse. The
analytic schemes of the Model Penal Code and the common
law therefore are more or less interchangeable depending
on how one views the connection between conduct and mens
rea. The Model Code defines conduct as
encompassing both: conduct is “an action or omission and
its accompanying state of mind.” Replacing “actus
reus and mens rea” with “conduct,” the common law scheme
of criminal liability therefore looks like this: (1)
conduct, (2) without justification and, (3) without
excuse. Despite this basic structural compatibility, which should suffice for meaningful comparative analysis, some general differences remains (besides the inevitable distinctions in specific rules). For one, U.S. criminal law attaches far less significance to the definitions of, and distinctions among, the various levels of inquiry. Even the Model Penal Code considered them as no more than occasionally convenient analytic devices. Unlike in other traditions (notably in German criminal law), they are not generally thought to reflect the ontology, or the phenomenology, of criminal liability. Moreover, even modern Anglo-American criminal has retained the basic distinction between offense and defense, classifying justifications and excuses (themselves defensive concepts) as types of defense, rather than as preconditions for the attachment of criminal liability. This distinction, which is largely ignored in continental criminal law, reflects the continued dominance of procedure over substance in Anglo-American criminal law. The distinction, however arbitrary, also carries considerable doctrinal significance as it separates issues that must be proved by the state, beyond a reasonable doubt, from those that the defendant may be required to prove. * * * Criminal Code Bill Commission, Report (1879), at 11 There is a difference in the language used in the
sections in this Part which probably requires explanation.
Sometimes it is said that the person doing an act is
"justified" in so doing under particular circumstances.
The effect of an enactment using that word would be not
only to relieve him from punishment, but also to afford
him a statutable defence against a civil action for what
he had done. Sometimes it is said that the person doing an
act "is protected from criminal responsibility" under
particular circumstances. The effect of an enactment using
this language is to relieve him from punishment, but to
leave his liability to an action for damages to be
determined on other grounds, the enactment neither giving
a defence to such an action where it does not exist, nor
taking it away where it does.... B. German Scheme
Wolfgang Naucke, “An Insider’s Perspective on the Significance of the German Criminal Law Theory’s General System for Analyzing Criminal Acts,” 1984 BYU L. Rev. 305
German courts are time and again confronted by the
following set of facts: A group of young people has
difficulty gaining public attention for their political
views, and to remedy this problem they decide to
“advertise”: They have some posters printed and
paste them up as firmly as possible in as many locations
as they see fit. The modern glues are quite
permanent, and the material is often bonded to the surface
to which it is attached. It is usually a
tremendous inconvenience to remove the posters or fliers,
and is sometimes impossible. Under German criminal law, the question is whether the
foregoing conduct is sufficient to constitute the crime of
damaging property under section 303 of the German Criminal
Code. There are conflicting opinions, and the
courts and scholars defend their views with numerous
arguments. It is unsettled whether firmly
pasting a flier or poster on an object damages that object.
Those who believe that it does must turn to further
questions. Conceivably, such property damage is
justified by the right to freedom of speech. Even
someone who does not accept the argument that free speech
rights legitimize property damage might still argue that
the young people should not be punished because they
(mistakenly) thought that their right to freedom of speech
justified their actions. . . . In [the general system for analyzing criminal acts] are
collected those features of crime that are common to all
crimes, whether it be damaging property, theft, murder, or
anything else. If, therefore, unauthorized
advertising is to be punishable under German law, it must
be found to exhibit the general paradigmatic features of
crime as determined by German criminal theory, as well as
the particular elements of section 303 established by
statute. The general analytical system describes the main features
of criminal action with the German terms
Tatbestandsmässigkeit (definition of the offense),
Rechtswidrigkeit (wrongfulness), and Schuld (culpability).
Whatever the governing code provision may be, every
criminal act must be wrongful and culpable conduct that
conforms to (i.e., is violative of) the definition of the
offense. Unauthorized advertising can only be
punished if it violates the definition, is wrongful, and
is culpable. These central elements are
discussed with much effort and pomp in Germany. The
discussion . . . has not achieved a conclusive result.
A few main points, however, are undisputed. a. The definition of an offense. The word
Tatbestandsmässigkeit embraces all of the elements of a
particular crime that are found in the applicable code
section. A rough American equivalent would be
the phrase “elements of the offense.” There is a
Tatbestand or definition of theft, homicide, fraud, and so
on. The problems . . . with applying section 303
to “wild postering” are questions about whether such
conduct fits within the scope of the definition of
damaging property. A German law student writing
an exam on the issue, or for that matter, a German judge
deciding a “wild postering” case, would be regarded as
engaging in improper analysis if he or she tried to treat
these question at a different stage of the analysis—i.e.,
as an issue of wrongfulness or culpability. Demanding that the problem of determining which legal
interest is protected by section 303 be treated as a
problem of the definition of damaging property affects
more that the mere formal ordering of legal analysis.
This demand also aids the decision of substantive
issues. The content of the definition of a crime
cannot be extended beyond that formulated by the
legislature. In the context of section 303, for
example, the authority of the property owner to determine
what may happen to his property is protected only to the
extent this authority is asserted to prevent damage to, or
destruction of, the property. From this
perspective it would take a strained interpretation to
hold unauthorized advertising to be a violation of section
303, since such conduct leaves the property intact and
intrudes solely upon the owner’s authority. . . . If
however, the definition of the crime of damaging property
were tied to the authority of the owner to control his
property, the determination of whether a particular act
satisfied the element of the definition would be dependent
upon whether the property owner viewed the act as an
incursion upon his authority. . . . b. Wrongfulness. Rechtswidrigkeit, or wrongfulness,
embraces all the statutory and extra statutory general
grounds for holding that conduct which is violative of the
definition may still be found to be justified, thereby
escaping punishment. Self-defense is a classic
justification that negates the wrongfulness of an act.
The right to free speech, which some “wild posterers”
cite as the source of the legitimacy of their activity, is
a doubtful justification in their case. But it is in any
event an argument that must be legally analyzed under the
heading of wrongfulness. The category of
wrongfulness in the general analytical system not only
proves the proper place for the discussion of such
justifications but also provokes the discussion of
doubtful justification. c. Culpability. The first task of the element
of Schuld or culpability in the general analytical system
is to secure the status of culpability as an indispensable
prerequisite to punishment. A result of the
culpability requirement is that the lawyer must carefully
consider possible grounds for excusing the actor, even
though his conduct is violative of the definition of the
crime and is wrongful. Insanity and duress are
illuminating examples of the doctrines that serve to
negate culpability in this manner. A party
availing himself of either of these defenses typically
claims that while he has engaged in conduct specified in
the definition of some crime, and though he has done so
without justification, he cannot fairly be held
responsible for what he did. Legal discussions of unauthorized advertising commonly encounter the view that this conduct conforms to the definition of damaging property and is wrongful. Those who defend this position are not, however, finished with their analysis. They must take up the further problem presented by the possibility that the actor thought he had a right to paste up posters, In the terms of the theory of the general analytical system, this is a problem of culpability. A perhaps overly simplistic formulation is that the category of culpability marshals all of the arguments favoring a finding of not guilty that are based on the subjective state of the accused and insures that they are considered in every case. C. Victim Compensation Scheme
Dubber, Analysis of Compensability[8] The kernel of a general account of victimhood lies ... in the general definition of victimhood [such as the one found in the New York victim compensation statute]: a victim is “a person who suffers personal physical injury as a direct result of a crime.” N.Y. Exec. Law § 620. To receive compensation, however, mere victimhood is not enough. Not victims, but innocent victims trigger the legislature’s empathy ..., as the “declaration of policy and legislative intent” at the very beginning of New York’s victim compensation statute makes clear: The legislature recognizes that many innocent persons suffer personal physical injury or death as a result of criminal acts. Such persons or their dependents may thereby suffer disability, incur financial hardships, or become dependent upon public assistance. The legislature finds and determines that there is a need for government financial assistance for such victims of crime. Accordingly, it is the legislature’s intent that aid, care and support be provided by the state, as a matter of grace, for such victims of crime (emphasis added). Combining the definition of “victim” and the declaration of legislative intent, we end up with the following test of compensability: To qualify for victim compensation a claimant must be (i) “a person who suffers personal physical injury as a direct result of a crime” and (ii) “innocent.” A compensable victim [thus] is an innocent person who suffers personal physical injury as a direct result of a crime. [Based on a review] of victims legislation from throughout the country, we can construct the outline of a general law of compensability. The analysis of compensability falls into two stages: (1) At the first stage, the victim’s general eligibility for compensation is determined. To be facially eligible for compensation in the abstract, a “claimant” must establish (a) that she falls within the scope of the relevant compensation statute (“jurisdiction”) and (b) that she is capable of being a victim (“an innocent person who suffers personal physical injury as a direct result of a crime”). Assuming she is eligible in the abstract, she must establish that she is eligible in particular, by showing (c) that she was in fact the victim of a crime (“an innocent person who suffers personal physical injury as a direct result of a crime”) and (d) that she was in fact not responsible for that crime (“an innocent person who suffers personal physical injury as a direct result of a crime”). If she succeeds on all four counts, and she bears the burden of proof on all of them [by a preponderance of the evidence], she is compensable. (2) The inquiry then proceeds to the second stage, where the amount of compensation is determined. That amount will depend on various factors, including (a) her responsibility for the crime, if any, (b) the actual harm suffered, and (c) her neediness. D. Tort Scheme
Linden & Feldthusen, Canadian
Tort Law, 8th Ed. German Civil Code s. 823. Liability in damages (1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this. E. An Application: The Queen v. Dudley and Stephens
The Queen v. Dudley and Stephens
INDICTMENT for the murder of Richard Parker on the high
seas . . . . The learned judge then adjourned the assizes until the
25th of November at the Royal Courts of Justice. On
the application of the Crown they were again adjourned to
the 4th of December, and the case ordered to be argued
before a Court consisting of five judges. * * * Dec. 9. The two prisoners, Thomas Dudley and Edwin Stephens, were
indicted for the murder of Richard Parker on the high seas
on the 25th of July in the present year. They
were tried before my Brother Huddleston at Exeter on the
6th of November, and under the direction of my learned
Brother, the jury returned a special verdict, the legal
effect of which has been argued before us, and on which we
are now to pronounce judgment. ... From the facts, stated with the cold precision of a
special verdict, it appears sufficiently that the
prisoners were subject to terrible temptation, to
sufferings which might break down the bodily power of the
strongest man and try the conscience of the best. .
. . But nevertheless this is clear, that the prisoners put
to death a weak and unoffending boy upon the chance of
preserving their own lives by feeding upon his flesh and
blood after he was killed, and with the certainty of
depriving him of any possible chance of survival. The
verdict finds in terms that “if the men had not fed upon
the body of the boy they would probably not have
survived,” and that, “the boy being in a much weaker
condition was likely to have died before them.” They
might possibly have been picked up next day by a passing
ship; they might possibly not have been picked up at all;
in either case it is obvious that the killing of the boy
would have been an unnecessary and profitless act. It
is found by the verdict that the boy was incapable of
resistance, and, in fact, made none; and it is not even
suggested that his death was due to any violence on his
part attempted against, or even so much as feared by,
those who killed him. . . . . . . [T]he real question in the case [is] whether
killing under the circumstances set forth in the verdict
be or be not murder. . . . First it is said that it
follows from various definitions of murder in books of
authority, which definitions imply, if they do not state,
the doctrine, that in order to save your own life you may
lawfully take away the life of another, when that other is
neither attempting nor threatening yours, nor is guilty of
any illegal act whatever towards you or any one else.
But if these definitions be looked at they will not
be found to sustain this contention. . . . Now it is admitted that the deliberate killing of this
unoffending and unresisting boy was clearly murder, unless
the killing can be justified by some well-recognised
excuse admitted by the law. It is further
admitted that there was in this case no such excuse,
unless the killing was justified by what has been called
“necessity.” But the temptation to the act which
existed here was not what the law has ever called
necessity. Nor is this to be regretted. Though
law and morality are not the same, and many things may be
immoral which are not necessarily illegal, yet the
absolute divorce of law from morality would be of fatal
consequence; and such divorce would follow if the
temptation to murder in this case were to be held by law
an absolute defence of it. It is not so. To
preserve one’s life is generally speaking a duty, but it
may be the plainest and the highest duty to sacrifice it.
War is full of instances in which it is a man’s duty
not to live, but to die. The duty, in case of
shipwreck, of a captain to his crew, of the crew to the
passengers, of soldiers to women and children, . . . these
duties impose on men the moral necessity, not of the
preservation but of the sacrifice of their lives for
others, from which in no country, least of all, it is to
be hoped, in England, will men ever shrink as indeed, they
have not shrunk. . . . It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No”— “So spake the Fiend, and with necessity,It is not suggested that in this particular case the deeds were devilish, but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it. ... It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty, of murder. THE COURT then proceeded to pass sentence of death upon the prisoners. [This sentence was afterwards commuted by the Crown to six months’ imprisonment.] |