This is a revised and enlarged edition of Report 30
proposing a new Code of Substantive Criminal Law for
Canada. Report 30, also entitled Recodifying Criminal
Law,[1] was tabled in
Parliament on December 3, 1986, by the Minister of
Justice, the Honourable Ray Hnatyshyn, who commented:
"This report is a valuable contribution to criminal law
reform and should be recognized as an important first step
in the process of renewal."[2]
Preliminary reactions to Report 30 by bench, bar, police,
media and public were highly encouraging. The Commission
has, therefore, decided to propose a revised and enlarged
edition of the new Code. We recognize that this is only a
first step in a long process leading ultimately, we hope,
to the enactment of a new Criminal Code made in Canada by
Canadians for Canadians and more accurately reflecting our
national identity and our common values.
Our present Criminal
Code was originally enacted in 1892[3] — the fulfilment of Sir John
A. MacDonald's dream of giving our fledgling nation a
uniform set of criminal laws. Its enactment put Canada in
the vanguard of criminal law reform. The ravages of time,
however, took their toll, and Canada is no longer in that
happy position.
The present Criminal Code has served us well over the past
ninety-five years but is no longer adequate to our needs.
Even though amended many times, with a major revision in
1955, it remains much the same in structure, style and
content as it was in 1892. It is poorly organized. It uses
archaic language. It is hard to understand. It contains
gaps, some of which have had to be filled by the
judiciary. It includes obsolete provisions. It over
extends the proper scope of the criminal law. And it fails
to address some serious current problems. Moreover, it has
sections which may well violate the Canadian
Charter of Rights and Freedoms.[4]
As we mentioned in Report 30, the new Criminal Code
proposed by the Commission results from fifteen years of
philosophical probing, researching, thinking, debating,
writing, consulting and publishing on numerous criminal
law subjects. It also represents the full co-operation of
federal and provincial governments in the Accelerated
Criminal Law Review. The work of these fifteen years was
presented prior to publication of Report 30 in various
Reports and Working Papers which should be consulted for a
fuller understanding of the present Report.
In producing all this work we have profited enormously
from the practical advice of our consultants. These were
drawn from across Canada and include eminent judges,
criminal lawyers, law teachers, representatives of
provincial and federal governments, police chiefs and the
general public (Appendix C). We have also benefitted from
the flowering of criminal law scholarship in Canada and
the burst of judicial creativity on criminal law.
The proposed Criminal Code expresses the essential
principles of criminal law and rules of general
application. It defines most of the crimes of concern to a
modern industrialized society. At the same time it drops
archaic provisions but addresses modern day social
problems like pollution and terrorism.
In style the new Code aims to be intelligible to all
Canadians. It is drafted in a straightforward manner,
minimizing the use of technical terms and avoiding complex
sentence structure and excessive detail. It speaks, as
much as possible, in terms of general principles instead
of needless specifics and ad hoc enumerations. Finally, it
avoids deeming provisions, piggybacking and other indirect
forms of expression, on the basis that the direct way of
saying anything is the simplest, the clearest and most
readily understandable.
In structure the new Code is like the present Criminal
Code but begins with crimes against the person instead of
crimes against the State. Substantive criminal law is
divided into a General Part containing rules of general
application and a Special Part defining the particular
crimes. Title I is the General Part; Title II contains
most of the crimes against the person; Title III
enumerates most of the crimes against property; Title IV
lists crimes against the natural order; Title V deals with
crimes against the social order, and Title VI encompasses
crimes against the governmental order.
Each title is subdivided where appropriate by reference
to the interests infringed. Crimes against the social
order, for example, are divided into crimes against social
harmony and crimes against public order.
Each subcategory is further subdivided where appropriate.
Crimes against social harmony, for example, are divided
into: stirring up hatred and inciting genocide.
Finally, the crimes in these subcategories are mostly
listed in ascending order of gravity. Less serious crimes
precede more serious ones which include or build upon
them. In crimes against public order, disturbing public
order precedes unlawful assembly (disturbing by three or
more) which in turn precedes riot (unlawful assembly
resulting in risk of injury or property damage).
Naturally, the provisions in all these titles affect and
are affected by the principles set out in the General
Part.
Our proposed new Code is not yet in the form of a Bill to
be presented to Parliament; rather it is a proposal for a
new statute. Though the recommendations and draft Bill are
written in the traditional style, the final draft, it is
envisaged, will ensure that as far as possible its
provisions are gender neutral.
A few topics, because of their specialized nature or
because others have dealt with them, are left to be
considered later. They include trade and securities
frauds, abortion, sex offences, prostitution and
pornography. Sentences have not been ascribed to the
crimes, as that task has been performed by the Canadian
Sentencing Commission.[5]
Our work on criminal law procedure, which continues apace,
will be put into the form of a proposed new Code of
Criminal Procedure in the near future.[6]
Absent from our proposed Criminal Code are provisions
dealing with burden of proof and presumptions. Although
the present Criminal Code contains many such provisions,
the Commission has eliminated them entirely from its
recommendations to reflect its views on inculpation.
Substantive criminal law provisions define conditions of
inculpation and exculpation relevant to all offences. They
define elements of inculpation which must be proved by
evidence in the absence of formal admissions and matters
of exculpation or mitigation which may be raised by
evidence. By doing so they impliedly define to some extent
the evidentiary obligations of the parties in a criminal
trial. Particularly significant in this connection is the
presumption of innocence recognized by common law and now
guaranteed by paragraph 11(d)
of the Charter.
This presumption casts on the prosecution the burden of
proving an accused's guilt beyond reasonable doubt. In the
Commission's view the prosecution should prove all
necessary conditions of liability by evidence which is
admissible and which in the judgement of the trier of fact
proves them beyond reasonable doubt, while the accused
should not have to prove any fact in issue in a criminal
trial. This burden of proof obliges the prosecution,
therefore, not only to prove all inculpatory elements of a
crime but also to disprove any matter of exculpation for
which the evidence adduced (irrespective of its source)
discloses a foundation. By contrast, an accused, when
seeking to plead a matter of exculpation not already
raised by the evidence, need only produce sufficient
evidence to disclose such a foundation. Meanwhile the
prosecution need not disprove any matter of defence,
justification or excuse before such foundation is
disclosed.
In line with this approach, the Commission has refrained
in Report 30 and in this revised and enlarged edition of
its proposed Code from casting a legal burden on an
accused regarding any matter of exculpation. On the one
hand such reverse onuses may well be contrary to the
presumption of innocence and paragraph 11(d)
of the Charter. On the other hand they are also
unnecessary, because sufficient protection against
unwarranted acquittals lies in the requirement that any
matter of exculpation be based on a demonstrable
evidentiary foundation.
In addition, the Commission has tried in drafting the
substantive provisions to separate exculpatory from
inculpatory elements in order to help clarify the
evidentiary obligations of the parties. Defences of
general application have been included in the General
Part. Defences of limited application, where necessary,
are appended to the charging provision in a separate
clause. For example, the crime of refusal to provide a
sample defined in clause 10(6)(a)
allows a special defence of reasonable excuse. This
defence is appended in 10(6)(b).
Report 31 then, contains most of our substantive criminal
law. There will still be, however, penal provisions in
other Acts of Parliament. Because of this, and the need
for consistency in our criminal law, the new Code provides
that its General Part will govern all federal penal
provisions, wherever found, that carry a sentence of
imprisonment. There will also be offence creating sections
in provincial legislation. Because these fall under
provincial, not federal, jurisdiction, the new Code's
General Part will not apply to them, unless of course the
provinces in question adopt it by way of reference.
In offering this proposed Code, we are not advocating
change for its own sake: we believe the changes we propose
are for the better and are needed to improve the criminal
law. We are not trying to fix something that is not
broken; we believe that many aspects of our criminal law
are broken and in urgent need of major reform.
This new draft Code, which we believe reflects modern
Canadian values and the principles of the Charter, is
presented as our contribution to the process of
recodifying Canadian criminal law. It is an evolutionary
not revolutionary document. We hope that over the next few
years, along with the Report of the Canadian Sentencing
Commission,[7] it will
stimulate further study and work by Parliament and lead
ultimately to the enactment of a new Criminal Code which
is modern, logical, clear, comprehensive, restrained where
possible, and strong where necessary.
Our hope is that its enactment will put Canada once again
in the vanguard of criminal law reform and serve future
generations of Canadians as well as the work of Sir John
A. MacDonald's generation has served us.
[Preamble]
One item which greatly exercised the Commissioners' minds
was the question of a preamble. A minority felt that a
preamble and declaration of principles would help
interpret the Code in difficult cases. The majority felt
that preambles and declarations of principles were
unnecessary and inadvisable.
The majority, then, view a preamble as unnecessary in a
well drafted Act. In such an Act the object and purpose
should be readily discernible from the specific provisions
themselves and from the Act as a whole. Besides, a
preamble is undesirable because its vagueness may lead to
ambiguity and be used to narrow or broaden specific
provisions in ways never intended by the legislator. In
addition, a declaration of principles, specially such as
the one suggested by the minority, would become a
yardstick for measuring any subsequent criminal law
provision, would bring about endless litigation as to
whether there were other adequate and appropriate means of
dealing with the same issue and would transfer to the
courts a responsibility properly belonging to, and so far
satisfactorily assumed by, Parliament and our elected
representatives.
The minority, on the other hand, sees a definite role for
a preamble in this Code. First, it could clarify the
essential aim of the Code as well as its specific
provisions—a role particularly important in a new Code
with a principled and logical arrangement. Second, it
would link the new Code to, and show it to be a
continuation of, the Constitution
Act, 1982 with its Charter.
Finally, it would signal that this is not an ordinary
statute but a comprehensive and distinctly Canadian
statement of the law that crucially concerns our own
society's fundamental values.
Accordingly, the minority would have wished to include
the following:
The new Code's four objectives are comprehensiveness,
simplicity, systematization and principle. To achieve
these goals, the new Code begins with an extensive General
Part containing rules of general application on
definitions, liability, defences, criminal involvement and
jurisdiction. This covers all matters of general import
whether dealt with at present by the existing Code or by
the common law; deals with them straightforwardly,
replacing for example the present Criminal Code's
unsystematic rules on defence of person and of property by
general rules followed by exceptions; provides in its
rules on liability starting points for the derivation of
other rules; and highlights in the rules on liability the
moral basis of the Code — that only those at fault deserve
punishment.
Comprehensiveness and integrity is aimed at by the
interpretation and application provisions. The
interpretation of the Code is to be regulated by the Code
itself and not by common law or by extraneous statutory
rules of interpretation. The application provision lays
down that the General Part shall apply to all crimes,
whether Code or non Code crimes, being defined as
imprisonable offences.
Simplicity, systematization and principle are aimed at by
the liability provisions. For simplicity the provisions
are set out straightforwardly and for the most part in
parallel format: "no one is liable except ...." In the
interests of systematization they move step by step from
the general to the less general. For example they provide
that no one is criminally liable except for conduct
defined as a crime by the Code or some other statute, that
no one is liable without committing that conduct with the
level of culpability specified by its definition, and that
in general no one is liable except for an act or omission
performed by himself.
This arrangement systematizes not only the provisions on
liability themselves but also the whole Code. In the first
place, it shows the rules on conduct and culpability as
being basically rules for interpreting the Special Part
definitions of crimes. Secondly, it makes the entire Code
— the General and the Special Parts — a coherent whole so
that all the Special Part provisions have to be construed
in the light of the General Part.
The moral basis of the Code, highlighted in the liability
provisions, is further amplified by the General Part
defences. The first three of these are really cases of
absence of conduct and culpability. The next three exempt
special categories of people: the young, those unfit to
plead and those suffering from mental disorder. The
remaining eleven are types of justification or excuse.
Another chapter in the General Part which is of major
significance for substance and principle is Chapter 4, "Involvement in Crime." This
ensures that liability will accrue not only to those
fulfilling the general liability conditions but also in
some circumstances to others involved in a secondary way
in the crime charged.
The last chapter in the General Part deals with the
extraterritorial jurisdiction of Canadian courts thereby
recognizing our treaty obligations.
TITLE I. General Principles
1(1) Title. This Act may be cited as the
Criminal Code. (Skip to commentary)
1(2) Definitions.
"Agent" includes an employee.
"Animal" means any living non human vertebrate.
"Another's premises" means premises in the lawful
occupation of that other person.
"Another's property" means property that another owns
or has any legally protected interest in.
"Appropriate" means to take, borrow, use or convert.
"Armed hostilities" means use of armed forces by a
large number of people to achieve some general or
public objective.
"Canada" includes the land territory, the Canadian
Arctic, the internal and inland
waters, the territorial sea of Canada, the
airspace above the territory and the seabed and
subsoil below it.
"Canadian aircraft" meets an aircraft registered in
Canada under the Aeronautics Act or an aircraft of the
Canadian Forces.
"Canadian ship" means a ship registered in Canada
under the Canada Shipping Act or a vessel of the
Canadian Forces.
"Captive" means an animal caged, bound or confined
outside its natural habitat.
"Classified information" means information that has
been marked or otherwise identified in accordance with
the federal government classification scheme as
reasonably likely, if disclosed, to cause serious
injury to the national interest.
"Consent" means consent given by a competent person
and not obtained by force, threat or deceit.
"Criminal rate" means an annual rate of interest
exceeding sixty per cent on the principal advanced.
"Document" means any writing, recording or marking
capable of being read or understood by people or
machines.
"Dwelling house" means:
(a) premises
used as a residence;
(b) a building communicating with or connected
to such premises; or
(c) a mobile unit used as a residence.
"Enters." A person "enters" as soon as any part of
his body or any part of an instrument that he uses
is within anything that is being entered.
"Exclusive economic zone of Canada" means the
exclusive economic zone as defined in Article 55 of
the United Nations Convention on the Law of the Sea,
1982.
"Explosive substance" means any substance capable of
causing, and anything capable of being used with
such a substance, to cause an explosion.
"False solemn statement" includes one which
contradicts a solemn statement previously made by
the same person in a public proceeding or as
required by law.
"Firearm" means any barrelled weapon which can
discharge a bullet or other missile, or any
imitation of such a weapon.
"Fishing zones of Canada" means the fishing zones of
Canada as defined in section 4 of the Territorial
Sea and Fishing Zones Act.
"Forge" means:
(a) to make a document purport to be made
by a person who did not exist or did not make it or
did not authorize it to be made; or
(b) to tamper with a document by making some
material alteration, addition, erasure or
obliteration.
"Harm" means to impair the body or its functions
permanently or temporarily.
"Hurt" means to inflict physical pain.
"Identifiable" means identifiable by race, national or
ethnic origin, colour, religion, sex, age, or mental
or physical disability.
"Initiated." Criminal proceedings are "initiated" by
the issuance of compulsory process, the laying of a
charge, or an arrest.
"Inland waters" are the rivers, lakes and other fresh
waters in Canada and include the St. Lawrence River as
far seaward as the straight lines drawn:
(a) from Cap des Rosiers to the
westernmost point of Anticosti Island; and
(b) from Anticosti Island to the north shore of the
St. Lawrence River along the meridian of longitude
sixty three degrees west.
"Internal waters of Canada" include any areas of the
sea that are on the landward side of the baselines of
the territorial sea of Canada and any areas of the sea
other than the territorial sea, in respect of which
Canada has an historic or other title of sovereignty.
"Internationally protected person" means:
(a) any head of State, head of government
or minister of foreign affairs outside the
jurisdiction of his own State;
(b) any member of the family of a person listed
in (a) accompanying such a person;
(c) any representative or official of a State or
international organization who is entitled at
international law to special protection; and
(d) any member of the family of a person listed
in (c) who forms part of his household.
"Non disclosure" means failure to perform a duty to
disclose arising from:
(a) a special relationship entitling the
victim to rely on the defendant; or
(b) conduct by the defendant or another person
acting with him creating or reinforcing a false
impression in the victim's mind or preventing him
from acquiring information.
"Nuclear material" means:
(a) plutonium, except plutonium with an
isotopic concentration of plutonium 238 exceeding
eighty per cent;
(b) uranium 233;
(c) uranium containing uranium 233 or uranium
235 or both in such an amount that the abundance
ratio of the sum of those isotopes to the isotope
uranium 238 is greater than 0.72 per cent;
(d) uranium with an isotopic concentration equal
to that occurring in nature; and
(e) any substance containing anything described
in clauses (a) to (d), but does not include
uranium in the form of ore or ore residue.
"Optical device" means any device or mechanism
capable of permitting surreptitious viewing of
persons, things or places.
"Peace officer" includes:
(a) a sheriff, deputy sheriff, sheriff's
officer and justice of the peace;[8]
(b) a warden, deputy warden, instructor, keeper,
gaoler, guard and any other officer or permanent
employee of a prison;
(c) a police officer, police constable, bailiff,
constable, or other person employed for the
preservation and maintenance of the public peace
or for the service or execution of civil process;
(d) an officer or person having the powers of a
customs or excise officer when performing any duty
in the administration of the Customs Act or the
Excise Act;
(e) a person appointed or designated as a
fishery officer under the Fisheries Act when
performing any of his duties or functions pursuant
to that Act;
(f) officers and non commissioned members of the
Canadian Forces who are
(i) appointed for the purposes of
section 134 of the National Defence Act, or
(ii) employed on duties that the Governor in
Council, in regulations made under the National
Defence Act for the purposes of this clause, has
prescribed to be of such a kind as to necessitate
that the officers and non commissioned members
performing them have the powers of peace officers;
(g) the pilot in command of an aircraft
(i) registered in Canada under
regulations made under the Aeronautics Act, or
(ii) leased without crew and operated by a person
who is qualified under regulations made under the
Aeronautics Act to be registered as owner of an
aircraft registered in Canada under those
regulations,
while the aircraft is in flight.
"Pending" means:
(a) in a criminal case, from the time
at which criminal proceedings have been initiated
by the issuance of compulsory process, the laying
of a charge, or an arrest, until their
determination by discharge, stay, verdict, or
other disposition whether formal or informal;
(b) in a civil case, from the time at which a
trial date is set until determination of the
proceedings by abandonment, adjudication or
other disposition;
(c) in relation to publication by public
officers or prosecutors, from the time the
officer or prosecutor has reasonable grounds to
justify the initiation of criminal proceedings
until their determination in accordance with
(a).
"Person" means a person already born by having
completely proceeded in a living state from the
mother's body, or a corporation.
"Premises" means:
(a) any building or part thereof; or
(b) any part of a structure, vehicle, vessel
or aircraft used
(i) for overnight accommodation, or
(ii) for business.
"Private communication" means any oral communication
or any telecommunication made under circumstances in
which it is reasonable for any party to it to expect
that it will not be intercepted by any surveillance device.
"Prohibited weapon" means:
(a) any knife with an automatically
opening blade;
(b) any machine gun;
(c) any sawn off rifle or shotgun with a
barrel less than 457 mm in length or with an
overall length of less than 660 mm; or
(d) a silencer.
"Property" includes electricity, gas, water, and
telephone, telecommunication and computer services.
"Public administration" means:
(a) the administration of justice;
(b) the administration of federal, provincial
or local government; and
(c) the proceedings in Parliament or in a
provincial legislature or in the council of a
local authority.
"Public officer" means:
(a) a peace
officer, or
(b) any officer engaged in enforcing the law
relating to revenue, trade or navigation.
"Public official" means a person who
(a) holds a public office, or
(b) is appointed to perform a public duty.
"Public proceedings" means proceedings before
Parliament, any provincial legislature, a court or
judge, or any federal, provincial or municipal body
exercising powers to investigate or inquire for
which such body is authorized by law to take
evidence by way of solemn statement.
"Public record" means any document or records kept:
(a) under the authority of a court,
judicial officer or tribunal;
(b) as forming part of proceedings in
Parliament; or
(c) in a public system required or authorized
by law to be maintained in the public interest.
"Regulated weapon"
(a) means any firearm other than a prohibited weapon which:
(i) is designed to be fired with one
hand,
(ii) has a barrel of less than 470 mm in length
or an overall length of less than 660 mm and is
capable of producing semi automatic fire,
(iii) is designed to be fired when reduced to
length less than 660 mm by folding or
telescoping, or
(iv) is a machine gun forming part of the
collection of a collector in good faith;
(b) does not include:
(i) a flare gun,
(ii) a firearm exclusively used for:
(A) firing blanks,
(B) slaughtering domestic animals or
tranquillizing animals,
(C) discharging projectiles attached to lines,
or
(D) firing bullets or other missiles with a
velocity less than 152.4 m per second, or
(iii) antique firearms other than machine
guns.
"Representation" means a representation whether
express or implied (including impersonation) as to a
past, present or future fact, but does not include
exaggerated statements of opinion concerning the
attributes or quality of anything.
"Solemn statement" means a statement made orally or
in writing on oath, solemn affirmation or solemn
declaration.
"Surveillance device" means a device or apparatus
capable of being used to intercept a private communication.
"Territorial sea of Canada" means the territorial
sea of Canada as determined in accordance with the
Territorial Sea and Fishing Zones Act.
"Valuable security" means any order or security
giving title or evidence of title to property.
"Weapon" means any instrument including a firearm,
capable of being used to inflict harm.
1(3) Interpretation.
(a) The provisions of this Code shall be
interpreted and applied according to the ordinary
meaning of the words used read in the context of the
Code.
(b) Where a provision of this Code is unclear
and is capable of more than one interpretation it
shall be interpreted in favour of the accused.
Comment
Clause 1(3) in one sense departs from, but in another
sense returns to, the position under present law. In
theory that position is that like all other statutes, the
Criminal Code should be interpreted in accordance with
section 11 [now 12]
of the Interpretation
Act, which lays down that "[e]very enactment shall
be deemed remedial, and shall be given such fair, large
and liberal construction and interpretation as best
ensures the attainment of its objects." In practice, and
specially when construing offence creating sections, our
courts for the most part interpret it according to the
"literal rule" which requires that the meaning of a
statute be gathered from the plain and ordinary meaning of
the words used taken in context.[9]
By adopting the literal rule, clause 1(3)(a) brings the
rule of interpretation in line with present judicial
practice and signals that the new Code is not so much a
remedial statute as a comprehensive statement of the law.
Clause 1(3)(b) deals with cases of ambiguity. In such
cases, a strictly literal interpretation could sometimes
disadvantage an accused. While strict interpretation
protects the accused by confining offences to what they
clearly cover it puts him at risk by confining defences
or exceptions to what they clearly cover. By providing
that in all cases of ambiguity the Code shall be
interpreted in favour of the accused, clause 1(3)(b)
brings the new Code into line with traditional common
law principle.
1(4) Application in Law.
(a) This title applies to any crime
defined by this Code or any other Act of the
Parliament of Canada.
(b) An offence defined by any other Act of the
Parliament of Canada is a crime if the person who
committed it is liable to be sentenced to a term
of imprisonment as punishment.
Comment
While all the major crimes will be contained in the new
Code, Parliament under its criminal law jurisdiction has
created, and will no doubt continue to create, criminal
offences in other statutes. User convenience dictates
that many such offences, for example those under the Bankruptcy
and Insolvency Act, remain in those particular
statutes and not be transferred to the Code. Principle
requires that all offences serious enough to carry a
sentence of imprisonment be governed by the new Code's
General Part so that those accused of non Code crimes
receive the same protection as those accused of Code
crimes. This is provided by clause 1(4).
Chapter 2: Principles of Liability
Comment
This chapter, and the following chapter on defences,
form the heart of the General Part. The function of that
General Part is threefold: to avoid repetition in the Special Part, to systematize the
criminal law, and to articulate its basic premises.
These premises - the necessary conditions for criminal
liability - are at present left to the common law. Their
inclusion in the new Code is dictated by the need for
comprehensiveness.
The fundamental premises of criminal liability are
grounded in ordinary notions of morality and justice.
Basically there are three such notions. First, no one
can justly be held to blame for contravening a rule
unless it was in place at the time of the alleged
contravention. Second, no one can fairly be held to
blame except for his own conduct — for what he himself
does or in some cases does not do. Third, no one can
legitimately be held to blame for conduct unaccompanied
by some kind of personal culpability such as
carelessness, recklessness or wrongful intention.
These notions are developed in the following four
clauses. Clause 2(1) articulates the requirement for
criminal law to be already in effect before there can be
criminal liability for its contravention - the principle
of legality. Clause 2(2) specifies
that both conduct and culpability are prerequisites for
such liability. Clause 2(3) spells
out what amounts to conduct, and clause 2(4)
what amounts to culpability.
2(1) Principle of Legality. No one is
liable except for conduct defined at the time of its
occurrence as a crime by this Code or by some other
Act of the Parliament of Canada.
Comment
The principle of legality rules out conviction and
punishment for acts which were not crimes when
committed: nulla poena sine lege. The rationale
is that in such cases conviction and punishment would be
unjust, self-contradictory and pointless: unjust because
no punishment is deserved, self-contradictory because it
stigmatizes as wrongdoers those who clearly are not, and
pointless because no one can be deterred from doing what
is not as yet against the law. For this reason, nulla
poena has been recognized as an ideal by common
law writers, included in international and other
documents on human rights, and expressly articulated in
paragraph 11(g)
of the Charter which provides that any person charged
with an offence has the right "not to be found guilty on
account of any act or omission unless, at the time of
the act or omission, it constituted an offence under
Canadian or international law or was criminal according
to the general principles of law recognized by the
community of nations ...." Clause 2(1) incorporates this
provision and further defines it by requiring that, so
far as concerns criminal liability, the offence must be
already defined in the new Code or in some other federal
statute.
2(2) Conduct and Culpability. No one is
liable for a crime without engaging in the conduct and
having the level of culpability specified by its
definition.
Comment
Central to common law doctrine is the notion that
criminal liability requires both conduct and culpability
on the part of the accused. As that doctrine puts it, a
crime has both a physical and a mental element: actus
reus and mens rea. Explicit articulations of this can be
found in writings of scholars on criminal law from
Stephen on, and in case law[10]
but not in the present Criminal Code itself. Such an
articulation is put up front in the new Code not only to
highlight the central premise of the criminal law, but
also to show that in any given case the question whether
the facts proved add up to the conduct and culpability
required by the definition of a crime, is essentially a
question of interpreting that definition.
2(3) Conduct.
(a) General Rule. Unless otherwise
provided in the definition of a crime, a person is
only liable for an act or omission performed by that
person.
Comment
Basic to criminal law tradition is the idea that
liability is only for acts and omissions performed by
the accused himself and not for acts of God, acts of
others or "non acts" like twitches. This idea, enshrined
in the doctrine that there must be an actus reus, is
well recognized by writings of scholars, by decided
cases[11] and by several
other criminal codes, but is not articulated in our own
Criminal Code. Explicit articulation is given,
therefore, in this clause. As to conduct outside an
accused's control, see clause 3(1)
("Lack of Control"). The words "[u]nless otherwise
provided" recognize that a person may be liable, through
the rules on involvement in crime, for acts or omissions
performed by others. It is to be noted that while
traditionally crimes have been divided into acts,
omissions and states (for example possession), the last
of these three can readily be included under the rubric
of "act" since a person has to do something to put or
keep himself in the state in question.
(b) Omissions. No one is liable for an
omission unless:
(i) it is defined as a crime by this
Code or by some other Act of the Parliament of
Canada; or
(ii) it consists of a failure to perform a duty
specified in this clause.
Comment
Generally speaking, our criminal law imposes liability
for acting rather than not acting. Most crimes require
the commission of a positive act. This can be seen from
decided cases, from writings on criminal law and from
the majority of statutory definitions of offences in the
Criminal Code and elsewhere.
Criminal liability may be imposed for not acting,
however, in three different ways. First, not acting may
itself form part of a wider whole consisting of acting,
for example failure to keep a proper look out on the
road which is part of driving dangerously. Whether in
any such case the accused's conduct is more
appropriately to be regarded as doing or not doing must
be decided in the particular circumstances by the trier
of fact. Second, not acting may be specifically
prohibited as a crime, for example not stopping at the
scene of an accident (Criminal Code, s.236 [now 252(1)]).
Third, where a crime consists expressly or impliedly in
causing a result, for example death, damage, danger,
that result can be caused by an omission provided that
there is a legal duty to act — "commission by omission."[12]
Clause 2(3)(b) explicitly recognizes the general
principle about liability for omissions. It makes the
criminal law on omissions wholly subject to the new
Code. It does so by explicitly allowing for two of the
above exceptions: specific omission crimes and result
crimes involving failure to perform a legal duty. Result
crimes are crimes of homicide, bodily harm, endangering,
vandalism and arson — crimes consisting in the effecting
of some harm, damage or risk. It is to be noted that in
certain situations, then, a person could commit the
crime of endangering (clause 10(1))
by omission. In this regard the new Code is wider than
Working Paper 46, which took the more traditional
approach of restricting this crime to endangering by
acts.[13] It noted,
however, that many of the present specific endangering
offences, such as dangerous driving, can be committed by
omission. On reflection it was thought that these
specific provisions were a better policy guide than
traditional doctrine concerning result crimes.
In addition, clause 2(3)(b) requires that in the case of
result crimes the duty breached be a duty specified in
clause 2(3)(c). This is a departure from the present
Criminal Code which provides in s.202(2) [now 219(2)]
that so far as concerns criminal negligence "duty" means
"a duty imposed by law." Since "law" extends to
provincial law, a person's liability for criminal
negligence may vary from province to province.[14] To remedy this and
render the criminal law of homicide uniform across
Canada, clause 2(3)(b) restricts liability to failure to
perform a duty "specified in this clause."
(c) Duties. Everyone has a duty to take
reasonable steps, where failure to do so endangers
life, to:
(i) provide necessaries to
(A) his spouse,
(B) his children under eighteen years of age,
(C) other family members living in the same
household, or
(D) anyone under his care
if such person is unable to provide himself
with necessaries of life;
(ii) carry out an undertaking he has given or
assumed;
(iii) assist those in a shared hazardous and
lawful enterprise with him; and
(iv) ratify dangers of his own creation or within
his control.
(d) Medical Treatment Exception. No one has a duty
to provide or continue medical treatment which is
therapeutically useless or for which informed consent is expressly
refused or withdrawn.
Comment
Common law divided general duties such as those
specified by clause 2(3)(c) into natural (owed by
parents to children) and assumed (for example by nurses
towards their patients). The present Criminal Code
enacted them in Part IV on "Offences against the Person
and Reputation" in ss.197-199 [now 215-217].
Section 197 [215]
imposes on parents and others in charge of children a
duty to provide necessaries; s.198 [216]
imposes a duty of reasonable skill and care on surgeons
and others undertaking acts dangerous to life; and s.199
[217]
imposes on everyone undertaking an act a duty to do it
if its omission is dangerous to life. It is nowhere
explicitly stated in the Criminal Code, however, that
liability for omissions requires either a specific
provision or else breach of an actual legal duty.
The new Code clarifies, rearranges and to some degree
extends the present rules. First, clause 2(3)(b)
clarifies that liability requires breach of an actual
legal duty specified in clause 2(3)(c) of the General
Part. Second, clause 2(3)(c) imposes a duty in four
situations subject to two qualifications. The
qualifications restrict the duty to that of taking
reasonable steps to do the things required in each
situation and of doing so only if failure to do so
endangers life.
Clause 2(3)(c)(i) replaces s.197 [215]
and articulates the duty to provide necessaries to
children under eighteen (this being generally the age of
majority in Canada) and spouses but extends it to other
family members living in the same household and to
anyone in that person's care where these persons are
unable to provide themselves with necessaries. Clause
2(3)(c)(ii) replaces ss.198 (medical treatment [216])
and 199 (dangerous acts [217]).
This clause would cover foster parents, guardians and
others undertaking to look after children, and also
doctors, nurses and others undertaking the care of
patients, except when ceasing to give therapeutically
useless medical treatment (see clause 2(3)(d)). Clauses
2(3)(c)(iii) and 2(3)(c)(iv) extend the law: (iii)
relates to people such as fellow mountaineers engaged in
shared hazardous and lawful enterprises; and (iv)
generalizes specific provisions such as Criminal Code,
s.243.3(1) (duty to safeguard opening in ice [now 263(1)]).
So, for example, a person who made a dangerous opening
in ice or whose land had a dangerous hole in it would be
under a duty imposed by clause 2(3)(c)(iv) to take
reasonable steps to rectify such dangers. If others were
killed, injured or endangered as a result, he would then
commit the crime of negligent homicide (clause 6(1)), assault by harming through
negligence (clause 7(2)(c)) or
endangering though negligence (clause 10(1)(c)).
2(4) Requirements for Culpability.
Comment
This clause articulates in detail the common law
principle that a person is not liable for his conduct
unless he has some fault or blameworthiness: actus
non facit reum, nisi mens sit rea. This principle
is evidenced in the specific definitions of crimes, in
the case law,[15] and in
the writings of scholars in criminal law. Clause 2(4)
incorporates the principle in the General Part in order
to manifest its centrality to criminal law, to obviate
repetition in the Special Part
definitions and to clarify the meaning of the various
mens rea (or culpability) words used in the new Code.
The provision is structured as follows. Clause 2(4)(a)
gives general rules of interpretation for definitions
requiring purpose, recklessness and negligence. Clause 2(4)(b) defines the terms
"purposely," "recklessly" and "negligently." Clause 2(4)(c) clarifies that a charge
involving one level of culpability is satisfied by proof
of a higher level. Clause 2(4)(d)
provides a general rule of interpretation for
definitions which are silent as to culpability.
(a) General Requirements as to Level of
Culpability. Unless otherwise provided:
(i) where the definition of a crime
requires purpose, no one is liable unless as
concerns its elements he acts
(A) purposely
as to the conduct specified by that definition,
(B) purposely as to the
consequences, if any, so specified, and
(C) knowingly or recklessly
as to the circumstances, if any, so specified;
Comment
In the new Code "intent" is replaced by "purpose"
because of the difficulties surrounding the former term.
These stem largely from the blurring in the case law of
the distinction between intention (often called
"specific intent") and recklessness
(often called "general intent"). This has resulted in
two views on "intention."
One view is that a consequence cannot be said to be
intended unless it is the actor's desire or purpose, but
others avour an artificial legal meaning according to
which a consequence is taken to be intended whenever the
actor is aware that it is probable. On the latter
interpretation, intention would cover recklessness or at
least a large part of it.[16]
To be liable for a "purpose" crime under the new Code a
person must do the initiating act, for example pull the
trigger of a gun, on purpose; mere carelessness, and a
fortiori accident, is not enough. Where the crime
by definition involves consequences, for example death
or damage, those consequences must be part of the
defendant's purpose; mere foresight is not enough. This
is the common law tradition.
The same is not wholly true of circumstances. As to
circumstances specified by the definition of a crime the
accused at one time had to know of them; for example he
had to know in an assault case that the victim did not
consent. Recent authorities are tending to the position
that mere recklessness will suffice; for example, in an
assault case, it is enough to be reckless whether the
victim consents or not.[17]
However, as to circumstances not specified in the
definition (for example that the gun was loaded or the
drink was poisoned), mere recklessness is not enough. In
"purpose" offences, nothing less than actual knowledge
of such facts will do.
(ii) where the definition of a crime
requires recklessness, no one is liable unless as
concerns its elements he acts
(A) purposely
as to the conduct specified by that definition,
(B) recklessly as to the
consequences, if any, so specified, and
(C) recklessly as to the
circumstances, whether specified or not;
Comment
Where the definition of a crime requires recklessness,
the position is as follows. (A) The initiating act must
still be done on purpose, as in "purpose" crimes,
because "recklessly" (unlike "on purpose" and
"negligently") has no obvious application to acts in the
narrow sense of muscular contractions. (B) Recklessness
as to consequences suffices, in contrast to the
requirement in "purpose" crimes that there be purpose as
to consequences. (C) Recklessness as to circumstances
also suffices. Recklessness as to circumstances
specified in the definition of the crime suffices, as it
does in "purpose" crimes. But recklessness as to other
circumstances also suffices, in contrast to the
requirement in "purpose" crimes for knowledge as to such
circumstances. A person who does not actually know, for
instance, that the gun is loaded cannot logically be
said purposely to kill someone with it, but can be said
to do so recklessly.
Accordingly, the difference between "reckless" and
"purpose" crimes relates to consequences and to
circumstances not specified in the definition.
(iii) where the definition of a crime
requires negligence, no one is liable unless as
concerns its elements he acts
(A) negligently
as to the conduct specified by that definition,
(B) negligently as to the
consequences, if any, so specified, and
(C) negligently as to the
circumstances, whether specified or not.
Comment
In negligence crimes the minimum requirements are a
negligent initiating act, negligence as to the
consequences, and negligence as to the circumstances. An
accused not even negligent as regards any one of these
will not be liable for a crime of negligence. An accused
negligent as to one or more of these requirements, but
reckless or purposeful as to the others, will still be
liable only for a crime of negligence (see clause 2(4)(c)).
(b) Definitions.
"Purposely."
(i) A person acts purposely as to
conduct if he means to engage in such conduct,
and, in the case of an omission, if he also knows
the circumstances giving rise to the duty to act
or is reckless as to their existence.
(ii) A person acts purposely as to a consequence
if he acts in order to effect:
(A) that consequence; or
(B) another consequence which he knows involves
that consequence.
Comment
As applied to conduct, that is, the initiating act, the
definition of "purposely" is straightforward: the
accused must do the act on purpose, or mean to do it. In
the case of an omission, he must also know the facts
giving rise to the duty to act or be reckless as to
their existence — negligence is not sufficient. As
applied to consequences, the term "purposely" covers not
only the usual case where the consequence is what the
accused aims at but also cases (sometimes termed cases
of oblique or indirect intent) where his aim is not that
consequence but some other result which, to his
knowledge, will entail it: for example, if D destroys an
aircraft in flight to recover the insurance money on it
and thereby kills the pilot V, he is still guilty of
killing V on purpose even though this is not in fact his
aim.
"Recklessly." A person is reckless as to
consequences or circumstances if, in acting as he
does, he is conscious that such consequences will
probably result or that such circumstances probably
obtain.
[Alternative
"Recklessly." A person is reckless as to
consequences or circumstances if, in acting as he
does, he consciously takes a risk, which in the
circumstances known to him is highly unreasonable
to take, that such consequences may result or that
such circumstances may obtain.]
Comment
Both formulations are in line with traditional
understanding of the word "recklessly" in criminal law
rather than with recent House of Lords jurisprudence.[18] The first formulation of
"recklessly" locates the central meaning of the term in
the notion of consciousness of probability. The accused
need not aim at the consequences but need only know that
they are probable; he must foresee their likelihood.
Likewise he need not know of the existence of the
circumstances specified by the definition but need only
know that they probably exist; he must realize their
likelihood.
The alternative formulation defines "recklessly" as a
function of two factors: (1) the risk consciously taken,
and (2) the objective unreasonableness of taking it in
the circumstances known to the accused. A risk may be
one of less than fifty per cent but may still be most
unreasonable and therefore reckless: if D deliberately
points a loaded gun at V, this would generally be
regarded as reckless despite a less than fifty per cent
chance of the gun going off. Conversely, there may be
high probability of a consequence without recklessness
if the risk is not unreasonable in the circumstances: a
surgeon performing an operation with more than a fifty
per cent chance of death will not necessarily be
reckless, as when, for example, he performs a dangerous
operation on a consenting patient to save his sight,
hearing or other faculty.
"Negligently." A person is negligent as
to conduct, circumstances or consequences if it is a
marked departure from the ordinary standard of
reasonable care to engage in such conduct, to take
the risk (conscious or otherwise) that such
consequences will result, or to take the risk
(conscious or otherwise) that such circumstances
obtain.
Comment
The essence of civil negligence is departure from the
standard of reasonable care. Criminal negligence,
however, requires more than just this; it requires what
recent case-law has termed "a marked departure."[19] As to the initiating
act, or conduct, it means behaving without due care
rather than intentionally or accidentally. As to the
circumstances and consequences, it means taking a risk,
consciously or otherwise, which one ought not to take.
Where the risk is taken consciously, the difference
between negligence and recklessness is that, in the
latter instance, it is much more unreasonable to take
it; this calls for a value judgement in each individual
case.
(c) Greater Culpability Requirement Satisfies
Lesser.
(i) Where the definition of a crime
requires negligence, a person may be liable if he
acts, or omits to act, purposely or recklessly as
to one or more of the elements in that definition.
(ii) Where the definition of a crime requires
recklessness, a person may be liable if he acts,
or omits to act, purposely as to one or more of
the elements in that definition.
Comment
This provision simply prevents the avoidance of
liability by the defendant's actually having a higher
level of culpability than that charged. A person charged
with negligent killing will not escape conviction
because he kills on purpose.
(d) Residual Rule. Where the definition
of a crime does not explicitly specify the requisite
level of culpability, it shall be interpreted as
requiring purpose.
Comment
Where nothing is said in the definition of a crime,
that definition is to be taken as creating a "purpose"
crime. This rule avoids the repetition of culpability
requirements in "purpose" crimes, but of course
necessitates it in "reckless" and "negligent" crimes.
2(5) Corporate Liability.
(a) With respect to crimes requiring
purpose or recklessness, a corporation is liable for
conduct committed on its behalf by its directors,
officers or employees acting within the scope of
their authority and identifiable as persons with
authority over the formulation or implementation of
corporate policy.
Comment
This clause is intended to articulate and clarify the
criteria for imposing corporate criminal liability. The
present Criminal Code simply states in s.2
that "person" includes bodies corporate, without
attempting to articulate the eria for imposing criminal
liability on a corporate entity.
At common law, a corporation may be held criminally
liable for acts or omissions committed on behalf of the
corporation by its officers, agents or employees who can
be identified as part of the corporation's "directing
mind and will." The new ode retains this identification
doctrine as the basis for corporate criminal liability
but clarifies its scope. It provides that a corporation
may be held criminally liable for the conduct of
directors, officers or employees identifiable as persons
with managerial or supervisory authority over the
formulation or implementation of corporate policy,
acting on behalf of the corporation and not exclusively
on their own behalf or in fraud of the corporation.
(b) With respect to crimes requiring
negligence a corporation is liable as above,
notwithstanding that no director, officer or
employee may be held individually liable for the
same offence.
Comment
The sort of harm prohibited by criminal law may well
result from corporate activity involving negligence in
the organizational process rather than in the conduct of
any single individual. It may result from the collective
participation of numerous directors, officers or
employees, no one of whom may individually have had the
requisite culpability. For this reason the new Code
provides that a corporation may be liable for
"negligence" crimes on account of the conduct of its
directors, officers or employees even if no such person
is individually liable.
[Alternative
2(5) Corporate Liability. A corporation is liable
for conduct committed on its behalf by its
directors, officers or employees acting within the
scope of their authority and identifiable as persons
with authority over the formulation or
implementation of corporate policy, notwithstanding
that no director, officer or employee may be held
individually liable for the same offence.]
Comment
The alternative provision widens the proviso in clause
2(5)(b) to apply to all crimes, on
the ground that collective participation may well lead
in similar circumstances to commission of a "purpose" or "recklessness" crime. One
director might do the actus reus, another might have the
mens rea, but neither might be liable. If the
corporation were a real person, the actus and mens would
combine. The alternative provision puts the fictitious
person constituting the corporation on the same footing
as such a real person.
There are two situations however, which are not
addressed by this clause. First is the more general
problem of group collective participation in a crime.
Clause 2(5) limits liability to corporations. However,
there is the larger question — when should the
collective be liable for actions taken in its name? It
may be that liability should extend to other kinds of
collective action, such as partnerships, joint ventures
and nonprofit organizations.
The problem of diffusion of the elements of a crime
among members of the group, discussed above in the
context of corporations, also applies to other forms of
collective group action. For example, one member of a
partnership might do the actus reus, another might have
the mens rea, but neither might be liable. Similarly, in
a joint venture of individuals, partnerships,
corporations or some mix thereof, the elements of a
crime may be spread out among the different members.
These situations may warrant imposition of criminal
liability on the collective. However, this notion of
collective responsibility for group action is very
complex and we have not been able to formulate any
definitive recommendations on this particular issue in
our proposed Code. We are of the view that further study
on the whole issue of collective responsibility for
group action is needed before any radical changes are
made in the substance of our criminal law as it relates
to this subject.
The second situation not addressed by clause 2(5) nor
indeed anywhere in the proposed Code is how far an
employer should be liable for the criminal acts of his
employee. It is clear that an employer cannot be held
responsible for the acts of an employee who goes off on
a frolic of his own, unbeknownst to the employer. Much
less clear though is the situation where the employer
who has control over the employee knows of the
employee's criminal activities but stands to benefit
from them and acquiesces in them for the purpose of
obtaining the benefit. Should there be a positive duty
on an employer to prevent such a crime? Or should the
employer be liable as a furtherer? This is an issue
deserving of further careful consideration.
2(6) Causation. Everyone causes a result
when his conduct substantially contributes to its
occurrence and no other unforeseen and unforeseeable
cause supersedes it.
Comment
Though usually a question of fact and evidence,
causation can raise questions of law. Given that D did X
and consequently V suffered Y, was D's doing of X really
the cause of V's suffering Y? D injures V, V is taken to
hospital, a nurse very negligently (maybe deliberately)
maltreats V and V dies. Has D caused V's death? This
sort of question receives no general answer in the
Criminal Code, but rather a set of specific answers in
ss.205(6) [now 222(1)],
207-209 and 211 [224-226
and 228].
For a more general answer one must look to the case law,
to the writings of scholars and, of course, to common
sense.[20] What these
suggest, although each case has to be judged on its own
facts is: (1) that there must be a significant or
substantial link between the accused's conduct and the
result, that is to say, his conduct must not be a mere sine
qua non or necessary condition (otherwise marriage
has to be seen as a cause of divorce); and (2) that
there must not be any other unforeseeable cause
intervening to snap the chain of causation.
Whether rules about causation have any greater place in
a Criminal Code than rules of logic, mathematics or
science is open to question. But if they do, their place
is surely not in the part on homicide but rather in our
proposed General Part.
Chapter 3: Defences
Comment
A person accused of a crime will be free from criminal
liability if he did not really commit the crime charged,
if he did "commit it" but is for special reasons exempt
from liability, or if he did do the act charged but did
so for special reasons qualifying as an excuse or
justification. These three kinds of general defence,
which were worked out over the years by common law, are
mostly, but not entirely, contained in the present
Criminal Code. The new Code aims to include them all in
the interest of comprehensiveness. Defences of a
procedural nature, however, such as entrapment, are left
to be dealt with in the Code of Criminal Procedure.
Meanwhile, it remains open to the courts to develop
other defences insofar as is required by the reference
to "principles of fundamental justice" in s.7
of the Charter.
Absence of Conduct or State of Mind Necessary for
Culpability
Comment
Since Chapter 2 has already spelled out the need for
conduct and culpability as prerequisites for criminal
liability, a separate division on absence of conduct
(compulsion, impossibility and automatism) and on
culpability (mistake) is strictly speaking unnecessary.
The clauses on automatism, mistake and intoxication with
their special policy restrictions could have been
inserted under the appropriate conduct and culpability
clauses. They have been set out as defences, however, in
accordance with criminal law tradition and in view of
their special nature.
3(1) Lack of Control.
(a) Compulsion, Impossibility,
Automatism. No one is liable for conduct which is
beyond his control by reason of:
(i) physical compulsion by another
person;
(ii) in the case of an omission, physical
impossibility to perform the act required; or
(iii) factors, other than loss of temper or mental
disorder, which would similarly affect an ordinary
person in the circumstances.
(b) Exception: Negligence.
This clause shall not apply as a defence to a crime
that can be committed by negligence where the lack
of control is due to the defendant's negligence.
Comment
Clause 2(3)(a) defines "conduct" as
an act or omission "performed by that person." Clause
3(1) deals with lack of control arising from three
special causes. None of these are dealt with in the
present Criminal Code,[21]
but common law clearly recognizes physical compulsion,[22] and automatism[23] and perhaps
impossibility in cases of omission (lex non cogit ad
impossibilia).
Automatism, which has generated many cases recently,
presents a special problem. On the one hand, a person is
not generally liable for involuntary behaviour, that is,
behaviour outside his control, and an involuntary actor
certainly cannot be censured for intentional wrongdoing.
On the other hand, the law has to consider two other
factors: (1) a person may be to blame for being in a
state where his behaviour is beyond his control and (2)
even if he is not blameworthy, he may still be a danger
to society.
Clause 3(1)(a) deals with these factors as follows.
First, it excludes the defence altogether: (1) in cases
where the lack of control results from rage or loss of
temper; and (2) by virtue of clause 3(1)(b), in cases
where it results from negligence and the crime charged
is one of negligence. So, where D through negligence
fails to take his medicine and as a result gets into a
state of automatism in which he kills or harms V, he
will be liable for causing death or harm, as the case
may be, by negligence.
Second, clause 3(1)(a)(iii) excludes the defence from
cases where the accused is mentally disordered or where
he is affected by the factors in question in a way in
which an ordinary person would not be affected. In both
these cases the accused, though not to blame, remains a
possible social danger. In the case of mental disorder,
therefore, he must be dealt with under the mental
disorder provision of clause 3(6).
In the case of undue sensitivity to the affecting factor
(for example a susceptibility to be overcome by strobe
lights that would have no effect on the average person)
he remains straightforwardly criminally liable and has
no defence under clause 3(1)(a)(iii). In such case, if
it thinks fit, a court may remand the defendant for
medical or psychiatric investigation.
3(2) Lack of Knowledge.
(a) Mistake of Fact. No one is liable for
a crime committed through lack of knowledge which is
due to mistake or ignorance as to the relevant
circumstances; but where on the facts as he believed
them he would have committed an included crime or a
different crime from that charged, he shall be
liable for committing that included crime or
attempting that different crime.
(b) Exception: Recklessness and Negligence. This
clause shall not apply as a defence to crimes that
can be committed by recklessness
or negligence where the lack
of knowledge is due to the defendant's
recklessness or negligence as the case may be.
Comment
Mistake of fact, which of course in purpose and reckless
crimes may negative mens rea, is well known to common
law if not to the present Criminal Code. Present law,
however, is unsatisfactory in two respects. First, it
has not fully solved the problem of the accused who
mistakenly thinks he is committing, not the crime
charged, but some different offence. Sometimes such a
mistake results in complete acquittal although the
accused thinks he was engaged in crime; sometimes it
results in conviction for the crime charged although he
lacks mens rea for it.[24]
Clause 3(2) provides that in such cases the accused is
liable for attempting to commit the crime he thinks he
is committing.
Second, present law has not completely solved the
problem of the accused who is mistaken but is to blame
for his mistake. Sometimes such culpable mistakes result
unjustly in a complete acquittal, sometimes illogically,
on the ground that mistake must be reasonable to be a
defence, in a conviction for the crime charged despite
lack of purpose or knowledge. Clause 3(2)(b) provides
that, in such cases, if the crime charged can be
committed by recklessness or negligence, the accused may
be convicted if his mistake arose through recklessness
or negligence, as the case may be.
3(3) Intoxication.
(a) General Rule. No one is liable for a
crime for which, by reason of intoxication, he fails
to satisfy the culpability requirements specified by
its definition.
(b) Proviso: Criminal Intoxication.
Notwithstanding clauses 2(2)
and 3(3)(a), unless the intoxication is due to
fraud, duress, compulsion or reasonable mistake,
(i) everyone falling under clause
3(3)(a) who satisfies all the other elements in
the definition of a crime is liable, except in the
case of causing death, for committing that crime
while intoxicated; and
(ii) everyone falling under clause 3(3)(a) who
causes the death of another is liable for
manslaughter while intoxicated and subject to the
same penalty as for manslaughter.
[Alternative
3(3) Intoxication.
(a) General Rule. No one is liable for a
crime for which, by reason of intoxication, he fails
to satisfy the culpability requirements specified by
its definition.
(b) Exception. This clause shall not apply as a
defence to a crime that can be committed through
negligence unless the intoxication arose through
fraud, duress, compulsion or reasonable mistake.]
Comment
Lack of control or culpability may arise through
intoxication. Where such intoxication is not the
defendant's fault, he has no criminal liability; there
simply is no actus reus or mens rea as the case may be.
Hence at common law it was recognized that involuntary
intoxication is a complete defence. Where the
intoxication is the defendant's fault, the position is
more complex. There may or may not be a defence.
Whether there is a defence or not depends on whether
the crime is one of "general or specific intent." In
"general intent" offences such as manslaughter and
assault, intoxication will be no defence. In "specific
intent" offences, such as murder and theft, it will be a
defence. Much court time has been devoted to the attempt
to articulate the distinction between the two categories
of offence, a distinction condemned by Dickson J. in Leary ([1978] 1 SCR 29)
and acknowledged as illogical by Lord Salmon in Majewski ([1976] 2
All ER 142 (HL)).
The problem is similar to that posed by automatism. The
accused may through intoxication lack the purpose
required for the crime charged (for example murder) but
still be to blame because the intoxication was his
fault, and also be dangerous because he has caused harm
(for example another's death). Logic precludes
conviction, and policy and principle preclude complete
acquittal.
To avoid this problem, clause 3(3) adopts the following
approach. It starts with a general rule, which is
strictly speaking unnecessary, stating that lack of
culpability owing to intoxication excludes liability.
There follows a proviso that where the intoxication is
the accused's fault, he is (with one exception) liable
for "committing that crime while intoxicated ...." The
exception relates to killing and provides that everyone
killing another while intoxicated is liable for
manslaughter.
A minority of the Commissioners preferred a simpler,
more straightforward approach. Keeping the same general
rule, they would then provide an exception, namely, that
if the intoxication is the accused's own fault, that is,
if it arose for some reason other than fraud, duress,
compulsion or reasonable mistake, it is no defence to a
crime that can be committed by negligence. So, a person
charged with murder but lacking purpose on account of
self induced intoxication could be convicted of
negligent killing. To ensure conviction in similar
circumstances for arson and vandalism, negligence
would have to be included as a level of culpability for
these two crimes.
Exemptions
Comment
Persons who commit crimes may be exempt from criminal
liability because they are not, in the full sense, moral
agents. Two obvious categories of such persons are the
very young and the mentally disordered. Both are
recognized as such by the present Criminal Code.
3(4) Immaturity. No one is liable for
conduct committed when he was under twelve years of
age.
Comment
The present law is contained in s.12 of the Criminal
Code [now 13]
which provides that no one can be convicted for an act
or omission on his part while he was under the age of
twelve years. The exact age, if any, at which a person
attains the age of reason, or becomes responsible, will
vary from person to person. For criminal law a general
rule is needed, and common law followed Christian
tradition in fixing the age at seven. Recently, after
much investigation and research, the age was raised to
twelve. The present rule is reproduced in clause 3(4).
3(5) Unfitness to Plead. Any person who, at
any stage of the proceedings, is incapable of
understanding the nature, object or consequences of
the proceedings against him, or of communicating with
counsel owing to disease or defect of the mind which
renders him unfit to stand trial, shall not be tried
until declared fit.
Comment
This is the only procedural defence included in this
chapter. It does not appear in the draft legislation
since it is more properly to be regarded as a matter for
the Code of Criminal Procedure. The reason for its
tentative inclusion here is its close relation to the
defence of mental disorder.
Justice, and indeed paragraph 11(d)
of the Charter, requires that no one be convicted and
punished without fair trial. But fair trial requires,
among other things, that the accused be able to
understand the proceedings and answer the charge. This
is impossible for someone mentally disordered.
Sections 543-545 of the Criminal Code [now 672.22-672.33]
deal with this problem in detail and basically require a
court that finds an accused unfit to plead, not to try
him, but to order him to be detained at the lieutenant
governor's pleasure. Clause 3(5) roughly continues
present law but leaves matters of procedure to the
forthcoming Code of Criminal Procedure.
3(6) Mental Disorder. No one is liable for
his conduct if, through disease or defect of the mind,
he was at the time incapable of appreciating the
nature, consequences or legal wrongfulness of such
conduct [or believed what he was doing was
morally right].
Comment
Those not in their right mind and therefore not
responsible for their actions should not be punished.
Insanity, therefore, has long been recognized as a
defence at common law. What counted as insanity was
spelled out in the McNaughten
Rules in 1843.[25] Those
rules were largely reproduced in s.16
of the Criminal Code.
That section does four things. It provides a general
rule against convicting the insane. It gives a
definition of insanity. It has a special rule about
insane delusions. Finally, it places the burden of proof
on the person wishing to prove insanity.
Clause 3(6) largely follows s.16
of the Criminal Code except in three aspects. It has
nothing corresponding to the insane delusion provision,
a provision seldom applied but frequently criticized
because as Maudsley pointed out "it compels the lunatic
to be reasonable in his unreason, sane in his insanity"[26] and because the idea of
partial insanity is not in accordance with modern
medical opinion. It says nothing about presumptions of
sanity or burden of proof, but leaves this, along with
other evidential matters, to evidence provisions.
Finally, while keeping the definition of "insanity"
contained in s.16, it replaces that word by "mental
disorder," a term more in line with modern medical and
social attitudes.
A minority of the Commissioners wished to add the words
which are in brackets. To them it seemed that although
in general a person cannot be allowed to substitute his
views of right and wrong for those contained in the law,
nevertheless a mentally disordered person who acts as he
does because he thinks it morally right to do so, merits
treatment rather than punishment. The words in brackets
were drafted to allow for this but at the same time to
prevent exemption for the psychopath, who acts as he
does not because he thinks it right to do so, but rather
because he is indifferent to right and wrong.
Justifications and Excuses
Comment
A person committing the conduct with the culpability
requisite for a crime may still escape liability on
account of special circumstances excusing or justifying
his behaviour. They justify it when it is right for him
or anyone else in those same circumstances to act that
way. They excuse it when, though the act itself is
wrong, he should not be censured or convicted for doing
it on account of special pressures liable to make any
other ordinary person do the very same. As has been
pointed out, justifications and excuses overlap and one
and the same defence, for example necessity, may operate
now as an excuse, now as a justification.[27] For this reason, no
attempt has been made to categorize each defence as
either one or the other.
Many of these defences are based on the principle that
it is right, when necessary, to choose the lesser of two
evils. Some of them, for example duress, self defence
and advancement of law, are simply specific instances of
that principle, Then there is the residual defence of
necessity to deal with cases not covered by specific
provisions. Most of them are contained in the present
Criminal Code. Some, for example necessity, are
presently left to case law [see Perka]. However, all
currently recognized substantive defences are included
in this Code for the sake of completeness.
3(7) Mistake or Ignorance of Law. No one is
liable for a crime committed by reason of mistake or
ignorance of law:
(a) concerning private rights relevant to
that crime; or
(b) reasonably resulting from
(i) non publication of the law in
question,
(ii) reliance on a decision of a court of appeal
in the province having jurisdiction over the crime
charged, or
(iii) reliance on competent administrative
authority.
Comment
Mistake of law in general is no defence. This is the
position at common law, under s. 19
of the Criminal Code and under clause 3(7) of this Code.
It is up to the citizen to find out what the law is and
comply with it.
On the other hand no one can fairly be punished for
breaking a law which he has no reasonable chance of
ascertaining. For this reason present law has created
two exceptions to the general rule. Ignorance of law
owing to non publication of regulations is a defence
(see s.11(2)
of the Statutory Instruments Act). Mistake of
law resulting from officially induced error may also be
a defence.[28]
Clause 3(7)(b) codifies these two exceptions, extending
one of them and adding another. It extends the first
exception to non publication of any law. It adds an
exception in the case of mistake resulting from reliance
on the law as stated by the court of appeal in the
province where the charge is tried. No one can
reasonably be expected to be wiser than the highest
court in his jurisdiction; rather he is entitled to
assume the law is what that court says it is until the
Supreme Court of Canada states otherwise.
In addition there are certain crimes, such as theft and
fraud, where honest but erroneous belief in a claim of
right negatives criminal liability. Insofar as such
belief is based on error of law, mistake of law will
operate as a defence. This is the position under present
law and also under clause 3(7)(a) of this Code.
Clause 3(7)(b) then provides three exceptions to the
general rule, but all three relate solely to mistakes
reasonably resulting from the factors specified.
3(8) Duress. No one is liable for
committing a crime in reasonable response to threats
of immediate serious harm to himself or another person
unless he himself purposely causes the death of, or
seriously harms, another person.
Comment
One's duty to obey the law may conflict with pressure
stemming from the threats of others. Where the pressure
is great and the breach of duty relatively small, the
breach becomes unfit for punishment. This is the thrust
of the criminal law defence of duress.
The defence of duress is presently contained partly in
s.17
of the Criminal Code and partly in the common law.
According to the case law, the section concerns the
position of the actual committer; the common law that of
other parties.[29]
Section 17 allows the defence only where there is a
threat of immediate death or bodily harm from a person
present, where the accused is not a party to a
conspiracy subjecting him to the duress and where the
crime committed is not one of those listed in the
section. The common law is less strict and detailed,
does not require the threatener to be present, has no
rule on conspiracy and excludes duress only in the case
of murder by an actual committer.
Clause 3(8) simplifies and modifies the law in four
ways. First, it specifies that the accused's response to
the threat must be reasonable. Second, it provides the
same rule for all parties. Third, it drops the need for
the threatener's presence at the crime and the accused's
absence from a conspiracy, on the ground that both are
factors going ultimately to the reasonableness or
otherwise of the accused's response. Finally, it
abandons the ad hoc list of excluded crimes and replaces
it with a general exclusion for an accused who himself
purposely kills or seriously harms another person, the
principle being that no one may put his own well being
before the life and bodily integrity of another innocent
person.
3(9) Necessity.
(a) General Rule. No one is liable if:
(i) he acted to avoid immediate harm to the person or
immediate serious damage to property;
(ii) such harm or damage substantially outweighed
the harm or damage resulting from that crime; and
(iii) such harm or damage could not effectively
have been avoided by any lesser means.
(b) Exception. This clause does not apply to anyone
who himself purposely causes
the death of, or seriously harms, another person.
Comment
The duty to obey the law may conflict with pressure
stemming from natural forces or from some other source
not covered by the more specific defences known to law.
Such cases may be covered by the residual defence of
necessity. Though not included in the present Criminal
Code, it is well recognized by case law and has been
clarified by the Supreme Court of Canada.[30] For the sake of
comprehensiveness, clause 3(9)
incorporates and codifies the rule laid down there.
The application of the defence in any given case
involves a judgement call. The trier of fact must
consider whether the harm to be avoided was immediate;
necessity relates only to emergencies. He must decide
whether the harm avoided substantially outweighed the
harm done, once again a matter for assessment.
At common law it was clear that necessity was no
defence to murder. This Code replaces that restriction
with a more general one parallel to that used in duress
and based on the same principle. The defence will not
therefore avail one who himself purposely causes the
death of, or seriously harms, another person.
3(10) Defence of the Person.
(a) General Rule. No one is liable if he
acted as he did to protect himself or another person against unlawful
force by using such force as was reasonably
necessary to avoid the harm or hurt apprehended.
(b) Exception: Law Enforcement. This clause does
not apply to anyone who uses force against a
person reasonably identifiable as a peace officer
executing a warrant of arrest or anyone present
acting under his authority.
Comment
The paramount value set on life and bodily integrity
underlies both the prohibitions against crimes of
violence and many of the defences in this chapter,
specially that of defence of the person. The present law
is contained in sections 34
to 37 and subsection 215(4) [now 232]
of the Criminal Code in somewhat complex fashion.
Section 34
rules out force meant to kill or cause bodily harm;
sections 35
and 36
restrict the amount of force permissible to an aggressor
in self defence; section 37
states the general rule allowing unlawful force to be
repelled by necessary proportionate force; and
subsection 215(4) [232(4)]
restricts the right of self defence against illegal
arrest.
Clause 3(10) roughly retains the law but sets it out
more simply in one rule with one exception. Clause
3(10)(a) articulates the right to use reasonably
necessary force against unlawful force. It provides an
objective test and restricts the defence to resisting
unlawful force. It does not cover, therefore, resisting
lawful force such as lawful arrest or justifiable
measures of self defence. It also omits details about
force intended to cause death and about self defence by
an aggressor since these relate really to the question
whether the force used is reasonably necessary. On the
other hand it does cover force used to protect anyone
and not just force used to protect the accused himself
or those under his protection.
The exception relates to self defence against unlawful
force used in law enforcement. Clause 3(10)(b) excludes
force altogether against arrest made in good faith but
in fact under a defective warrant by a person who is
clearly a peace officer. The policy is to restrict
violence, to render it as far as possible a State
monopoly and to make the arrestee submit at the time and
have the matter sorted out later by authority.
3(11) Protection of Movable Property. No
one in peaceable possession of movable property is
liable for using such force, not amounting to
purposely causing the death of, or seriously harming,
as is reasonably necessary to prevent another person
from unlawfully taking it or to recover it from
another person who has just unlawfully taken it.
Comment
A society recognizing a right to property must allow
protection of that right. This is provided in sections 38
and
39 of the Criminal Code. Subsection 38(1) provides
that peaceable possessors may defend their property
against trespassers. Subsection 38(2) provides that a
trespasser resisting a peaceable possessor commits an
assault. Section 39
provides that a peaceable possessor with a claim of
right may defend the property even against a person
lawfully entitled to it.
Clause 3(11) retains but simplifies the present law. It
allows a peaceable possessor (including one who has just
lost possession), whether or not with a claim of right,
to defend his properly by reasonable force against
anyone trying to take it unlawfully. Any force used
against the peaceable possessor by the latter will not
be lawful, and will therefore automatically qualify as
an assault. Thus the special provision contained in
subsection 38(2) of the Criminal Code is neither
necessary nor desirable; offences should not be defined
in defence provisions. Insofar as clause 3(11) extends
the defence of protection to peaceable possessors
without claim of right, it is based on the policy of
restricting the use of force to change the status quo
and of compelling non-possessors to look to authority
rather than to use self help.
The exclusion of force amounting to purposely causing
the death of, or seriously harming, is not found in the
provision on defence of the person; it reflects the
higher value set on persons than on property.
"Peaceable possession" is left undefined under the new
Code as under the present Criminal Code. It means
possession in circumstances unlikely to lead to violence
resulting in personal injury or property damage.
3(12) Protection of Immovable Property.
(a) General Rule. No one in peaceable
possession of immovable property is liable for using
such force, not amounting to purposely causing the
death of, or seriously harming, as is reasonably
necessary to prevent trespass, to remove a
trespasser or to defend the property against another
person unlawfully taking possession of it.
(b) Exception. This clause does not apply to a
peaceable possessor without a claim of right who
uses force against a person who he knows is
legally entitled to possession and who enters
peaceably to take possession of that property.
Comment
Land and buildings differ from goods and chattels in
that the occupier's right can be seriously infringed by
mere trespass; Trespass to goods is rarely harmful in
itself. For this reason slightly different rules are
needed for their protection. These are presently
contained in sections 40
to 42 of the Criminal Code. Section 40 gives a
right of defence of a dwelling house against forcible
break in or entry; section 41
gives a right of protection of real property against
trespass and makes the trespasser's resistance an
assault; and section 42
gives a right to a person entitled to real property to
enter peaceably by day.
Clause 3(12) simplifies the law as follows. First, it
provides one rule for all immovable property; the fact
that the property is a dwelling house may affect the
degree of force that can reasonably be used. Second, it
uses the term "immovable" as the logical contrast to
"movable"; "real" contrasts not with "movable" but with
"personal." Third, like clause 3(11)
and for the same reasons, clause 3(12) avoids
categorizing resistance as assault. Fourth, it
disentitles a peaceable possessor without claim of right
from using force against a non possessor lawfully
entitled to possession and entering peaceably to take
possession.
3(13) Protection of Persons Acting under
Legal Authority.
(a) General Rule. No one is liable for
performing an act required or authorized by or under
federal or provincial statute or for using such
force, short of force meant to cause death or
serious harm to another person, as is reasonably
necessary to do so and as is reasonable in the
circumstances;
(b) Force Used by Peace Officers. No peace officer is liable for
using such force as is reasonably necessary and as
is reasonable in the circumstances to arrest,
recapture or prevent the escape of a suspect or
offender.
Comment
Clearly, a person would be put in an impossible position
if one provision of law (federal or provincial)[31] required him to do
something while another forbade him to do it. To avoid
such an eventuality the present law in subsection 25(1)
of the Criminal Code states the general rule that anyone
required or authorized by law to do anything in the
administration or enforcement of the law is justified,
if he acts on reasonable and probable grounds, in doing
what he is required or authorized to do and in using as
much force as is necessary for that purpose. Subsection
25(2) protects people in good faith executing a process
or carrying out a sentence which is in fact defective.
Subsections 25(3) and 25(4) limit the degree of force
permissible; force intended or likely to cause death or
grievous bodily harm is ruled out except when necessary
for protection of the person or to effect arrest for an
offence for which a person may be arrested without
warrant. Section 27
allows force to be used to prevent offences. Sections 28,
29,
31,
449 [now 494]
and 450 [now 495]
deal with arrest, section 30
with preventing breach of the peace, and sections 32
and 33
with suppression of riots.
Clause 3(13) retains but simplifies present law. It
breaks it down into a general rule provided in clause
3(13)(a) corresponding to subsection 25(1)
and an exception concerning force provided by clause
3(13)(b) corresponding to subsections 25(3) and 25(4).
The general rule has two parts. The first relates to
acts required or authorized by or under statute, that
is, acts required or authorized by a statute itself or
by valid subordinate legislation. These only include
acts specifically required or authorized and not acts
falling only under a blanket authorization such as that
given to police officers to investigate crime: a police
officer cannot arrest people, seize property or enter
private houses simply because these acts are ways of
investigating crime — he needs authority under some
specific provision to do so.[32]
All such provisions, for example powers of arrest, will
be found in the Code of Criminal Procedure or elsewhere
and are therefore not included here. For that reason the
provisions in sections 27
to 31,
449 [now 494]
and 450 are omitted from this chapter.
The second part of the general rule relates to force.
Force may lawfully be used to do an act required or
authorized by law if two conditions are fulfilled.
First, the force must be no more than is necessary to
perform the act. So, for example, force cannot be used
in the seizure of stolen goods if such seizure could
have been effected without force at all. Second, the
force must be reasonable in the circumstances. Deadly
force can never be used to seize stolen property even
though it might be necessary for the effecting of such
seizure. The amount of force that is reasonable in the
circumstances requires a judgement call and the person
using force will be judged on the circumstances as he
perceived them.
Clause 3(13)(b) relates to the privilege given by the
present Criminal Code to peace officers for certain
purposes to use force intended or likely to cause death
or grievous bodily harm. Under the present Criminal
Code, such force can only be used in two cases. It can
be used by anyone believing it on reasonable and
probable grounds to be necessary for the purpose of
preserving himself or anyone under his protection from
death or grievous bodily harm: subsection 25(3).
It can also be used by a peace officer when reasonably
necessary for the lawful arrest of anyone for an offence
for which he may be arrested without warrant: subsection
25(4).
Under the proposed Code, the first exception is
retained in clause 3(10), "Defence
of the Person." The second exception is preserved in
clause 3(13)(b) for peace officers but subject to the
same principles as in the general rule — the force must
be the minimum necessary and must be reasonable in the
circumstances.
3(14) Authority over Children. No one is
liable who, being a parent, foster-parent or guardian
or having the express permission of such a person,
touches, hurts, threatens to hurt or confines a person
under eighteen years of age in his custody in the
reasonable exercise of authority over such person.
[Alternative — A minority of Commissioners would
not provide for such a defence.]
Comment
Section 43
of the Criminal Code justifies use of reasonable force
by every schoolteacher, parent or person standing in a
parent's position by way of correction towards a pupil
or child under his care. Section 44 of the Criminal Code
[repealed] justifies use of reasonable force by the
master of a ship to maintain good order and discipline.
The new Code abandons the provisions regarding both
teachers and masters of ships. Teachers may only use
force if given express permission by parents so to do.
In addition, they may in appropriate cases rely on a
defence of necessity (clause 3(9)).
Ship captains also, in appropriate cases, may rely on
necessity and even perhaps on law enforcement (clause 3(13)(a)).
As for parents, the Commission was divided. A minority
felt that clause 3(14) blunts the general message of the
criminal law on force, and singles out children as not
meriting full personal security and equal legal
protection. The majority felt that such a provision
should be retained to prevent the intrusion of law
enforcement into the privacy of the home for every
trivial slap or spanking.
3(15) Superior Orders. No one bound by
military law is liable for anything done out of
obedience to his superior officer's orders unless
those orders are manifestly unlawful.
Comment
Military personnel can be put in a specially difficult
position. On the one hand, their superior may order them
to do a certain act, while on the other hand, the
criminal law may forbid it. If they do the act, they may
commit a crime and incur criminal liability. If they do
not, they may be liable for disobeying the lawful
command of their superior, an offence punishable under
section 83
of the National Defence Act with up to life
imprisonment.
The present legal position is uncertain. Subsection 32(2)
of the Criminal Code justifies those bound by military
law in obeying the command of their superior for
suppression of a riot unless the order is manifestly
unlawful. Apart from this, the Criminal Code leaves the
matter to common law in which there are few precedents.
Clause 3(15) widens subsection 32(2) of the Criminal
Code to cover obedience to all orders not manifestly
unlawful. Whether an order is manifestly unlawful will
often involve questions of fact as well as law, and the
individual soldier's perception of the facts will
usually be much influenced by the issue of the order
itself. But this will have to be decided in each
situation on a case by case basis.
3(16) Lawful Assistance. No one is liable
who helps, advises, encourages, urges or incites
another person, or acts under the authority or on
behalf of another person, if that other person has a
defence under clauses 3(1) or 3(8) to 3(15).
Comment
Under present law, sections 34
to 45 on defence of person, defence of property
and protection of persons in authority provide
separately that anyone lawfully assisting a person
acting under the section in question shall also enjoy
the benefit of the section. To avoid repetition the new
Code replaces these individual provisions by a general
rule applying to everyone the analogous defences in
classes 3(1) or 3(8) to 3(15). This general rule, which
was outlined in Working Paper 29, "The General Part:
Liability and Defences," covers the possibilities listed
in clause 3(16) including the situation of one acting
under the authority of, and acting on behalf of, another
person with certain defences. It covers both the
committer and the furtherer and attempted furtherer by
reason of the fact that furthering and attempted
furthering are defined as crimes. This defence of course
is not available to those who, under colour of helping
another with one of the listed defences, in fact further
their own wrongful purposes. A court would have no
difficulty in finding that such persons were not really
helping because of their bad faith.
3(17) Mistaken Belief as to Defence.
(a) General Rule. No one is liable if on
the facts as he believed them he would have had a
defence under clauses 3(1) or 3(8) to 3(16).
(b) Exception. This clause does not apply where
the accused is charged with a crime that can be
committed through negligence
and the mistaken belief arose through his
negligence.
Comment
Generally, people should be judged on the facts as they
perceive them. Where they are mistaken as to facts
relevant to the culpability requirement, this result
follows from the present law on mens rea, reproduced in
clause 3(2)(a) ("Mistake of Fact").
Where they are mistaken as to facts grounding an excuse
or justification, the present law is unclear; but
perhaps mistake as to the former will suffice if
genuine, and mistake as to the latter, only if
reasonable.[33] If so the
law is oddly inconsistent. On the one hand, justification is a more powerful
plea than excuse because it claims that what was done
was not just excusable but in fact right. On the other
hand, mistaken belief in a justification seems less
powerful than belief in an excuse because the mistake
must not only be genuine but also reasonable.
Accordingly, clause 3(17) provides that in general a
mistaken belief in circumstances grounding a defence
negates liability. This will be so whether the defence
is a justification, an excuse or some other defence
specifically provided by the Special Part or by the
statute creating the crime. It will also be so, by
virtue of clause 3(13)(a), with
mistaken belief in facts giving rise to a legal duty or
entitlement to act.
It is to be noted that clause 3(17) applies to clause 3(16). A person helping or acting on
behalf of another may mistakenly think that that other
has a defence under one of the clauses listed. Such a
person has no defence himself under clause 3(16) because
the other has none of the requisite defences. But judged
on the facts as he believed them he would have a defence
himself under clause 3(17).
Where the mistake arises through the accused's criminal
negligence and the offence charged is one that can be
committed by criminal negligence, then under clause
3(17)(b) he can be convicted of negligent commission of
that crime. To this extent an unreasonable belief is no
defence. In this respect, clause 3(17)(b) is similar to
clause 3(2)(b).
Chapter 4: Involvement in Crime
Comment
When a crime is committed, liability should attach not
only to the person actually committing it, but also to
secondary offenders who help or encourage its
commission, or who try to commit it or get others to
commit it. Present law, therefore, has rules imposing
liability on: (1) parties to offences; and (2) those
committing inchoate offences. Parties incur derivative
liability, that is, liability deriving from that of the
actual committer. Inchoate offenders essentially (for
the rules on conspiracy provide an exception) incur
original liability, that is, liability incurred solely
on account of what they do themselves.
The new scheme in Chapter 4 attempts to unify this area
of law. It imposes original liability on committers,
other parties and inchoate offenders. It therefore makes
secondary offenders basically liable for what they do
themselves, subject to one exception concerning
conspiracy (see clauses 4(5) and 4(6)). It thus provides a mini-Code
regarding secondary liability and criminal involvement.
The scheme is as follows. First, involvement is divided
into involvement in complete crimes and involvement in
incomplete crimes. Second, except in the case of
conspiracy, under each heading a distinction is drawn
between the prime mover and others: in complete crimes
between committing and furthering, for example by
helping; and in incomplete crimes between attempting to
commit and attempted furthering, for example by trying
to help. Third, there are supplementary rules about
alternative convictions and related matters.
Involvement in Complete Crimes
Comment
Present law is contained in sections 21
and 22
of the Criminal Code. Section 21 defines a party to an
offence as a person who: (a) actually commits it, (b)
aids another to commit it, or (c) abets another to
commit it. Section 22 qualifies as a party to an offence
a person who counsels another to be a party to it. But
curiously, in the Special Part of the Criminal Code,
liability is explicitly imposed only on those committing
offences.
Under the new Code the position is clearer. Clauses
4(1) and 4(2) divide involvement in complete crimes into
committing and furthering. Committers will of course be
liable by virtue of the crime creating provisions in the
Special Part. Furtherers will be
explicitly liable by virtue of the provision in clause
4(2).
4(1) Committing. A crime may be committed:
(a) solely, where the committer is the
only person doing the conduct defined as that crime;
or
(b) jointly, where the committer and another
person (or other persons) together do the conduct
so defined.
Comment
Clause 4(1) articulates the different ways known to
common law (not expressed in the Criminal Code) of
actually committing a crime. A crime is committed by two
(or more) people jointly when both do the actus reus
together (for example D1 and D2 together beat up V) or
where one does one part of it and the other another part
(for example D1 and D2 rob V, D1 holding the gun on him
while D2 takes the money from his pocket). ontrast the
case of helping where the helper does no part of the act
defined as a crime, but leaves this entirely to the
committer. No special provision is made regarding crimes
committed through an innocent agent (for example where D
gets X, a person under twelve, to steal for him or D
gets Y unknowingly to give V a poisoned drink). Under
the new Code, such situations are covered by clause 4(2)
which provides that a person who urges, incites or uses
another to commit a crime is guilty of furthering, even
though the doer of the wrongful act has no culpability
and thus no liability.
4(2) Furthering. Everyone is liable for
furthering a crime and is subject to the penalty for
it if he helps, advises, encourages, urges, incites or
uses another person to commit that crime and that
person completely performs the conduct specified by
its definition.
Comment
As already mentioned, present law on parties is
contained in sections 21
and 22
of the Criminal Code. In addition. certain other
sections prohibit specific kinds of furthering (for
example section 402, assisting cruelty to animals [now 445.1]).
But the Criminal Code is silent as to the mens rea
required for aiding or abetting.
Clause 4(2) provides one rule to cover all types of
furthering crimes that are completed but spells out the
different ways of furthering. Like section 21 of the
Criminal Code, it makes furtherers all liable to the
same penalty as the committer on the basis that a
secondary party may often be as culpable as the actual
committer and sometimes more so.
Furtherers, of course, like those who commit more
specific crimes, will benefit from all the defences in
the General Part. When D helps X to administer poison to
Y, D will not be liable for furthering if he is unaware
that the poison is in fact poison. Then D has a defence
of mistake of fact applying to D himself.
In addition furtherers will also benefit from certain
defences enjoyed by the actual committer. Where D helps
X to reasonably resist an attack on him by Y, X has a
defence of self defence and commits no crime. This
follows from clause 3(16). It
follows that D carrot be liable for furthering a crime.
Sometimes, however, a furtherer will not benefit from a
defence available to the committer. Where the committer
labours under a mistake of fact such as to prevent him
having the requisite culpability for the crime or such
as to lead him to think his act is justified, the
liability of the furtherer will depend, not on whether
the committer was mistaken, but on whether he himself
knew the true facts. D incites X to administer poison to
Y, X is unaware that the poison is poison but D is aware
of this fact; X is not liable for murder or causing
harm, as the case may be, but D is liable. X has a
defence of mistake of fact and is to be judged on the
facts as he imagined them to be. D has no such defence
and is to be judged on the facts as he knew them to be.
The same principle applies where X has a defence like
that of immaturity. In all these cases, D can be said to
be using X. At common law D would be said to commit the
crime through X as an innocent agent. The use in clause
4(2) of the term "uses" makes a special "innocent agent"
rule unnecessary.
By virtue of clause 2(4)(d), the
culpability required is purpose; the furtherer must act
for the purpose of having the crime in question
committed. As to the problem arising when the committer
commits a different crime from the one intended to be
furthered, clause 4(6) deals with the "common purpose"
rule set out in subsection 21(2)
of the Criminal Code.
Involvement in Incomplete Crimes
Comment
Present law is contained in the Criminal Code
provisions on the three inchoate offences: attempt,
counselling and conspiracy. Clauses 4(3) and 4(4)
replace these wide a more unified approach relating to
furthering. Just as involvement in complete crimes is
divided into committing and furthering (for example by
helping), so involvement in incomplete crimes is divided
into attempting and attempted furthering (for example by
helping a person to commit a crime which is not
ultimately committed). Involvement in incomplete crimes,
therefore, runs parallel to involvement in complete
crimes instead of being treated quite separately.
4(3) Attempt. Everyone is liable for
attempt who, going beyond mere preparation, attempts
to commit a crime, and is subject to half the penalty
for it.
Comment
The present law on attempt is contained in sections 24,
421 [now 463]
and 587 [now 660]
of the Criminal Code. There are also numerous specific
attempt provisions (for example section 222, attempted
murder [now 239]
and subsection 326(1), attempted utterance of forged
document [now 368(1)(b)]).
There is also much case law on the actus reus and mens
rea of attempt. [34]
Clause 4(3) replaces the above sections by one general
rule. It gives no definition of the physical element
except to state that the attempt must go beyond mere
preparation. This is because nothing more can be done
than give synonyms such as "try" and "endeavour" which
are likewise unanalysable. As for the question: When
does the accused get beyond mere preparation? (the real
problem about the actus reus of attempt), there is no
way of formulating any satisfactory answer, as is clear
from the inadequacy of each of the tests known to the
law. Ultimately the trier of fact faces a judgement call
in each particular case.
Unlike section 421 [now 463]
of the Criminal Code, clause 4(3) provides one penalty
for attempt, and fixes it at half that for the full
offence on two grounds. First, the main deterrence and
stigma for a crime are contained in the penalty for its
actual commission, and not in the penalty for attempt.
Second, an attempter creates less actual harm than a
successful committer. Finally, clause 4(3) makes
unnecessary any specific attempt provisions in the new
Code. In the cases where a crime would be punishable by
life imprisonment, the length of sentence would have to
be established by a specific rule.
4(4) Attempted Furthering. Everyone is
liable for attempted furthering of a crime and is
subject to half the penalty for that crime if he
helps, advises, encourages, urges, incites or uses
another person to commit that crime and that other
person does not completely perform the conduct
specified by its definition.
Comment
Present law relates only to counselling. This is dealt
with by section 422 of the Criminal Code [now 464].
There are also various specific procuring provisions,
for example paragraph 76(d) (procuring piratical acts
[now 75(d)]).
Clause 4(4) makes attempted furthering parallel to
furthering (clause 4(2)). Again,
clause 4(4) spells out the different ways of attempted
furthering. The penalty for attempted furthering is the
same as for attempt, just as the penalty for furthering is
the same as for committing. Attempted furtherers, like
furtherers, will benefit from all the defences in the
General Part and also from certain defences enjoyed by the
committer. (See comment on clause 4(2)
above.)
Finally, the inclusion of "helps" is new. Under present
law, liability arises for aiding and counselling another
to commit a crime which he actually commits, for
counselling another to commit a crime which he does not
commit, but not for aiding a person to commit a crime
which he does not commit. Clause 4(4) closes this gap in
present law.
4(5) Conspiracy. Everyone is liable for
conspiracy who agrees with another person to commit a
crime and is subject to half the penalty for it.
Comment
The law on conspiracy is principally contained in
section 423 of the Criminal Code [now 465].
There are also three specific provisions: section 46(c)
(treason), and subsections 60(3) (sedition [now 59(3)])
and 424(1) (restraint of trade [now 466]).
There are also specific sections in other federal
statutes. Basically conspiracy consists of any agreement
between two or more persons to commit an offence.
Clause 4(5) roughly retains but simplifies the law. It
replaces the various provisions contained in section 423
[465]
and the other sections of the Criminal Code by one
single rule. It restricts conspiracy to agreements to
commit crimes, on the ground that the Criminal Code
should control the ambit of the crimes within it, that
criminal law in this as in all other contexts should be,
as far as possible, uniform across Canada and that if an
act does not merit criminalization, then neither does an
agreement to do it.
A conspirator who goes further than agreement may
become liable, of course, for committing or furthering,
or for attempting or attempted furthering as the case
may be.
4(6) Different Crime Committed from That
Furthered.
(a) General Rule. No one is liable for
furthering or attempting to further any crime which
is different from the crime he meant to further.
(b) Exception. Clause 4(6)(a) does not apply
where the crime differs only as to the victim's
identity or the degree of harm or damage involved.
(c) Qualification. A person who agrees with
another person to commit a crime and who also
otherwise furthers it, is liable not only for the
crime he agrees to commit and intends to further,
but also for any crime which he knows is a
probable consequence of such agreement or
furthering.
Comment
Present law is contained in subsections 21(2)
and 22(2)
of the Criminal Code. Subsection 21(2) makes parties
having a common intention liable for any offence
committed by one of them which they knew or ought to
have known would be a probable consequence of carrying
out that common purpose. Subsection 22(2) provides an
analogous rule for counsellors.
Clause 4(6) changes the law to some extent. Clause
4(6)(a) sets out the general rule that a furtherer is
liable only for furthering the crime he intends to
further. This is subject to two qualifications. First,
clause 4(6)(b) itself provides that where the crime
committed differs from that intended only as regards the
victim's identity or the degree of harm, the general
rule does not apply. Second, clause 4(6)(c) incorporates
a "common purpose" rule analogous to that in subsection
21(2) of the Criminal Code, but restricts liability to
crimes which the furtherer actually knows to be probable
consequences of the agreement or furthering. It does so
on the basis that negligence has no place in this
content.
4(7) Alternative Convictions.
(a) Committing. Everyone charged with
committing a crime may, on appropriate evidence, be
convicted of furthering it, of attempting to commit
it or of attempted furthering of it.
(b) Furthering. Everyone charged with furthering
a crime may, on appropriate evidence, be convicted
of committing it, of attempting to commit it or of
attempted furthering of it.
(c) Attempting. Everyone charged with attempting
to commit a crime may, on appropriate evidence, be
convicted of attempted furthering of it, and,
where the evidence shows that he committed or
furthered it, may nevertheless be convicted of
attempting to commit it.
(d) Attempted Furthering. Everyone charged with
attempted furthering of a crime may, on
appropriate evidence, be convicted of attempting
to commit it, and, where the evidence shows that
he committed or furthered it, may nevertheless be
convicted of attempted furthering of it.
(e) Unclear Cases.
(i) Where two or more persons are
involved in committing a crime but it is unclear
which of them committed it and which of them
furthered it, all may be convicted of furthering.
(ii) Where two or more persons are involved in
attempting to commit a crime but it is unclear
which of them attempted to commit it and which of
them attempted to further it, all may be convicted
of attempted furthering.
Comment
A person charged with committing a crime may turn out
only to have helped its commission and vice versa.
Likewise one charged with committing may turn out only
to have attempted to commit it and vice versa. Clause
4(7) provides rules for these problems.
Present law needs no rule as to committers and helpers
since all count equally as parties. It does provide
rules in sections 587 [now 660]
and 588 [661]
about inchoate offences. Where a complete offence is
charged but only an attempt is proved, there may be
conviction for attempt as an included offence (section
587 [660]); where an attempt is charged but the complete
offence is proved, there may be conviction for the full
offence (section 588 [661]).
Clause 4(7) provides five rules. The first four deal
with the four possibilities, namely, committing,
furthering, attempting and attempted furthering.
Whichever is charged, the evidence may show that one of
the other three in fact obtained. In the case of
committing and furthering, clauses 4(7)(a) and 4(7)(b)
allow for the appropriate conviction. In the case of
attempting and attempted furthering, it would be unfair
to allow conviction for involvement in the complete
offence carrying the full penalty of an accused charged
only with involvement in an incomplete offence carrying
a half penalty. Accordingly, where the evidence shows
the offence to be complete, clauses 4(7)(c) and 4(7)(d)
allow conviction, nevertheless, for involvement in an
incomplete offence. Clause 4(7)(e) provides for
situations where it is clear that all of the accused
were involved, but it is unclear who had primary
involvement.
Nothing is said here on abandonment or on attempting the
impossible. As for the former, though a defence of
abandonment could acknowledge reduced culpability on the
part of the accused and could provide incentives to
desist from further involvement, there are counter
arguments. First, abandonment may often result less from
genuine change of heart than from awareness that police
are watching. Second, even where this is not so, reduced
culpability is not the same as complete innocence. For
these reasons, abandonment is best left to be dealt with
as a mitigating factor going to sentence.
As for attempting the impossible, no special provision
is necessary. Where the offence attempted is impossible
because the facts are other than imagined by the
attempter, his error does not decrease his culpability
or dangerousness. If D tries to kill V, who is, unknown
to him, already dead, he is surely as blameworthy and as
much a social menace as one who tries to kill a living
victim and should accordingly be liable for attempted
murder; D should be judged (analogously with the defence
of mistake of fact) not on the facts as they are, but as
he wrongly thinks them to be. Where the offence
attempted is impossible because the law is other than
imagined, then no crime has been attempted. If D tries
to buy contraceptives, wrongly believing that this is
(as it once was) an offence against the Criminal Code,
he is attempting to do something which in law is not a
crime and which, therefore, should incur no liability; D
should be judged (analogously with the defence of
mistake of law) on the law as it is, not as he
erroneously thinks it to be. Attempting the impossible,
then, can be adequately dealt with by the proposed Code
provisions.
Chapter 5: Territorial Jurisdiction (skip
to commentary)
5(1) General Rule. Subject to clause 5(2),
no person shall be convicted in Canada
for a crime committed wholly outside Canada.
5(2) Jurisdiction Rules. Subject to diplomatic and
other immunity under the law, the Code applies to, and
the Canadian courts have jurisdiction over:
(a) crimes committed wholly inside Canada
(including on Canadian ships
and aircraft);
(b) crimes where one of the elements (including the
direct resulting harm or damage) occurs in Canada
and that element establishes a real and substantial
link with Canada;
(c) conduct engaged in outside Canada which
constitutes either
(i) a conspiracy to commit a crime in
Canada,
(ii) attempting to commit a crime in Canada, or
(iii) furthering or attempting to further a crime
in Canada,
where the conduct took place on the high
seas or in a State where the crime in question is
also a crime in that State;
(d) conduct engaged in inside Canada which
constitutes either
(i) a conspiracy to commit a crime
outside Canada,
(ii) attempting to commit a crime outside Canada,
or
(iii) furthering or attempting to further the
commission of a crime outside Canada,
if the crime in question is a crime both in Canada
and in the place where the crime is to be committed;
(e) crimes committed in "special zones" in which
Canada has sovereign rights and either the offender
or the victim is present in such zone for the
purpose of engaging in an activity over which
Canadian sovereign rights extend, this rule being
applicable to crimes committed
(i) within a fishing
zone or exclusive
economic zone of Canada,
(ii) on, under or within a distance to be
determined by regulation of any artificial island,
installation or structure
(A) in a fishing zone or exclusive
economic zone of Canada, or
(B) on or over the continental shelf of Canada,
or
(C) (other than a ship of non Canadian registry)
under the administration and control of the
Government of Canada;
(f) crimes against State security committed outside
Canada by Canadian citizens and others who benefit
from the protection of Canada and, where the crime
involves classified government information, by
persons who were Canadian citizens or benefitted
from the protection of Canada when such information
was obtained;
(g) crimes committed outside Canada where the crime
in question is a crime both in Canada and in the
place where it was committed by
(i) persons subject to the Code of
Service Discipline under the National Defence Act
when serving abroad,
(ii) Government of Canada employees serving abroad
and members of their families forming part of
their households who are Canadian citizens or who
benefit from the protection of Canada, and
(iii) R.C.M.P. members serving abroad and members
of their families forming part of their households
who are Canadian citizens or who benefit from the
protection of Canada;
(h) crimes committed by those on board private ships
or aircraft outside the territorial jurisdiction of
any State and consisting of:
(i) crimes against personal safety and
liberty of those on board other ships or aircraft;
(ii) theft, vandalism or arson of another ship or
aircraft; or
(iii) theft, vandalism or arson of the property of those on
board other ships or aircraft;
(i) crimes committed outside Canada by anyone
consisting of:
(i) theft of,
(ii) forgery of,
(iii) making false applications for,
(iv) possession of or use of when stolen or
forged, or
(v) unauthorized use of Canadian passports or
certificates of Canadian citizenship;
(j) crimes committed outside Canada by anyone and
consisting of:
(i) forgery of Canadian currency, and
(ii) using forged Canadian currency;
(k) crimes committed outside Canada by Canadian
citizens or by persons present in Canada after their
commission and consisting of:
(i) crimes against personal safety and
liberty by means of nuclear
material,
(ii) theft of nuclear material, or
(iii) vandalism or arson of, or by means of,
nuclear material;
(l) crimes against personal safety and liberty of internationally protected persons
committed outside Canada by:
(i) Canadian citizens or persons
present in Canada after their commission, and
(ii) anyone if the victim was exercising functions
on behalf of Canada;
(m) kidnapping committed outside Canada where
(i) the alleged offender is a Canadian
citizen, is a stateless person ordinarily resident
in Canada, or is present in Canada after the
commission of the offence,
(ii) the person kidnapped is a Canadian citizen,
or
(iii) the crime is committed in order to influence
the actions of the Government of Canada or a
province;
(n) crimes committed outside Canada by anyone
consisting of crimes against personal safety and
liberty of those on board an aircraft or ship or of
interfering with transportation facilities
consisting of an aircraft or ship where the aircraft
or ship in question is
(i) a Canadian
aircraft or ship, or
an aircraft or ship leased without crew to a
lessee who has his principal place of business or,
if the lessee has no such place of business, his
permanent residence in Canada,
(ii) the aircraft or ship in question arrives in
Canada with the alleged offender on board, or
(iii) the alleged offender is present in Canada
after the commission of the offence.
Comment
Clause 5 sets out the rules on the extraterritorial
jurisdiction of our courts in criminal matters.
Clauses 5(1) and 5(2)(a)
contain a general rule, in conformity with common law
tradition and international law, giving our courts
jurisdiction only over crimes committed wholly in
Canada. Clauses 5(2)(b) to
5(2)(n) provide a number of exceptions to that rule
and give our courts jurisdiction in some instances
over crimes committed wholly or partly outside Canada.
These exceptions are also based upon generally
accepted principles of international law and subject
to the various diplomatic and other legal immunities.
Clauses 5(2)(a) to 5(2)(d)
reflect the territorial principle of international law
which gives States jurisdiction over crimes committed
wholly inside their territory and over crimes
committed partly inside it where material elements or
direct harmful effects occur therein. Clause 5(2)(a)
sets out the general rule that the Code applies to,
and Canadian courts have jurisdiction over, crimes,
committed wholly inside Canada, Canadian ships and
aircraft being considered extensions of Canadian
territory. Clauses 5(2)(b), 5(2)(c) and 5(2)(d)
apply to transnational offences — crimes committed
partly inside and partly outside Canada, Clause
5(2)(b) consistently with the recent Libman decision
of the Supreme Court of Canada [35]
gives Canadian courts jurisdiction where an element of
a crime occurs in Canada and establishes a real and
substantial link with this country. Clauses 5(2)(c) and 5(2)(d)
cover similar aspects of conduct outside Canada which
constitutes conspiracy, attempt, furthering, or
attempt to further a crime in Canada, and vice versa.
Both rules are subject to a double criminality test:
the crime in question must contravene the criminal law
of Canada and of the State where the conduct is
engaged in.
Clause 5(2)(e) extends the ambit
of Canadian criminal law to activities occurring in a
number of "special zones" which are strictly speaking
outside Canadian territory but over which Canada has
sovereign rights. For Canadian law to apply, either
the offender or the victim must be present in the zone
in connection with some activity over which Canadian
sovereign rights extend. Under this rule, Canadian
courts would have jurisdiction, for example, over
assault committed in a fishing zone by or against
anyone in that zone connected with the fishing
industry but not over an assault committed there by
and against someone on board a foreign pleasure craft
who is not there in connection with that industry.
Clauses 5(2)(f) and 5(2)(g) apply the active
nationality principle of international law. Clause
5(2)(f) gives our courts jurisdiction over crimes
against State security committed outside Canada by
Canadian citizens or people benefitting from Canada's
protection. Such crimes are contained in Chapter 26 of the proposed Code.
Clause 5(2)(g) gives our courts
jurisdiction over crimes committed outside Canada by
certain categories of Canadians, such as government
employees serving abroad and their families living
with them.
Clause 5(2)(h) applies the
universal principle of international law to crimes of
piracy and to analogous crimes concerning aircraft.
The present crime of piracy, which is defined in
sections 75 and 76 [now 74
and 75]
of the Criminal Code but for which there are no
jurisdictional provisions, consists of doing certain
acts on the high seas and is triable as a universal
crime by the courts of any State. The acts in
question, which are set out in clause 5(2)(h), would
all constitute ordinary crimes if committed in Canada.
The amendment therefore gives our courts jurisdiction
over such acts when committed outside the ordinary
jurisdiction of any State.
Clauses 5(2)(i) and 5(2)(j) apply the protective
principle of international law. Clause 5(2)(i) gives
our courts jurisdiction over certain crimes involving
Canadian passports and certificates of Canadian
citizenship committed outside Canada by anybody.
Clause 5(2)(j) does the same with certain crimes
involving Canadian currency.
Clauses 5(2)(k) to 5(2)(n),
which are not based upon any particular principle of
international law, implement Canada's various treaty
obligations to exercise criminal jurisdiction over
various crimes with international ramifications.
Clause 5(2)(k) replaces subsection 6(1.6) [now 7(3.2)]
of the Criminal Code which confers jurisdiction over
certain crimes wherever committed involving nuclear
material. These comprise theft, fraud, fraudulent
concealment, false pretences, robbery, extortion and
intimidation. Clause 5(2)(k) covers most of these by
reference to theft, but adds vandalism, arson and
crimes against personal safety and liberty. It should
be noted that with such crimes and also with crimes
referred to in clauses 5(2)(1), 5(2)(m) and 5(2)(n)
the State in whose territory the crime was committed
may well apply pursuant to treaties with Canada for
extradition of the offender. In such a case it would
be for the executive in Canada to decide whether to
prosecute here or to comply following due procedures
with such request.
Clause 5(2)(1) replaces
subsection 6(1.2) [7(3)]
of the Criminal Code, which deems certain crimes
against internationally protected persons to have been
committed in Canada if the committer is a Canadian
citizen or is present in Canada after their
commission. Clause 5(2)(l) simply confers
extraterritorial jurisdiction, given such conditions,
over crimes against personal safety and liberty
committed against such persons.
Clause 5(2)(m) which deals with
kidnapping, replaces subsection 6(1.3) [now 7(3.1)]
of the Criminal Code. That subsection confers
extraterritorial jurisdiction over certain crimes of
hostage taking. Clause 5(2)(m) speaks instead in terms
of kidnapping, defined in clause 9(2)
as confining "another person, without that other's
consent, for the purpose of making him or some other
person do or refrain from doing some act." This covers
hostage taking, therefore, and obviates the need for
any other term.
Finally, clause 5(2)(n) deals in
effect with hijacking and endangering aircraft and
ships. These crimes are defined in relation to
aircraft by sections 76.1 and 76.2 of the Criminal
Code [now 76
and 77]
and extraterritorial jurisdiction over them is
conferred by subsection 6(1.1) [now 7(1)].
The acts covered by both crimes, however, constitute
crimes against the personal safety and liberty of
those on board aircraft or ships or the crime of
interfering with transportation facilities defined by
clause 10(9). It will be noted
that the crime of interference defined by clause l0(9)
is only committed when the interference causes risk of
death or serious harm. Those types of hijacking in
section 76.1 [now 76]
not forming specific crimes against safety or liberty
will in fact be covered since they will all cause some
risk of death or serious harm. Clause 5(2)(n),
therefore, confers extraterritorial jurisdiction over
these crimes given fulfilment of one of the three
conditions listed. In addition, in the interests of
principle and in the light of recent events at sea, it
extends Canadian jurisdiction to hijacking of ships.
THE SPECIAL PART
TITLE II. Crimes against the Person
Part 1: Crimes against Personal Safety and Liberty
Chapter 6: Crimes against Life
Comment
The common law on homicide was relatively
straightforward. Unlawful killing was murder if done
with malice aforethought, manslaughter if done
without. What counted as malice was worked out in
detail over the centuries. In 1874 Stephen drafted a
mini Code on homicide. This was later incorporated in
the English Draft Code of 1879, which formed the model
for the Canadian 1892 Code.[36]
Based on the 1892 Code, the present Criminal Code now
contains a complex network of sections on homicide. As
to the crimes themselves: subsection 205(1) defines
homicide [now 222];
subsections 205(4), 205(5) and section 210, culpable
and non-culpable homicide [now 222(4-5)];
sections 212 and 213, murder [now 229
and 230];
section 217, manslaughter [234];
sections 216 and 220, infanticide [233.];
section 221, child destruction [238];
and section 222, attempted murder [239].
Then, section 214 divides murder into first and second
degree [231],
while sections 218 and 669 to 672 deal with sentencing
for murder [235
and 745].
Section 219 provides the penalty for manslaughter [236].
Sections 197 to 199 deal with duties and omissions [215
to 217]; section 200, with child abandonment [218];
sections 202 and 203, with causing death by criminal
negligence [220
and 222(5)(b)];
section 206, with the meaning of "human being" [223(1)];
sections 207 to 211, with specific causation matters [220
and 221];
and section 223, with accessory after the fact to
murder [240].
The new Code simplifies this arrangement through the
following changes. The culpable/non culpable
distinction is dropped as unnecessary. The duty
provisions are relocated in clause 2(3)(c)
of the General Part. Specific causation provisions are
subsumed under the general causation provision in the
General Part. Infanticide is dropped as being covered
by the ordinary homicide provisions. Attempted murder
is left to the general provisions on attempt.
Accessory after the fact to murder is left to the
general provisions on obstructing justice. Lastly,
child destruction is left to be dealt with under
crimes against birth in a forthcoming publication.
Accordingly, Chapter 6 entitled "Crimes against Life"
defines four basic crimes of killing persons already
born: negligent homicide, manslaughter, murder and
first degree murder. To these it adds a special crime
of furthering suicide. It ends with an exception
relating to palliative care.
This chapter, then, concerns killing those already
born. All the homicides here listed consist in killing
a "person," which term is
defined by clause 1(2) as "a
person already born by having completely proceeded in
a living state from the mother's body ...." Crimes
against the unborn are left to be dealt with in a
forthcoming publication.
The crimes in this chapter therefore are culpable
homicides. The new Code, however, does not need to say
this because all killing with negligence,
recklessness or purpose is culpable and criminal
unless excused or justified in accordance with the
provisions of the General Part. Reference to
"culpable" and "non culpable" then becomes
unnecessary.
6(1) Negligent Homicide. Everyone commits
a crime who negligently causes
the death of another person.
Comment
Under present law, this kind of homicide is covered
by sections 202 and 203 (causing death by negligence)
[now 219
and 220]
and section 217 (manslaughter) [234].
Two points, however, remain unclear. One is the extent
of possible overlap between sections 202 and 203 and
section 217. The other is the meaning of "criminal
negligence" in section 202 [219],
the definition of which refers to "wanton or reckless
disregard."
The new Code clarifies both points. First, clause
6(1) creates a crime of negligently, as opposed to
recklessly, causing the death of another person.
Second, clause 2(4)(b) in the
General Part defines negligence as something clearly
different from and less than recklessness.
6(2) Manslaughter. Everyone commits a
crime who recklessly causes
the death of another person.
Comment
"Manslaughter" is not defined by the present Criminal
Code but is simply stated to be "[c]ulpable homicide
that is not murder or infanticide ..." (section 217
[now 234]).
As such, it includes negligent killing and some kinds
of reckless killing: negligent killing by reason of
the fact that causing death by negligence (section 203
[220])
is a culpable homicide that is not murder or
infanticide; and reckless killings other than those
covered by sections 212(a)(ii) and 212(c) [229(a)(ii)
and 229(b)]. It is accordingly a crime of broad and
unclear dimensions.
The new Code defines "manslaughter" as recklessly
causing the death of another person. "Recklessly" is
defined in clause 2(4)(b) of
the General Part as something worse than negligence
but less heinous than wrongful purpose. Manslaughter,
then, is singled out as falling between negligent
homicide and murder and as meriting an intermediate
penalty.
6(3) Murder. Everyone commits a crime who
purposely causes the death of
another person.
Comment
Murder at common law was killing with malice
aforethought. Killing with malice was defined by
Stephen to consist in killing: (1) with intent to kill
or cause grievous bodily harm; (2) with knowledge that
one's act was likely to kill or cause grievous bodily
harm; (3) in the course of furtherance of a violent
felony; and (4) with intent to oppose by force an
officer of justice.[37]
The present Criminal Code replaces "intent to ...
cause grievous bodily harm" and "knows that one's act
is likely to kill or cause bodily harm" by "means to
cause ... bodily harm that he knows is likely to cause
... death ..." (subparagraph 212(a)(ii) [now 229(a)(ii)]).
It replaces the two heads of constructive malice ((3)
and (4) of Stephen's definition) by "for an unlawful
object, does anything that he knows ... is likely to
cause death ..." (paragraph 212(c) [229(c)])
and by the performance of certain listed acts in the
course of certain listed offences (section 213 [230]).
Clause 6(3) abandons constructive malice and
restricts murder to killing purposely. "Purposely" is
defined in clause 2(4)(b) of
the General Part to include oblique or indirect
purpose, sometimes referred to as indirect intent. So
where D causes V's death, which he does not desire, as
a necessary step to some other objective, which he
does desire, he commits murder. All other unintended
killings, whether or not in the course of other
offences, are either manslaughter or negligent
homicide. So, where D kills V in the course of a
robbery, he will be guilty of murder if he kills him
on purpose, of manslaughter if he kills recklessly,
and of negligent homicide if he kills with negligence;
D will be liable for the kind of killing he actually
does. The fact that the killing may be worse because
if done in a robbery can be reflected in the sentence.
[Alternative
6(3) Murder. Everyone commits a crime who:
(a) purposely
causes the death of another person; or
(b) causes the death of another person by purposely causing him
bodily harm that he knows is likely to cause
death and is reckless
whether death ensues or not.]
Comment
A minority of the Commissioners would retain the
Criminal Code approach expressed in subparagraph
212(a)(ii) [now 229(a)(ii)]
on the basis that this kind of reckless killing is
more akin to killing on purpose than to ordinary
reckless homicide. The reason is that such a killer
not only exposes the victim to a risk of death, but
also purposely takes unwarranted liberties with his
physical person. The majority consider such reckless
killing to be more akin to other kinds of reckless
homicide than to killing on purpose.
6(4) First Degree Murder. Murder is first
degree murder if committed;
(a) pursuant to an agreement for
valuable consideration;
(b) with torture;
(c) for the purpose of preparing, facilitating
or concealing a crime or furthering an
offender's escape from detection, arrest or
conviction;
(d) for terrorist or political motives;
(e) during the course of robbery, confinement,
sexual assault or interference with transport
facilities consisting of aircraft and ships;
(f) by means which the accused knows will
cause the death of more than one person; or
(g) by premeditation in terms of a calculated
and carefully considered plan other than for the
purpose of mercy killing.
Comment
Although there is nothing in the new Code on
sentencing, the Commission's recommendation is that
ordinary murder should carry no fixed or minimum
penalty.[38] Some
murders, though, are heinous enough to merit very
severe penalty. To reassure the public at this time
that they will receive such penalty, the Code retains
a provision on first degree murder.
Clause 6(4) simplifies and somewhat alters the
present law contained in section 214 [now
231] of the Criminal Code. First, to some extent
it categorizes murders in terms of activity and motive
rather than by a list of offences and victims: for
example, it replaces "[m]urder of police officer,
etc." by murder "for the purpose of ... furthering an
offender's escape ...." Second, it replaces "planed
and deliberate" by a new formulation deliberately
excluding mercy killings (clause 6(4)(g)). In line
with recent amendments to the Criminal Code, the
"repeated murder" provision has been dropped. It has
been replaced by one relating to multiple killings
(clause 6(4)(f)) although a minority of Commissioners
considers that simultaneous multiple killings are no
worse than consecutive multiple killings. It adds
"with torture" (clause 6(4)(b)) as being particularly
heinous.
[Alternative
6(4) First Degree Murder. Murder is first degree
murder if the offender deliberately subordinates
the victim's life to his own further purpose of:
(a) advancing terrorist or political
objectives;
(b) influencing the course of justice;
(c) preparing, facilitating or concealing a
crime or furthering an offender's escape from
detection, arrest or conviction;
(d) obtaining financial gain; or
(e) obtaining consideration pursuant to an
agreement to cause the death of another person.]
Comment
A minority of the Commissioners would prefer to
articulate the distinction between first degree and
other murders by reference to some principle. This
principle they see as the murderer's deliberate
subordination of the victim's life to his own purpose
by doing one of the things listed in the clause. The
things listed, with the exception of premeditation,
correspond roughly to the provisions in the majority
alternative, but contain no reference to torture,
specific crimes or multiple killings.
[Alternative
Homicide. Everyone commits a crime who causes
the death of another person:
(a) purposely;
(b) recklessly; or
(c) through negligence.]
Comment
A minority of the Commissioners would like to get
away from the confusion surrounding older concepts and
to have one crime of homicide that could be committed
with one of three different levels of culpability.
This would put homicide on the same footing as causing
bodily harm and many other "result offences." The
majority, however, prefer to retain the existing
labels.
6(5) Furthering Suicide. Everyone commits
a crime who helps, advises, encourages, urges or
incites another person to commit suicide whether
suicide results or not.
Comment
Under present law, there is no crime of attempted
suicide but it is a crime to counsel, aid or abet
another's suicide according to section 224 of the
Criminal Code [now 241].
This may be justified on the basis that while a person
should be left free to take his own life, others
should not be free to help or encourage him to do so.
Without their ministrations he might well recover from
his suicidal frame of mind.
Clause 6(5) retains the present law. Since the
suicide furthered must by definition be that of
another, it can only be furthered by helping, urging
and so on and not by attempting. The only suicide one
can attempt is one's own. Attempting another's death
remains attempted murder.
6(6) Palliative Care. Clauses 6(1) to
6(5) do not apply to the administration of
palliative care appropriate in the circumstances for
the control or elimination of a person's pain and
suffering even if such care shortens his life
expectancy, unless the patient refuses such care.
Comment
Under present law, administration
of palliative treatment likely to shorten life would
in theory fall under subparagraph 212(a)(ii) [now 229(a)(ii)]
and give rise to liability for murder. In practice,
Canadian case law has no record of conviction of a
doctor for shortening a terminal patient's life by
administering pain relieving drugs.[39] Moreover, most people,
including religious leaders, see nothing wrong in
giving treatment for the purpose of relieving pain in
certain circumstances even though one result of such
relief may be to shorten life. Clause 6(6) clarifies
the law, reconciles it with present practice and
brings the Code into line with current moral thinking.
Chapter 7: Crimes against Bodily Integrity
Comment
At common law, non fatal crimes against the person
consisted of assault (threatening immediate violence)
and battery (inflicting violence). Statute added other
more serious offences. The present Criminal Code deals
with such crimes in Part VI which concerns assault
(section 244 [now 265]),
aggravated assaults (sections 245.1, 245.2 and 246
[now 266
and 270]),
unlawfully causing bodily harm (section 245.3 [269])
and numerous other offences (for example sections 228,
229 and 230 [244-246]).
As well, there are several offences contained in
sections outside Part VI (for example: sections 38
to 42, assaults by trespassers; section 69 [now 68],
assaulting person reading riot proclamation; section
172, assaulting clergyman celebrating divine service).
In addition, sexual assaults are prohibited
specifically by sections 246.1, 246.2 and 246.3 [now
by 271-273].
The new Code restricts this area of law to crimes of
actual violence, relocates the crime of threatening
immediate violence in Chapter 8 on
"Crimes against Psychological Integrity" and reduces
the rest of the law to two crimes: (1)
touching or hurting, and (2)
harming. Many of the pecific crimes are dealt with in
terms of aggravating factors. Exceptions are created
regarding medical treatment and sporting activities.
Sexual assaults are left to be dealt with later.
7(1) Assault by Touching or Hurting.
Everyone commits a crime who, [offensively]
touches or hurts another person without that other's
consent.
Comment
Subsection 244(1) [265(1)]
of the Criminal Code makes it a crime to apply force
intentionally to another without his consent.
According to case law, "force" covers any touching,
however slight and brief, without the exertion of
strength or power.[40]
Consent must be real, that is not induced by threats
or fraud (Criminal Code, subsection 244(3) [265(3)]).
But it can be express or implied: according to case
law, a person implicitly consents to harmless non
hostile contacts in ordinary social life, to non
hostile contact for treatment, and to contact
reasonably incidental to a lawful game or sport. The
culpability specified in paragraph 244(1)(a)
[265(1)(a)] is "intentionally"[41]
although in England (and, according to Stuart, in
Canada too)[42] assault
can be committed recklessly.
Clause 7(1) basically reproduces subsection 244(1) [265(1)].
It clarifies that the crime can only be committed
purposely (see clause 2(4)(d) in
the General Part), retains the need for consent but
replaces "apply force" by "touches or hurts." "Consent" is defined in the
general definition clause. "Hurt"
is defined in that same clause as "to inflict physical
pain."
A minority of the Commissioners would add the word
"offensively" before "touches" to rule out trivial
touching not ordinarily considered objectionable, and
avoid resort to the fiction of implied consent as a
means of excluding liability for non-hostile social
contact.
The majority, however, feel that this result is
achieved already by the General Part and specially by
the defence of mistake of fact (clause 3(2)(a)).
7(2) Assault by Harming. Everyone commits
a crime who harms another person:
(a) purposely;
(b) recklessly; or
(c) through negligence.
Comment
Present law on harming is contained primarily in
sections 204 (causing bodily harm by criminal
negligence [now 221])
and 245.3 (unlawfully causing bodily harm [267(b)]),
and secondarily in related sections, for example
sections 228 (discharging firearm [244]),
229 (administering noxious thing) and 245.2 (wounding,
maiming [268(1)]).
Problems arise regarding consent and culpability.
Consent is clearly a defence to any crime piggybacked
on subsection 244(1) [265(1)]
(assault), but less clearly a defence to sections 204
and 245.3 [221
and 266].[43]
Culpability, except in crimes based on subsection
244(1) [265(1)],
clearly extends to recklessness, but how far it
includes negligence depends on the meaning to be given
to that term in the light of section 202 [219]
(see comment to clause 6(1)
above).
Clause 7(2) reduces the law to one crime of harming.
It clarifies that this crime can be committed
purposely, recklessly or negligently. It further
clarifies, by omitting all reference to it, that the
victim's consent is irrelevant. Harm
is defined in clause 1(2) as "to impair the body or
its functions ...."
7(3) Exceptions.
(a) Medical Treatment. Clauses 7(2)(a)
and 7(2)(b) do not apply to the administration of
treatment with the patient's informed consent for therapeutic
purposes, or for purposes of medical research,
involving risk of harm not disproportionate to the
expected benefits.
(b) Sporting Activities. Clauses 7(2)(a) and
7(2)(b) do not apply to injuries inflicted
during the course of, and in accordance with,
the rules of a lawful sporting activity.
Comment
Under present law, a person performing a surgical
operation for the benefit of the patient is protected
from criminal liability by section 45 if it is
performed with reasonable skill and care and it is
reasonable to perform the operation having regard to
all the circumstances. This section, however, does not
cover other kinds of therapeutic treatment. Nor does
it cover surgical treatment for another's benefit, for
example, an operation on D1, in order to transplant an
organ into D2. Nor does it cover operations for the
sake of medical research.
Clause 7(3) extends present law by providing that
clauses 7(2)(a) and 7(2)(b) do not
apply to the administration of any kind of treatment,
given two conditions. First, there must be informed
consent on the part of the patient if he is conscious.
In the case of an unconscious patient, there can be a
defence of necessity which, of course, would not be
available to a homicide charge; hence the different
wording of clause 6(6). Second, the treatment must be
for therapeutic purposes or for purposes of medical
research. Moreover, whether the treatment is for
therapeutic or research purposes, the risk of harm
must not be disproportionate to the expected benefits.
A surgeon who administers therapeutic treatment with
the patient's consent will still be liable, however,
if he is criminally negligent, because clause 7(3)
provides exceptions only to clauses 7(2)(a) and
7(2)(b), and not to clause 7(2)(c).
Medical treatment, it should be noted, is to be
understood in a broad sense, as recommended in Working
Paper 26, "Medical Treatment and the Criminal Law" to
cover not only surgical and dental treatment but also
procedures taken for the purpose of diagnosis,
prevention of disease, prevention of pregnancy or as
ancillary to treatment.[44]
Clause 7(3)(b) provides an exception for lawful
sporting activities. "Lawful" here means not forbidden
by law, since it is a basic principle in our law that
everything that is not forbidden is allowed. Many
lawful contact and combat sports, however, are
specifically authorized and regulated by provincial
statutes. In most such sports the participants consent
to, and the law acknowledges the lawfulness of, the
infliction of harm according to the rules. Where the
injuring party goes beyond the rules, he will of
course fall outside the clause 7(3)(b) exception. The
same is true where he is guilty of criminal negligence
because that too falls outside the exception, which
refers only to clauses 7(2)(a) and
7(2)(b).
Chapter 8: Crimes against Psychological Integrity
Comment
Present law deals in various ways with threats of
force. Paragraph 244(1)(b) [265(1)(b)] of the Criminal
Code makes it an assault to attempt or threaten, by
act or gesture, to apply force to another person.
Subsection 381(1) [now 423(1)]
of the Criminal Code defines as intimidation various
acts done wrongfully to compel another to abstain from
doing what he has a right to do or to do what he has a
right to abstain from doing. Section 243.4 [now 264.1]
makes it a crime to utter certain kinds of threats.
The new Code restricts this area of law to
threatening. It therefore drops the provision relating
to attempts to apply force since these automatically
qualify as attempts to commit assault by touching,
hurting or harming, depending on the circumstances. It
then divides crimes of threatening into four offences
listed in ascending order of gravity.
8(1) Harassment. Everyone commits a crime
who harasses and thereby frightens another person.
Comment
This replaces paragraphs 381(1)(c) to 381(1)(g) of
the Criminal Code [now 423(1)(c)
to (g)], which outlaw an illogical array of
conduct ranging from hiding tools to using violence.
Clause 8(1) focuses simply on the characteristics of
the conduct, namely, its persistent and frightening
nature. By virtue of clause 2(4)(d) this is a "purpose" crime; the accused
must mean to harass and frighten.
8(2) Threatening. Everyone commits a
crime who threatens to hurt,
harm or kill another person
or to damage his property.
Comment
This replaces paragraphs 381(1)(a) and 381(1)(b) [now
423]
of the Criminal Code, which outlaw acts going beyond
what is covered by clause 8(1).
8(3) Immediate Threatening. Everyone
commits a crime who threatens another person with
immediate hurt, harm or death.
Comment
This replaces paragraph 244(1)(b) [now 265(1)(b)]
of the Criminal Code (assault). The immediacy of the
threats renders them more serious than those covered
by clauses 8(1) and 8(2).
8(4) Extortion. Everyone commits a crime
who threatens:
(a) to harm another person's
reputation;
(b) to hurt, harm or kill another person or to
damage his property; or
(c) to inflict on another person immediate
hurt, harm or death for the purpose of making
someone, whether the person threatened or not,
do or refrain from doing some act.
Comment
"Extortion" is defined at present by section 305 [now
346]
of the Criminal Code as having six elements. The
defendant must (1) without reasonable justification or
excuse (2) with intent to extort or gain anything (3)
by threats, accusations, menaces or violence (4)
induce or attempt to induce (5) any person (6) to do
anything or cause anything to be done. Subsection
305(2) provides that threats to institute civil
proceedings are not threats under this section.
Section 266 [now 302]
makes it an offence to publish or threaten to publish
a defamatory libel with intent to extort.
Clause 8(4) reproduces present law, simplifies it and
builds it partly on the crimes defined in clauses 8(2)
and 8(3). Clause 8(4)(a) reproduces section 266 [now302]
of the Criminal Code and clauses 8(4)(b) and 8(4)(c)
replace section 305 [now 346].
Of the six elements in section 305, element (1) is
omitted since any threat falling under clause 8(4)
will be criminal automatically without one of the
justifications or excuses provided by clauses 3(7) to 3(17); elements (2), (4),
(5) and (6) are reproduced in the words "for the
purpose of making someone ... do or refrain from doing
some act"; and element (3) is replaced by the word
"threatens." It is envisaged that the penalties for
crimes defined in clauses 8(4)(a), 8(4)(b) and 8(4)(c)
would be in ascending order of gravity.
Chapter 9: Crimes against Personal Liberty
Comment
Wrongful deprivation of liberty constituted at common
law either the crime of false imprisonment (unlawful
confining) or kidnapping (unlawful confining and
taking away). Statute added various crimes of
abduction.
The Criminal Code provides three general crimes.
Subsection 247(1) [now 279(1)]
prohibits the kidnapping of someone with intent to
confine him against his will, send him outside Canada
or ransom him. Subsection 247(2) [279(2)] prohibits
the simple unlawful confining or forceful seizing of
another person. Subsection 247.1(1) [now 279.1(1)]
prohibits hostage taking in order to compel a third
party to do an act or to abstain from doing an act.
The provision in subsection 247(3), to the effect that
non resistance is no defence unless proved by the
accused not to have been caused by duress, threats or
force, has been held invalid as contrary to the
Charter.[45] In
addition, the Criminal Code defines four crimes of
abduction: abduction of a person under sixteen
(subsection 249(1) [now 280]);
of a person under fourteen (section 250 [now 281]);
by a parent in contravention of a custody order
(section 250.1 [282]);
and by a parent when there is no such order
(subsection 250.2(1) [283]).
The new Code provisions on liberty simplify the law
and create two offences of confinement and one of
abduction.
9(1) Confinement. Everyone commits a
crime who confines another person without that
other's consent.
Comment
Clause 9(1) replaces subsections 247(1) and 247(2) [279]
of the Criminal Code. It clarifies that the
deprivation must be without the victim's consent. By
omitting all reference to culpability, it creates a "purpose" crime (see clause
2(4)(d)).
9(2) Kidnapping. Everyone commits a crime
who confines another person, without that other's
consent, for the purpose of making him or some other
person do or refrain from doing some act.
Comment
Clause 9(2) replaces paragraph 247(1)(c) [now 279]
and subsection 247.1(1) [now 279.1]
of the Criminal Code. It clarifies that this crime is
an aggravated form of that defined by clause 9(1), the
aggravation being the purpose for which the victim is
confined.
9(3) Child Abduction. Everyone commits a
crime who takes or keeps a person under fourteen
years of age, whether that person consents or not, for the
purpose of depriving a parent, guardian or person
who has lawful care or charge of that person or the
possession of that person.
Comment
Clause 9(3) simplifies the law and creates one single
crime of abduction. The reason for providing for a
crime of abduction is that in many cases the child
being abducted consents to go with the defendant so
that the latter does not commit confinement or
kidnapping. The crime of abducting a child under
sixteen has been dropped as out of keeping with modern
views on child development.
Chapter 10: Crimes Causing Danger
Comment
Although traditionally criminal law concentrates on
acts causing actual harm to identifiable victims, it
also criminalizes acts causing mere risk of harm in
three ways: (1) through inchoate crimes, (2) through
public nuisance, and (3) through specific crimes of
endangering. These last acts divide into dangerous
activities such as dangerous driving (subsection
233(1) [now 249(1)]
of the Criminal Code), acts related to dangerous
things such as explosives (sections 77 and 78 [now 79
and 80]),
and those related to dangerous weapons (sections 82 to
84 [now 85).
The new Code supplements all these specific crimes
with a general crime of endangering.[46] Chapter 10, therefore,
contains the general crime. It also contains specific
crimes of failure to rescue, impeding rescue, and
crimes relating to motor vehicles and transportation
facilities which are included on account of their
present social importance. Crimes relating to firearms
and explosives are contained in Title
III on "Crimes against Property." Crimes
relating to public nuisance are contained in Title V on "Crimes against the
Social Order."
10(1) Endangering. Everyone commits a
crime who causes a risk of death or serious harm to
another person:
(a) purposely;
(b) recklessly; or
(c) through negligence.
Comment
Clause 10(1), which creates the new general crime of
endangering, shows the general principle underlying
this chapter of offences and affords a residual
provision for acts not covered by more specific
clauses. It thereby facilitates early law enforcement
intervention to prevent harm before its actual
occurrence and brings our law into line with section 211.2 of the
Model Penal Code,[47]
with most State codes in the United States and with
European codes such as those of Austria and Sweden.
The crime is limited, however, to causing risk of
death or serious harm.
10(2) Failure to Rescue.
(a) General Rule. Everyone commits a
crime who, perceiving another person in immediate
danger of death or serious harm, does not take
reasonable steps to assist him.
(b) Exception. Clause 10(2)(a) does not apply
where the person cannot take reasonable steps to
assist without risk of death or serious harm to
himself or another person or where he has some
other valid reason for not doing so.
Comment
Clause 10(2)(a) creates a new crime, as recommended in
the Law Reform Commission of Canada's Working Paper
46.[48] It thereby
builds on the principle recognized in section 2 of the
Québec
Charter of Human Rights and Freedoms and brings
our law into line not only with ordinary notions of
morality but also with the laws of many other
countries, for example Belgium, France, Germany,
Greece, Italy, Poland, and some of the United States
(for example Vermont). The penalty is envisaged as
being relatively low. The exception in clause 10(2)(b)
is modelled on the Québec Charter.
10(3) Impeding Rescue. Everyone commits a
crime who impedes the rescue of another person in
danger of death or serious harm.
Comment
This clause replaces section 243.2 [now 262]
of the Criminal Code. Unlike that section it does not
divide impeding into: (a) impeding someone attempting
to save his own life; and (b) impeding someone
attempting to save another's life. Both are covered by
impeding rescue and mostly also by endangering
contrary to clause 10(1).
10(4) Endangering by Motor Vehicle, Etc.
Everyone commits a crime who purposely,
recklessly or negligently operates a means of
transportation (other than one humanly powered) in
such a way, or in such condition of disrepair, as to
cause a risk of death or serious harm to another
person.
Comment
This clause first replaces section 233 [now 249]
of the Criminal Code. It replaces "dangerous to the
public" by the more concrete wording "in such a way,
or in such condition of disrepair, as to cause a risk
of death or serious harm to another person." It drops
the words in paragraph 233(1)(a), on a street, road,
highway or other public place" and extends the crime
to cover operating a means of transportation anywhere.
It clarifies the culpability as extending to all three
levels. Finally, it excludes specific provisions on
causing death or bodily harm as being already covered
by homicide and assault.
Second, clause 10(4) replaces section 235 [now
251] of the Criminal Code relating to
unseaworthy vessels and unsafe aircraft by using the
words "in such condition of disrepair ...." But unlike
section 235, clause 10(4) applies only to actually
operating a means of transportation and not to sending
it on a voyage. Sending an unseaworthy vessel on a
voyage constitutes furthering the actual operation and
is covered by the furthering provisions in Chapter 4. On the other hand, clause
10(4) is not restricted to registered vessels or to
the points of the voyage, because the essence of the
crime, being the endangering, makes such details
irrelevant. Again, the three levels of culpability are
expressly spelled out.
10(5) Impaired or with More than Eighty
Milligrams Alcohol in One Hundred Millilitres of
Blood. Everyone commits a crone who operates or has
care and control of a means of transportation (other
than one humanly powered) when he knows or ought to
know that his ability is impaired by alcohol or a
drug, or that he has more than eighty milligrams of
alcohol in one hundred millilitres of blood (see Code of Criminal Procedure).
Comment
This clause replaces and reproduces section 237 [now
253]
of the Criminal Code, criminalizing conduct obviously
tending to endanger. The detailed procedures in
connection with arresting and taking samples are to be
located, not in the text of the Code, but in the Code
of Criminal Procedure, so as to confine the Special
Part to creation of offences. Although this is a crime
of negligence, the
culpability requirement is not a marked departure from
the standard of care but rather that the accused
"knows or ought to know." In contrast to the general
rule on criminal negligence, "ought to know" is
inserted for policy reasons to impose liability for
ordinary civil negligence. If criminal negligence were
required it might often be unduly difficult to prove
that a defendant's ignorance fell markedly below the
standard of reasonable care; after a bout of drinking
such ignorance might not be criminally negligent.
10(6) Failure or Refusal to Provide
Sample.
(a) General Rule. Everyone commits a
crime who, after operating or having care and
control of a means of transportation (other than
one humanly powered), fails or refuses to comply
with a request made pursuant to the Code of
Criminal Procedure for a breath or blood sample
suitable for determining the concentration of
alcohol in the blood.
(b) Exception. No one is liable under this
clause who has a reasonable excuse for failing
or refusing to provide a proper sample.
Comment
This clause replaces and reproduces present law with
one exception — it does not impose liability for
failure to provide a breath sample for "an approved
screening device" (Criminal Code, subsection 238(1)
[now 254(1)).
Stopped motorists cannot expect to consult with
counsel at the roadside and yet are placed in jeopardy
of conviction under the present law if they fail or
refuse to provide a breath sample for roadside
screening purposes. Under our revised regime a failure
or refusal to provide a roadside screening device
breath sample would yield a sufficient basis upon
which a peace officer could detain and convey a
stopped motorist to the station house for possible
breathalyser testing. Once there the detained person
would be advised of his rights, including the right to
consult with counsel, prior to being asked to submit
to breathalyser testing. Effective administration of
drunk driving laws is maintained while at the same
time ensuring that basic rights are respected. The
details contained in subsections 237(3) and 237(4)
[now elsewhere] will be relocated in the Code of
Criminal Procedure. Given the lack of specific
reference to culpability, clause 10(6) creates a "purpose" crime (see clause
2(4)(d)).
10(7) Failure to Stop at Scene of
Accident. Everyone commits a crime who, while
operating or having care and control of a means of
transportation (other than one humanly powered), is
involved in an accident with another person or another's property and leaves
the scene of the accident for the purpose of
escaping civil or criminal liability.
Comment
This clause replaces subsection 236(1) [now 252]
of the Criminal Code. It widens the offence to apply
to those involved in accidents involving another's
property instead of restricting it as regards
property, to accidents involving other vehicles or
cattle. It replaces the requirement to stop at the
scene of the accident by a simple prohibition against
leaving the scene of the accident. Finally, like
subsection 236(1), it makes the crime a "purpose" crime.
10(8) Driving a Motor Vehicle While
Disqualified. Everyone commits a crime who operates
a means of transportation knowing that he is
disqualified from driving on account of having
committed a crime under this Code.
Comment
This clause replaces former subsection 238(3) of the
Criminal Code, which has now been repealed. Clause
10(8) restricts the offence to cases of
disqualification (under federal or provincial law) for
Code crimes. In this it reproduces in effect the new
Criminal Code subsections 242(4) and 242(5) [now 259(4)-(5)].
Here the culpability is that of actual knowledge, for
this is not so much a crime of negligence as one of
disobedience to a disqualification order.
10(9) Interfering with Transportation
Facilities. Everyone commits a crime who interferes
with anything used for, or in connection with, or
anyone engaged in, transportation, and thereby
causes risk of death or serious harm to another
person.
Comment
This clause reproduces and replaces section 232 [now
248]
of the Criminal Code in a simplified form.
A crime is committed only by interference with
something actually being used. This includes
interference with an aircraft in flight, taxiing to
and from the runway and revving up. It does not
include interference with an aircraft in general use
but not being actually used, for example one standing
empty at the airport in between flights.
10(10) Aggravating Factors. The crimes in
Chapters 7 to 10 are aggravated where appropriate if
committed:
(a) pursuant to an agreement for
valuable consideration;
(b) with torture;
(c) for the purpose of preparing, facilitating
or concealing a crime or furthering an
offender's escape from detection, arrest or
conviction;
(d) for terrorist or political motives;
(e) with a weapon;
(f) by means which the accused knowingly or
recklessly uses to harm more than one person; or
(g) knowingly against the offender's spouse,
child, grandchild, parent or grandparent.
Comment
This clause applies where appropriate to all crimes
in Part 1 on "Crimes against Personal Safety and
Liberty" except crimes of homicide. Instead of
numerous clauses creating particular aggravated
offences or specifying aggravating factors for each
separate offence, it allows the new Code to use one
unifying provision. The aggravating factors are
largely parallel to those rendering a murder one of
first degree, but also contain references to use of a
weapon and to special categories of victims — factors
which hardly aggravate murder but which clearly make
non fatal violence additionally alarming to the
victim.
It is intended that the Code of Criminal Procedure
will contain provisions relating to the effect of such
factors on sentence, the need to bring them to the
defendant's notice before trial, the method of
establishing them at trial, and the result as regards
verdict and record.
Part 2: Crimes against Personal Security and Privacy
Comment
The right to privacy, although not expressly
acknowledged by the Charter, is recognized both by Article 12
of the Universal Declaration of Human Rights (1948)
and Article
17 of the International Covenant on Civil and
Political Rights (1976) to which this country is a
party. The right itself has different aspects. There
is the right to live one's life free from unwelcomed
monitoring and observation, specially by those in
authority — a right protected by provisions on
unlawful surveillance. There is the right to keep the
details of that life private and free from the glare
of unwanted publicity — a right adequately protected
by the law of civil libel and in some provinces by
privacy statutes, and therefore not needing special
criminal provisions. Thirdly, there is the right of
inviolability of one's dwelling house and other
personal space — a right protected by provisions on
break and enter, or, in the new Code's terminology,
criminal intrusion.
Chapter 11: Unlawful Surveillance
Comment
In the past, simple precautions could be taken by
individuals to protect their privacy against unwanted
monitoring and observation. With the advances in
modern technology, such precautions are no longer
adequate. There is a need for special legislative
protection to govern the use of electromagnetic,
acoustical, mechanical or other listening or optical
devices capable of intruding upon the privacy of the
individual. This is the role of sections 178.1 to
178.23 [now elsewhere] of the Criminal Code.
Many of these sections, however, deal with the
procedure and conditions surrounding the use of these
devices, not with crimes as such. The new Code
includes only the substantive provisions, that is,
crimes and defences relating to the contravention of
the relevant procedural provisions which will be
included in the Code of Criminal Procedure.
11(1) Auditory Surveillance.
(a) General Rule. Everyone commits a
crime who, without the consent
of at least one of the parties to the
communication, intercepts a private communication
by meets of a surveillance
device.
(b) Exception. This clause does not apply to
anyone engaged is providing a telephone,
telegraph or other communication service to the
public who intercepts a private
communication where it is a necessary
incident of providing the service.
Comment
Clause 11(1) basically retains the current law found
in section 178.11 of the Criminal Code [now 184(1)
and (2)]. "Surveillance device"
is defined in clause 1(2) as a device capable of
intercepting a private communication. "[P]rivate
communication" refers to any oral communication or any
telecommunication made under circumstances in which it
is reasonable for the originator to expect that it
will not be intercepted by any person other than the
person intended to receive it. This is meant to cover
those situations where a communication would normally
be considered to be private. In such situations, even
if one of the parties knows the conversation is being
intercepted, the conversation remains a private
communication. But, if at least one of the parties
consents, there is no crime.
As to the exceptions in subsection 178.11(2) [184]
of the current Criminal Code, consent has been built
into the offence; the authorization is covered by
clause 3(13) in the General Part;
operating a communication service has been retained,
but the random monitoring of radio frequencies has
been excluded because it is already covered by federal
statute and would also be covered by clause 3(13).
11(2) Unauthorized Entry of Private Premises. Everyone commits
a crime who, without the consent
of the owner or occupier, enters private premises
for the purpose of installing, servicing or removing
a surveillance or optical device.
11(3) Unauthorized Search of Private Premises.
Everyone commits a crime who, being authorized to
enter private premises for the purpose of
installing, servicing or removing a surveillance or
optical device, searches the premises.
11(4) Use of Force to Gain Entry. Notwithstanding
clause 3(13), everyone commits
a crime who uses force against a person for the
purpose of gaining entry into private premises to
install, remove or service a surveillance or optical
device, or for the purpose of exiting from such
premises.
Comment
Installation of auditory surveillance devices may be
necessary for the advancement of justice. The
authorization procedures to enter premises and install
devices will be set out in the Code of Criminal
Procedure.
It is to be noted that clause 11(3) also extends to
optical devices for the reasons set out in the Law
Reform Commission of Canada's Working Paper 47,
Electronic Surveillance.[49]
As the Ontario Court of Appeal pointed out in R. v. McCafferty
([1984] O.J. No. 1419), a search warrant must be
strictly interpreted, and cannot be used to plant a
listening device. Similarly, an entry under an
authorization is not authority to conduct a search of
the premises. This is made clear in clause 11(3).
Clause 11(4) prohibits the use of force for the
purpose of installing a device. This prohibition is
necessary because use of force is inappropriate for
effecting surreptitious entry and could put innocent
parties unjustifiably at risk.
11(5) Disclosure of Private
Communications.
(a) General Rule. Everyone commits a
crime who, without the consent
of at least one of the parties to a private communication that
has been intercepted by a surveillance
device:
(i) discloses or threatens to
disclose the existence or the contents of the
communication; or
(ii) uses the contents of the communication.
(b) Exceptions. No one is liable under clause
11(5)(a) if the disclosure is:
(i) in the course of, or for the
purpose of, giving evidence in a judicial
proceeding where the private communication is
admissible;
(ii) in the course of, or for the purpose of,
any criminal investigation if the private
communication was lawfully intercepted;
(iii) to a peace officers
or to the Attorney General or his agent, if it
is in the interests of the administration of
justice;
(iv) for the purpose of giving notice or
furnishing particulars in accordance with the Code of Criminal Procedure;
(v) to an employee of the Canadian Security
Intelligence Service, if it is for the purpose
of enabling the Service to perform its duties
and functions;
(vi) in the course of the operation of a
communication service; or
(vii) to an investigative or law enforcement
officer in a foreign jurisdiction, if it tends
to reveal a past, ongoing or prospective crime
in such jurisdiction.
Comment
Although the use or disclosure of information
obtained as the result of an intercepted private
communication without the express consent of the
originator or the person intended to receive the
communication should be penalized, it is equally
desirable to subject to criminal liability any person
who intentionally threatens to disclose the existence
or contents of any such communication.
The exceptions to the clause 11(5)(a) crime are those
found in section 178.2 [now 184]
of the current Criminal Code with two additions: for
disclosing a private communication in certain
circumstances to the Attorney General or his agent, or
to a law enforcement officer in a foreign
jurisdiction. This is consistent with Canada's
obligation of international co operation in criminal
law enforcement.
Chapter 12: Criminal Intrusion
Comment
At common law, one's private space was protected
against intruders with criminal intent by the law on
burglary (break and enter of a dwelling house by
night) and housebreaking (break and enter by day). In
due course, statutes extended the latter to cover
shops, warehouses and many other types of buildings.
Our present law is to be found in sections 173 [now 177]
and 306 to 308 [now 349-351]
of the Criminal Code.
Basically those sections define three offences.
Section 173 [177] prohibits trespass at night —
loitering or prowling at night upon another's property
near a dwelling house thereon. Subsection 307(1)
[349(1)] prohibits being unlawfully in a dwelling
house — entering or being in it without lawful excuse
and with intent to commit an indictable offence.
Section 306 [now 348]
prohibits break and enter, a crime which has three
forms: (a) break and enter of a place with intent to
commit an indictable offence therein; (b) break and
enter and commission of such an offence; and (c)
breaking out of a place after (i) commission of an
indictable offence therein, or (ii) entering it with
intent to commit such an offence.
The new Code replaces these by a crime of criminal
intrusion which falls midway between crimes against
the person and crimes against property. This is
committed by: (a) entering or remaining in another's
premises to commit a crime; or (b) doing so and
committing a crime. "Premises",
as defined in clause 1(2), includes dwelling
houses (also defined in clause 1(2)), while
"remains" covers "therein." No special provision,
therefore, is needed for being unlawfully in a
dwelling house. However, the fact that the premises
are a dwelling house is made by clause 12(2)(a) an aggravating factor.
Finally, since criminal intrusion, like the present
crime of break and enter, requires criminal intent or
criminal commission, it does not cover mere trespass
by night. This offence, used mainly to deal with
peeping Toms, is best located (if at all) in the
context of public order provisions.
12(1) Criminal Intrusion. Everyone
commits a crime who enters or remains in another's premises without
that other's consent:
(a) for the purpose of committing a
crime; or
(b) does so and commits a crime.
Comment
Criminal intrusion differs in three ways from break
and enter. First, it does not require a breaking. In
theory, this differentiates it from break and enter.
In practice, owing to presumptions and case law
decisions, it is rarely necessary to prove a breaking.
Hence the new Code drops this requirement.
Second, unlike sections 306 to 308 [now 349-351]
of the Criminal Code, clause 12(1) explicitly states
that the entry or remaining must be without the
occupier's consent. This clarifies that criminal
intrusion is a crime against a non consenting victim.
Finally, clauses 12(1) and 12(2) have no counterpart
to paragraph 306(2)(a) [now 349(2)]
of the Criminal Code. That paragraph creates a
rebuttable presumption of intent once break and entry
is proved. No such presumption, however, is necessary
to enable the trier of fact to conclude, in the
absence of a satisfactory explanation, that an
intruder had some criminal intent. And no such
presumption is desirable in the light of paragraph 11(d)
of the Charter.
12(2) Aggravated Criminal Intrusion. The
crime defined in clause 12(1) is aggravated if:
(a) the premises are a dwelling house;
(b) the accused is reckless
as to the presence of people in the premises; or
(c) a weapon is
carried.
Comment
Subsection 306(1) [now 349(1)]
of the Criminal Code provides a greater penalty for
break and enter when it is committed in relation to a
dwelling house. This effect is reproduced by clause
12(2)(a), which provides that criminal intrusion is
aggravated when the premises are a dwelling house. The
rationale is that intrusion into a dwelling house is a
particularly gross violation of privacy and is
potentially more dangerous than other intrusions by
reason of the potential alarm to people in the
dwelling.
Other premises, however, such as shops, banks and
offices, may be occupied by people during certain
hours. In such hours intrusion may be likewise more
dangerous and alarming. For this reason clause
12(2)(b) adds a second aggravating feature not
recognized in present law.
Finally, intrusion becomes all the more dangerous
when done by people carrying guns or other weapons.
For one thing, there is the added alarm caused by the
carrying of guns. For another, there is the risk that
they will be discharged — deliberately or
accidentally. Accordingly, clause 12(2)(c) adds
carrying of a weapon as a third aggravating factor.
TITLE III.
Crimes against Property
Part 1: Crimes of Dishonesty
Comment
Property crimes are of two kinds. One consists of
wrongful redistribution of the property with resulting
deprivation of the owner's rights over it. The other
consists of wrongful damage or destruction of the
property with resulting annihilation of all rights
over it. The former kind is dealt with by theft and
related crimes, the latter by crimes of damage and
arson.
Chapter 13: Theft and Related Crimes
Comment
Against wrongful redistribution of property the
common law gave protection through tort law and though
criminal law. Through the latter, it protected goods
and chattels by provisions on theft and fraud, and
real property through the provisions on forgery. Our
present law on theft, which is taking property without
the owner's consent, is contained in section 283 of
the Criminal Code [now 322]
and in twenty four other specific provisions. Our law
on fraud, which is deceiving an owner into
consensually parting with his property, is to be found
in paragraphs 320(1)(a), 320(1)(b) [now 362(1)(a),
(b)] and subsection 338(1) [now 380]
of the Criminal Code, in sixty five other specific
provisions and in numerous other non Criminal Code
provisions (for example in the Bankruptcy
Act, the Food
and Drugs Act and the Combines Investigation Act
[repealed, replaced by the Competition
Act). Our law on forgery, which is making or
using documents that lie about themselves, is dealt
with in sections 324 to 326 of the Criminal Code [now
366-378]
and in over a dozen other sections.
The new Code simplifies this area of law by reducing
it to three crimes. They are theft, fraud and forgery.
These are supplemented by three other crimes: (1)
obtaining services, (2) fraudulent documentary
misrepresentation, and (3) obliteration of identifying
marks. It thus concentrates on general offences and
basic principle and avoids undue specificity and ad
hoc detail. These crimes are described in Chapters 13
and 14.
The Commissioners were divided, however, on how best
to formulate theft, obtaining and fraud. Some thought
the best solution was that proposed by our Working
Paper 19 and Report 12,[50]
that is, to use the word "dishonestly," the ordinary
word which judges often employ to explain the term
"fraudulently" in the present law. Others found
"dishonestly" objectionable on two grounds. First, it
is a culpability word or a type of mens rea, which is
not defined in the culpability clause in the General
Part. Second, it is a word whose use in the English
Theft Act 1968 has created problems for courts
in the United Kingdom. In these circumstances, two
alternatives are presented — the fast based on the
above mentioned Working Paper and using "dishonestly,"
the second avoiding the use of this term to describe
the requisite culpability.
[Alternative 1]
13(1) Theft. Everyone commits a crime who
dishonestly appropriates another's
property without his consent.
Comment
Under present law the basic offence of theft is
defined in section 283 [now 322]
of the Criminal Code as already noted. One commits
theft either by taking or by converting another's
property, but in either case the offender must act
fraudulently, without colour of right and with a
specific intent. The intent must be one of four types:
(a) to deprive the owner temporarily or absolutely of
the property; (b) to pledge or deposit it; (c) to part
with it under a condition regarding its return which
the person parting with it may be unable to comply
with; or (d) to deal with it in such manner that it
cannot be restored in its original condition.
The more specific offences fall into three
categories. They relate to special kinds of property,
for example oysters (section 284 [now 323]).
They relate to special victims, for example bailees of
goods under lawful seizure (section 285) [now 324].
Or they relate to connected behaviour, for example
fraudulent concealment (section 301 [now 341]).
Clause 13(1) radically simplifies all this. First, it
provides one general offence to extend to both what is
presently covered by section 283 [322] and what is
covered by the more specific sections. Second, it
streamlines the general offence by merging "takes" and
"converts" into "appropriates," by merging
"fraudulently" and "without colour of right" into
"dishonestly," and by dropping reference to the four
types of intent, because the first type (intent to
deprive temporarily or absolutely) is necessarily
involved in every taking, necessarily covers the other
three types, and in fact adds nothing.
The gist of theft is not the taking or the converting
itself. These are only modes of doing what theft seeks
to prohibit, that is, usurping the owner's rights —
appropriating another's property. Hence clause 13(1)
singles out appropriation as the kernel of the crime.
Next the appropriation must be dishonest. This means
two things. First, it means that the appropriation
must be without a claim of right. If the owner
consents to it or if the law allows it, then of course
it is not dishonest. If the defendant wrongly but
genuinely believes that he has a right to appropriate,
(for example that the owner consents or the law allows
the appropriation), then he has a defence of mistake
and once again the taking is not dishonest. If his
error relates to fact (for example he wrongly thinks
he has the owner's consent), then he has a defence of
mistake of fact under clause 3(2)(a).
If it relates solely to law (for example he thinks he
has a legal right to property), then he has a defence
of mistake of law under clause 3(7)(a).
If, however, he thinks simply that stealing is not
against the law or that, though illegal, it is
justifiable, he has no defence. To act dishonestly,
therefore, is to act in a way which would be
ordinarily described as dishonest, whatever the
agent's own personal morality. Second, the
appropriation must be not merely wrongful but also
"crooked." A person may wrongfully retain another's
property out of orneriness and thereby render himself
liable in civil law — without necessarily being a
thief. A thief is one who takes another's property
dishonestly or fraudulently; typically he does so by
stealth and cheats the owner. The first kind of
wrongdoing is open and therefore can adequately be
dealt with by the civil law. The second is
surreptitious and underhanded and, if successful,
cannot be pinned on the wrongdoer. It therefore needs
to be deterred and stigmatized by criminal law.
Clause 13(1) says nothing about the level of
culpability. According to clause 2(4)(d),
therefore, theft is a "purpose"
crime: the defendant must mean to misappropriate.
Accidental or mistaken appropriation is excluded.
"Appropriate"is defined
by clause 1(2) as to "take, borrow, use or convert" property. It means,
therefore, usurping the owner's rights of ownership —
assuming ownership or possession of the property. It
would not apply to trespass, damage or destruction,
the first of which is left to civil law while the
other two constitute the crime of vandalism.
"Property" is defined by
clause 1(2) to include "electricity, gas, water, and
telephone, telecommunication and computer services."
In consequence, theft is not restricted to
misappropriation of goods or other items of tangible
property.
"Another's property" is defined
by clause 1(2) as property which that other owns or
has any special interest in it. Thus, as under present
law, an owner may steal from a joint owner, a lender
from a borrower, a pledger from a pledgee and so on.
No special provision that spouses may not steal each
other's property is included; in keeping with changing
ideas about cohabitation, section 289 of the Criminal
Code [repealed] is not replaced.
13(2) Obtaining Services. Everyone
commits a crime who dishonestly obtains for himself
or another person services from a third party
without full payment for them.
Comment
This crime covers such acts as dishonestly getting a
ride, a haircut, accommodation and so on without
paying. Such acts at common law did not amount to
theft since services are not property. Under present
law, dishonest obtaining of accommodation is covered
by section 322 [now 364]
of the Criminal Code, of transportation by subsection
351(3) [now 393(3)]
and of other services by paragraph 320(1)(b)
(obtaining credit by fraud [now 362(1)(b),
(3)). These are all covered in the new Code by clause
13(2).
A person may in all honesty obtain services without
paying for them because the person whose duty it is to
charge him gives him a "free ride": for example, a
cinema usher allows him to enter the theatre free. If
this leads the customer to believe it is all right to
come in without paying, he is not dishonest and
commits no crime. But the dishonest usher's conduct
falls under clause 13(2): "obtains for ... another
person ..."
Like theft, obtaining services is by reason of clause
2(4)(d) a purpose
crime. And as with theft, the accused's conduct must
be underhanded, fraudulent or in same way "crooked."
13(3) Fraud. Everyone commits a crime who
dishonestly, by false representation or by non disclosure, induces
another person to suffer an economic loss or risk
thereof.
Comment
To defraud has been defined as to deprive by deceit.
It differs from theft in that the deprivation takes
place with consent but with consent obtained by
deception. The Criminal Code recognizes three fraud
offences: first, a basic offence of fraud defined by
subsection 338(1) [now 380(1)];
second, obtaining property by false pretence contained
in paragraph 320(1)(a) [now 362(1)(a)];
and third, obtaining credit by false pretence in
paragraph 320(1)(b) [362(1)(b)]. In addition, as
mentioned above, there are numerous other Criminal
Code and non-Criminal Code provisions.
Subsection 338(1) of the Criminal Code [now 380(1)]
prohibits defrauding a person, that is, depriving him,
of any property, money or valuable security by deceit,
falsehood of other fraudulent means. This subsection
clearly overlaps with, and covers the offence defined
by, paragraph 320(1)(a) [362(1)(a)] (obtaining
property by false pretence). It also may, since
section 2
of the Criminal Code defines "property" to include
"real and personal property of every description ...,"
overlap with, and cover the offence defined by,
paragraph 320(1)(b) [362(1)(b)] (obtaining credit by
false pretences or by fraud).
Clause 13(3) reduces fraud to one offence with two
elements. First, there must be either false
representation or non disclosure.
Second, this must induce the victim to suffer an
economic loss or risk thereof.
The first element is further explained in clause 1(2)
by the definition of "representation."
This basically reproduces the law set out in
subsection 319(1) [now 361(1)]
of the Criminal Code ("matter of fact either present
or past"). But it extends the law in line with the
implications of section 338 [380]
("other fraudulent means, whether or not it is a false
pretence within the meaning of this Act") to cover
representation as to future facts. However, it retains
the exception in subsection 319(2) [361(2)]
concerning exaggeration or "puffing." "Non disclosure"
relates to misrepresentation by omission when there is
a duty to disclose arising from a special confidential
relationship (for example solicitor/client) or a duty
to correct a false impression created by, or on behalf
of, the defendant.
The second element is that the victim must be induced
to suffer an economic loss or risk thereof. While a
literal reading of sections 320 [362] and 338 [380] of
the Criminal Code might suggest that clause 13(3)
extends the law by adding the words "or risk thereof,"
this is not so. As explained by the Supreme Court of
Canada in R. v. Olan, Hudson
and Hartnett ([1978] 2 SCR 1175), the
element of deprivation necessary for an offence
against section 338 [380] of the Criminal Code is
satisfied on proof of detriment, prejudice or risk of
prejudice to the victim's economic interest. In this
regard clause 13(3), therefore, merely reproduces
existing law.
There being no express reference in clause 13(3) to
level of culpability, fraud is by virtue of clause 2(4)(d) a purpose
crime. In addition, the accused must act dishonestly,
that is, fraudulently or deceitfully.
Finally, no presumption is included similar to that
contained in subsection 320(4) [364(4)]
of the Criminal Code regarding cheques issued without
funds. Such a presumption is both unnecessary and
undesirable. It is unnecessary because, in the absence
of a satisfactory explanation, the trier of fact can
always infer fraudulent intent, and undesirable
because it conflicts with paragraph 11(d)
of the Charter.
[Alternative 2]
13(1) Theft. Everyone commits a crime who
appropriates another's property
without his consent and
without any right to do so.
Comment
In this formulation, the kernel of the crime lies in
the appropriator's having no right to appropriate. If
he has a right, he commits no wrong at all, civil or
criminal. If he has no right but thinks he has, he
commits a civil wrong but not necessarily a crime. If
he is just factually mistaken, he has a defence of
mistake of fact. If he is mistaken as to the effect of
the law on his rights, he has the special defence of
mistake of law under clause 3(7)(a).
If he is simply mistaken in that he does not know that
one has, in law, no right generally to appropriate
another's property, then he commits theft.
13(2) Obtaining Services. Everyone
commits a crime who, without any right to do so,
obtains for himself or another person services from
a third party without fully paying for them.
Comment
Again the nub of the crime is the obtaining when
there is no right to do so. The same considerations as
to mistake apply as in clause 13(1).
13(3) Fraud. Everyone commits a crime
who, without any right to do so, by dishonest
representation or dishonest non
disclosure induces another person to suffer an
economic loss or risk thereof.
Comment
Again the culpability of the offence is formulated in
terms of there being no right to justify the
inducement. The same considerations as to mistake
apply as in clauses 13(1) and 13(2). But the force of
the deceitfulness or fraud is brought out by using
"dishonest" to describe the representation
or non disclosure.
Chapter 14: Forgery and Related Crimes
Comment
Theft and fraud require actual appropriation by the
defendant or risk of loss by the victim. Absent such
appropriation or risk of loss, the crime committed
will usually be attempted theft or fraud. In some
cases, however, the accused may not have gone far
enough to commit an attempt. For some of these cases
criminal law has created the special preparatory
crimes of forgery and of falsification of documents.
The former is primarily dealt with in sections 324,
325 and 326 of the Criminal Code [now 366-8],
the latter in sections 355 to 358 [now 397-400].
14(1) Forgery of Public Documents.
Everyone commits a crime who forges or uses a
forged:
(a) item of currency;
(b) stamp;
(c) public seal;
(d) exchequer bill;
(e) passport;
(f) certificate of citizenship;
(g) proclamation, order, regulation or
appointment or notice thereof purporting to have
been printed by the Queen's Printer for Canada
or for a province; or
(h) public record.
14(2) Forgery of Other Documents.
Everyone commits a crime who for the purpose of
fraud, forges or uses a forged document, other than
one falling within clause 14(1).
Comment
The essence of forgery is making a document not just
give false information but misrepresent itself as
genuine when it is not. The forger makes it tell a lie
about itself. Under the present Criminal Code, it is
covered by sections 324 (making a false document [now
366])
and 326 (uttering such a document [now 368]).
In addition, there are numerous specific offences
relating to exchequer bill paper, public seals,
stamps, registers of birth, trade marks and so on. The
law, however, is difficult and confusing. No clear
distinction is drawn between forgery and
falsification, and there is considerable piggybacking.
Clauses 14(1) and 14(2) replace all this by two
crimes. The first consists of forging or using forged
documents of such special nature that commission is
complete without any fraudulent purpose. The second
comprises forging or using a forged document for the
purpose of fraud. The documents falling under clause
14(1) are those, like public records, which are so
relied on in our society that their mere faking should
be prohibited. Both "forge"
and "document" are defined in
clause 1(2) which basically reproduces existing law in
this regard.
14(3) Fraudulent Documentary
Misrepresentation. Everyone commits a crime who for
the purpose of fraud:
(a) makes a document
or valuable security that
misrepresents such facts as it refers to; or
(b) uses such document or valuable security.
Comment
Falsification of books and other documents, that is,
making them give false information about the outside
world rather than about themselves, is the other
preparatory offence. It is something usually done as a
first step towards carrying out a theft or fraud. At
present, such crimes are covered by sections 355 to
358 of the Criminal Code now 397-400.
Clause 14(3) replaces them by a single crime of
fraudulent documentary misrepresentation.
14(4) Obliteration of Identifying Marks.
Everyone commits a crime who for the purpose of
facilitating the commission of a crime, obliterates,
simulates or applies any identifying mark.
Comment
Clause 14(4) replaces in part sections 398 and 399
and subsection 334(2) [now 442,
443 and 376(2)]
of the Criminal Code and concerns boundary and other
identifying marks.
Chapter 15: Commercial Frauds and Related Matters
Comment
The present Criminal Code contains numerous specific
offences designed to ensure honesty and fair dealing
in commerce. Some of these offences are found in Part
VII, "Offences against Rights of Property;" while the
bulk of them are in Part VIII, "Fraudulent
Transactions Relating to Contracts and Trade." Most of
these offences are specific instances of fraud or
attempted fraud, for example section 344 (fraudulent
registration of title [now 386])
or paragraph 352(1)(a) (fraud in relation to minerals)
[394].
Others are more akin to forgery, for example section
332 (drawing document without authority [now 374])
or section 364 (forging a trade mark [407]).
The redrafting of fraud, forgery of non public
documents, and falsification makes most of the
specific trade offences unnecessary. In the interests
of simplifying the Criminal Code and avoiding useless
detail, we propose to deal with most of these offences
under the revised fraud and forgery offences in
Chapters 13 and 14. Thus the present chapter on
"Commercial Frauds and Related Matters" will only
proscribe conduct which does not fit within the
offences defined in Chapters 13 and 14 but which
nevertheless warrants criminalization.
We envisage that Chapter 15 will also contain among
other things crimes relating to the securities market
(presently dealt with in sections 338(2), 340, 341,
342 and 358 of the Criminal Code [now re-numbered])
although they may fall under the general crime of
fraud in Chapter 13. However, until we complete our
consultations on these matters with securities experts
across the country, we cannot finalize the draft
concerning them. Here, then, we only wish to indicate
their location in the overall scheme.
15(1) Bribery of Agent.
Everyone commits a crime who confers or agrees to
confer a benefit on an agent for the purpose of
corruptly influencing him in the performance of his
functions as agent.
15(2) Agent Accepting Bribe. Everyone commits a
crime who, being an agent, accepts or agrees to
accept a benefit given in order to corruptly
influence him in the performance of his functions as
agent.
Comment
Clauses 15(1) and 15(2) simplify and replace the
secret commissions offence found in section 383 [426]
of the present Criminal Code. The definition of "agent" in clause 1(2) ensures
that these bribery offences catch persons in
employment relationships as well as the more
traditional agency relationships. (See comments to
clauses 23(1) and 23(2)).
15(3) Disposal of Property to Defraud
Creditors. Everyone commits a crime who transfers,
conceals or disposes of his property for the purpose
of defrauding his creditors.
15(4) Receipt of Property to Defraud Creditors.
Everyone commits a crime who, for the purpose of
defrauding creditors, receives property that has
been transferred, concealed or disposed of for such
purpose.
Comment
These clauses reproduce in simplified form the
offence in section 350 of the present Criminal Code
[now 392].
15(5) Criminal Lending. Everyone commits
a crime who:
(a) enters into an agreement or
arrangement to receive interest at a criminal rate; or
(b) receives a payment or partial payment of
interest at a criminal rate.
Comment
This clause forbids people from entering into
agreements to lend money at an interest rate that is
"a criminal rate," that is, more than sixty per cent
per annum (see definition in clause 1(2)).
The culpability required for this crime is to enter
into such agreements purposely.
The aim of the clause is to protect borrowers from
being charged exorbitant rates of interest. The
message being communicated to the public is a clear
and necessary one. The clause also aims at protecting
the public from the evils of loan sharking, which
involves the exploitation of the poor and the possible
threat and harm to persons who are sometimes
associated with these practices. The majority of the
Commissioners feel that these practices must be
denounced by the criminal law, even though they
recognize that the civil law tries to confront the
problem as well.
There are technical problems of definition with this
clause, but these are left for future resolution.
A minority of the Commissioners believes that this
provision should not be contained in the new Code.
According to the minority, the principle of restraint
requires such contractual matters to be left to civil
law, which provides means for setting aside
unconscionable agreements and that a "criminal
lending" crime cannot solve the problem of excessive
interest charges because schemes can usually be
devised to circumvent its effect.
Although these transactions are objectionable because
they often lead to threats and violence, under present
law a loan shark who resorts to threats to obtain
repayment of a loan may be charged with extortion,
and, where bodily harm results, with assault. Under
the proposed Code this would also be so.
Part 2: Crimes of Violence and Damage
Chapter 16: Robbery
Comment
Theft and fraud cover getting another's property by
stealth, representation or dishonest non disclosure.
More reprehensible yet is getting it by force. At
common law this was covered by the crimes of robbery.
Present law is contained in section 302 of the
Criminal Code (robbery [now 343]).
Chapter 16 largely reproduces present law.
16(1) Robbery. Everyone commits a crime
who for the purpose of, or in the course of, theft
uses immediate violence or threats of immediate
violence to person or property.
16(2) Aggravated Robbery. The crime in clause 16(1)
is aggravated if committed with a weapon.
Comment
Robbery is theft aggravated by, or combined with,
assault Section 302 of the Criminal Code [now 343]
covers four acts:
(a) using violence or threat thereof to
person or property to steal or overcome resistance to
the stealing;
(b) using personal violence immediately before,
immediately after or during theft from the person;
(c) assaulting with intent to steal; and
(d) stealing from the person while armed with an
offensive weapon or imitation thereof.
Clause 16(1) consolidates these into one crime of
robbery. It consists in the use of immediate violence
or threats of immediate violence to person or property
for the purpose of, or in the course of, theft. Where
the violence threatened is not immediate, the crime is
not robbery but extortion (clause 8(4)).
Violence and threat of violence include immediate
threatening. They do not necessarily include being
armed, though the display of the weapon may, in the
circumstances, constitute a threat of violence.
Violence "in the course of ... theft" includes
violence used, not only during, but also immediately
before and after.
Chapter 17: Criminal Damage
Comment
At common law, the only kind of property damage
ranking as criminal was the wilful and malicious
burning of a dwelling house. Statutes later
criminalized the burning of other buildings. Later
still they criminalized malicious damage to various
kinds of property.
All such offences are now found in Part IX of the
Criminal Code. That part creates five groups of
offences: (1) mischief, (2) arson and other fires, (3)
other interference with property, (4) injury to cattle
and other animals, and (5) cruelty to animals. The
property damaged need not be owned by another. A
person can be criminally liable for damaging properly
of which he is a part owner and even for damaging
properly of which he is an absolute owner if he does
so with intent to defraud.
Chapter 17 simplifies the law by reducing it to two
crimes, (1) vandalism and (2) arson, which cover the
first four groups described above. Vandalism covers
mischief, other interference with property and injury
to animals in another's ownership. Cruelty to animals
not in another's ownership, being clearly not a
property offence, is dealt with in Title
IV dealing with "Crimes against the Natural
Order."
In one respect clauses 17(1) and 17(2) appear to
extend current law. In general the crimes contained in
Part IX of the present Criminal Code can only be
committed wilfully, whereas clauses 17(1) and 17(2)
allow for their commission recklessly. But section 386
of the Criminal Code [429]
defines "wilfully," in line with the English case law
on the Malicious
Damage Act (1861), to include recklessly. In
fact clauses 17(1) and 17(2) in this regard are
faithful to existing law.
17(1) Vandalism. Everyone commits a crime
who, without another person's consent,
damages that other's property or by physical
interference renders it useless or inoperative:
(a) purposely;
or
(b) recklessly.
Comment
The main Criminal Code offence is mischief, defined
by section 387 [now 430].
It can be committed in four ways: (1) by damaging or
destroying property, (2) by rendering it dangerous,
useless, inoperative or ineffective, (3) by
obstructing its lawful use, and (4) by obstructing a
person lawfully using it. Mens rea is usually taken to
be intent or recklessness. Higher penalties are
available for mischief endangering life. Section 385
[now 428]
of the Criminal Code defines "property" for the
purposes of Part IX as "real or personal corporeal
property," but subsection 387(1.1) [430 (1.1)]
specifically extends mischief to destruction of data.
In addition to the main offence, there are numerous
specific offences relating to the nature of the
property in question (buildings, wrecks, sea-marks,
boundary lines, animals).
Clause 17(1) creates one crime, renamed "vandalism,"
since "mischief" carries too trivial a connotation. It
can be committed purposely or recklessly and different
penalties are envisaged for each level of culpability.
The crime is restricted to damaging (which clearly
covers destroying) or interfering with "another's
property" as defined by clause 1(2). The fraudulent
damaging of one's own property (property in which no
one else has any legally protected interest) is, and
should be dealt with as, attempted fraud. The damaging
of one's own property which endangers life should be
dealt with as the crime of endangering as defined by
clause 10(1). Finally, clause
17(1) specifies that the damaging must be without the
owner's consent; an owner cannot only damage his
property, but can also license another to do so.
It should be noted that no reference is made to the
exception relating to strikes. Subsection 387(6)
[430(6)] of the Criminal Code provides that no one
commits mischief solely by reason of stopping work and
so on. Under the new Code the position would be as
follows. If as a result of the stoppage damage was
caused to property, this would result from an
omission. In order to constitute a crime, it would
have to result from an omission to perform one of the
duties laid down in clause 2(3)(c)
in the General Part. These, however, arise only where
there is danger to life. Accordingly, where mere
property damage is caused, no crime would be committed
by the strikers; but where life was endangered, a
crime might well be committed, depending on the facts.
No special provision, therefore, is needed to replace
subsection 387(6) [430(6)].
17(2) Arson. Everyone commits a crime
who, without another person's consent,
causes a fire or explosion damaging or destroying
that other's property:
(a) purposely; or
(b) recklessly.
Comment
Though in reality merely a special font of vandalism,
arson has always been treated separately, and was
indeed the first form to become a crime, presumably
because of the danger and uncontrollability of fire.
Arson at common law was setting fire to a dwelling
house. Legislation extended it to setting fire to
other buildings and haystacks. Setting fire to
personal property was arson only to the extent that it
threatened real property. No great change was made to
the Criminal Code until 1921.
Since then the following changes were made. First,
setting fire to personal property became arson if done
with fraudulent intent. Second, setting fire by
negligence was criminalized.
The main provision today is to be found in section
389 of the Criminal Code [now 433-436].
Subsection 389(1) makes it a crime wilfully to set
fire to various listed items of property and
subsection 389(2) [now 435]
makes it a lesser crime to do the same for a
fraudulent purpose to any other personal property. In
addition, section 390 makes it a crime: (a) wilfully
to set fire to anything likely to set fire to property
listed under subsection 389(1); and (b) wilfully to
set fire for a fraudulent purpose to anything likely
to set fire to other personal property. Finally,
section 392 makes it a crime to cause a fire wilfully
or by violating a law in force where the fire occurs,
if the fire results in loss of (but curiously not
injury to) life or in destruction or damage to
property.
Clause 17(2) replaces these different offences with
one crime of arson which, like vandalism, can be
committed either purposely or recklessly. It extends
arson to damage by explosion, which is clearly as
dangerous as fire. It restricts it for the same
reasons as given regarding clause 17(1), to burning
another's property without his consent, leaving fraud
and endangering to be dealt with in their appropriate
chapters. It also restricts the crime to cases of
actual damage; those without actual damage are best
dealt with as attempts. The section 391 [435]
fraud presumption is omitted since arson no longer
relates to fraud.
Part 3: Crimes of Possession
Chapter 18: Miscellaneous Property Crimes
Comment
In addition to the major property crimes, a Criminal
Code will typically contain numerous related and
ancillary offences. Many of these may be preparatory
offences, for example possession of housebreaking
instruments (subsection 309(1) of the Criminal Code
[now 351(1)]).
Others may be offences which provide assistance after,
and indeed the incentive for, the commission of other
crimes, for example possession of stolen goods
(subsection 312(1) [now 354(1)]).
Chapter 18 reduces these to seven crimes, which are
mostly self explanatory. Clause 18(1)
covers possession in suspicious circumstances for
criminal purposes of housebreaking instruments and
other implements of crime. Clause 18(2)
covers possession by itself of two kinds of items.
Clause 18(3) criminalizes
possession of weapons. Clause 18(4)
prohibits possession of forged documents. Clause 18(5) deals with unauthorized use
of Canadian passports and certificates of citizenship.
Clause 18(6) replaces subsection
312(1) of the Criminal Code [354(1)] and forbids
possession of things obtained by crime. Clause 18(7) is new and makes special
provision for professional receivers of stolen goods.
18(1) Possession of Things in Suspicious
Circumstances. Everyone commits a crime who
possesses
(a) a device or instrument in such
circumstances that the reasonable inference is
that he used it or means to use it to commit:
(i) theft;
(ii) criminal intrusion;
(iii) forgery; or
(b) a weapon or explosive substance
in such circumstances that the reasonable
inference is that he used, or means to use it,
to commit a crime against personal safety and
liberty.
Comment
This crime would replace the various offences in the
present Criminal Code of unlawful possession of
instruments, devices or weapons for criminal purposes.
Clause 18(1) provides a general rule rather than a
list of items as is afforded by the present law. The
present provisions in fact relate to three general
headings:
(l) theft — section 287.1 (device to obtain
telecommunication service [now 326])
and section 310 (instruments for breaking into coin
operated or currency exchange devices[now 352]);
(2) criminal intrusion — section 309 (housebreaking
instruments [now 351]);
(3) forgery — paragraphs 327(a), (b) and (c)
(instruments for forgery [369]),
paragraph 334(1)(c) (instruments for forging stamps
[now 376(1)(c)]),
and section 367 (instruments for forging trade marks
[now 409]).
It is to be noted that possession of a surveillance
device is covered by clause 18(2)
below.
Under clause 18(1), the reasonable inference may of
course be rebutted if a satisfactory explanation
transpires. In this case no crime is committed.
The mental element of such crimes is no longer
located in the definition of "weapon" as in section 2
of the Criminal Code because we have defined this word
more objectively (see clause 1(2)).
Our definition also differs from that in the present
Criminal Code in that the new Code defines a weapon to
cover any instrument capable of use for harming, that
is, anything other than a part of one's own body.
Section 2 of the present Criminal Code includes
"anything used or intended for use for the purpose of
threatening or intimidating ...." This is too wide
since it would cover the telephone being used to call
and intimidate someone. The essence of a weapon is its
use to inflict harm and the new Code defines it
accordingly.
The present Criminal Code has two sections on
dangerous substances. Section 77 [now 79-80]
imposes a legal duty of care on everyone possessing or
having care or control of an explosive substance.
Section 174 [178]
makes it a summary offence for anybody other than a
peace officer engaged in the discharge of his duty to
possess in a public place, or to deposit of throw near
any place, an offensive volatile substance likely to
alarm, inconvenience, and so on, or a stink bomb from
which such a substance can be liberated.
Under the new Code these substances are dealt with as
follows. Explosives are taken care of by two
provisions. Clause 18(1)(b) treats explosives like
weapons and criminalizes their mere possession where
the reasonable inference is that they are intended to
be used or have been used to commit a crime. Absent
such inference, possession creating risk of harm is
covered by the general endangering crime defined by
clause 10(1). In this regard note
should be taken of the general duty imposed on
everybody by clause 2(3)(c)(iv)
to take reasonable steps, where failure to do so
endangers life, to "rectify dangers of his own
creation or within his control."
At first, the Commission thought that explosives
should be included in clause 18(3), "Possession of
Things Dangerous in Themselves." Further
consideration, however, showed problems with this
approach since the clause would then cover quite
innocent possession of things like gasoline or paint
thinner. Since these substances, unlike certain kinds
of weapons, are not at present governed by legal
regulations authorizing their use and possession in
certain circumstances, such innocent possession would
not be protected by clause 3(13),
"Protection of Persons Acting under Legal Authority."
For this reason, this Report adopts the approach
described above and refrains from making all
possession of explosives prima facie criminal.
Our definition of "explosive substance" differs from
that given in section 2
of the present Criminal Code. That section gives no
principled definition but merely extends the term
artificially to cover things used in conjunction with
explosive substances and then defines it to cover
certain specific items such as molotov cocktails. The
new Code defines the term straightforwardly as any
substance capable of causing an explosion.
Volatile substances are similarly dealt with.
Possession in public places of volatile substances
likely to alarm, inconvenience, and so on, is covered
by the general crime of public nuisance defined by
clause 22(7) — inconveniencing
those exercising rights common to all members of the
public. Possession, depositing, throwing and so on of
volatile substances in a manner likely to cause harm
is covered, along with explosives, by the general
endangering crime in clause 10(1).
18(2) Possession of Prohibited Things.
Everyone commits a crime who possesses:
(a) any exchequer bill paper, revenue
paper or paper used to make bank notes; or
(b) any device capable of being used to
intercept a private
communication.
Comment
Clause 18(2) replaces paragraph 327(a) of the
Criminal Code (exchequer bill paper [now 321])
and section 178.18 (interception device [now 191]).
In both cases simple possession of the items described
suffices, for their general circulation carries such
risk of social harm as warrants prohibition. By
contrast, section 311 of the Criminal Code (simple
possession of automobile master key [353(1)(b)])
is not retained. On the one hand, there could be
justifiable reasons for people such as car dealers to
possess such master keys. On the other hand, while
section 311 only permits possession under the
authority of a licence issued by the provincial
Attorney General, our information is that the
provinces do not have and do not intend to introduce
such licensing schemes.
18(3) Possession of Things Dangerous in
Themselves. Everyone commits a crime who possesses:
(a) a prohibited
weapon, or
(b) an unregistered regulated
weapon.
18(4) Possession of Forgeries. Everyone commits a
crime who:
(a) possesses a forged public document
falling under clause 14(1), or
(b) possesses for the purpose of fraud any
other forged document.
18(5) Unauthorized Use of Canadian Passports and
Certificates of Citizenship. Everyone commits a
crime who uses as his own another person's Canadian
passport or certificate of Canadian citizenship.
Comment
Section 58
of the Criminal Code only criminalizes use of
passports that have been forged or obtained by false
application. Subsection 58(1) criminalizes use of
certificates of citizenship for a fraudulent purpose.
Clause 18(5) makes the law consistent regarding both
and applies the notion of subsection 58(1) to
passports as well as certificates.
18(6) Possession of Things Obtained by
Crime. Everyone commits a crime who has possession
of any property or thing, or the proceeds of any
property or thing, obtained by a crime committed in
Canada or committed
anywhere, if it would have been a crime in Canada.
18(7) Criminal Dealing. Everyone commits a crime who
carries on a business of dealing in prohibited or
unregistered regulated weapons
or in things obtained by crime anywhere, if the
crime would have been a crime in Canada.
Comment
It is often said that the receiver of stolen goods is
a greater social menace than the actual thief. For
without the market provided by the former there would
be little profit in the activities of the latter. This
is particularly true of the professional receiver or
dealer in stolen property. For this reason the new
Code adds a novel provision to articulate something
which at present is reflected, if at all, only in
sentencing.
TITLE IV. Crimes against the Natural Order
Comment
Traditionally criminal law primarily concerns conduct
harming persons and property. Acts harming the rest of
creation have largely been ignored. Harm to the
environment, however drastic, has escaped the notice
of the criminal law. Maltreatment of animals has been
unsatisfactorily dealt with under the general rubric
of "Wilful and Forbidden Acts in Respect of Certain
Property" (Criminal Code, Part IX).
This older tradition, however, is now yielding to a
newer approach. Growing awareness of the damage
humankind is doing to the earth itself, together with
a series of man made environmental catastrophes, has
highlighted the need to protect the planet and
underline the value of respect for the environment.[51] Meanwhile, recent
thinking on animals' rights has shown the need, which
Bentham saw, to protect animals against human cruelty
and underline the value of respect for other sentient
creatures sharing in our planet.[52]
Accordingly the new Code proposes to include a new
title on the natural order. This title contains two
chapters, one on the environment, the other on
animals. Both are quite short and aim to use the
criminal law only by way of last resort and in line
with the notion of restraint. The provision on the
environment supplements provisions more appropriately
found elsewhere, that is in environmental protection
legislation in both federal and provincial sectors.
The provisions on animals are a logical development
from those already in the present Criminal Code.
Chapter 19: Crimes against the Environment
Comment
Criminal law, then, leaves harm to the environment to
environmental protection statutes. But in Working
Paper 44 we proposed a new and distinct crime against
the environment on the ground that certain behaviour
so threatens fundamental values as to warrant criminal
sanctions. That crime was to consist of conduct
damaging the environment and thereby seriously harming
or endangering human life or health.[53]
Since then, however, we revised our opinion. First,
we concluded that since environmental damage harming
or endangering life and safety is covered by crimes of
negligence against the person and by the newly
proposed crime of endangering (clause 10(1)),
there was no need for an environmental crime like that
proposed. Second, our consultations on Working Paper
44 together with a series of environmental disasters
since its publication convinced the majority of the
Commissioners of the need to use criminal law to
underline the value of respect for the environment
itself and stigmatize behaviour causing disastrous
damage with long term loss of natural resources. The
proposed crime of disastrous damage to the
environment, which a minority of the Commissioners
would omit entirely for reasons elaborated in the
commentary below, is designed to meet this need.
19(1) Disastrous Damage to the
Environment. Everyone commits a crime who recklessly
causes disastrous damage to the environment.
Comment
Clause 19(1) is similar to clause 107 [now 274]
of the Canadian Environmental Protection Act which
first saw light as clause 54 of the "Proposed
Environmental Protection Act." Clause 107 reads as
follows:
107 (1) Every person who, in
contravention of this Act,
(a) intentionally or recklessly causes a
disaster that results in a loss of the use of the
environment, or
(b) shows wanton or reckless disregard for the
lives or safety of other persons and thereby
causes a risk of death or harm, to another person
is guilty ....
As was stated in the explanatory notes to the earlier
proposed Act, clause 54 contained the essence of our
recommendations in Working Paper 44. So does, with
some modifications, clause 107 of Bill C 74. But for
the reasons given above we restrict our proposed
clause 19(1) to correspond only with paragraph (a) of
clause 107.
By virtue of clause 2(3)(b) of
the new Code, the conduct required is a positive act.
The culpability requirement is purpose or
recklessness, negligence being reserved for crimes
against the person. As with all other crimes, by
virtue of clause 3(13), there is
no liability for acts done under authorization of law.
"Disastrous" and "environment" are not defined in the
new Code any more than in the "Proposed Environmental
Protection Act." What amounts to disastrous is more a
matter of degree than definition, and the term is used
in its ordinary sense to mean generally ruinous or
calamitous in two respects: first in respect of the
size of area affected which must be significant enough
to prejudice not simply single individuals but rather
the whole community, and second in respect of the
degree of damage which must be inordinately great. The
environment can be taken in its usual meaning to
include air, soil and water generally as well as
specialized ecosystems such as wetlands or aquatic
systems. Disastrous damage to the environment, then,
can be construed as irreversible or widespread
destruction or disruption either of the general
environment or of a specialized ecological niche
thereof. Accordingly, this clause contemplates events
in the order of catastrophes rather than merely
localized or temporary interferences.
A minority of the Commissioners, however, would omit
this crime for a number of reasons in line with the
Commission's own work in administrative and criminal
law. The reasons are examined in a draft study paper
prepared by the Commission's Administrative Law
Project scheduled for publication in the near future
and outlining in detail developments on the regulatory
side of environmental protection.[54]
In recent years the trend has been away from the
simple, prohibitory "command penalty" approach of
criminal law and towards recognition that most serious
pollution problems will only be solved where co
operation is the norm and adversarial and hostile
relations are reserved for flagrant violators.
The dissenting Commissioners think it a retrograde
step to introduce a special environmental crime at a
time when more sophisticated and effective regulatory
mechanisms for protecting the environment are being
developed. Criminal prosecutions should be confined to
situations where damage to the environment causes
death or harm to persons, threatens human health and
safety or destroys public or private property. In such
situations the offenders should be charged with
homicide, assault, endangering or vandalism as the
case may be to bring out the truly criminal nature of
their misconduct.
The key reasons for not creating a separate crime
against the environment may be summarized as follows.
First, the mischief dealt with by clause 19(1) is
already addressed in other parts of our proposed Code,
notably by offences against the person, and a central
objective of our new Code is to eliminate the
proliferation of special offences which merely
particularize general crimes committed in special
contexts.
Second, a separate crime against the environment is
only justified if there is, beyond the human interest
in a safe and clean environment, a distinct interest
in the environment itself that can only be protected
by creation of a special offence. Despite the
aesthetic appeal in the view of the environment as a
sacred trust meriting protection in its own right, the
Commission concluded in Working Paper 44 that Canadian
society is not yet ready to give such protection of
the environment precedence over legitimate human
needs. In any event, the proposed clause 19(1) is not
based on recognition of any unique environmental
interest but merely highlights imprecisely a potential
evil already more effectively dealt with elsewhere in
our new Code.
Third, protection of the environment will be
adequately and indeed better achieved by rigorous
enforcement of existing regulatory schemes. These can
be tailored to address specific threats to the
environment. Experience has shown that convictions for
regulatory offences attract significant social
condemnation. Charges of serious violations of
environmental protection legislation are taken every
bit as seriously as charges under the Criminal Code.
Also, since regulatory offences are offences of strict
liability where there is no need to prove the mens rea
of the accused, they can be successfully prosecuted
more easily than criminal offences.
Fourth, mixing criminal and regulatory enforcement
will create jurisdictional confusion and give
conflicting signals to the regulated parties. The same
conduct might be dealt with by two different
authorities using conflicting criteria and procedures
for initiating and conducting prosecutions.
Fifth, the creation of a special crime against the
environment will divert attention away from the real
problems of regulatory enforcement. Presumably the
proposed crime against the environment will be
reserved for the most flagrant situations. This throws
into question the currently held position that
prosecutions for regulatory offences should be
reserved only for the worst transgressions. Logically,
the rationale for use of regulatory prosecutions would
shift, leaving them to be directed against less
serious violations now usually handled without
recourse to the courts. This would result in
increasingly legalistic and adversarial relations
between government and the private sector and could
actually frustrate rather than enhance efforts to
promote and protect a safe and clean environment.
Finally, the concept of "disastrous damage to the
environment," central to the proposed crime in clause
19(1), cannot be defined with the precision required
to comply with section
7 of the Charter which states that: "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."
For these reasons a minority of the Commissioners
would omit clause 19(1) from this Code.
[19(2) Non compliance. Everyone commits a
crime who persistently refuses or fails to comply
with federal regulations for environmental
protection.]
Comment
Clause 19(2) is a minority recommendation. The
majority of the Commissioners would omit this clause
entirely. In the view of the majority, the
recommendation is based on a misinterpretation of
Working Paper 6, Fines, and Report 3, Our
Criminal Law,[55]
which sought to create an offence of intentional
defiance of all regulatory orders and standards, not
simply those pertaining to environmental statutes. The
proposal for such a general offence has subsequently
been rejected by the Commission as representing an
inappropriate intrusion of the criminal law into the
regulatory sphere. It is felt by the majority that
adequate penalties for repeat violators can be
provided in the regulatory regime, as indeed is the
case with most environmental protection legislation.
Where the violation of regulatory orders and standards
includes wilful disregard of a court order imposed in
the context of a regulatory prosecution, the violators
could be charged with disobeying a lawful court order
pursuant to clause 25(7)(b) of
this Code.
A minority of Commissioners, although agreeing that
the primary responsibility for environmental
protection is administrative, would supplement clause
19(1) with a provision sanctioning persistent non
compliance with federal environmental regulations. The
purpose of this provision is to provide a criminal law
weapon to use against flagrant violators of federal
laws.
This clause responds in part to the public perception
that environmental regulations can be ignored with
impunity and that polluters can continue polluting by
paying a "licence fee" in the guise of a fine. It
provides a more direct way of attacking persistent
violators of environmental regulations than is
available under present contempt of court powers which
were invoked against two electroplating companies and
their corporate officers in two highly publicized
recent cases in Toronto.[56]
It would also go somewhat beyond clause 25(7)(b) in that it would allow
criminal charges against flagrant and persistent
violators of environmental regulations, even if there
had not been specific compliance orders issued by a
court in earlier proceedings.
Support for this clause may be found in Working Paper
44, which recommends that flagrant violations of
federal statutes should be a necessary condition for
determining the occurrence of a criminal environmental
offence.[57] It is also
in the view of the minority consistent with our work
in Working Paper 6 and Report 3.[58]
Its rationale is to denounce outrageous and repeated
departures from statutory environmental regulations,
furnish administrators with an additional tool in
their battle against polluters and enable attorneys
general and citizens to invoke the criminal law if it
is felt that administrators are being too
understanding.
The conduct and culpability requirements for the
proposed offence are obvious. The conduct required is
repeated refusal or failure to comply with particular
regulations found in various federal environmental
statutes. The culpability requirement is purpose. In
the event of such behaviour, the Crown will normally
proceed against the accused with charges under the
offence provisions of the environmental statute in
question, but, in rare circumstances, it may charge
the offender with the crime set out in this clause.
Chapter 20: Crimes against Animals
Comment
Unlike damage to the environment, cruelty to animals
is already dealt with both by criminal law and by
regulatory legislation. Criminal offences were first
introduced in the 1870s and the main provisions are
now sections 400 to 403 of the Criminal Code.
Legislation at both federal and provincial levels
regulates such matters as food production,
environmental protection, animal control and methods
of hunting and fishing.
Criminal law serves to underline moral standards for
the treatment of animals and accordingly to prohibit
unnecessary cruelty. It therefore outlaws practices
seriously offending against conventional standards as
to killing or using animals. The new Code, then,
retains offences against animals. Meanwhile it may
well be appropriate to enact a separate federal Act
protecting animals and co ordinating offences with
specialized regulatory activity.
The present law is contained in sections 400 to 403
in Part IX of the Criminal Code [now 444-447]
under the title, "Wilful and Forbidden Acts in Respect
of Certain Property" along with crimes like mischief,
arson, causing a false alarm and interfering with
boundary lines and impeding the saving of wrecks.
Section 400 [444] creates an offence of wilfully
killing, injuring or poisoning cattle, section 401
similar offences against other domestic animals and
section 403 [447]
an offence of keeping a cock pit. The main cruelty
offences, however, are contained in section 402 [445.1].
Paragraph 402(1)(a) [445.1(1)(a)] prohibits the
wilfully causing of unnecessary pain, suffering or
injury to an animal or bird, while the remaining
paragraphs deal with specific acts such as neglect of
animals being conveyed, abandoning domestic animals,
assisting the fighting or baiting of animals and
promoting the shooting of captive birds. There is,
however, no definition of "animal" in the Criminal
Code.
The new Code aims to avoid mingling cruelty to
animals with property offences, to concentrate on
general principle rather than on specific marginal
activities and to provide for modern institutional
practices like scientific experimentation.
Recognizing, however, that animals are different from
people, that killing animals for food, for hunting and
for other purposes is socially accepted and that large
scale social reform in this area cannot come
overnight, the proposed Code rejects the notion of any
parallel between animal crimes and crimes against the
person. It does not, for instance, criminalize the
killing of animals because any such message would be
thoroughly diluted by all the exceptions to it, would
appear hypocritical in theory and would work unfairly
in practice. Instead it focuses on the central idea of
unnecessary cruelty and aims, not so much to protect
and preserve animal life, but rather to ensure its
humane treatment.
While the new Code makes Chapter 20 a separate
chapter for crimes against animals, damage caused to
an animal in another person's ownership may also
constitute vandalism under clause 17(1).
Meanwhile the chapter reduces the crimes to three:
cruelty to animals, organizing sporting events, and
animal neglect. All three are subject to the General
Part provisions on culpability and defences.
Particularly relevant will be clause 3(13)
on legal authority.
20(1) Cruelty to Animals. Everyone
commits a crime who unnecessarily causes injury or
serious physical pain to an animal.
Comment
This clause replaces paragraph 402(1)(a)
[445.1(1)(a)] of the Criminal Code. Being the central
organizing idea in the chapter, it is placed up front.
The idea of unnecessary cruelty is further developed
through the exceptions provided in clause 20(2). The
new Code limits the crime to serious physical pain to
avoid criminalizing minor cases of hurting. By virtue
of clause 2(3)(b) the crime can
only be committed by a positive act. By virtue of
clause 2(4)(d) the culpability
requirement is purpose.
"Animal" as defined in
clause 1(2) includes most of those developed species
that can reasonably be considered to experience pain.
20(2) Exceptions: Necessary Measures. For
the purpose of clause 20(1), no injury or serious
physical pain is caused unnecessarily if it is a
reasonably necessary means of achieving any of the
following purposes:
(a) identification, medical treatment,
spaying or neutering;
(b) provision of food or other animal products;
(c) hunting, trapping, fishing, and other
sporting activities conducted in accordance with
the lawful rules relating to them;
(d) pest, predator or disease control;
(e) protection of persons or property;
(f) scientific research unless the risk of
injury or serious physical pain is
disproportionate to the benefit expected from
the research; and
(g) disciplining or training of an animal.
Comment
This clause exempts various customary and accepted
practices such as the raising and slaughter of animals
for food provided that the means used are reasonably
necessary for such practices.
The exception for scientific research in clause
20(2)(f) incorporates the proportionality test used in
current case law: the pain and injury caused must be
justifiable in terms of the object pursued.[59] Where a significant
scientific or medical benefit is sought, considerable
pain may be justified; where the research is pointless
or trivial, very little is justified and the exemption
may be lost. The animal experimentation must also be a
"reasonably necessary means," that is to say, it must
be reasonably unavoidable because no alternative
research technique is possible. Where animal
experimentation is required or authorized by statute
(as in the case of some product testing), a further
defence is afforded by clause 3(13)(a)
of the General Part.
20(3) Sporting Events. Everyone commits a
crime who organizes, facilitates or participates in
any meeting, competition, exhibition, pastime or
display involving baiting animals, combat between
animals or killing captive animals.
Comment
This provision replaces paragraphs 402(1)(d), (f) and
(g) [445.1, 446]] and section 40[447]3 of the Criminal
Code. It is a preventive measure to criminalize the
organization of cruel sports or exhibitions involving
captive animals and exposing them to forms of torture
in unfair and artificial settings. Commission of the
crime requires a positive act together with purpose.
20(4) Animal Neglect. Everyone commits a
crime who fails to take reasonable steps to provide
necessaries of life to an animal under his care and
unable to provide itself with necessaries and
thereby causes it injury or serious physical pain.
Comment
This provision replaces paragraph 402(1)(c) [446(1)]
of the Criminal Code. Normally, neglect will be
committed by failure to provide adequate food, shelter
or medical treatment to a domestic animal. It is a
specific crime of omission. By virtue of clause
2(4)(d) the required culpability level is purpose.
TITLE V. Crimes against the Social Order
Comment
This title contains two chapters each dealing with a
different category of crimes against society in
general. Chapter 21, "Crimes against Social Harmony,"
relates to some extent to common law sedition, which
in Stephen's wording included "an intention ... to
promote feelings of ill will and hostility between
different classes of [Her Majesty's] subjects,"[60] and replaces sections
281.1 and 281.2 [319]
of the Criminal Code on hate propaganda. Chapter 22, "Crimes against Public
Order," deals with crimes of public disturbance such
as unlawful assembly and riot.
Chapter 21: Crimes against Social Harmony
Comment
In this chapter, the new Code creates crimes designed
to protect society at large from disruption of its
social harmony. Crimes against social harmony are hate
propaganda crimes likely to endanger significantly
identifiable groups within society. Those deliberately
stirring up hatred against socially important
identifiable groups put at risk the safety and
security not only of those groups but also of society
as a whole.[61]
21(1) Stirring up Hatred. Everyone
commits a crime who publicly stirs up hatred against
any identifiable group.
Comment
This clause replaces subsection 281.2(2) of the
Criminal Code [now 319(2)]
in a modified form. "Promotes" in that subsection is
replaced by "stirs up" to emphasize the deliberate
nature of the conduct prescribed. "[O]ther than in
private conversation" is replaced by "publicly" as
being a more straightforward formulation. By virtue of
clause 2(4)(d) the culpability requirement is purpose.
"[I]dentifiable" is
defined in clause 1(2) and applies to crimes within
both chapters of Title V. It singles out for
protection those groups which are specifically
protected by the equality guarantee of subsection 15(l)
of the Charter. It therefore replaces the present ad
hoc definition of "identifiable group" with a
principled definition in line with the Charter.
The defences contained in subsection 281.2(3)
[319(3)] have also been omitted as unnecessary. In
most cases where an accused knows that what he says is
true, expresses in good faith an opinion on a
religious subject, points out on reasonable grounds
matters relevant to the public interest or intends to
remove matters tending to produce hatred towards an
identifiable group, he does not have the purpose of
stirring up hatred. In the rare case, however, where
such a purpose could be proved, conviction would be
merited — if extremists of one religion make true
statements in order to stir up hatred against members
of another, does their truthfulness detract from their
stirring up hatred?
21(2) Inciting Genocide. Everyone commits
a crime who advocates, promotes or incites the
destruction of any identifiable group.
This clause replaces section 281.1 of the Criminal
Code [now 318].
Instead of specifying means of destruction as does
that section, it prohibits advocating, promoting or
inciting destruction by any means, thereby avoiding
unnecessary detail and according better with Canada's
obligations under the Genocide
Convention 1948. By virtue of clause 2(4)(d) the
culpability required is purpose.
Whether the Attorney General's consent should be
necessary for prosecution is left to the Code of
Criminal Procedure.
[21(3) Stirring up Hatred in Public
Place. Everyone commits a crime who publicly stirs
up hatred against any identifiable group in a public
place so as to cause risk of harm to the person or
of serious damage to property.]
Comment
A minority of Commissioners would insert under this
chapter clause 21(3) which replaces subsection
281.2(1) [319(1)] of the Criminal Code, just as that
subsection is located among the hate propaganda
crimes. The majority, however, viewing this crime as
more strictly a public order crime, decided to locate
it in the following chapter. By virtue of clause 2(3)(b) and of the meaning of the
words "stirs up," this crime can only be committed by
a positive act. By virtue of clause 2(4)(d) the
culpability required is purpose.
The sort of conduct covered would be that of a
hatemonger at a public rally who instills such hatred
in his audience against a particular group as to whip
them into a frenzy and lead them to attack members of
that group. It is to be noted, however, that the
stirring up must be done both publicly, not in private
conversation, and in a public place, not at a meeting
in a private house.
Chapter 22: Crimes against Public Order
Comment
The crimes contained in this chapter for the most
part owe their origin to early common law. In English
law the three principal offences under this rubric
were the common law crimes of unlawful assembly, rout
and riot, all designed for an era without professional
policing. Related offences were affray, public
mischief, public nuisance, duelling, prize fighting,
forcible entry and forcible detainer.
Bound up with these offences is the notion of breach
of the peace of which, as Glanville Williams points
out, there is no authoritative definition.[62] Clearly, it covers
battery, assault and prize fights, but not mere noises
disturbing tranquillity or threats of force to
property. It seems to mean therefore, conduct
involving danger to the person of another.
The present law on these and kindred matters is found
in Part II of the Criminal Code, "Offences against
Public Order;" and in Part IV, "Sexual Offences,
Public Morals and Disorderly Conduct." Part II deals
with treason and other offences against State
security, with piracy and other international crimes,
and with public order offences in the strict sense
used in this chapter. Part IV deals with sexual
offences, with indecency and other disorderly conduct,
and with various kinds of nuisance.
The proposed new Code adopts a more logical
arrangement. It places treason in Chapter
26 on "Crimes against State Security," deals
with piracy by amending the provisions on jurisdiction
and linking them with certain provisions in Titles II
and III, and puts crimes against public order proper
in a separate chapter under the present title. This
chapter then contains crimes disturbing public peace
as opposed to crimes threatening the State itself or
the community's morality.
Chapter 22 lists eight different crimes against
public order. The first is the somewhat new crime of
disturbing public order. The next four, disturbing
public order by hatred, unlawful assembly, riot, and
failure to disperse, are aggravated forms of this
crime listed in ascending order of gravity. The
remaining three, raising false alarm, public nuisance
and loitering, are a miscellaneous group of offences
commonly comprised under this heading.
Omitted from the chapter are some of the Criminal
Code offences related to proclamation (section 69 [now
68]),
neglect by a peace officer to suppress a riot (section
70 [now 69]),
unlawful drilling (section 71 [now 70]),
duelling (section 72 [now 71]),
forcible entry and detainer (section 73 [now 72]),
prize-fights (section 81 [now 83]),
indecent acts (section 169 [now 173]),
nudity (section 170 [174]),
causing disturbance, indecent exhibition, loitering
(section 171 [175]),
obstruction of clergyman (section 172 [176]),
possession of an offensive volatile substance (section
174 [178]),
vagrancy (section 175 [179])
and neglecting to bury a dead body (section 178 [182]).
Most of these offences are already covered by other
provisions in this chapter: the proclamation offences
created by paragraphs 69(b) and 69(c) [68(b) and (c)]
of the Criminal Code are covered by failure to
disperse (clause 22(5)) while
duelling, forcible entry and detainer, and prize
fighting are covered adequately either by disturbing
public order (clause 22(1)) or
unlawful assembly (clause 22(3)).
Others are covered elsewhere in the new Code: the
proclamation offence created by paragraph 69(a)
[68(a)] of the Criminal Code is covered by assault (Chapter 7) or by obstructing public
officers (clause 25(1)), obstructing clergymen by
assault (Chapter 7), and volatile substance offences
by endangering (clause 10(1)) or
by possession of things in suspicious circumstances
(clause 18(1)(b)). The offence of
neglecting to suppress a riot is too specialized to
constitute an offence under general criminal law and
should be dealt with under police discipline
regulations. The vagrancy and dead body provisions
are dropped as archaic and, in the case of vagrancy,
as inconsistent with the Charter. Unlawful drilling is
omitted as being not an offence in its own right
unless the Governor General makes it such by
proclamation.[63]
Finally, causing a disturbance is adequately covered
by disturbing public order (clause 22(1)) where fear
is aroused, and by public nuisance (clause 22(7)) where serious inconvenience
is caused. Where no such fear or inconvenience
results, the behaviour falls below the threshold of
real criminality, should be disregarded by criminal
law in the interest of restraint, and is accordingly
dropped from the new Code.
22(1) Disturbing Public Order. Everyone
commits a crime who so behaves in public as to make
others in the vicinity reasonably fear harm to the
person or serious damage to property.
Comment
Clause 22(1) which has no corresponding section in
the present Criminal Code is based partly on the
notion of breach of the peace and partly on the
concept of unlawful assembly. Unlike the latter,
however, it can be committed by one person or by two.
It forms, therefore, the basic crime against public
order in the new Code. By virtue of clauses 2(3)(b) and 2(4)(d),
the conduct and culpability requirements are positive
acts and purpose, and by virtue of clause 2(4)(b), the
defendant must either act as he does in order to make
others in the vicinity fear harm or in order to effect
some other consequence which he knows will do so.
22(2) Disturbing Public Order by Hatred.
Everyone commits a crime who publicly stirs up
hatred against any identifiable group in a public
place so as to cause risk of harm to the person or
serious damage to property.
Comment
This crime is the same as that which a minority of
Commissioners would prefer to see defined in clause
21(3) as an aggravated form of stirring up hatred and
located under "Crimes against Social Harmony" (Chapter 21). The majority, however,
prefer to place it in this chapter as an aggravated
form of disturbing public order (clause 22(1)). There
are two aggravating factors. First, the behaviour must
take the specific form of publicly stirring up hatred.
Second, it must be such as to cause risk of harm or
damage and not just make people in the vicinity
reasonably fear harm or damage. The conduct and
culpability requirements are positive acts and purpose
as in clause 22(1).
22(3) Unlawful Assembly. Everyone commits
a crime who jointly with two or more persons so
behaves in public as to make others in the vicinity
reasonably fear harm to the person or serious damage
to property.
Comment
Clause 22(3) replaces section 64 [now 63]
of the Criminal Code. Both at common law and under
section 64, unlawful assembly requires three or more
persons to commit it. The number is probably connected
with the notion that two make a couple but three make
a crowd, and is preserved in the new Code by the words
"jointly with two or more persons." Consequently, if
three or more so behave in public as to make others
fear harm or damage, they commit unlawful assembly,
but if only two so behave, they disturb public order
according to clause 22(1). The
conduct and culpability requirements are again
positive acts and purpose as in clause 22(1).
22(4) Riot. Everyone commits a crime who
jointly with two or more persons so behaves in
public as to make others in the vicinity reasonably
fear harm to the person or serious damage to
property and as to bring about such harm or serious
damage.
Comment
Clause 22(4) replaces section 65 of the Criminal
Code. Following common law, that section defines riot
as "an unlawful assembly that has begun to disturb the
peace tumultuously." The unlawful assembly aspect is
captured by the words "who jointly with two or more
persons so behaves in public as to make others in the
vicinity reasonably fear harm to the person or serious
damage to property ...," which repeat the definition
of unlawful assembly given in clause 22(3).
"[T]umultuously" is covered by the words "as to bring
about such harm or serious damage."
22(5) Failure to Disperse. Everyone
committing unlawful assembly or riot commits a crime
who fails to disperse when lawfully ordered to do
so.
Comment
This clause replaces paragraphs 69(b) and 69(c) [68(b),
(c)] of the Criminal Code. The ritual of reading
the riot act has been dropped as archaic and
unnecessary and replaced by that of being lawfully
ordered to disperse, for example by a peace officer.
Provisions as to who may issue such a lawful order
belong not to this Code but rather to the Code of
Criminal Procedure. By definition this is a crime of
omission. By virtue of clause 2(4)(d), the culpability
requirement is purpose and, by
virtue of clause 2(3)(b), the
defendant must know, or be reckless as to the
existence of, the circumstances giving rise to the
duty to disperse (for example the issuing of the
order).
22(6) Raising False Alarm. Everyone
commits a crime who falsely alarms the public.
Comment
This replaces section 177 of the Criminal Code [now 181].[64] That section
criminalizes the wilful publishing of a false
statement causing or likely to cause injury or
mischief to a public interest. Clause 22(6) covers
false alarm given to the public by any means. The
conduct and culpability requirements are act and
purpose.
22(7) Public Nuisance. Everyone commits a
crime who in a public place substantially and
unreasonably either obstructs or inconveniences
those exercising rights common to all members of the
public.
Comment
This clause partly replaces section 171 [now
175] and wholly replaces section 176 [180]
of the Criminal Code. The former section defines
causing a disturbance and the latter, common nuisance.
At common law, public nuisance consists in "an act not
warranted by law or an omission to discharge a legal
duty, which act or omission obstructs or causes
inconvenience or damage to the public in the exercise
of rights common to all Her Majesty's subjects."[65] Under the present
Criminal Code, common nuisance is defined by
subsection 176(2) [180(2)] in much the same terms. By
virtue of subsection 176(1), however, no crime is
committed unless the common nuisance "(a) endangers
the lives, safety or health of the public, or (b)
causes physical injury to any person...."
Clause 22(7) reverts to the common law position and
criminalizes obstruction or inconvenience without
endangerment or injury. It thereby avoids the need for
a separate crime of disturbance to replace section 171
[175]. At the same time, in the interests of
restraint, it restricts nuisance to obstruction or
inconvenience that is both substantial and
unreasonable.
The conduct requirement is an act, but in this
context it should be noted that many an omission may
in fact form part of a wider act. Failing to remove
one's car from the middle of a highway is part of the
act of obstructing that highway by putting and leaving
the car there. The culpability requirement is purpose.
Again it should be noted that the defendant need not
actually desire to obstruct the public but may act as
he does in order to effect some other purpose which he
knows will obstruct or inconvenience the public. He
may leave his car in the middle of the road, not to
obstruct the public, but rather to do some shopping,
but he knows that this will involve such obstruction.
22(8) Loitering. Everyone commits a crime
who prowls or loiters at night on another's
property near a dwelling
house on that property.
Comment
This clause replaces section 173 [177]
of the present Criminal Code. The words "without
lawful excuse" in that section are omitted because the
new Code provides in clause 3(13)
a general defence of legal authority. The reverse onus
clause is dropped as contrary to paragraph 11(d)
of the Charter. Finally, the words "prowls" and
"loiters" themselves cover only suspect behaviour: to
prowl is to wander about in search of prey or plunder;
to loiter is to hung around aimlessly for no obvious
reason. A person searching the area for his lost
wallet, therefore, would not be prowling, and a person
waiting for the owner to arrive would not be
loitering. Neither, therefore, would fall within
clause 22(8).
It should be noted that whereas the present Criminal
Code includes a part on "Firearms and Other Offensive
Weapons," (Part II.1) no such separate chapter is
included in the new Code. The reason is that it deals
with these matters as follows. First, in the
definition clause it includes streamlined versions of
the definitions in the present Criminal Code. Second,
it replaces the crime of using a firearm during the
commission of an offence (section 83 [now 85])
by the aggravating factor in clause 10(10)(e)
"with a weapon." Third, it covers the crime of
pointing a firearm (section 84 [87])
by the general crime of endangering in clause 10(1). Fourth, in clause 18(1)(b) it criminalizes possession
of a weapon in suspicious circumstances, in clause 18(3), possession of prohibited and
unregistered regulated weapons, and in clause 18(7), criminal dealing in
prohibited or unregistered regulated weapons. In
restricting itself to these matters the new Code
leaves details of the firearms registration system,
together with regulatory offences, to specific
firearms legislation.
TITLE VI. Crimes against the Governmental Order
Comment
This title contains further categories of crimes
against society in general. They differ from those in
the previous title, however, in an important respect.
The latter are crimes against the public at large
while those in Title VI are crimes against the
organized community, that is the State and its
government. Chapters 23 to 25 deal with offences
against the organs of government, and Chapter 26 with
treason, espionage and related offences.
Chapters 23 to 25 contain crimes not so far
satisfactorily classified. Injuring neither
identifiable individuals nor public order nor State
security, they tended to form a rag bag of
miscellaneous offences. For instance, in his book, A
History of the Criminal Law of England, Stephen
examines under the heading "Miscellaneous Offences,"
maintenance, perjury, bribery, slave trading and
intervention in foreign hostilities.[66]
A more rational classification was attempted by the
English Draft Code of 1879 under the title "Offences
Affecting the Administration of Justice and the
Maintenance of Public Order."[67]
One part of this title dealt with corruption and
disobedience to lawful orders, another with misleading
justice and a third with escapes and rescues. This
scheme was followed by our present Criminal Code,
which lists under Part III, "Offences against the
Administration of Law and Justice," three classes of
offences: corruption and disobedience, misleading
justice, and escapes and rescues.
A more logical classification is found in the Model
Penal Code. This focuses on the common characteristic
of all these offences as being the tendency to harm
the proper operation of all the administrative systems
of government — executive and legislative as well as
judicial. Accordingly it groups them under the wider
heading of "Offenses against Public Administration,"
under which it lists: (1) bribery and corrupt
influence, (2) perjury and other falsification in
official matters, (3) obstructing government
operations, escapes, and (4) abuse of office.[68]
The new Code follows that classification in two
respects. It adopts a more general title, "Crimes
against the Governmental Order." As well it uses the
subclassifications "Corrupting Public Administration,"
(Chapter 23) "Misleading Public
Administration," (Chapter 24) and
"Obstructing Public Administration" (Chapter
25) (which includes, among other things,
disobedience to court orders, clause 25(7)).
For the most part these three chapters leave the
present law unchanged. They do, however, make certain
formal alterations, follow the Model Penal Code's more
coherent classification and simplify the law by
ridding it of numerous unnecessary details. They also
make minor changes in substance, omit certain current
crimes like disobeying a statute (section 115), and
include some new crimes like disrupting proceedings
(clause 25(2)) to replace common
law contempt of court.
In Report 17, Contempt of Court, we identified five
forms of common law contempt of court: obstruction of
justice, disruption of judicial proceedings, defiance
of judicial authority, affront to judicial authority,
and interference with judicial proceedings.[69]
These are covered separately in the new Code as
follows: obstruction of justice (clause 25(11)), disruption of judicial
proceedings (clause 25(2)),
defiance of judicial authority (clauses 25(5) and 25(7)),
affront to judicial authority (clause 25(8))
and interference with judicial proceedings (clause 25(6)). For the purposes of this
title, the following terms are defined in clause 1(2).
"Public administration" is
defined in clause 1(2) and covers not only the
executive but also the legislative and judicial
process. By virtue of the definition of "province" in
section 28 of the Interpretation Act [now 35(1)],
"provincial ... government" includes the governments
of the Yukon and Northwest Territories.
The definition of "public
officer" in clause 1(2) is taken from section 2
of the Criminal Code but for reasons of principle and
practice has been extended to include peace officers.
In principle, a peace officer, like other public
officers, holds an office which is public in nature.
In practice, the new Code can simplify the law by
replacing the words "obstructs a public officer or
peace officer" (paragraph 118(a) [now 129(a)],
Criminal Code) by the words "obstructs a public
officer" in clause 25(1).
"Public official" is defined in clause 1(2) and is
based on section 107 [118]
of the Criminal Code which defines an "official" as a
person who: "(a) holds an office, or (b) is appointed
to discharge a public duty ...." Public official,"
then, is the widest term and covers "public officer;"
which includes "peace officers." Persons appointed to
perform a public duty include not only government
employees and appointees but also private parties
officially appointed to do the work of government.
While the former group is easily circumscribed, the
latter is not, and greater problems could arise from a
definition covering too many private parties.
Government practices vary enormously in the ways that
powers are delegated to private parties. Appointments
are made by many governmental parties including lower
level government employees or appointees by various
instruments and procedures including even oral
communications.
Appointees may be natural or artificial persons (for
example corporations) and the latter may in turn
appoint persons within its own organization. There
are, then, various means for deployment and control of
private activities undertaken for public purposes,
many of which are conducted outside the supervision or
direct control of government. But the perennial
difficulty of separating private and public functions
counsels caution as to the scope of our proposed
definition of "public official," which we limit in the
interests of operational efficiency to those appointed
by official governmental action and do not extend to
those possibly covered through confusion over the
distinction between what is public and what is
private.
The definition of "public
proceedings" in clause 1(2) is taken from the
definition of "judicial proceeding" in section 107 [118]
of the Criminal Code. That term, however, is extended
artificially by that section to cover legislative
proceedings. To avoid such artificiality the new Code
uses the more accurate term "public proceedings." This
new term does not cover executive proceedings of a
less formal nature, for example Cabinet meetings,
which are not specially protected by present criminal
law and are not therefore dealt with by the new Code.
It does, however, cover proceedings in the Senate,
House of Commons and provincial assemblies. It also
covers proceedings in courts and other bodies
exercising judicial functions. Committees of
legislative bodies, non judicial tribunals and fact
finding bodies are covered to the extent that they are
authorized to take evidence by way of solemn
statement. Reference to "solemn statement" (Chapter 24) replaces reference to
"under oath" in section 107 [118].
"Solemn statement" as
defined in clause 1(2) covers the three ways of making
a solemn averment recognized in sections 13, 14 and 38
[now 41] of the Canada
Evidence Act. The new Code rejects the
recommendation in Report 1, Evidence, that the
oath should be abolished. It prefers the minority view
of Commissioner La Forest, as he then was, for the
reasons given by him:
I would retain the oath. I am convinced that
a substantial number of people are more likely to tell
the truth, at least the whole truth, if they take the
oath. To those who take the oath seriously (and this
covers a great many people) the certain demands of
conscience are more likely to elicit the exact truth
than the highly uncertain threat of a prosecution for
perjury. Moreover, one cannot neatly separate man the
citizen from the moral man. The Commission has on
numerous occasions reiterated that the criminal law
should be used to protect the core values of society.
These core values are ultimately grounded in the
values of the individuals comprising that society. Why
should those individual values not be used to buttress
society's core values so long as this does not become
oppressive?
The minor invasion of privacy is surely outweighed by
the need to obtain the truth. Witnesses on the stand
must daily reveal far more sensitive matters. And I
cannot believe that in this day and age the danger that
the testimony of a person who, on the ground of
conscientious scruple, refuses to take the oath may be
met with skepticism is sufficiently general to outweigh
the argument for retaining the oath.[70]
Chapter 23: Corrupting Public Administration
Comment
Good government is incompatible with bribery and
corruption. Good government means taking decisions —
by ministers, officials, judges and so on — fairly,
impartially and disinterestedly. Bribery means
basically paying such people to take decisions not
impartially but in the interest of those giving the
bribe. It clearly, therefore, needs the sanctions of
the criminal law.
Such sanctions are found currently in Part III of the
present Criminal Code. Section 108 deals with bribery
of judicial officers [now 119],
section 109 [120]with
bribery of officers generally, section 110 [121]
with frauds upon the government, section 111 [122]
with breach of trust by a public officer, section 112
[123]
with municipal corruption, section 113 [124]
with selling or purchasing office, and section 114 [125]
with influencing or negotiating appointments or
dealing in offices. These sections are lengthy,
complex and overlapping.
The new Code simplifies the law in two respects.
First, by amalgamating offences against government and
offences against justice, it avoids the need for
separate crimes for judicial officers and for officers
generally. Second, it reduces the various forms of
corruption to two: bribery and breach of trust.
23(1) Bribery. Everyone commits a crime
who confers or agrees to confer a benefit on another
person for the purpose of corruptly influencing the
course of public administration.
23(2) Accepting Bribes. Everyone commits a crime who
accepts or agrees to accept a benefit given for the
purpose of corruptly influencing the course of
public administration.
Comment
These two clauses replace sections 108 to 110 [119-121]
and 112 to 114 [123-125]
of the present Criminal Code. "[A]grees to confer" is
added because of a problem that has arisen regarding
drug trafficking.[71]
While normally a person who agrees to do something
with another will commit conspiracy, case law has held
that people agreeing to sell drugs do not conspire
with the proposed buyers unless they know of the
buyers' intention to resell. To make the position
absolutely clear and to avoid problems with reliance
on the furthering provisions, clause 23(1)
specifically criminalizes the mere agreement to confer
a benefit.
"Benefit" covers any kind of favour. It covers the
usual sort of benefit which will clearly be financial.
It will obviously also cover non pecuniary
alternatives — promotion, additional vacation,
nomination to a prestigious club and so forth. But it
will not cover the common courtesies of ordinary
civilized behaviour — offering the visiting official a
cup of coffee, giving the judge a ride from the court
to the airport and so on.
Unlike the present Criminal Code the new Code avoids
specifying the different kinds of persons that may not
have a benefit conferred on them. These include not
only those actually taking the decision but others
near or dear to them — you can bribe an official by
giving a "sweetener" to his wife, his family or anyone
with influence on him. Accordingly the new Code simply
prohibits conferring a benefit "on another person
...."
On the other hand there is nothing wrong in trying
honestly to advance one's cause and influence the
course of public administration by putting forward
arguments through the services of a lawyer or
lobbyist. Nor is there anything wrong in paying for
such services. For this reason clauses 23(1) and 23(2)
specify that a crime is committed only when the
benefit is conferred or accepted for the purpose of
"corruptly influencing the course of public
administration." In this respect bribery under clauses
23(1) and 23(2) parallels bribery under clauses 15(1) and 15(2).
23(3) Breach of Public Trust. Every
public official commits a crime who abuses his
public powers.
Comment
This clause replaces section 111 [122]
of the Criminal Code. Like that section it relates
only to public officials and concerns only acts done
by them in connection with their office. "Breach of
public trust," following existing case law, relates to
abuse of public trust — improper use by a public
official of his public office for personal ends.[72] It would include, for
instance, unjustified preferment for private reasons.
It also covers wilful misconduct of officers executing
process, presently covered specifically by section 117
[128]
of the Criminal Code.
Unlike clauses 23(1) and 23(2), which concern acts
done between public officials and others, clause 23(3)
relates to acts done by officials themselves
regardless of any arrangement with others. By virtue
of the General Part provisions the conduct and
culpability requirements are act and purpose.
Chapter 24: Misleading Public Administration
Comment
Crucial to good decision making, whether in
government or in the courts, is accurate information.
Assessment must be made, before reaching decisions, of
all the relevant facts and evidence. As hard as such
assessment is in any event, it becomes doubly so in
the face of deliberate lying and misleading. Hence the
need to criminalize perjury, impersonation and related
crimes.
Such crimes under the present law are mostly to be
found in Part III of the Criminal Code, entitled
"Offences against the Administration of Law and
Justice" and more specifically under the heading
"Misleading Justice." This title itself, however,
misleads because while most of the offences grouped
under it relate to "judicial proceedings," that term
is extended by section 107 [118]
to cover various other proceedings (seeabove).
The crimes listed under that heading are perjury
(section 120 [131]),
false statements in extrajudicial proceedings (section
122.1 [134]),
witnesses giving contradictory evidence (section 124 [136]),
fabricating evidence (section 125 [137]),
offences relating to affidavits (section 126 [138])
and public mischief (section 128 [140]).
A related offence contained outside that heading is
that of personating a peace officer (section 119 [130]).
This is one of four personation offences known to the
present Criminal Code, the others being personation
with intent to gain an advantage, obtain property or
cause another a disadvantage (section 361 [403]),
personation at an examination (section 362 [404]),
and acknowledgement of an instrument in a false name
(section 363 [405]).
The new Code largely retains the present law but in a
modified form. Perjury, false statements in
extrajudicial proceedings and contradictory statements
fall under clauses 24(1) and 24(2), fabricating evidence and
using such evidence under clauses 24(3)
and 24(4), impersonation to
influence public administration, replacing section 119
[130],
under clause 24(5) and public
mischief under clause 24(7)
(misleading public officer). In addition there is a
new crime in clause 24(6) of
withholding information when applying for authority to
execute process. On the other hand there is no special
crime in the new Code to replace that of falsifying
registers or other public records (section 366 [378])
because the crime of forgery of public documents
defined by clause 14(1) includes
forgery of public records,
as defined in clause 1(2).
24(1) Perjury. Everyone commits a crime
who makes a false solemn
statement in a public proceeding for the
purpose of influencing the outcome of such
proceeding.
24(2) Other False Statements. Everyone commits a
crime who, when required by law to make a solemn
statement, makes a false solemn statement outside a
public proceeding for the purpose of defeating the
objective for which it is required.
Comment
Clauses 24(1) and 24(2) replace and basically repeat
sections 120 to 124 of the Criminal Code. First, by
virtue of the definition of "false
solemn statement" in clause 1(2), they
amalgamate the crimes of giving false evidence and
giving contradictory evidence. Second, however, they
extend the crime of giving contradictory evidence to
evidence given outside judicial proceedings instead of
restricting it artificially to such proceedings as
does section 124 [136].
Matters of punishment (section 121 [132])
and corroboration (section 122 [now 133])
are left to the Code of Criminal Procedure.
Clause 24(1) replaces section 120 [131]
but substitutes the more accurate term "public
proceedings" for the artificially extended term
"judicial proceeding." Clause 24(2) replaces sections
122 and 122.1 [133]
but restricts perjury outside judicial proceedings to
persons required by law to make statements in the form
of a solemn statement. Persons not so required may
commit fraud by lying but will not commit perjury.
Those not required by law to make a solemn statement
should not be susceptible to exposition by police and
other officers to the perjury sanctions of the
criminal law.
By virtue of the General Part provisions the required
conduct is an act. The culpability required is the
purpose specified, that is, as in section 120 [131] of
the Criminal Code, to mislead.
24(3) Forging Documents or Fabricating
Evidence. Everyone commits a crime who for the
purpose of influencing the course of public administration:
(a) forges, destroys or conceals any
document;
(b) fabricates, alters, destroys or conceals
any real evidence; or
(c) in applying for a certificate of
citizenship, passport, permit or other licence
required pursuant to a federal or provincial
statute, makes a false statement or withholds
relevant information.
24(4) Using Forged Documents, Fabricated Evidence.
Everyone commits a crime who for the purpose of
influencing the course of public administration uses
a forged document, a fabricated or altered item of
real evidence, or a document listed in, and obtained
in the circumstances described in, clause 24(3)(c).
Comment
Clause 24(3) replaces sections 125 and 126 [now 137-138]
and subsection 58(2) [57(2)]
of the Criminal Code. Clause 24(4) supplements clause
24(3) by making it a crime to use fabricated evidence
whether the accused is the fabricator or not. This
makes clauses 24(3) and 24(4) parallel to the proposed
and present law on forgery (see clause 14(2) and sections 324 (forgery [366])
and 326 (uttering forged document [368])
of the Criminal Code). "Forge,"
a word only applying to documents, is defined in
clause 1(2). "Fabricates" and "alters" have their
ordinary meanings of "makes" and "changes." "Real
evidence" means any physical object other than a
document. Because one cannot use a destroyed or
concealed document, clause 24(4) restricts itself to
the use of fabricated and altered documents. Clause
24(3)(c) replaces subsection 58(2) [57(2)]
and section 59 [58]
of the Criminal Code but is wide enough to cover
wrongly obtaining not only certificates of citizenship
and passports but also permits and other licences.
Clause 24(4) covers the wrongful use of such wrongly
obtained documents.
In accordance with the General Part provisions, the
required conduct is a positive act, except that the
term "withholds" in clause 24(3)(c) creates
a specific crime of omission. The purpose is that
expressly specified.
24(5) Impersonation. Everyone commits a
crime who impersonates another person, whether
living, dead or fictitious, for the purpose of
influencing the course of public
administration.
Comment
The present Criminal Code has four impersonation
offences: personation of a peace officer (section 119
[130]),
personation with intent to defraud (section 361 [403]),
personation at an examination (section 362 [404])
and acknowledging an instrument in a false name
(section 363 [405]).
Under the new Code, personation with intent to defraud
being in effect an attempt to defraud by implied false
representations, is covered by clause 13(3) on fraud together with
clause 4(3) on attempt.
Personation at an examination is omitted as being
below the threshold of criminality unless it
influences public administration (for example getting
a driver's licence through impersonation, which is
then covered by clause 24(5)). Personating a police
officer and acknowledging an instrument in a false
name are covered by clause 24(5). Clause 24(5),
however, is wider than section 119 [130] in that it
applies to impersonation not only of peace officers
but of anyone. It is wider than section 363 [405] in
that it would cover impersonation by other means than
acknowledging an instrument in a false name. The words
"living, dead or fictitious" are added because clause
1(2) restricts the meaning of a "person"
generally to persons already born. In accordance with
the General Part the conduct required is a positive
act. The culpability required is the purpose specified
in the clause itself.
24(6) Withholding Information. Everyone
commits a crime who when applying for authority to
execute process under the Code of Criminal Procedure
withholds information for the purpose of obtaining
that authority.
Comment
Clause 24(6) creates a new crime. A person giving
false information on oath when applying for authority
to execute process commits perjury. But a person who
gives true information but withholds relevant
information commits no crime. Clause 24(6) closes this
gap. The new crime is therefore one of omission. By
virtue of clause 2(4)(d) the culpability is purpose.
The crime defined in section 117 [128]
of the Criminal Code of peace officers' misconducting
themselves in the execution of process or making a
false return to the process relates to actual
execution and is covered by the general crime of
breach of public trust defined by clause 23(3).
24(7) Misleading Public Officer.
(a) General Rule. Everyone commits a
crime who misleads a public
officer into beginning, continuing or
ceasing an investigation into a crime or a federal
or provincial infraction.
Comment
This clause replaces section 128 of the Criminal Code
(public mischief [140]).
It differs from that section, however, in two ways.
First, whereas the section details various ways of
trying to mislead the peace officer, clause 24(7)(a)
focuses on the effect on the officer — causing him to
begin, continue or cease an investigation into a crime
or a federal or provincial infraction when in the
public interest he should not so have done. Second,
whereas section 128 [140] focuses only on causing the
officer to enter on or continue an investigation,
clause 24(7)(a) extends its ambit to causing him to
cease from it. By virtue of the General Part, the
culpability required is purpose and the conduct
required, a positive act. The positive act requirement
rules out the need for a special provision to protect
the common law right to silence. Refusal to answer
police questions in general and refusal to admit guilt
in particular does not constitute the crime of
misleading a peace officer.
(b) Exception. This provision does not
apply to a person who merely denies guilt.
Comment
At common law the extent of the right to silence is
unclear. In principle it should cover mere denials of
guilt — the entitlement to say "not guilty" in court
should parallel a similar entitlement outside the
court. It should in practice as well or else the right
to silence is reduced to the vanishing point — in many
cases keeping quiet is so suspicious as to amount to
an admission of guilt.
On this point, however, common law authorities
conflict. The Australian case of Kataja
[[1943] V.L.R. 145] held that denial of guilt even
accompanied by corroborative detail is not a crime.
The English case of Robinson [(1937), 2
J.Cr.L. 62] held the contrary. Meanwhile Glanville
Williams suggests that it would accord better with the
spirit of the law to hold that nothing said by an
accused in answer to the charge against him counts as
public mischief.[73]
Under Canadian law, however, by virtue of section 128
of the Criminal Code [now 140],
every one commits public mischief who, with intent to
mislead, causes a peace officer to enter on or
continue an investigation by doing one of four
different things. These are: (a) making a false
statement accusing another of committing an offence;
(b) doing anything intended to cause some other person
to be suspected or to divert suspicion from oneself;
(c) reporting that an offence has been committed when
it has not; and (d) falsely reporting that someone has
died.
Accordingly the law in Canada as to denial of guilt
is unclear. Arguably all false denials of guilt fall
under the second head above contained in paragraph
l28(1)(b) [140(1)(b)] because they divert suspicion
from the real offender. Equally arguably, however,
they do not fall thereunder for the following reasons.
First, false statements are dealt with specifically by
paragraph 128(1)(a) [140(1)(a)] whereas paragraph
128(1)(b) only deals with acts ("doing anything").
Second, if paragraph 128(1)(b) covered statements as
well as acts it would automatically cover false
accusations against others. These would then need no
special paragraph of their own, and, contrary to the
canon of interpretation that each section in a statute
has a separate meaning, paragraph 128(1)(a) would be
otiose.
Clause 24(7)(b) clarifies the law by providing that
denials of guilt by themselves do not constitute the
crime of misleading a peace officer.
Chapter 25: Obstructing Public Administration
Comment
This chapter deals with crimes against public
administration involving neither bribery nor deceit
but simply obstruction. They are mostly contained in
present law but found in different places. Disobeying
a lawful order of a court (section 116 of the Criminal
Code [127])
and obstructing a public officer (section 118 [129]),
are listed under "Corruption and Disobedience."
Obstructing the course of justice (section 127 [139])
falls under the heading "Misleading Justice." Escape
and being at large (section 133 [145]),
are located under the heading "Escapes and Rescues."
Finally, bringing justice into contempt is left to
common law. By virtue of their common characteristic,
obstructiveness, they are placed in one and the same
chapter of the new Code.
In addition, the present Criminal Code contains
numerous crimes of improper publication scattered
throughout it. In our recent Working Paper 56, Public
and Media Access to the Criminal Process, we proposed
that the present law be narrowed considerably in order
to reinforce the longstanding common law principle of
openness of legal proceedings.[74]
Working Paper 56 expressed our tentative views on this
subject. Our final views will form part of our
forthcoming Code of Criminal Procedure. For
completeness we here set out the crimes corresponding
to that paper's recommendations. These may be changed
after we receive public responses to them. In Working Paper 56 we
identified the precise limits to the principle of
openness that are needed for the proper functioning of
the criminal process. We suggested including two types
of publication bans in the Criminal Code — those
provided by statute, which would take effect upon the
commencement of criminal proceedings, and those that
could be imposed by courts in accordance with clearly
circumscribed powers set out in the procedural part of
the Criminal Code.[75]
Since both are necessary for the administration of
justice, failure to comply with them should be a
crime. Clauses 25(4)(a) and 25(5) contain the crimes
corresponding to these two categories of publication
bans. Clause 25(6)(a) sets out
the related crime of sub judice contempt of court.
The new Code omits two crimes existing under present
law. It omits disobeying a federal statute (section
115 of the Criminal Code [126]),
on the ground that criminal liability should be
explicit — statutes meaning to create crimes should do
so expressly and not impliedly by reliance on such
catch all provisions. It also omits misconduct by
peace officers and coroners (section 117 [128])
as being arbitrarily narrow (Why peace officers and
coroners only?) and as being already covered by breach
of public trust (clause 23(3)).
25(1) Obstructing Public Officers.
Everyone commits a crime who by physical
interference or breach of legal duty obstructs a public officer in the lawful
execution of his duty.
Comment
This clause replaces paragraph 118(a) [129(a)]
of the Criminal Code. The terms "public
officer" and "peace
officer" are defined in clause 1(2). Peace
officers form a subcategory of public officers.
By virtue of the General Part provisions this crime
can only be committed by a positive act. So, for
example, omitting to help the police in general, even
when asked to, is therefore not a crime. The specific
omission to assist a peace officer arresting someone
(paragraph 118(b) [129(b)]) is dealt with explicitly
in clause 25(3). By virtue of
clause 2(4)(d) the culpability required is purpose.
The limits of "obstruction" — a question arising
mostly in connection with peace officers — are
difficult to define. Obviously the meaning suggested
in Hinchliffe v. Sheldon — "making it more difficult
for the police to carry out their duties" [[1955] 2
All E.R. 406 at 408] — is far too wide. For one thing,
obstruction will not include omissions unless there is
a specific duty to act (clause 2(3)(b)).
For another, it will not include doing something which
one has a lawful right to do and which the peace
officer has no right to forbid: mere "disobedience" is
not obstruction — without making an arrest a peace
officer cannot lawfully prevent a citizen from leaving
the scene and going about his business.[76] Nor does it include
telling the police a false story since this is
sufficiently covered by clause 24(7)(a)
(misleading public officer), or helping someone to
escape detection or arrest since this is covered by
clause 25(11) (obstructing the
course of justice). For this reason, clause 25(1),
like article 242.1 of the Model Penal Code, is
restricted to physical interference (for example
putting physical obstacles in the officer's way) and
breach of legal duty (for example failure to answer
questions when there is a legal duty to do so). Where
the physical interference involves violence, it
constitutes the more serious crime of assault and will
be aggravated if done for the purpose of preparing,
facilitating or concealing a crime or furthering an
offender's escape from detection, arrest or conviction
(clause 10(10)(c)).
Equally difficult to define is the expression "in the
lawful execution of his duty." Clearly an officer
performing an unlawful act is not acting in the lawful
execution of his duty. A peace officer making an
illegal arrest, for instance, is not so acting.
Accordingly, resisting him in such a situation is not
a crime under clause 25(1). Equally clearly a peace
officer is not necessarily acting in the lawful
execution of his duty simply because he happens to be
on duty. For instance, drinking a coffee while on duty
is not an act done itself in the execution of his
duty. Acts done in lawful execution of his duty are
acts which can be regarded as specifically required or
authorized by law.[77]
Just what these acts are can best be worked out by the
courts on a case by case basis.
The crime of obstructing legal process (paragraph
118(c) [129(c)]) is omitted. If the person obstructed
is a public officer, a term which covers bailiff and
sheriff's officers, then the crime of obstructing a
public officer is committed (clause 25(1)). Otherwise,
short of actual assault, there should, in the
Commission's view, be no criminal liability.
25(2) Disrupting Proceedings. Everyone
commits a crime who substantially disrupts public proceedings.
Comment
This crime replaces the second form of contempt of
court described above.
Disrupting public proceedings means hindering or
obstructing the normal activity of the courtroom,
legislature and so on. At common law of course the
judge, speaker and so on have inherent power to keep
order and exclude disrupters, and these powers will
still remain.[77] But
where the disruption is substantial enough to warrant
criminal sanction it can also be prosecuted under
clause 25(2) as a crime. Whether this should involve
the ordinary kind of criminal proceedings or some
special type of summary procedure will be considered
later in the context of criminal procedure.
By virtue of clause 2(3)(b) this
crime can only be committed by a positive act. By
virtue of clause 2(4)(d) it can
only be committed purposely.
25(3) Failing to Help Public Officers.
Everyone commits a crime who fails, when reasonably
requested to do so, to take reasonable steps to help
a public officer in the
execution of his duty to arrest a person.
Comment
Clause 25(3) replaces paragraph 118(b) [129(b)]
of the Criminal Code. By virtue of clause 2(4)(d) it
creates a purpose crime which,
being one of omission, can by virtue of clause 2(4)(b) only be committed by a
person who knows the circumstances giving rise to the
duty to act or is reckless as to their existence. The
defendant must know that he is being requested to
help, that the person making the request is a public
officer and that he is making an arrest, or else he
must recklessly ignore the fact that this may well be
so. "[W]ithout reasonable excuse" in paragraph 118(b)
of the present Criminal Code is omitted as
unnecessary. For since the duty is only to take
reasonable steps, a person not helping an officer
because of some reasonable excuse cannot be said to
fail to take reasonable steps — his behaviour is
reasonable. Also omitted are the words "or in
preserving the peace" as being too vague to satisfy
Charter requirements.
25(4) Publishing Identities in Sexual
Crimes.
(a) General Rule. Everyone commits a
crime who, after proceedings have been initiated
in relation to a sexual crime, publishes any
information identifying
(i) a victim in the proceedings; or
(ii) a person under the age of eighteen who is a
victim or witness in the proceedings.
(b) Exceptions. No one is liable
(i) under clause 25(4)(a) if a court
orders that the person's identity may be
published in order to permit the accused to make
full answer and defence;
(ii) under clause 25(4)(a)(i) if the victim consents to the
publication.
Comment
Clause 25(4)(a) would make it a crime to publish the
identities of certain vulnerable individuals once
criminal proceedings have been initiated. "Initiated" is defined in
clause 1(2). Shielding such people's identities should
at least partially obviate the fear and embarrassment
that makes them reluctant to come forward, report
these crimes and testify in court.
Special protection should also be given to young
persons who are victims or witnesses of sexual crimes.
At present their identities are protected in
proceedings under the Young Offenders Act [repealed,
replaced by the Youth
Criminal Justice Act] but not in those under the
Criminal Code. In Working Paper 56 we recommended
greater consistency between the two statutes in this
regard.[78] But since
openness is necessary to the proper functioning of
criminal proceedings, we would confine the publication
ban to crimes where public identification is likely to
cause greatest harm, namely sexual crimes. A chapter
of such crimes has not yet been included in the
proposed Code but has been left for later treatment.
Clause 25(4)(b) provides exceptions to clause
25(4)(a). One is where a court allows publication to
ensure fair trial for the accused. The other is where
an adult victim consents to publication.[79]
25(5) Publication in Violation of a Court
Order. Everyone commits a crime who, in violation of
a lawful court order, publishes
(a) any information identifying
(i) a victim whose safety is at risk,
(ii) a witness whose safety is at risk, or
(iii) a confidential informant;
(b) evidence, representations, or reasons
given at a pretrial motion, judicial interim
release hearing or preliminary inquiry;
(c) a notice, evidence, information, or
representations given at a hearing to determine
the admissibility of evidence concerning the
sexual activity of a victim in a sexual crime;
(d) a notice, evidence, information, or
representations given during a portion of a
trial at which the jury was not present, if it
was not sequestered; [or]
(e) the contents of court exhibits [;]
[(f) any information identifying an accused,
victim or witness in exceptional circumstances
where substantial and extraordinary harm would
result.]
Comment
Clause 25(5) concerns violating court publication
bans. Such bans may be needed to protect the safety of
certain individuals, such as witnesses in extortion
cases or confidential informants. Or they may be
needed to protect the fairness of a criminal trial,
proprietary interests, or confidential information
within the court's control.
Some members of the Commission would go further and
allow courts in exceptional cases to forbid
publication where the harm caused would wholly
outweigh the public right to know. Hard as it may be
to define such a judicial power precisely, the law
should surely guard against unreasonable community
prejudice arising where minor matters with
inflammatory potential are the subject of criminal
proceedings.
25(6) Publishing Prejudicial Matters.
(a) General Rule. Everyone commits a
crime who publishes any of the following matters
while a civil or criminal trial is pending:
(i) a party's admission or an
accused's statement;
(ii) an accused's criminal record;
(iii) the results of investigative tests or
procedures conducted in relation to the
proceedings;
(iv) psychological data about a party or an
accused; or
(v) opinions about the liability of a party or
an accused.
(b) Exceptions. No one is liable under clause
25(6)(a) if the publication:
(i) does not jeopardize the fairness
of the trial;
(ii) is a fair and accurate report of the
proceedings or the contents of a related court
document; or
(iii) is part of a discussion in good faith of
matters of public interest and the jeopardy to a
fair trial is merely incidental to the
discussion.
Comment
Clause 25(6)(a) attempts to codify one of the common
law contempt crimes — sub judice contempt of court —
and reconcile the two competing objectives of
certainty and flexibility. Common law proscription of
publication of any matter tending to prejudice the
outcome of legal proceedings is obviously too broad.
The new Code would replace it by specifying the kinds
of information most damaging to a fair trial because
of the possibility that prospective jurors will learn
these facts and form their views about guilt or
liability on their basis rather than solely on the
evidence presented in court.
Clause 25(6)(b) contains exceptions to the general
prohibition. The first recognizes that in some cases
publication will not prejudice a fair trial and need
not, therefore, be prohibited on this account. The
second, for the sake of the public interest in freedom
of the press and information about the justice system,
allows publication of the matters listed in the
general rule if they come to light in the proceedings
themselves or in court documents relating to them
unless of course they are subject to a court
publication ban under clause 25(5).
The third exception, deriving from the common law,
permits publication even of prejudicial information so
as not to stifle public debate on issues to which such
information is relevant, provided that the discussion
is in good faith and the jeopardy to a fair trial is
merely incidental[80] —
it would not cover people purposely jeopardizing a
fair trial even if they felt it in the public interest
so to do.
A special definition of "pending"
is included in clause 1(2) applying in cases of
publication by public officers or prosecutors.
Knowing, as they do, in advance that charges will be
laid, such persons should be prohibited from releasing
prejudicial information even before a trial is
generally considered "pending," if doing so would
jeopardize the fairness of the trial.[81]
25(7) Disobeying Lawful Court Order.
Everyone commits a crime who fails to:
(a) comply with the terms of an
appearance notice, summons or subpoena issued or
an undertaking entered into pursuant to the
provisions of the Code of Criminal procedure; or
(b) obey a lawful order of a court, judge or
justice of the peace other than an order for the
payment of money or an order for which a
sanction or an enforcement procedure is already
expressly provided by law.
Comment
The crime under this clause replaces both the
Criminal Code offence defined in subsection 116(1)
(disobeying order of court [now 127(1)])
and the third form described above
of common law contempt (defiance of judicial
authority), but is not intended to remove the court's
inherent coercive power to deal with disobedience.
Clause 25(7) also replaces subsections 133(2) to
133(5) [145]
of the Criminal Code. It reformulates subsections
133(2) to 133(5) to accord with the proposals to be
advanced in the Code of Criminal Procedure. It also
restricts the crime defined by subsection 116(1) [127(1)]
to disobeying orders of courts or justices of the
peace and omits as being too broad the words in
subsection 116(1), "... or by a person or body of
persons authorized by any Act to make or give the
order, ..." — where Parliament intends disobedience to
such orders to be criminal, it should expressly say so
in the governing Act. By contrast the judicial system
merits general criminal law protection against
defiance.
Clause 25(7)(b) excludes two kinds of orders. One is
an order for payment of money, since, like the present
law, the new Code rules out imprisonment for debt. The
second consists of other orders which can be enforced
by process like injunctions, specific performance,
eviction orders or the sanction of civil contempt.
Enforcement of these is left by the new Code, as by
the present Criminal Code, to civil law.[82]
In form, the crime is one of omission though in fact
the disobedience could take the form of a positive
act. By virtue of clause 2(4)(d) the required mental
element is purpose.
25(8) Bringing Justice into Contempt.
Everyone commits a crime who publicly brings into
contempt a court, a judge in his official capacity
or the administration of civil or criminal justice.
Comment
Clause 25(8) codifies the fourth form of contempt of
court identified in Working Paper 20, that is,
scandalizing the court.[83]
Because of the conflicting demands of freedom of
speech some would object to its inclusion and contend
that judges should not remain immune from criticism.
But judges do not easily share the ordinary citizen's
access to normal remedies for defamation, while the
justice system needs protection against criticism
undermining public confidence in it. For that reason a
contempt crime has been included in the proposed new
Code.
Five points merit notice on clause 25(8). First, the
clause affords equal protection to all levels of
courts.[84] Unlike
present law which denies lower courts the power to
cite for contempt done outside the court, the new Code
puts such contempt on the same footing no matter what
the court. Anyone with reasonable grounds to do so
will be able to lay an information in respect of it.
Second, the clause codifies what is at present left
to common law. This is in accordance with the objects
of the new Code which are to provide a comprehensive
statement of the criminal law and to replace the
uncertainty of case law by statutory provisions.
Third, the crime created is a result crime. To be
guilty an accused must actually bring a court, judge
or administration into contempt. Of course, where an
accused's purpose is to bring a court into contempt
but he fails to do so, there may well be criminal
liability for an attempt. Apart from this one
exception, contempt must actually result; as was said
in Kopyto, "if the essence of the charge is,
as it must be, that the words spoken do bring the
court into contempt, then it would not be unreasonable
to require the prosecution to prove that this is in
fact the effect of those words." [(1987), 62 O.R. (2d)
449] This is exactly the requirement made by this
clause.
In keeping with the principle of restraint in the
criminal law, a minority of Commissioners would
further restrict this crime by requiring that the
resulting contempt create a real and present danger of
interference with the proper administration of
justice. Adopting the reasoning of Goodman J.A. in Kopyto,
the minority would add to clause 25(8) the following
words: "and thereby creates a real and present
danger of interference with the proper
administration of justice."
Fourth, by virtue of clause 2(4)(d)
on culpability, the culpability required by clause
25(8) is purpose: the accused must purposely bring the
court into contempt. Whether the accused actually had
such a purpose must be assessed in context and in
light of all the circumstances. One important aspect
of the circumstances relates to the accused's
situation, another to the truth or falsehood of what
was said.
As regards the accused's situation, there is a vast
difference between statements made with cold
deliberation and those made in the heat of the moment.
This difference is noted in the common law of slander
by the distinction between slander and mere vulgar
abuse. It was also noted by the Ontario Court of
Appeal's characterization of Kopyto's statement as one
made "on behalf of a disgruntled litigant by a
disgruntled solicitor who had identified himself with
his client."
With regard to the truth or falsity of the statements
made, this too will serve to indicate the true purpose
of the accused. Where the statements are untrue and
known to be so by the accused, the signs are that he
meant to bring the judge into contempt. Where they are
true and known to be so by the accused, the inference
is that he did not mean to bring the judge into
contempt. The difference is between "an intention to
vilify [and one] to correct."
For this reason, no defence of truth was thought
necessary for inclusion. As with clause 21(1) on stirring up hatred, it was
thought that truth operated as an index of purpose.
If, however, it were thought that this leaves the law
too uncertain and that contempt is different from
stirring up hatred in that contempt can sometimes be
justified but hatred never can be, then an exception
for truth could easily be added as follows: "(b)
clause 25(8)(a) shall not apply to allegations made
directly or indirectly which are true." Such a
provision would place an evidentiary burden on the
accused to provide some evidence of the allegation's
truth but the persuasive burden would remain on the
prosecution.
25(9) Jury Offences. Everyone commits a
crime who discloses information not revealed in open
court regarding the proceedings of a jury in
retirement other than for the purpose of:
(a) investigation or trial of a crime
committed by a person in his capacity as a juror,
or
(b) research concerning juries that has been
approved by the Attorney General of the
province.
Comment
Clause 25(9) replaces section 576.2 of the Criminal
Code [now 649].
Exception 25(9)(a) combines the two exceptions in
section 576.2. The exception in 25(9)(b) is new and is
intended to permit jury research at the discretion of
the minister provincially responsible for the
administration of justice.[86]
By virtue of clause 2(4)(d) the required mental
element is purpose.
25(10) Escape. Everyone commits a crime
who
(a) escapes from lawful arrest or
imprisonment, or
(b) is at large before the expiration of a
term of imprisonment to which he was sentenced.
Comment
The present law on escape contained in sections 132
to 137 of the Criminal Code [now 144-149]
involves numerous detailed provisions. These relate to
breaking into a prison to set someone free (paragraph
132(a) [144(a)]), breaking out of a prison cell
(paragraph 132(b) [144(b)]), escaping from lawful
custody (paragraph 133(1)(a) [145(1)(a)]),
being unlawfully at large (paragraph 133(1)(b)
[145(1)(b)]), permitting someone in one's lawful
custody to escape (paragraph 134(a) [146(a)]),
conveying anything into a prison to facilitate an
inmate's escape (paragraph 134(b) [146(b)]), wrongly
directing under colour of pretended authority the
discharge of a prisoner (paragraph 134(c) 146(c)),
rescuing someone from lawful custody (paragraph 135(a)
[147(a)]),
as a peace or prison officer letting someone in one's
custody escape (paragraphs 135(b) and 135(c) [147(b)
and (c)]), and assisting a prisoner of war to escape
(section 136 [148]).
All these provisions are replaced in the new Code by
clause 25(10). The crimes defined by paragraphs 132(b)
[144(b)] and 133(1)(a) [145(1)(a)] are covered by
clause 25(10)(a), the term "custody" being replaced by
"lawful arrest or imprisonment." Escape from other
detention, for example compulsory detention as a
mentally incompetent, is left to civil law. The crimes
defined by paragraphs l32(a) [144(a)], 134(a) , (b)
and (c) [146(a)-(c)], 135(a), (b) and (c)
[147(a)-(c)], and section 136 [148] are covered by the
combination of clause 25(10)(a) and the furthering
provisions in Chapter 4 of the new
Code. The offence defined in paragraph 133(1)(b)
[145(1)(b)] is covered by clause 25(10)(b) in
identical terms except for the omission of the words
"without lawful excuse." A person at large with a
lawful excuse would be protected under the new Code by
clause 3(13).
The matters dealt with by subsections 133(2) to
133(11) [145(2)-(11)] are dealt with as follows. Those
contained in subsections 133(2) to 133(5) relate to
failure to appear to answer a summons and so on and
are covered by the crime of disobeying a lawful court
order (clause 25(7)). Those
contained in subsections 133(6) to 133(11). relate to
procedure and will be dealt with in the Code of
Criminal Procedure.
By virtue of the General Part provisions the two
crimes in this clause require a positive act and purpose.
25(11) Obstructing the Course of Justice.
Everyone commits a crime who, in any manner other
than those dealt with under Title VI, obstructs,
defeats or perverts the course of justice.
Comment
The definition of obstructing justice given in the
Criminal Code is doubly unsatisfactory. First there is
undue specification of the means employed. Sub-section
127(1) [139(1)]
deals with indemnifying a surety and taking an
indemnity as a surety, subsection 127(2) [139(2)] with
obstructing justice in any other way, and subsection
127(3) [139(3)] with dissuading people by threats,
bribery or other corrupt means from giving evidence,
influencing a juror by threats, bribes or other
corrupt means, and accepting a bribe to abstain from
giving evidence or to do or refrain from doing
anything as a juror. Second, it is unclear whether
subsection 127(2) [139(2)] covers conduct already
criminalized by other sections in Part III of the
Criminal Code, for example perjury (section 120 [131]),
fabricating evidence (section 125 [137]),
compounding (section 129 [141]),
and corruptly taking or offering rewards for recovery
of goods (sections 130 and 131 [142]).
Clause 25(11) simply prohibits any sort of
obstructing justice but clarifies that this covers
only acts other than those already dealt with under
Title VI. It does not therefore cover telling false
stories in court or to the police, because these are
criminalized by clauses 24(1)
(perjury) and 24(7)(a)
(misleading public officer). Nor does it cover denials
of guilt because these are dealt with by the exception
in clause 24(7)(b). It covers
such acts as interfering with witnesses, jurors,
investigating officers, indemnifying sureties and
compounding crimes, all of which are acts calculated
to distort the course of justice. By virtue of clause
2(3)(b) this crime can only be
committed by a positive act. By virtue of clause
2(4)(d) the mental element is purpose.
Corruptly taking or offering rewards for recovery of
goods (sections 130 and 131 [142-143])
are omitted. If the accused takes a reward for
pretending to help another to recover stolen goods
when he is in fact unable to help, he commits fraud.
If he takes a reward for recovery of goods when he can
help but when the purpose is to prevent the wrongdoer
being brought to justice, he commits the crime of
obstructing justice. So too if he advertises a reward
with "no questions asked."
Chapter 26: Crimes against State Security
Comment
Treason and other crimes against State security are
some of the most serious offences in our criminal law.
Though rarely committed and still more rarely charged,
they involve conduct jeopardizing the security and
well being of the whole country. At present they are
set out in two places in our law. Treason and related
offences against the State are found in Part II of the
Criminal Code. Spying and related offences of more
recent vintage are contained in the Official Secrets
Act [repealed, replaced by the Security
of Information Act].
The Criminal Code provisions are set out in sections
46 to 63 [now 46-62].
Section 46 defines the two primary crimes of high
treason and treason. Sections 49 to 63 define the
following ancillary crimes: acts intended to alarm Her
Majesty (section 49),
assisting an alien enemy to leave Canada (paragraph 50(1)(a)),
omitting to prevent treason (paragraph 50(1)(b)),
intimidating Parliament (section 51),
sabotage (section 52),
seditious conspiracy (subsection 60(3) [now 59(3)]),
incitement to mutiny (section 53),
assisting deserter (section 54),
offences in relation to members of the R.C.M.P.
(section 57 [now 56])
and offences in relation to military forces (section
63 [now 62]).
The Official Secrets Act also defines primary and
ancillary offences. The primary offence of spying is
defined at length in sections 3 and 4. Ancillary
offences are defined in sections 5 to 9, which relate
to unauthorized use of uniforms, falsification of
reports, forgery, personation, false documents and
unlawful dealing with dies, seals and so on (section
5); interference in a prohibited place with constables
(section 6); harbouring spies (section 8); and attempt
(section 9).
As recommended by Working Paper 49, Crimes against the
State, the new Code substantially retains the present
law, simplifies the arrangement by putting the
offences in one chapter and streamlines the substance
by omitting unnecessary offences. Accordingly, Chapter
26 deals with both treason offences and espionage
offences.[87] It
defines a primary crime of treason and ancillary
offences of failing to prevent treason, espionage,
unlawful disclosure and sabotage. It omits, as being
dealt with elsewhere in the new Code, several offences
considered below.
The term "armed hostilities" is
defined in clause 1(2), to cover war and other armed
hostilities. Paragraphs 46(1)(b) and 46(1)(c) [46(1)(b)-(c)]
of the Criminal Code refer to "lev[ying] war against
Canada;" "assisting an enemy at war with Canada," and
"assist[ing] ... any armed forces against whom
Canadian Forces are engaged in hostilities whether or
not a state of war exists ...." "War" has not been
judicially defined but would probably, suggest Mewett
and Manning in Criminal Law, be construed, following
East, to mean, "not war so declared in the
international law sense, but the use of armed forces
by a large number of people against the lawful
Government of Canada in order to achieve some public
or general, as opposed to private, objective."[88] "Armed hostilities"
then covers war in both this and the international
sense.
Under the Official Secrets Act, espionage and
unlawful communication relate to various kinds of
information but leave a good deal of uncertainty. It
is not clear whether only secret and official
information is involved. It is not clear whether an
offender acting for a purpose prejudicial to the
safety or interest of the State must himself know his
purpose is prejudicial. And it is not clear whether
its prejudicial nature must be determined as a matter
of fact by the jury or as a matter of policy by Crown
prerogative.
Clauses 26(3) and 26(4) restrict the crimes of
espionage and unlawful disclosure to classified
information. On the other hand they remove the need
for prejudicial purpose and simply criminalize
gathering or disclosing which will injure the national
interest. Deciding which information is classified and
not to be revealed is left, subject to an exception
discussed in clause 26(5), to be determined by the
executive. The new crimes of espionage and unlawful
disclosure, then, are predicated on a clear and
uniform system of classification.
As we stated in Working Paper 49, with regard to such
a classification scheme we can only suggest some
general principles.[89]
First, to avoid arbitrariness the new scheme should be
subject to Parliamentary scrutiny. Second, each of the
various classifications should be clearly defined so
as to avoid uncertainty of application. Third, uniform
procedures would be necessary for classifying,
authorizing disclosure of, and declassifying
information. Fourth, to ensure compliance with such
procedures particular classifications should be
judicially reviewable. Finally, wherever possible,
classified information should be clearly marked to
give adequate notice to those handling it.
26(1) Treason. Every Canadian citizen and
everyone benefitting from the protection of Canada
commits a crime who
(a) engages in armed
hostilities against Canada;
(b) helps a State engaged in armed hostilities
against Canada;
(c) helps any armed forces against whom
Canadian Forces are engaged in armed
hostilities;
(d) overthrows by force the constitutional
Government of Canada or a province.
Comment
Clause 26(1) replaces sections 46 to 57 [now 46-56]
of the Criminal Code. As to application the law
remains unchanged. While subsection 46(3)
of the Criminal Code provides that treason can be
committed by Canadian citizens or persons owing
allegiance to Canada, clause 26(1) provides that
treason can be committed by Canadian citizens or other
persons benefitting from Canada's protection. These
include landed immigrants, temporary residents and
visitors but not invading enemy soldiers because these
enjoy no such protection. Clause 5(2)(f)
on jurisdiction provides that, subject to diplomatic
and other immunity under the law, our courts have
jurisdiction over treason and other crimes against
State security wherever committed if committed by
Canadian citizens or by others who benefit from the
protection of Canada. Accordingly, like the present
law, the new Code bases the application of the law of
treason on the reciprocal obligations between
individuals and their State.
As to substance the law is simplified considerably.
Section 46
of the Criminal Code defines two crimes: high
treason and treason. As defined in subsection 46(1),
high treason is committed by anyone who
(a) kills or attempts to kill Her Majesty,
or does her any bodily harm tending to death or
destruction, maims or wounds her, or imprisons or
restrains her,
(b) levies war against Canada or does any act
preparatory thereto; or
(c) assists an enemy at war with Canada, or any
armed forces against whom Canadian Forces are
engaged in hostilities whether or not a state of war
exists between Canada and the country whose forces
they are.
Treason, as defined in subsection 46(2), is committed
by anyone who
(a) uses force or violence for the purpose
of overthrowing the government of Canada or a
province;
(b) without lawful authority, communicates or makes
available to an agent of a state other than Canada,
military or scientific information or any sketch,
plan, model, article, note or document of a military
or scientific character that he knows or ought to
know may be used by that state for a purpose
prejudicial to the safety or defence of Canada;
(c) conspires with any person to commit high
treason or to do anything mentioned in paragraph
(a);
(d) forms an intention to do anything that is high
treason or that is mentioned in paragraph (a) and
manifests that intention by an overt act; or
(e) conspires with any person to do anything
mentioned in paragraph (b) or forms an intention to
do anything mentioned in paragraph (b) and manifests
that intention by an overt act.
By contrast clause 26(1) defines one crime of treason
only and lists four ways of committing it. Clause
26(1)(a) states that it can be committed by engaging
in aimed hostilities against Canada and thus replaces
paragraph 46(1)(b) of the Criminal Code ("levies war
against Canada ..."). No special provision is made
regarding "any act preparatory thereto" on the ground
that, as with other crimes, liability should be for
attempt and not mere preparation. Clause 26(1)(b)
prohibits helping a State engaged in armed hostilities
against Canada and thus replaces paragraph 46(1)(c)
("assists an enemy at war with Canada ..."). Clause
26(1)(c) prohibits helping armed forces against whom
Canadian Forces are engaged in armed hostilities and
thus replaces paragraph 46(1)(c) of the Criminal Code
("assists ... any armed forces against whom Canadian
Forces are engaged in hostilities ..." This last
provision would cover the case of Canadian citizens,
for example, who help North Korean forces against a
United Nations contingent including Canadian Forces
and assisting South Korea.
Clause 26(1)(d) prohibits violent revolution and thus
replaces paragraph 46(2)(a) ("uses force or violence
for the purpose of overthrowing the government of
Canada or a province"). While strictly speaking such
use of force is already covered by clauses 6 to 9 in the Title on "Crimes
against the Person," clause 26(1)(d) retains a special
provision to focus on the overthrow rather than the
use of force, and to reflect the traditional view that
revolution amounted to "compassing the king's death"
and "levying war against the king in his realm."[90]
By virtue of the General Part provisions the conduct
and culpability required are act and purpose.
26(2) Failing to Prevent Treason.
(a) General Rule. Everyone commits a crime who
fails to take reasonable steps to prevent the
commission of treason or to inform a peace officer
that treason has been committed.
Comment
So seriously was treason viewed by common law that it
was the crime of misprision not to report a treason
which one knew had been committed and also probably not
to prevent a treason which one knew was about to be
committed. Under existing law it is a crime not to make
reasonable efforts to prevent treason which one knows is
about to be committed: paragraph 50(1)(b)
of the Criminal Code. Clause 26(2)(a) replaces paragraph
50(1)(b) but also covers, in view of the seriousness of
treason, failure to report a treason which has been
committed. Failing to prevent is of course a specific
crime of omission. The culpability required is purpose but by virtue of clause
2(4)(b) it suffices if the accused knew, or was reckless
as to, the circumstances giving rise to the duty to act
(for example that treason is about to be, or has been,
committed).
(b) Exception. Clause 26(2)(a) does not
apply where the person cannot take such reasonable
steps without risk of death or serious harm to
himself or another person or where he has some other
valid reason for not doing so.
Comment
This clause provides a parallel exception to that
provided by clause 10(2)(b) of the
new Code to the new crime of failure to rescue.
26(3) Espionage. Everyone commits a crime
who gathers classified
information for, or makes it available to,
another State not engaged in armed hostilities with
Canada.
Comment
Clause 26(3) replaces both paragraph 46(2)(b)
of the Criminal Code and section 3 of the Official
Secrets Act [now the Security
of Information Act]. Espionage committed for a
State engaged in armed hostilities against Canada
constitutes helping that State and is already covered by
clause 26(1)(b). The lesser crime
of gathering information for, or giving it to, a State
not so engaged in armed hostilities against Canada is
what is covered by clause 26(3). "Classified information" is
defined in clause 1(2). The conduct and culpability
required are act and purpose.
26(4) Gathering and Disclosing Information.
Everyone commits a crime who gathers classified information for,
or makes it available to, any person not authorized to
receive it.
Comment
Clause 26(4) replaces section 4 of the Official Secrets
Act (wrongful communication). In Working Paper 49 we
recommended that while espionage should relate only to
"classified national security information," unlawful
disclosure should relate to "classified national
security information" gathered for, or given to, anyone
other than a foreign State or its agent and to
"classified personal or government information" gathered
for, or given to, anyone other than a foreign State or
its agent.[91] Clauses
26(3) and 26(4) draw no distinction between the two
types of classified information on the ground that
disclosure of both sorts of information can cause
serious injury to the national interest. The conduct and
culpability required are act and purpose.
26(5) Exception. Clauses 26(3) and 26(4) do
not apply where the information subject of the charge
was improperly classified.
Comment
Clause 26(5) allows the defence to raise evidence that
the information was improperly classified. Absent such
evidence, the Crown would not need to prove the
propriety of the classification. Given such evidence, it
should be open to a court to review the executive's view
and allow improper classification as a defence, as was
done by a Provincial Court Judge in R. v. Toronto
Sun Publishing Ltd [24 OR (2d) 621]. and as was
proposed by Recommendation 10 of the MacDonald
Commission (p66).
26(6) Sabotage. Everyone commits a crime
who by damaging property or data jeopardizes the
security of Canada or of the forces of a foreign State
lawfully present in Canada.
Comment
Sabotage has two main aspects. In one sense it is just
an offence against property, with the additional feature
of jeopardizing the safety of the State, and as such
might be dealt with under property crimes as an
aggravated form of vandalism. In another sense it is
primarily an offence of jeopardizing the safety of the
State, it being only of secondary importance that the
means used is damaging property. Viewed in this sense it
should be treated as a crime against the State, as is
done by the present Criminal Code and as is here
proposed. The conduct and culpability required are act
and purpose.
Omitted from Chapter 26 are many offences listed under
present law. Killing Her Majesty (paragraph 46(1)(a))
and acts intended to alarm Her Majesty (section 49)
are omitted as already adequately covered by Title II on "Crimes against the
Person," which makes political motive an aggravating
factor. Conspiracies to commit treason are omitted in
view of the general provisions in Chapter
4 on "Involvement in Crime." Assisting an alien
enemy to leave Canada (section 50)
is covered by clause 26(1)(b) in so
far as this assists an enemy Stare and is left
uncriminalized in so far as it does not. Intimidating
Parliament (section 51)
is covered by Chapter 8, "Crimes
against Psychological Integrity," together with the
aggravating factor of political motive (clause 10(10)(d)). Doing a prohibited act
for a purpose prejudicial to "the safety, security or
defence of Canada" (paragraph 52(1)(a))
is adequately covered by clauses 26(1),
(3), (4) and (6). Doing such an act for a purpose
prejudicial to the safety of foreign forces in Canada is
dealt with in clause 26(6). Inciting to mutiny (section
53),
assisting deserter (section 54),
offences in relation to the R.C.M.P. (section 57 [now 56])
and interfering with discipline in military forces
(section 63 [62])
are too special in nature for inclusion in a general
Criminal Code and should be dealt with, if at all, in
acts relating to the forces and the R.C.M.P. Crimes
relating to passports and citizenship certificates are
dealt with elsewhere under clause 14(1),
"Forgery of Public Documents." Seditious offences
(sections 60 to 62 [59-61])
are omitted partly as being unwarranted restrictions on
freedom of expression and partly as being already
covered by the new Code's general provisions in Chapter 4 on "Involvement in Crime"
and by the crimes of stirring up hatred (clauses 21(1) and 22(2)).
No attempt is made to replace section 71 (unlawful
drilling [now 70])
first because it is not a crime creating section but
rather a section empowering the Governor General to make
orders prohibiting unlawful drilling and second because
to the best of our knowledge no such orders have ever
been made. Nor does the new Code try to criminalize
peaceful secession by a province, for whether or not
this fell within the traditional ambit of treason, it is
a matter to be solved not in law courts but in the
political forum.
Finally, the new Code also omits any provisions to
replace subsections 47(3)
and 47(4) and sections 48
and 51
of the Criminal Code. The provision in subsection 47(3)
on the need for corroboration is omitted from clause 26(l) as being a rule of evidence not
substance. That in subsection 48(1)
setting out a special period of limitation for treason
is omitted partly as being a rule of procedure not
substance and partly as being archaic and lacking any
rationale. That in subsection 48(2) requiring an overt
act is omitted as unnecessary given the specific
definitions in clause 1(2) and the
general rules on conduct in Chapter 2
of the new Code.
International Crimes
In many Criminal Codes and textbooks there is a
separate chapter about international crimes. These
include piracy, foreign enlistment, crimes against
internationally protected persons, hijacking and war
crimes. Some, but not all, of these are found in the
Canadian Criminal Code, which puts them not in a
separate chapter but in Part II, "Offences against
Public Order," along with treason, sedition and prize
fights.
Clearly the chief difference between ordinary and
international crimes relates to jurisdiction. In
general, ordinary offences fall under the territorial
principle, which holds that only crimes committed within
States' territory fall under their jurisdiction.
International crimes fall under other principles, which
confer jurisdiction on States over crimes committed
outside their territory. The best known example is
piracy, to which the universality principle applies.
According to that principle a person charged with piracy
may be tried and punished by any nation into
whose jurisdiction he may come. [Piracy] is an offence
against the law of nations; and as the scene of the
pirate's operations is the high seas, which it is not
the right or duty of any nation to police, he is denied
the protection of the flag which he may carry, and is
treated as an outlaw, as the enemy of all mankind —
hostis humani generis — whom any nation may in the
interest of all capture and punish.[92]
A survey of Canada's criminal law provisions with
international ramifications reveals the following.
First, in the Criminal Code there are the following
international crimes: piracy, crimes concerning
counterfeit money, crimes relating to nuclear material,
crimes against internationally protected persons,
hostage taking, endangering the safety of ships and
aircraft, and hijacking. Second, outside the Criminal
Code there are the following international crimes:
crimes against the Combines Investigation Act [now the Competition
Act], the Foreign
Enlistment Act and the Geneva
Conventions Act. Third, the following statutes
have international aspects: the Arctic
Waters Pollution Prevention Act, the Citizenship
Act, the
Foreign Extraterritorial Measures Act, the National
Defence Act, the Official Secrets Act [now the Security
of Information Act], the R.C.M.P.
Act and the Canada
Shipping Act. In short, there are seven
international crimes in the Criminal Code, three outside
it and seven statutes with jurisdictional provisions.
The Code Crimes
Under the new proposed Code the seven Criminal Code
crimes are covered mainly by means of special
jurisdictional provisions linked to the ordinary crimes
of the Special Part. Piracy is dealt with by clause 5(2)(h) which gives our courts
jurisdiction over certain crimes committed by those on
board private ships and aircraft outside the territorial
jurisdiction of any State, for example on the high seas.
Such crimes are
(i) crimes against personal safety and
liberty of those on board other ships or aircraft;
(ii) theft, vandalism or arson of another ship or
aircraft; or
(iii) theft, vandalism or arson of the property of
those on board other ships or aircraft.
Crimes relating to counterfeit money are covered by
clauses 5(2)(j) and 14(1)(a).
Clause 5(2)(j) in accordance with
Recommendation 40 of Working Paper 37, Extraterritorial
Jurisdiction,[93] brings
our criminal law in line with the International
Convention for the Suppression of Counterfeiting
Currency and confers jurisdiction over crimes of
forgery committed anywhere by anyone against Canadian
currency. Clause 14(1)(a) criminalizes the forgery of
currency.
Crimes relating to nuclear material are dealt with by
clause 5(2)(k). This clause confers
jurisdiction over certain crimes committed outside
Canada by Canadian citizens or persons present in Canada
after their commission. Such crimes are "(i) crimes
against personal safety and liberty by means of nuclear
material, (ii) theft of nuclear material, or (iii)
vandalism or arson of, or by means of, nuclear material
...."
Crimes against internationally protected persons are
dealt with by clause 5(2)(l). This
clause confers jurisdiction over crimes against the
personal safety and liberty of internationally protected
persons committed outside Canada in two situations. One
is where the crime is committed by Canadian citizens or
persons present in Canada after their commission. The
second is where it is committed by anyone against a
victim who was exercising functions on behalf of Canada.
"Internationally protected person"
is defined in clause 1(2) in roughly the same terms as
section 2
of the Criminal Code and in line with the Convention
on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including
Diplomatic Agents.
Hostage taking is dealt with by clauses 5(2)(m) and 9(2).
Clause 5(2)(m) confers jurisdiction over kidnapping
where (i) the alleged offender is a Canadian citizen or
is present in Canada after commission, or (ii) the
person kidnapped is a Canadian citizen, or (iii) the
crime is committed to influence the Government of Canada
or a province, and clause 9(2) defines kidnapping as
confining someone to compel him or someone else to do or
not do something.
Finally endangering the safety of ships and aircraft
and hijacking are covered by clause 5(2)(n).
This clause gives jurisdiction given one of three
conditions over two kinds of crimes committed outside
Canada by anyone. One kind consists of crimes against
personal safety and liberty of those on board ships and
aircraft. The other consists in interfering with
transportation facilities contrary to clause 10(9) where the facility in question
is a ship or aircraft. The conditions are that (i) it be
a Canadian ship or aircraft, (ii) which arrives in
Canada with the alleged offender on board, or (iii) the
alleged offender is present in Canada after commission
of the offence.
The Non-Code Crimes
The three non-Code international crimes are dealt with as
follows. Crimes against the Combines Investigation Act [Competition
Act], being of a specialized nature, are left to
that Act and not dealt with in the new Code. Crimes
against the Foreign
Enlistment Act are on account of their specialized
nature left to that particular statute. Finally, crimes
against the Geneva
Conventions Act (genocide and war crimes), are the
subject of the Deschênes Royal Commission's recent report
and hence omitted for the present.[94]
The Seven Statutes
The other seven statutes fall into two groups. Three deal
with special matters, the others with matters covered by
the new Code. The National
Defence Act, the R.C.M.P.
Act and the Foreign
Extraterritorial Measures Act are of too specialized
a nature to warrant inclusion in a general Criminal Code.
The remaining four deal with matters to be covered as
follows. Arctic waters are covered by amending clause 1(2) in accordance with Recommendation 2
of Working Paper 37, Extraterritorial Jurisdiction,[95] so as to define "Canada"
as including the Canadian Arctic. Clause 14(1)(f)
covers forgery of certificates of citizenship and clause 5(2)(i) gives jurisdiction over crimes
committed outside Canada by anyone against certificates of
Canadian citizenship. Official secrets offences fall under
Chapter 26 which defines crimes
against State security and clause 5(2)(f)
giving extraterritorial jurisdiction over them. Lastly,
crimes committed on Canadian ships and in special zones
under Canadian overeignty fall under Canada's jurisdiction
by virtue of clause 5(2)(a) which
defines Canada to include Canadian ships and aircraft and
clause 5(2)(e) which confers
jurisdiction over crimes committed in special zones in
which Canada has sovereign rights.
Accordingly the new Code contains no separate crimes of
an international nature.
[1]
Law Reform Commission of Canada, Recodifying
Criminal Law, vol. 1 (Report 30) (Ottawa: LRCC,
1986). The present revised and enlarged edition
supersedes Report 30.
[2]
"Justice Minister Tables Report of Law Reform
Commission, Recodifying Criminal Law, Vol. 1,"
News Release (Ottawa: Department of Justice, 3
Dec. 1986).
[3] Criminal
Code, S.C. 1892, c. 29 [1892 Code].
[4] Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act 1982, which is Schedule B of the Canada
Act 1982 (UK), 1982, c. 11 [Charter].
[5]
Canadian Sentencing Commission, Sentencing Reform:
A Canadian Approach (Ottawa: Supply and Services
Canada, 1987).
[6]
Our forthcoming Code of Criminal Procedure [published
as Recodifying Criminal Procedure (Report 33
CHK) (Ottawa: LRCC, 1991)] will contain our
recommendations on the general principles of criminal
procedure already described in LRCC, Our Criminal
Procedure (Report 32) (Ottawa: LRCC, 1988). All
references to the Code of Criminal Procedure are to
the former publication.
[7] Supra,
note 5.
[8]
Whether "peace officer" should include “justice of the
peace” needs further consideration specially in view
of the Charter.
[9]
See Jacques Fortin and Louise Viau, Traité de
droit pénal général (Montréal, Thémis, 1982) at
31.
[10]
See R. v. Tolson
(1889), 23 QBD 168; R.
v. City of Sault Ste. Marie, [1978] 2 SCR
1299; Reference Re
Section 94(2) of the Motor Vehicle Act,
[1985] 2 SCR 486 at 513.
[11]
See R. v. Tolson,
supra note 10. See also Leary v. R., [1978] 1
SCR 29 [Leary]; R. v.
King, [1962] SCR 746; and Perka v. R.,
[1984] 2 SCR 232 [Perka].
[12]
See LRCC, Omissions, Negligence and Endangering
(Working Paper 46) (Ottawa: LRCC, 1985) at 12.
[13]
Ibid. at 39.
[14]
R. v. Fortier (17 November 1980), Longueuil,
Québec 500-01-00501-805 (Sup. Ct.)
[15]
See supra, note 11.
[16]
Glanville Williams, Textbook of Criminal Law
(London: Stevens and Sons, 1978) at 63. See also Hyam
v. Director of Public Prosecutions, [1975] AC 55
for conflicting views on intent; J.H. Buzzard,
"Intent" (1978) Crim. L.R. 5; and LRCC, The
General Part: Liability and Defences (Working
Paper 29) (Ottawa: Supply and Services Canada, 1982)
at 32.
[17]
Don R. Stuart, Canadian Criminal Law: A Treatise
(Toronto: Carswell, 1982) at 130.
[18]
See R. v. Lawrence,
[1981] 1 All E.R. 974 and R. v. Caldwell,
[1981] 1 All E.R. 961.
[19]
R. v. Waite (1986),
28 C.C.C. (3d) 326 (Ont. CA).
[20]
For case-law and writings on the subject refer to Smithers
v. R., [1978] 1 SCR 506; Jordan (1956),
40 Cr. App. R. 153 (C.C.A.); R. v. Smith,
[1959] 2 Q.B. 35; Alan W. Mewett and Morris Manning, Criminal
Law, 2d ed. (Toronto: Butterworths, 1985) at
530-31; Stuart, supra, note 17
at 96-111; Glanville Williams, Textbook of
Criminal Law, supra, note 16 at 325-48; and Glanville
Williams “Causation in Homicide” (1957) Crim. L.R.
429.
[21]
It is to be noted that "compulsion" as used in section
17
of the Criminal Code refers to duress.
[22]
See Sir Matthew Hale, The History of the Pleas of
the Crown, vol. 1 (1736, reprinted London:
Professional Books, 1971) at 434.
[23] See Rabey v. R., [1980]
2 SCR 513.
[24]
See R. v. Kundeus,
[1976] 2 SCR 272.
[25]
In Glanville Williams, Criminal Law – The General
Part, 2d ed. (London: Stevens and Sons, 1961) at
441-42.
[26]
Ibid. at 504. [27] Eric Colvin, Principles
of Criminal Law (Toronto: Carswell, 1986) at
178-79.
[28]
See R. v. MacDougall,
[1982] 2 SCR 605.
[29] See Paquette v. R.,
[1977] 2 SCR 189.
[30]
See Perka, supra
note 11.
[31]
See R. v. Coyne
(1958), 124 C.C.C. 176 (NBSCAD).
[32]
See R. v. O’Donnell, R.
v. Cluett (1982), 3 C.C.C. (3d) 333
(NSCA).
[33]
See Colvin, supra, note 27
at 167.
[34]
On actus reus see LRCC, Secondary Liability:
Participation in Crime and Inchoate Offences
(Working Paper 45) (Ottawa: LRCC, 1985). On mens rea
see Lajoie v. R.,
[1974] SCR 399; R. v.
Ancio, [1984] 1 SCR 225.
[35]
Libman v. R.,
[1985] 2 SCR 178.
[36] Sir James Fitzjames
Stephen, English Draft Code, Report of the
Commission Appointed to Consider the Law Relating to
Indictable Offences with an Appendix Containing a
Draft Code Embodying the Suggestions of the
Commissioners (London: HMSO, 1879).
[37]
See Sir James Fitzjames Stephen, A History of the
Criminal Law of England, vol. 3 (1883, reprinted
New York: Burt Franklin, 1964) at 80.
[38] See LRCC, Homicide
(Working Paper 33) (Ottawa: Supply and Services
Canada, 1984).
[39]
See LRCC, Euthanasia, Aiding Suicide and Cessation
of Treatment (Working Paper 28) (Ottawa: Supply
and Services Canada, 1982) at 8.
[40] See R. v. Burden, [1981]
B.C.J. No. 1259; 64 C.C.C. (2d) 68; 25 C.R. (3d) 283
(BCCA).
[41]
See R. v. George,
[1960] SCR 871 and Leary,
supra note 11.
[42]
See Stuart, supra note 17
at 132.
[43]
See Fortin and Viau, supra note 9 at 297 and especially at 299; see
also Stuart, supra note 17
at 457 and especially at 460.
[44]
See LRCC, Medical Treatment and the Criminal Law
(Working Paper 26) (Ottawa: Supply and Services
Canada, 1980) at 57 and 61.
[45]
See R. v. Gough
(1985), 7 O.A.C. 17; 43 C.R. (3d) 297 (Ont. CA).
[46]
See supra, note 12.
[47]
American Law Institute, Model Penal Code and
Commentaries (Philadelphia: ALI, 1980) art.
211.2 [Model Penal Code].
[48]
Supra, note 12 at 20.
[49]
See LRCC, Electronic Surveillance (Working
Paper 47) (Ottawa: LRCC, 1986).
[50]
See LRCC, Theft and Fraud Offences (Working
Paper 19) (Ottawa: Supply and Services Canada, 1977)
and Theft and Fraud (Report 12) (Ottawa:
Supply and Services Canada, 1979).
[51]
See LRCC, Crimes Against The Environment
(Working Paper 44) (Ottawa: LRCC, 1985) at 11.
[52]
See Jeremy Bentham, "An Introduction to the Principles
of Morals and Legislation" in John Bowring (ed.), The
Works of Jeremy Bentham (New York: Russell
& Russell Inc., 1962) vol. 1 at 143, note; see
also R. v. Ménard (1978), 43 C.C.C. (2d) 458
(Qué. CA) at 464.
[53]
Supra note 51 at 15 and
following.
[54]
LRCC, Pollution Control in Canada: The Regulatory
Approach in the 1980s, a Study Paper by
Kernaghan Webb (Ottawa: LRCC, 1988).
[55]
LRCC, Fines (Working Paper 6) (Ottawa:
Information Canada, 1974); Our Criminal Law
(Report 3) (Ottawa: Information Canada, 1976).
[56]
See R. v. Jetco Manufacturing, [1986] O.J. No
373 (Ont. H.C.) and R. v. B.E.S.T. Plating Shoppe,
[1986] O.J. No 706 (Ont. H.C.), both reversed on
appeal on a procedural point. See R. v. Jetco
Manufacturing, [1987] 18 O.A.C. 313 (Ont. CA)
and R. v. B.E.S.T. Plating Shoppe, [1987] O.J.
No. 165 Ont. CA).
[57]
Supra note 51 at 68.
[58]
See supra note 55 at 41
and 36 respectively.
[59]
See Ford v. Wiley (1889), 23 Q.B.D. 203; R. v. Linder, [1950],
1 W.W.R. 1035, 97 C.C.C. 174 (BCCA); R. v. Pacific Meat Co.
(1957), 119 C.C.C. 237 (B.C. Co. Ct.); R. v.
Ménard, supra, note 52.
[60]
Sir James Fitzjames Stephen, A Digest of the
Criminal Law (London: MacMillan, 1877 ) at 56.
[61]
Canadian Bar Association, Special Committee on Racial
and Religious Hatred, Hatred and the Law
(1984). Stephen S. Cohen, "Hate Propaganda – The
Amendments to the Criminal Code" 17 McGill
L.J. 740 at 776.
[62]
See Williams, supra, note 25
at 714.
[63]
According to our research, [as of 1987] there has been
no such proclamation since 1955 at least.
[64]
See LRCC, Hate Propaganda (Working Paper 50)
(Ottawa: LRCC, 1986) at 29-30.
[65]
See Stephen, supra, note 60
at 108.
[66]
See Stephen, supra, note 37
at 234 and following.
[67]
See Stephen, supra, note 37
at 87 and following.
[68]
See Model Penal Code, supra, note 47, art. 240 and following.
[69]
See LRCC, Contempt of Court (Report 17)
(Ottawa: LRCC, 1982) at 21.
[70]
LRCC, Evidence (Report 1) (Ottawa: Information
Canada, 1975) at 86-87.
[71]
See Bruce A. MacFarlane, Drug Offences in Canada,
2d ed. (Aurora: Canada Law Book, 1986) at 255.
[72]
See R. v. Campbell,
[1967] 3 C.C.C. 250, 2 O.R. 1 (Ont. CA).
[73]
See Williams, supra, note 25
at 417.
[74]
LRCC, Public and Media Access to the Criminal
Process (Working Paper 56) (Ottawa: LRCC, 1987)
at 44-45.
[75]
See, for example, Recommendation 7(1) (publication ban
on identification of victims of sexual crimes) and
Recommendation 7(3) (giving a general discretion to a
court to prohibit publication of the identities of
victims and witnesses), ibid. at 50.
[76]
See Mewett and Manning, supra, note 20 at 472 and Dedman v. R.,
[1985] 2 SCR 2. See the dissenting view at 10 and
following.
[77]
See clause 3(13) and R. v. O’Donnell, R. v.
Cluett, supra note 32.
[78]
See supra note 69 at
21-24.
[79]
See supra note 74,
Recommendation 7(1)(b) and at 50 and 52.
[80]
Ibid Recommendation 7(4) and at 52 and
Recommendation 7(1)(a) and at 50-55 respectively.
[81]
See Atkins v. London Weekend Television Ltd.,
[1978] S.L.T. 76 (H.C.J.), in which the defence was
not available because of the prominent attention given
to a particular pending case in a television
broadcast.
[82]
See R. v. Parke, [1903] 2 K.B. 432 at 438.
[83]
See R. v. Clement,
[1981] 2 S.C.R. 468.
[84]
See LRCC, Contempt of Court – Offences against the
Administration of Justice (Working Paper 20)
(Ottawa: Supply and Services Canada, 1977) at
30.
[85] R. v. Vermette
[1987] 1 S.C.R. 577.
[86]
See LRCC, The Jury (Report 16) (Ottawa: Supply
and Services Canada, 1982) at 82.
[87]
LRCC, Crimes against the State (Working Paper
49) (Ottawa: LRCC, 1986) at 41 and following.
[88]
Mewett and Manning, Supra note 20 at 434.
[89]
Supra note 86 at 48.
[90]
J.C. Smith and Brian Hogan, Criminal Law, 5th
ed. (London: Butterworths, 1983) at 777-78.
[91]
Supra note 86 at 47-48 and
54-55.
[92]
S.S. "Lotus" (1927), P.C.1.J. Series A, No. 10 at 70.
[93]
LRCC, Extraterritorial Jurisdiction (Working
Paper 37) (Ottawa: Supply and Services Canada, 1984)
at 80.
[94]
Commission of Inquiry on War Criminals. Report Part
I: Public [Honourable Jules Deschênes,
Commissioner] (Ottawa: Supply and Services, 1986).
[95]
Supra, note 92 at 17.