Criminal Law Web

Part I. Fundamentals & Frameworks

Chapter 2. Theories and Concepts of Punishment

A. Theories

R. v. C.A.M.
Supreme Court of Canada
[1996] 1 S.C.R. 500

The judgment of the Court was delivered by
1 LAMER C.J.:—In 1992, the respondent, C.A.M., pleaded guilty to numerous counts of sexual assault, incest, assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed by the respondent carried a penalty of life imprisonment. The trial judge, remarking that the offences of the respondent were “as egregious as any offences that I have ever had the occasion to deal with”, sentenced him to a cumulative sentence of 25 years, with individual sentences running both consecutively and concurrently. The British Columbia Court of Appeal, however, reduced the sentence of the respondent to 18 years and 8 months. Following a line of jurisprudence it had developed in recent years, the Court of Appeal concluded that where life imprisonment is not available as a penalty, the “principle of totality” requires trial judges to limit fixed-term cumulative sentences under the Criminal Code of Canada, R.S.C., 1985, c. C-46, to a term of imprisonment of 20 years, absent special circumstances. Accordingly, the fundamental issue presented by this appeal concerns whether or not the Court of Appeal erred in law in holding that there is such a qualified ceiling on fixed-term sentences under the Criminal Code.

I. Factual Background

2     The respondent is a 55-year-old man with no prior history of criminal conduct. In 1972, after two previous marriages, the respondent married his third wife (now deceased). During that marriage, he fathered nine children. The children included an older pair of female twins, E.M.M. and J.P.M., born in 1974, and a number of younger male and female children. For most of his life, the respondent worked as a labourer across the Western provinces, alternatively employed as a hard rock miner, a truck driver, a mechanic and an oil field worker. As a result of the transient nature of his employment, the family was somewhat itinerant and moved frequently from locations in Manitoba, Alberta, Saskatchewan and British Columbia. In or about February 1987, the family moved to Fort Nelson, B.C., and in or about February, 1988, the family relocated again to Saanich, B.C.
3     On May 14, 1992, a Canada Post letter carrier called the Saanich Police Department to report that he had observed several young children who had been left unattended in distressing living conditions at the respondent’s residence. At 1:30 p.m. that day, two police constables visited the residence accompanied by a social services worker.
By their accounts, the residence contained no furniture or food, and was filthy. The children were barely clothed, malnourished, and slightly delirious. One constable also noticed numerous long-term scars over the arms and legs of the children. … Upon inquiries, the older children advised the constables that their father, the respondent, had left the home approximately one year before. …
4     In the next two days, one of the daughters met with the police constables, at which time she spoke at length concerning the physical and sexual abuse which she had suffered at the hands of the respondent. In the course of the ensuing investigation, the respondent was arrested in Moose Jaw and was returned to Victoria in police custody. On November 30, 1992, the respondent entered a plea of guilty before Filmer Prov. Ct. J. to an amended information which included five counts of assault with a weapon, two counts of assault, two counts of sexual assault, one count of incest and one count of uttering a threat. The respondent was convicted, and the judge ordered psychological and psychiatric evaluations and scheduled a hearing for the purpose of sentencing.

II. Sentencing Submissions

…

A. Submissions of the Crown

16     [I]n light of the devastating pattern of physical, sexual and emotional abuse the respondent inflicted upon his children, and in light of the respondent’s questionable prospects for rehabilitation, the Crown requested a stringent term of imprisonment in excess of 20 years. The Crown was of the view that a term of 30 years might even be warranted by the crimes of the respondent.

B. Submissions of Counsel for the Defence

18     Counsel [spent] considerable effort in calling attention to the mitigating circumstances surrounding the respondent’s crimes. To begin, counsel underscored the respondent’s dysfunctional childhood and troubled youth. As a result of recently revived memories which had allegedly been repressed, C.A.M. contends that he has discovered that he himself was a victim of sexual abuse at a very early age. He also emphasized the long-term trauma he has suffered in relation to two near-death experiences, one in relation to a serious automobile accident, and one in relation to “mine gassings” which occurred while he was working as a miner.
19     In addition to the foregoing factors, the respondent also stressed his advanced age, and his willingness to plead guilty to almost all of the counts of the information in order to avoid having his children endure the pain of a lengthy trial. As well, it was contended through counsel that responsibility for the abuse of the children ought to be shared with his deceased wife; in his characterization of the relevant events, the mother was a “willing participant” in the physical beatings of the children. Finally, he represented that he was genuinely remorseful for his crimes. In light of all these factors, counsel for the defence submitted that an appropriate term of imprisonment should be set at 10 to 14 years.

III. Judgments Below

A. Provincial Court

20     At the outset, Filmer Prov. Ct. J. commented that the crimes of the respondent were “as egregious as any offences that I have ever had the occasion to deal with, either as counsel or in these courts”. …
22     Filmer Prov. Ct. J. found that, based on the psychological and psychiatric reports, “therapy in this particular matter, if it is to be successful at all, will take a protracted period of time”. He then stressed the “extremely high” and “shocking” level of violence exhibited in the respondent’s physical and sexual abuse, and the “devastating consequences to the victims” resulting from the abuse. With these factors in mind, Filmer Prov. Ct. J. concluded that a cumulative sentence of 25 years, with no credit for time served, was appropriate and just.

B. British Columbia Court of Appeal (1994), 28 C.R. (4th) 106

…
1. Reasons of Wood J.A.
25     While Wood J.A. agreed with the trial judge that the respondent ought to be sentenced to a “severe” punishment, Wood J.A. was not persuaded that the traditional objectives of sentencing would be better served in this instance through a sentence of 25 years relative to a sentence of 20 years. As he explained, at p. 116:

The [respondent’s] crimes against his children were such as to bring forth in all decent and right thinking people a natural desire to see the most severe form of punishment imposed upon him. But the law stands between the convicted felon and such natural emotions. The law requires a principled approach to sentencing, one that restrains the urge to punish by its adherence to definable and rational sentencing objectives, as well as by its acceptance of such guidance as Parliament has offered in the Criminal Code and in other statutes such as the Corrections and Conditional Release Act, S.C. 1992, c. 20.

I do not need to dwell at length on the proper objectives of sentencing which have been recognized and accepted many times in past decisions of this court. Suffice it to say that general deterrence, denunciation, and direct protection of the public through isolation, are all accepted objectives of punishment which in this case, whether considered individually or collectively, require that a long sentence of imprisonment be imposed on the [respondent]. What must be asked, however, is whether those objectives are significantly better served by a total sentence substantially in excess of twenty years than they would be by a sentence of twenty years. In my view, there is no reason to think that they would be. [Emphasis added.]

26     To illustrate his point, Wood J.A. proceeded to examine whether or not a marginal increase in sentence of five years beyond a sentence of 20 years would, in this instance, result in a significant advancement of the sentencing goals of deterrence, denunciation, rehabilitation and the protection of society. To begin, he argued that an increased sentence of 25 years imprisonment would not better promote the objectives of general and specific deterrence; …  Wood J.A. further argued that the incremental deterrent effect of an increased sentence drops off sharply past the 20-year mark. Wood J.A. also argued that the incremental returns to societal denunciation follow a similar path of diminishing returns. As he stated: “it does not seem realistic to assume that the measure of society’s denunciation of this appellant’s crimes would be lessened in any way by imposing a sentence of twenty years” (p. 116). On that point, he noted that denunciation ought to be distinguished from its “illegitimate retributive cousin”, as “retribution is not a legitimate goal of sentencing”, citing R. v. Hinch and Salanski, [1968] 3 C.C.C. 39 (B.C.C.A.).
27     Along the same theme, he argued that relative to a 20-year sentence, a 25-year sentence would not significantly advance the utilitarian goals of the protection of society and the rehabilitation of the offender given the present structure of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “Corrections Act”). With respect to the former goal, Wood J.A. noted that under the combined parole eligibility provisions of both statutes, an increase in sentence to 25 years would not significantly extend the respondent’s eligible date for parole. … With respect to the latter goal, Wood J.A. concluded that in the absence of dangerous offender proceedings initiated by the Crown,^[1] the trial judge was not entitled to impose a lengthy term of sentence to reflect the respondent’s resistance to rehabilitation. …
…

IV. Grounds of Appeal

32     The Crown sought leave to appeal the Court of Appeal’s reduction of sentence on the basis of the following grounds:
…

2. That the Court of Appeal for British Columbia erred in law in finding that retribution is not a legitimate principle of sentencing….
4. That the Court of Appeal for British Columbia erred in law in reducing the sentence from 25 years’ imprisonment to 18 years and 8 months’ imprisonment.

V. Analysis

33     As a matter of established practice and sound policy, this Court rarely hears appeals relating to the fitness of individual sentences. As Dickson J. expressed in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 404:

Although I am of the view that the Court has jurisdiction to assess the fitness, i.e. the quantum of a sentence, I am equally of the view that as a matter of policy we should not do so. It is a rule of our own making and a good rule.

Nonetheless, as part of its national duty as a general court of appeal for the better administration of the laws of Canada, this Court will entertain appeals involving the legal principles which ought to govern the pronouncement of sentence. Given that this appeal raises a number of important legal issues in relation to the general principles of criminal sentencing, we granted leave.

A. Did the Court of Appeal err in holding that there is a qualified ceiling on numerical sentences under the Code?

35     Before dealing with the crux of this issue, it would be instructive to survey both the general principles governing fixed-term sentences and parole eligibility under the Code and the Corrections Act, as well as the evolution of the qualified legal ceiling developed by the British Columbia Court of Appeal …
1. General Principles
36     For the multiplicity of offences against public order contained in the Criminal Code, the Code provides for a range of punishments including absolute and conditional discharges, probation orders, and fines. But by far the most common and recognized form of criminal sanction under our justice system is imprisonment. For offences where imprisonment is available, the Code sets maximum terms of incarceration in accordance with the relative severity of each crime. The current structure of the Code staggers maximum sentences for the full range of offences at numerical intervals of one year, two years, five years, ten years, and fourteen years, followed next by the most severe punishment under our general criminal law, life imprisonment. It has often been remarked that such maximum sentences ought to be reserved for the worst offender committing the worst type of offence. See Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at p. 63. On the basis of this standard, the Commission noted that as a matter of judicial practice, the sentencing maxima of the Code for individual offences are rarely imposed by Canadian courts. For this and other reasons, the Commission commented that the structure of maximum penalties under the Code frequently provides little guidance to sentencing judges in imposing punishments in individual cases. See similarly, M. L. Friedland, “Controlling the Administrators of Criminal Justice” (1989), 31 Crim. L.Q. 280, at p. 311.
37     In some instances, the Code also sets mandatory minimum sentences for a number of offences. For instance, under s. 235, the mandatory minimum sentence for first and second degree murder is life imprisonment. In the past, however, this Court has viewed some such mandatory minimum sentences with constitutional suspicion in light of s. 12 of the Canadian Charter of Rights and Freedoms. See R. v. Smith, [1987] 1 S.C.R. 1045. But within these two distant statutory poles, the Code delegates to trial judges considerable latitude in ordering an appropriate period of incarceration which advances the goals of sentencing and properly reflects the overall culpability of the offender. See s. 717(1) and (2) of the Code. {Since repealed; see now s. 718}
40     … [G]uided by the legal obligation that a term of imprisonment be “just and appropriate” under the circumstances, courts have generally avoided imposing excessively harsh and onerous sentences which might test the potential legal ceilings governing the imposition of sentence.

It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Cory J. similarly acknowledged the importance of "the principle of proportionality" in speaking for the Court in R. v. M. (J.J.), [1993] 2 S.C.R. 421, at p. 431, noting that "[i]t is true that for both adults and minors the sentence must be proportional to the offence committed". Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. In discussing the constitutional requirement of fault for murder in R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645, I noted the related principle that "punishment must be proportionate to the moral blameworthiness of the offender", and that "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally". On the principle of proportionality generally, see R. v. Wilmott, [1967] 1 C.C.C. 171, at pp. 178-79 (Ont. C.A.); Sentencing Reform: A Canadian Approach, supra, at p. 154.
41 Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation. As this Court has recognized on numerous occasions, a legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter. See Smith, supra, at p. 1072; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 724; R. v. Goltz, [1991] 3 S.C.R. 485, at pp. 498-99. However, as I noted in Smith, at p. 1072, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation", and thus the review of the proportionality of sentences should normally be left to the "usual sentencing appeal process" directed at the fitness of sentence.
42     In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just and appropriate”. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects.

43     Whether under the rubric of the “totality principle” or a more generalized principle of proportionality, Canadian courts have been reluctant to impose single and consecutive fixed-term sentences beyond 20 years. See M. E. Rice, “Fixed-Term Sentences of More Than 20 Years Versus Life Imprisonment” (1994), 36 Crim. L.Q. 474, at p. 474, n. 1. …
44     In contrast to the absence of any explicit codal rules governing the limits on fixed-term sentences of imprisonment, the Criminal Code, read together with the Corrections Act, sets very clear rules governing the determination of parole eligibility. A person sentenced to a numerical term of imprisonment under the Code (i.e., not life) becomes eligible for full parole after serving the lesser of one third of the sentence or seven years. As s. 120(1) of the Corrections Act reads:

120. (1) Subject to sections [746.1] and [761] of the Criminal Code and to any order made under section [743.6] of that Act ... the portion of a sentence of imprisonment that must be served before an offender may be released on full parole is the lesser of one third of the sentence of imprisonment, and seven years.

…

2. The Jurisprudence

47     In response to the silence of the Criminal Code on maximum numerical sentences, through the course of a number of cases, the British Columbia Court of Appeal has fashioned a rule which limits fixed-term sentences to a period of 20 years, barring special circumstances warranting a more onerous term of imprisonment. In justifying this qualified rule, the Court of Appeal has placed considerable reliance upon inferences drawn from the mechanics of the parole eligibility provisions of the Code and Corrections Act. For a cogent summary of this line of judicial authority, see Rice, “Fixed-Term Sentences of More Than 20 Years Versus Life Imprisonment”, supra.
…
72     In my view, within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 {now 718.3(1)} in selecting a "just and appropriate" fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed reflect the overall culpability of the offender and the circumstances of the offence. As such, I decline to delineate any pre-fixed outer boundary to the sentencing discretion of a trial judge…. Similarly, I see no reason why numerical sentences in Canada ought to be de facto limited at 20 years as a matter of judicial habit or convention. Whether a fixed-term sentence beyond 20 years is imposed as a sentence for a single offence where life imprisonment is available but not imposed, or as a cumulative sentence for multiple offences where life imprisonment is not available, there is no a priori ceiling on fixed-term sentences under the Code.
73     The bastion which protects Canadians from unduly harsh fixed-term sentences is … found in the … good sense of our nation’s trial judges. For many of the lesser crimes presently before our courts, a single or cumulative sentence beyond 20 years would undoubtedly be grossly excessive, and probably cruel and unusual. In other circumstances, such a stern sentence would be both fitting and appropriate. In our system of justice, the ultimate protection against excessive criminal punishment lies within a sentencing judge’s overriding duty to fashion a “just and appropriate” punishment which is proportional to the overall culpability of the offender.
74     However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. But with that consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our criminal law that global sentences be “just and appropriate”.
75     Pursuant to the foregoing discussion, I conclude that the British Columbia Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances. However, the Court of Appeal also justified its reduction of the respondent’s sentence on the grounds that the sentence imposed by Filmer Prov. Ct. J. was unfit under the particular circumstances. Accordingly, it is still necessary to examine whether the Court of Appeal erred in law in its review of the fitness of the respondent’s sentence. But before turning to that question, I intend to deal briefly with the Crown’s two remaining grounds of appeal.

B. Did the Court of Appeal err in holding that retribution is not a legitimate principle of sentencing?

76     As a second and independent ground of appeal, the Crown argues that the Court of Appeal erred in law by relying on the proposition that “retribution is not a legitimate goal of sentencing” (p. 116) in reducing the sentence imposed by Filmer Prov. Ct. J. to 18 years and 8 months. In my reading of the judgment of the Court of Appeal below, I find little evidence that the passing remarks of Wood J.A. in relation to the legitimacy of retribution played a significant role in his conclusion that the respondent’s sentence ought to be reduced to 18 years and 8 months’ imprisonment. It should be noted that Rowles J.A., in her concurring reasons, did not even discuss retribution as a principle of sentencing. Similarly, there is no evidence that Filmer Prov. Ct. J. placed any explicit reliance on the objective of “retribution” in initially rendering his stern sentence. Accordingly, whether or not Wood J.A. erred as a strict matter of law in his discussion of the philosophical merits of retribution as a principle of sentencing, I conclude that Wood J.A.’s discussion of retribution was not a decisive element in the majority of the Court of Appeal’s conclusion that the sentence of the respondent ought to be reduced to below 19 years. Therefore, I am persuaded that the remarks of Wood J.A. in relation to retribution did not constitute a reversible error.

However, given the continued judicial debate over this issue, particularly in recent judgments of the British Columbia Court of Appeal (see, e.g., R. v. Hicks (1995), 56 B.C.A.C. 259, at para. 14 (rejecting retribution), R. v. Eneas, [1994] B.C.J. No. 262, at paras. 45 and 46 (endorsing retribution); R. v. M. (D.E.S.) (1993), 80 C.C.C. (3d) 371, at p. 376 (rejecting retribution); R. v. Hoyt, [1992] B.C.J. No. 2315, at paras. 21 and 22 (rejecting retribution); R. v. Pettigrew (1990), 56 C.C.C. (3d) 390, at pp. 394-95 (endorsing retribution)), it would be prudent for this Court to clarify briefly the existing state of Canadian law in this important area.
77     It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. As La Forest J. acknowledged in discussing the constitutionality of the dangerous offender provisions of the Criminal Code in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329:

In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing. [Emphasis added.

This Court has since re-endorsed this passage on a number of occasions as a proper articulation of some of the guiding principles of sentencing in a number of subsequent cases. See Luxton, supra, at p. 721; Goltz, supra, at p. 503; and Shropshire, supra, at para. 23

The ethical foundation of retributivism lies in the following principle: it is immoral to treat one person as a resource for others. From this principle it follows that the only legitimate ground for punishing a person is the blameworthiness of his or her conduct. It also follows that sanctions must be strictly proportionate to the culpability of a person and to the seriousness of the offence for which that person has been convicted. ... According to these principles, all exemplary sentences (i.e. the imposition of a harsher sanction on an individual offender so that he or she may be made an example to the community) are unjustified, because they imply that an offender’s plight may be used as a means or as a resource to deter potential offenders.

In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions. [Emphasis added.]

A majority of this Court has since expressed approval of this passage as an accurate statement of the essential goals of sentencing. See R. v. Jones, [1994] 2 S.C.R. 229, at p. 291 (although I dissented on the merits of the case).

D. Did the Court of Appeal err in reducing the sentence from 25 years to 18 years and 8 months?

88     In addition to relying on the sentencing principles it had developed … the Court of Appeal also justified its reduction of the respondent’s sentence on the grounds of fitness. More specifically, the Court of Appeal concluded that the sentence of 25 years imposed by the sentencing judge ought to be reduced as it was “unfit” under the circumstances. Accordingly, the Court of Appeal exercised its power of review under s. 687(1) of the Code to vary the sentence of the respondent from 25 years to 18 and 8 months, incorporating credit for time served in custody.
89     In Shropshire, supra, this Court recently articulated the appropriate standard of review that a court of appeal should adopt in reviewing the fitness of sentence under s. 687(1). In the context of reviewing the fitness of an order of parole ineligibility, Iacobucci J. described the standard of review as follows, at para. 46:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [Emphasis added.]

As my learned colleague noted, this standard of review traces part of its lineage to the jurisprudence of the British Columbia Court of Appeal. As Bull J.A. described the nature of a trial judge’s sentencing discretion in R. v. Gourgon (1981), 58 C.C.C. (2d) 193, at p. 197:

... the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trial Judge.

717. (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis added.]

91     This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
92     Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v. Knife (1982), 16 Sask. R. 40 (C.A.), at p. 43; R. v. Wood (1979), 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), 1 C.C.C. (2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But in exercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. See Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.
93     [T]he Court of Appeal … justified its reduction of sentence with reference to a contextual application of the accepted principles of sentencing to this case. More specifically, the majority concluded that the goals of deterrence and denunciation do not support a sentence of 25 years in this case, because both of these sentencing goals experience sharply diminishing returns following 20 years. On the subject of deterrence, Wood J.A. pointed to … empirical studies … which question the deterrent effect of criminal sanctions. The majority also concluded that the protection of society would not be advanced by such a sentence; as Wood J.A. argued, as a result of the parole eligibility rules, an increase of sentence of 5 years to 25 years is potentially limited to an additional 4 months of imprisonment.
94     With the greatest respect, I believe the Court of Appeal erred in this instance by engaging in an overly interventionist mode of appellate review of the “fitness” of sentence which transcended the standard of deference we articulated in Shropshire. Notwithstanding the existence of some empirical studies which question the general deterrent effect of sentencing, it was open for the sentencing judge to reasonably conclude that the particular blend of sentencing goals, ranging from specific and general deterrence, denunciation and rehabilitation to the protection of society, required a sentence of 25 years in this instance. Moreover, on the facts, the sentencing judge was entitled to find that an overall term of imprisonment of 25 years represented a “just sanction” for the crimes of the respondent.
95     The respondent committed a vile pattern of physical and sexual abuse against the very children he was entrusted to protect. The degree of violence exhibited in these crimes was disturbingly high, and the respondent’s children will undoubtedly be scarred for life. The psychiatrist and psychologist who examined the respondent agree that he faces dim prospects of rehabilitation. Without doubt, the respondent deserves a severe sentence which expresses the society’s revulsion at his crimes.
96     After taking into account all the circumstances of the offence, the trial judge sentenced the respondent to 25 years’ imprisonment. In imposing that term of imprisonment, Filmer Prov. Ct. J. was at liberty to incorporate credit for time served in custody pursuant to s. 721(3) {now s. 719(3)} of the Code, but chose not to. I see no reason to believe that the sentencing order of Filmer Prov. Ct. J. was demonstrably unfit.
…

VII. Disposition

99     For the foregoing reasons, I find that the British Columbia Court of Appeal erred in law in reducing the respondent’s sentence through its application of sentencing principles and through its standard of review for reviewing the fitness of sentence. I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal, and restore the trial judge’s sentence of 25 years….

* * *

R. v. Christie
Alberta Court of Appeal
 [2004] A.J. No. 1045

SULLIVAN J.:—

Introduction

1     Richard David Christie pled guilty^[2] to robbery contrary to s. 344(b) of the Criminal Code, and to having his face masked during the course of the robbery, contrary to s. 351(2). He was sentenced to two years less one day to be served conditionally for the robbery, and was given a six month concurrent conditional sentence on the s. 351(2) charge. The judge declined to issue an order requiring Christie to provide a sample of his DNA pursuant to s. 487.051(1).

Facts

2     The circumstances of the offence warrant review. Christie was 19-years old when, on the 29th of June 2003, he and three others attended a service station in Lethbridge. One co-accused, a woman who had previously worked at the gas station and had supplied information regarding its layout and the location of money within the store, waited in a car in the alley. The other three, including Christie, donned balaclavas and latex gloves and entered the store through a door at the rear. Once inside, they confronted the store clerk with knives and ordered him to open the till.
3     The clerk was then ordered into the washroom, whereupon the three young men took cash from the till drawer and cash box, and stole 17 cartons of cigarettes. The value of the cigarettes and money taken exceeded $1600.
4     The three then fled from the store and into the car of the waiting female co-accused, who drove them to her parents’ house. Once there, the three men changed clothing. Christie was then dropped off, along with the cigarettes and coins from the till. The female returned to her parents’ home to pick up the other two accomplices. She was subsequently stopped by police..., who identified her vehicle based on the report of a witness who had seen it leaving the service station.
6     It was later discovered that the motivation for the robbery was to obtain money to purchase cocaine; Christie was an addict and was intoxicated from the drug at the time the offence was committed.
7     Christie was the last to be sentenced. His three accomplices received penitentiary sentences, the longest being 30 months. The recipient of this sentence had a prior record which included some related offences. The female co-accused, who had stayed in the car during the robbery, was sentenced to 2 years in jail; she had no prior record….
9     On March 16, 2004, Crown and defence counsel made sentencing submissions on the robbery. The Crown emphasized the importance of similar sentences for similar offences committed by similar offenders and pointed to the serious nature of the offence. He submitted that a custodial sentence in the range of two years was appropriate. Counsel for the Crown also pointed to Christie’s conviction while on release for this offence as raising concerns about the safety of the community and the need for specific deterrence in this case.
10     Defence counsel suggested a conditional sentence of two years less one day. He canvassed some aspects of Christie’s difficult family background, noting that he had been in a group home, which had led to him falling in with a bad crowd and becoming involved with drugs. Counsel suggested that the drug problem was the impetus for the crime he had committed, but that he had now been scared straight. While acknowledging the need for a deterrent sentence, defence counsel cited decisions from the Supreme Court of Canada which pronounced clearly on the deterrent value of a conditional sentence.
11     The sentencing judge noted the discrepancy in sentences imposed for similar offences at all levels of court in this province in recent years. He pointed to the difficulty of finding guidance in these decisions, because the sentences were often widely divergent in spite of the similarity in circumstances.
12     Christie was sentenced on March 30, 2004. The sentencing judge concluded that a sentence as short as 12 months could be appropriate for this type of offence, and that a conditional sentence was available in robbery cases, even where violence was used. He held that a global sentence of less than two years was within the range, that Christie presented a low risk of re-offending and that a conditional sentence would not offend any fundamental principles of sentencing. … He went on to state that the fact that custodial sentences had been imposed on the three co-accused should not be determinative, because no one had argued the appropriateness of a conditional sentence for those offenders. He concluded that the sentences imposed on Christie and his co-accused were within the same range and that although this type of offence usually attracts a custodial sentence, a conditional sentence for this offender was just.
13     The Crown appealed on the basis that the sentence imposed was unfit…

Issues

14     This Appeal raises several issues:

1. What role do guideline sentences play in a post-McDonnell sentencing context?
2. What role does parity play in sentencing generally and in particular in the circumstances of a joint venture?
3. What significance can be placed on a sentence imposed following a joint submission?
4. Was the sentence imposed in this case demonstrably unfit?

Standard of Review

15     An appellate court may vary a sentence imposed at trial only if that sentence is demonstrably unfit, if there has been an error in principle or if there has been a failure to consider a relevant factor or an over-emphasis on an appropriate factor: R. v. M.(C.A.), [1996] 1 S.C.R. 500, R. v. McDonnell [1997] 1 S.C.R. 948. This Court cannot substitute its own view as to what is appropriate in the circumstances unless it can be said that the sentence imposed was "clearly excessive or inadequate", falling outside of the acceptable range of sentences for similar offences.
…

Guideline Sentences

22     Sentencing is guided by the provisions of the Criminal Code; in particular, s. 718, which provides that the fundamental purpose of sentencing is “ to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society ...” The section then sets out the six main objectives of sentencing: deterrence (both general and specific); denunciation; the separation of the offender from society; rehabilitation; reparation to the victim and the community; and the promotion of a sense of responsibility in the offender. The primacy of these objectives will vary according to the circumstances of the case; for example, for some offences, denunciation and deterrence have been held to be essential considerations, while for some first-time offenders, rehabilitation is seen as the most desirable goal.
23     Guideline sentences, also commonly referred to as "starting-point sentences", were introduced by appellate courts beginning in the early 1980's. By setting out starting points for sentencing purposes for certain offences, the courts were able to step past the problems under which each judge's personal view of the seriousness of a crime would drive the final sentence. Therefore, the starting point sentencing regime was—and is—a way by which appellate courts might minimize the risk of widely disparate sentences.
24     An offender should be sentenced on the basis of who he or she is and what he or she did and not on the basis of who sentences the offender. The starting point sentencing regime does not ignore the offender. The reverse is so. The starting point is just that: a starting point from which the sentencing judge may move up or down in order to arrive at a fit sentence appropriate to the particular offender.
25     Guideline sentences were established in Alberta for a number of offences for which there was no minimum penalty. Commercial trafficking in heroin or cocaine, sexual assault, fraud over $5,000 and robbery of a convenience store were all, in separate cases, determined to warrant a starting point sentence of three years’ incarceration. This guideline was established for these offences in an effort to achieve some consistency in sentencing and to reflect an emphasis on both deterrence and denunciation due to the prevalence and seriousness of these offences.
26     The guideline sentence for armed robbery, the offence for which the respondent was convicted, was established in R. v. Johnas (1983), 2 C.C.C. (3d) 490 (Alta C.A.). There, this Court held that because of the prevalence of robberies involving convenience stores and similar establishments, and because of the seriousness of violence or threats of violence, the primary emphasis in sentencing for this offence had to be general and specific deterrence, even in the case of youthful offenders. A three year custodial sentence was determined to be the appropriate starting point.
27     The objectives behind the use of guideline sentences have not become irrelevant because of new developments in the sentencing regime. The issue of their utility arose in R. v. Proulx, [2000] 1 S.C.R. 61, in the context of conditional sentences. There, Lamer C.J.C. commented (at para. 86):

... this Court held in R. v. McDonnell [citation omitted] that “starting point sentences” may be set out as guides to lower courts in order to achieve greater uniformity and consistency.

He continued (at para. 87):

That said, I do not find it necessary to resort to starting points in respect of specific offences to provide guidance as to the proper use of conditional sentences. In my view, the risks posed by starting points, in the form of offence- specific presumptions in favour of incarceration, outweigh their benefits. Starting points are most useful in circumstances where there is the potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Code is particularly broad.

The principle of equality of treatment before the law, a constitutional imperative in Canada, has application in sentencing. A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed on others who are similarly situated; the community has the right to expect that a person convicted of an offence will not receive a more favourable sanction than others who are similarly situated and have committed similar offences. Starting-point sentencing guidelines support the principles of equality and uniformity.

Guideline judgments on sentencing from this court are invariably reserved judgments. They are binding on trial judges [citation omitted]. They do not eliminate a trial judge’s discretion in sentencing, but they guide it. A trial judge must exercise this discretion within the guidelines, unless the circumstances of the case justify a departure from them. There is no such thing as unfettered discretion.

I agree. Indeed, unfettered discretion is the antithesis to the rule of law.

Parity in Sentencing

40     Parity is a principle which must be taken into account in any sentence, and particularly where the offence was a joint venture. There will, of course, be cases where the circumstances of the co-accused are sufficiently different to warrant significantly different sentences, such as where one co-accused has a lengthy related criminal record or played a much greater role in the commission of the offence. However, as noted by the Nova Scotia Court of Appeal in R. v. Chisholm (1985), 18 C.C.C. (3d) 518 (at p. 529):

Sentencing is, of course, an inexact science involving a blend of many factors with aims that often conflict, and competing interests that can not always be harmonized. Generally speaking, however, a court should try to make its sentence conform with that imposed on a co-accused for the same offence by some other court. The reason, of course, is more than just to achieve equality of treatment. Similar sentences under such circumstances avoid bitterness and resentment that otherwise might be harboured by the recipient of the more severe sentence - such feelings or sentiments can lessen the chances of rehabilitation. Sentences imposed upon a co-accused that appear to be totally inadequate or excessive should be ignored. The point simply is that if all the relevant circumstances are similar the sentence imposed upon an accused and his co-accused should be the same.

Conclusion

…
53     In this appeal, the sentence judge erred in failing to give effect to the principle of parity, and failed to give proper consideration to the guideline sentence established for armed robbery.
54     He did not review the circumstances of the sentencing of the co-accused in any detail. Crown counsel advised the court that Christie was the last of four co-accused to be sentenced. Two of the co-accused, the woman who was waiting in the vehicle and one of the men who went inside the gas station with Christie, had each received two years in a penitentiary. … The two co-accused were in much the same circumstances as Christie, neither had criminal records and were the same age as Christie. The third co-accused was sentenced to two and a half years. He was also of a similar age but with a minor property record. All four were involved in the planning of the robbery and all were described the police as being very cooperative when confronted….
56     The sentencing judge … did nothing to determine the circumstances of the co-accused. His only information was that they were of similar circumstances, both in age and lacking a criminal record as Christie.
57     There is no parity between the two years’ incarceration of the co-accused and the conditional sentence of Christie. Comparing two years with two years less a day and suggesting the sentences are within the same range ignores the reality of time spent in jail.
58     In these circumstances, a conditional sentence is demonstrably unfit. Christie committed the identical crime as his co-accused, and neither the sentencing judge nor counsel could point to any distinguishing features to warrant disparate sentences among them. Christie was the only one of the co-accused who was intoxicated by cocaine at the time of the offence. Intoxication is not a mitigating factor: R. v. Letourneau, [1996] A.J. No. 941 (C.A.) at para. 6. The circumstances fail to establish that a conditional sentence is an appropriate disposition.
59     There was no basis for imposing a more lenient sentence on Christie.… The sentencing judge in this case, erred in failing to properly consider and address the principle of parity.…

* * *

2009 FEDERAL SENTENCING GUIDELINES MANUAL
CHAPTER ONE - INTRODUCTION, AUTHORITY, AND GENERAL APPLICATION PRINCIPLES

PART A - INTRODUCTION AND AUTHORITY

Introductory Commentary

1.   ORIGINAL INTRODUCTION TO THE GUIDELINES MANUAL^[3]

1.     Authority
The United States Sentencing Commission (“Commission”) is an independent agency in the judicial branch composed of seven voting and two non-voting, ex officio members. Its principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes….

2.     The Statutory Mission
The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of “bank robbery/committed with a gun/$2500 taken.” An offender characteristic category might be “offender with one prior conviction not resulting in imprisonment.” The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by coordinating the offense behavior categories with the offender characteristic categories. Where the guidelines call for imprisonment, the range must be narrow: the maximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months. 28 U.S.C. § 994(b)(2).
Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. § 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. § 3742. The Act also abolishes parole, and substantially reduces and restructures good behavior adjustments.

3.     The Basic Approach (Policy Statement)
To understand the guidelines and their underlying rationale, it is important to focus on the three objectives that Congress sought to achieve in enacting the Sentencing Reform Act of 1984. The Act’s basic objective was to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing system. To achieve this end, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arose out of the pre-guidelines sentencing system which required the court to impose an indeterminate sentence of imprisonment and empowered the parole commission to determine how much of the sentence an offender actually would serve in prison. This practice usually resulted in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence imposed by the court.
Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.
Honesty is easy to achieve: the abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior. There is a tension, however, between the mandate of uniformity and the mandate of proportionality. Simple uniformity -- sentencing every offender to five years -- destroys proportionality. Having only a few simple categories of crimes would make the guidelines uniform and easy to administer, but might lump together offenses that are different in important respects. For example, a single category for robbery that included armed and unarmed robberies, robberies with and without injuries, robberies of a few dollars and robberies of millions, would be far too broad.
A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect. For example: a bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is long; the fact that they can occur in multiple combinations means that the list of possible permutations of factors is virtually endless. The appropriate relationships among these different factors are exceedingly difficult to establish, for they are often context specific. Sentencing courts do not treat the occurrence of a simple bruise identically in all cases, irrespective of whether that bruise occurred in the context of a bank robbery or in the context of a breach of peace. This is so, in part, because the risk that such a harm will occur differs depending on the underlying offense with which it is connected; and also because, in part, the relationship between punishment and multiple harms is not simply additive. The relation varies depending on how much other harm has occurred. Thus, it would not be proper to assign points for each kind of harm and simply add them up, irrespective of context and total amounts.
The larger the number of subcategories of offense and offender characteristics included in the guidelines, the greater the complexity and the less workable the system. Moreover, complex combinations of offense and offender characteristics would apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system having numerous subcategories, would be required to make a host of decisions regarding whether the underlying facts were sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to the simple, broad category approach and to grant courts the discretion to select the proper point along a broad sentencing range. Granting such broad discretion, however, would have risked correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. Such an approach would have risked a return to the wide disparity that Congress established the Commission to reduce and would have been contrary to the Commission’s mandate set forth in the Sentencing Reform Act of 1984.
In the end, there was no completely satisfying solution to this problem. The Commission had to balance the comparative virtues and vices of broad, simple categorization and detailed, complex subcategorization, and within the constraints established by that balance, minimize the discretionary powers of the sentencing court. Any system will, to a degree, enjoy the benefits and suffer from the drawbacks of each approach.
… The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions. The guidelines may prove acceptable, however, to those who seek more modest, incremental improvements in the status quo, who believe the best is often the enemy of the good, and who recognize that these guidelines are, as the Act contemplates, but the first step in an evolutionary process. After spending considerable time and resources exploring alternative approaches, the Commission developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, proportional, and therefore effective sentencing system.

CHAPTER 1 - PART B - GENERAL APPLICATION PRINCIPLES

§1B1.1.    Application Instructions

Except as specifically directed, the provisions of this manual are to be applied in the following order:
(a)       Determine, pursuant to §1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction. See §1B1.2.
(b)       Determine the base offense level and apply any appropriate specific offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in the order listed.
(c)       Apply the adjustments as appropriate related to victim, role, and obstruction of justice from Parts A, B, and C of Chapter Three.
(d)       If there are multiple counts of conviction, repeat steps (a) through (c) for each count. Apply Part D of Chapter Three to group the various counts and adjust the offense level accordingly.
(e)       Apply the adjustment as appropriate for the defendant’s acceptance of responsibility from Part E of Chapter Three.
(f)       Determine the defendant’s criminal history category as specified in Part A of Chapter Four. Determine from Part B of Chapter Four any other applicable adjustments.
(g)       Determine the guideline range in Part A of Chapter Five that corresponds to the offense level and criminal history category determined above.
(h)       For the particular guideline range, determine from Parts B through G of Chapter Five the sentencing requirements and options related to probation, imprisonment, supervision conditions, fines, and restitution.
(i)        Refer to Parts H and K of Chapter Five, Specific Offender Characteristics and Departures, and to any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence.

PART A - SENTENCING TABLE

B. Concepts

R. v. Lyons
Supreme Court of Canada
[1987] 2 S.C.R. 309

The judgment of Dickson C.J. and Estey, McIntyre and Le Dain and La Forest JJ. was delivered by
1 LA FOREST J.:— …

Facts and Procedural History

2     On September 23, 1983, the appellant, Thomas Patrick Lyons, was arraigned on an information containing four charges: unlawfully breaking and entering a dwelling house contrary to s. 306(1)(b) {now s. 348(1)(b)} of the Criminal Code; unlawfully using a weapon or imitation thereof in committing a sexual assault, contrary to s. 246.2(a) of the Code {now s. 267(a)}; unlawfully using a firearm while committing an indictable offence, contrary to s. 83(1)(a) {now s. 85(1)(a)} of the Code; and unlawfully stealing property of a total value exceeding $200, contrary to s. 294(a) {theft provision now s. 322(1)} of the Code. These offences were alleged to have been committed approximately one month after the appellant’s sixteenth birthday.
3     The appellant elected trial by a judge without a jury on all four charges and waived his right to a preliminary inquiry. He subsequently entered pleas of guilty to all counts in the indictment. O Hearn Co. Ct. J. of the County Court Judge’s Criminal Court for District No. 1, Nova Scotia, requested a presentence report and adjourned the matter of sentence.
4     Just before the sentence hearing on November 4, 1983, defence counsel was informed, for the first time, that the Crown might bring a dangerous offender application under Part XXI {now Part XXIV} of the Code. At the commencement of the hearing, the Crown requested and was granted an adjournment to permit it to consider bringing such an application. The application was subsequently made. On November 8, 1983, consent to the application was obtained from the Deputy Attorney General of Nova Scotia, as required by s. 689(1)(a) {now s. 754(1)(a)} of the Code.
5     At the commencement of the hearing of the application on December 14, 1983, an agreed upon statement of facts was read into the record. Evidence, including expert psychiatric testimony, was tendered on behalf of both the Crown and the appellant.
6     Though O Hearn Co. Ct. J. had at the outset warned the Crown attorney that he would have an “uphill fight” owing to the age of the appellant, the judge in the end found, on the basis of medical and other evidence presented to him, that it had been established beyond a reasonable doubt that the appellant qualified as a dangerous offender under the provisions of the Code. In his view, it had been shown that the appellant had a “sociopathic personality” and had so little conscience that it did not govern his actions. He concluded that it could be said with “a high degree of confidence” that it was “very likely” that the appellant would constitute a danger to the psychological or physical health and lives of others owing to “his in-built, perhaps congenital indifference to the consequences to others, his lack of affect, his lack of feeling for others”. He belonged, the judge stated, to a class of people who, though mentally able to understand the law and to conform their conduct to its dictates, are so irresponsive to the law that they must be dealt with by extraordinary measures.…

History and Analysis of Part XXI

12     Part XXI of the Criminal Code establishes a scheme for the designation of certain offenders as “dangerous offenders” and for sentencing such persons to a penitentiary for an indeterminate period. It is the product of frequently amended legislation that has existed in Canada, in one form or another, since 1947. It has its genesis in the Prevention of Crime Act, 1908, 8 Edw. 7, c. 59, ss. 10-16 (U.K.), under which a person convicted of a crime was subject to a “further sentence” of not less than five or more than ten years as preventive detention if he or she was found to be an habitual criminal. During the debates in Parliament on that Act, its author, Lord Gladstone, “made it clear that it was intended to deal not with the generality of ‘habituals’ but only with that more limited body of ‘professional criminals’ or ‘persistent dangerous criminals’ engaged in the more serious forms of crime” (Fox, The Modern English Prison (London, 1934), at p. 168).
13     The 1938 Royal Commission established to investigate the penal system of Canada, the Archambault Commission, in its report at p. 220 identified the initial purpose of the British legislation as the reformation of professional or persistently dangerous criminals, but observed that this did not occur in the British practice. It observed, at p. 218, that:

Notwithstanding the best methods of punishment and reformation that may be adopted, there will always remain a residue of the criminal class which is of incurable criminal tendencies and which will be unaffected by reformative efforts. These become hardened criminals for whom “iron bars” and “prison walls” have no terrors, and in whom no hope or desire for reformation, if it ever existed, remains.

It thus recommended that legislation be enacted to identify this residual class of criminals and to provide for their indeterminate detention in a special prison. The purpose of such detention was conceived of as “neither punitive nor reformative but primarily segregation from society” (at p. 223).
14     It was against this backdrop that legislation dealing with habitual criminals was first introduced in Canada in 1947. Section 18 of the Criminal Code Amendment Act, S.C. 1947, c. 55, permitted the preventive detention “for the protection of the public” of “habitual criminals”, defined essentially as persons having a record of three previous indictable offences and who are persistently leading a criminal life (s. 575c). Additional amendments (S.C. 1948, c. 39, s. 43) provided for the sentencing in the same manner of “criminal sexual psychopaths”, defined as persons “who by a course of misconduct in sexual matters [have] evidenced a lack of power to control [their] sexual impulses and who as a result [are] likely to attack or otherwise inflict injury, loss, pain or other evil on any person” (s. 1054A(8)).
15     The Report of the Canadian Committee on Corrections (the Ouimet Report, 1969), critically examined these laws and recommended their repeal for being at once too inclusive, by applying to non-dangerous offenders (e.g., property offenders), and too exclusive, by requiring a recidivist history as a precondition of their application. However, the Commission also recognized the desirability, in policy terms, of such legislation. In the opening words of the Report’s discussion of the subject, it stated at p. 241:

It appears to the Committee that the protection of the public from unlawful violence, or from unlawful conduct which represents a serious threat to the physical safety of citizens, is one of the most urgent problems of the criminal law.

The Commission thus recommended that the extant legislation be replaced by better tailored “dangerous offender” legislation. Its concerns were reflected in the decision of this Court in Hatchwell v. The Queen, [1976] 1 S.C.R. 39, where the present Chief Justice stated, at p. 43:

Habitual criminal legislation and preventive detention are primarily designed for the persistent dangerous criminal and not for those with a prolonged record of minor offences against property. The dominant purpose is to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb.

688. Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 687 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage upon other persons, through failure in the future to restrain his behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender as to the reasonably foreseeable consequences to other persons of his behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 687 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.

687. ...

(a) an indictable offence (other than high treason, treason, first degree murder or second degree murder) involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 246.3 (aggravated sexual assault).

Two of the crimes of which the appellant was convicted fall within this definition.

18 In addition to having been convicted of a serious personal injury offence, s. 688(a) and (b) {now s. 753(1)(a) and (b)} provides that to qualify as a dangerous offender, it must also be established that the offender constitutes a threat to the life, safety or well-being of others on the basis of evidence of the dangerous and intractably persistent or brutal behaviour described in subparas. (i) to (iii), or that the offender has shown an inability to control his sexual impulses and a likelihood that he will thereby cause injury, pain or other evil to other persons. The findings of the courts below that the behaviour described in s. 688 existed was not contested here.
19     Owing to the nature of the findings that must be made, provision is made for psychological, psychiatric and criminological evidence (s. 690) as well as character evidence (s. 692) {now s. 757}. Indeed, the evidence of at least two psychiatrists is obligatory. As well, the judge is empowered to make directions and to remand the offender for the purposes of observation (s. 691).
20 Because of the serious implications of the procedure for the accused, a number of safeguards have been provided. Thus the consent of the provincial Attorney General is required and the offender must, following the application, be given at least seven days notice of the basis on which it is made (s. 689 {s. 754}). The offender is allowed to nominate one of the psychiatric witnesses (s. 690(2)) and failure to do so obliges the court to nominate one on his or her behalf (s. 690(3)). The offender also has a right to be present at the hearing (s. 693 {s. 758}), and to appeal against sentence (s. 694(1) {s. 759(1)}). As well, the Solicitor General of Canada is to be furnished with copies of the psychological, psychiatric and criminological evidence and of the observations of the Court (s. 695 {s. 760}). Finally, and importantly, provision is made for review of the sentence at the expiration of three years from its imposition and every two years thereafter (s. 695.1 {now s. 761 and amended}).

The Issues

…

A. Does Part XXI by Imposing Indeterminate Detention Offend Against Fundamental Justice Under s. 7 of the Charter?

23     [T]o determine whether Part XXI violates the principles of fundamental justice by the deprivation of liberty suffered by the offender, it is necessary to examine Part XXI in light of the basic principles of penal policy that have animated legislative and judicial practice in Canada and other common law jurisdictions.
24     The appellant submits that Part XXI results in a deprivation of liberty that is not in accordance with the principles of fundamental justice in that it permits an individual to be sentenced for crimes he or she has not committed or for crimes for which he or she has already been punished. If this statement correctly described what in fact occurs under Part XXI it would, indeed, constitute a violation of s. 7. The reality, however, is quite different. What section 688 does is to permit a judge to impose a sentence of indeterminate detention on an individual for having committed an offence, which sentence is “in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted” (emphasis added). The individual is clearly being sentenced for the “serious personal injury offence” he or she has been found guilty of committing, albeit in a different way than would ordinarily be done. It must be remembered that the appellant was not picked up off the street because of his past criminality (for which he has already been punished), or because of fears or suspicions about his criminal proclivities, and then subjected to a procedure in order to determine whether society would be better off if he were incarcerated indefinitely. Rather he was arrested and prosecuted for a very serious violent crime and subjected to a procedure aimed at determining the appropriate penalty that should be inflicted upon him in the circumstances.
25     Thus, the appellant’s contention that he is being punished for what he might do rather than for what he has done or, in more traditional terms, that he is being found guilty in the absence of a finding of the requisite actus reus, must be rejected. The punishment, as I noted, flows from the actual commission of a specific crime, the requisite elements of which have been proved to exist beyond a reasonable doubt.
26     Nor do I find it objectionable that the offender’s designation as dangerous or the subsequent indeterminate sentence is based, in part, on a conclusion that the past violent, anti-social behaviour of the offender will likely continue in the future. Such considerations play a role in a very significant number of sentences. I accordingly agree with the respondent’s submission that it cannot be considered a violation of fundamental justice for Parliament to identify those offenders who, in the interests of protecting the public, ought to be sentenced according to considerations which are not entirely reactive or based on a “just deserts” rationale. The imposition of a sentence which “is partly punitive but is mainly imposed for the protection of the public” (Re Moore and the Queen (1984), 10 C.C.C. (3d) 306 (Ont. H.C.)) seems to me to accord with the fundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.
27     It is thus important to recognize the precise nature of the penological objectives embodied in Part XXI. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, when society incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of such conduct during that period. Preventive detention in the context of Part XXI, however, simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased. Part XXI merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person. In such circumstances it would be folly not to tailor the sentence accordingly.
28     It is noteworthy that numerous examples exist, both in Canada and abroad, of ways in which the need to protect the public from the risk of convicted persons reoffending has been taken into consideration by the judiciary and legislature alike….
31     In England, statutory provisions respecting the sentencing of dangerous offenders did not exist before 1908 when preventive detention legislation to deal with habitual offenders was enacted. Section 37 of the Criminal Justice Act 1967, 1967, c. 80 (U.K.) abolished such detention but the principle that a persistent recidivist should be detained for a longer period than the ordinary criminal has been retained in the form of the “extended” sentence. Under the relevant provisions, where the prosecution establishes certain conditions demonstrating persistence and the like, the court may impose a sentence in excess of the statutory maximum for the offence.
32     In addition, the English courts have departed from the usual range of sentences (the so-called “tariff sentence”) for particular crimes and employed the life sentence as an indefinite preventive sentence when an offender “appears, on the basis of his immediate offence, his previous history and such psychiatric evidence as may be available, to be highly likely to commit grave offences of violence in the future” (D.A. Thomas, Principles of Sentencing (2nd ed. 1979), at p. 37)….
33     Finally, the legislation of other jurisdictions reveals the general acceptance of preventive detention as a means of dealing with dangerous offenders. In their comprehensive review of protective sentencing of dangerous offenders in the United Kingdom, Floud and Young, Dangerousness and Criminal Justice (London 1981), note that “the laws of most, if not all, western countries make provision for the sentencing of offenders against whom the public requires special protection”. For example, they observe, Denmark provides for protective custody of dangerous offenders who commit or attempt to commit homicide, robbery, rape and other serious offences. Similarly, the Swedish Penal Code of 1965 provides that “internment may be imposed if the crime... is punishable by imprisonment for two years or longer and in view of the defendant’s criminality, mental condition, conduct and other circumstances, a long-lasting deprivation of liberty, without duration fixed in advance, is deemed necessary to prevent further serious criminality on his part” (at p. 103). Norval Morris, in “The Habitual Criminal” (1967), 13 McGill L.J. 534, also observes that a number of countries have enacted legislation to deal with incorrigible or habitual offenders, and notes, at p. 536, that generally three elements are included in the definition of the group targeted for such punishment -- criminal qualities inherent or latent in the mental constitution, a settled practice in crime, and a public danger.
34     In the United States, as well, there are many examples of legislation embodying the principle of protective or preventive sentencing. For example, Title 18 of the United States Code, para. 3575 (repealed, effective November 1, 1986, s. 235 Pub. L. 98-473), provided for a greatly increased range of penalties if the defendant was shown to be a “dangerous special offender”. Section 3575(f) provided that “A defendant is dangerous... if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant”. …
35 Similarly, several state legislatures have enacted habitual offender, recidivist or enhanced sentencing statutes, the constitutionality of which have, in principle, been upheld by the Supreme Court (Spencer v. Texas, 385 U.S. 552 (1967); see also, Rummel v. Estelle, 445 U.S. 263 (1980), which upheld a mandatory life term on a third felony conviction (at least where parole eligibility is provided for, a requirement emphasized in Solem v. Helm, 463 U.S. 277 (1983)).
36     From what I have said already, I do not think that it could seriously be argued that the penological objectives embodied in Part XXI themselves violate s. 7 of the Charter. However, it is clear that the present Charter inquiry is concerned also, if not primarily, with the effect of the legislation. This requires investigating the ‘treatment meted out’, i.e., what is actually done to the offender and how that is accomplished. Whether this “treatment” violates constitutional precepts seems to me to be an issue more aptly discussed under ss. 9 and 12 of the Charter, because these provisions focus on specific manifestations of the principles of fundamental justice. For convenience, I shall begin with s. 12.

B. Does Part XXI Constitute Cruel and Unusual Punishment Under s. 12 of the Charter?

37     The appellant contends that Part XXI violates s. 12 of the Charter in that it imposes a punishment that is unusually severe and serves no valid penological purpose more effectively than a less severe punishment (e.g., a determinate sentence).…
40     Lamer J., speaking for the majority, set out the parameters of the right not to be subjected to cruel and unusual treatment or punishment in the following terms at pp. 1072-74:

In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. I would agree with Laskin C.J. in Miller and Cockriell, supra, where he defined the phrase “cruel and unusual” as a “compendious expression of a norm”. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, “whether the punishment prescribed is so excessive as to outrage the standards of decency”. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit as to be grossly disproportionate.

In assessing whether a sentence is grossly disproportionate, the Court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is “prescribed by law”, then the purpose which it seeks to attain will fall to be assessed under s. 1. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective.

One must also measure the effect of the sentence actually imposed. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement....

The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. Thus, to refer to tests listed by Professor Tarnopolsky, the determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed, are all guidelines which, without being determinative in themselves, help to assess whether the punishment is grossly disproportionate.

41     It is clear from the foregoing that s. 12 is concerned with the relation between the effects of, and reasons for, punishment. At the initial stage of the inquiry into proportionality, those effects are to be balanced against the particular circumstances of the offence, the characteristics of the offender and the particular purposes sought to be accomplished in sentencing that person in the manner challenged. If, in light of these considerations, the punishment is found to be grossly disproportionate, a remedy must be afforded the offender in the absence of social objectives that transcend the circumstances of the particular case and are capable of justifying the punishment under s. 1 of the Charter.
42     Let us first consider the substantive ways in which the present legislation itself seeks to accommodate the conflicting interests, on the one hand, of society in seeking to protect itself from dangerous criminals and, on the other, of the offender in not being subjected to punishment grossly disproportionate to the offence and the circumstances of the individual case. It seems to me that the legislative criteria embodied in s. 688 for designating offenders as dangerous and for sentencing such persons tend, although not conclusively, to sustain the legislation as not constituting a violation of s. 12. I say “not conclusively” for, as will be seen, it is only when s. 688 is read in the context of the scheme as a whole that the legislation can be upheld.
43     First, the legislation applies only to persons convicted of a “serious personal injury offence” as defined in s. 687. These offences all relate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penalty for all these offences must be at least ten years’ imprisonment. Secondly, it must be established to the satisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. Finally, the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met.
44     It seems to me that having concluded that the legislative objectives embodied in Part XXI are not only of substantial importance to society’s well-being, but, at least in theory, sufficiently important to warrant limiting certain rights and freedoms, one must equally conclude that the legislative classification of the target group of offenders meets the highest standard of rationality (and I use the word not as a term of art) and proportionality that society could reasonably expect of Parliament. Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailored set of criteria that could effectively accomplish the purposes sought to be attained.
45     However, the legislative classification of offenders as dangerous is only one aspect of the “means analysis” under s. 12. It is equally important to consider the constitutional validity, under s. 12, of the actual “treatment meted out”. There can be no doubt that detention per se, and preventive detention in particular, is not cruel and unusual in the case of dangerous offenders, for the group to whom the legislation applies has been functionally defined so as to ensure that persons within the group evince the very characteristics that render such detention necessary.
46     It is argued, however, that it is not the detention itself but its indeterminate quality that harbours the potential for cruel and unusual punishment. And it is difficult to deny that the effects of an indeterminate sentence on a dangerous offender must be profoundly devastating. It has, for instance, been argued before the Court that the imposition of an indeterminate sentence, because of its uncertainty, saps the will of an offender, removing any incentive to rehabilitate himself or herself. However, this is equally true of a “determinate” life sentence such as is provided for by s. 306(1)(b){see now s. 745(a)}. Indeed, in view of the provisions regarding parole it is possible, at least theoretically, that a dangerous offender could be released consequent on his first review, three years after the detention was imposed and well in advance of the seven or so years an offender serving a life sentence must serve before his or her first such review. This is, however, rather unrealistic. Evidence before the Court indicated that between 1980-86, only six dangerous offenders were granted day parole, two of whom had served 10-15 years, three, 15-20 years, and one, more than 20 years.
47     In truth, there is a significant difference between the effect of a Part XXI sentence and other, more typical, sentences. When a person is imprisoned for an absolute and determinate period, there is at least the certainty that the incarceration will end at the termination of that period. The convicted person, during the term of sentence, can remain in a passive state, secure in the knowledge that he or she will be released thereafter. For the offender undergoing an indeterminate sentence, however, the sole hope of release is parole. The ordinary convict, it is true, can also choose to actively affect the length of his or her sentence by attempting to conform his or her behaviour to meet the expectations of the Parole Board. But whatever the legal nature of the interest in the availability of parole may be in general, it seems to me that, as a factual matter, the availability of parole is not as important a factor in deciding whether a determinate sentence is cruel and unusual as it is in assessing the constitutionality of a Part XXI sentence.
48     This is so because in the context of a determinate sentencing scheme the availability of parole represents an additional, superadded protection of the liberty interests of the offender. In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection of the dangerous offender’s liberty interests. Indeed, from the point of view of the dangerous offender his or her detention is never complete until it is factually complete. In this sense, each opportunity for parole will appear to the dangerous offender as the sole mechanism for terminating his or her detention, for rendering it certain. Moreover, it is clear that an enlightened inquiry under s. 12 must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced. Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender.
49     In my opinion, if the sentence imposed under Part XXI was indeterminate, simpliciter, it would be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved. However, I believe that the parole process saves the legislation from being successfully challenged under s. 12, for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require.
50     When an indeterminate sentence is imposed, Part XXI provides for periodic review, for the purposes of determining whether parole should be granted, of the “condition, history and circumstances of that person” after the first three years of detention and every two years thereafter. Section 695.1 provides as follows:

695.1 (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, forthwith after the expiration of three years from the day on which that person was taken into custody and not later than every two years thereafter, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.

(2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before the Criminal Law Amendment Act, 1977 came into force, the National Parole Board shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.

10. (1) The Board may

(a) grant parole to an inmate, subject to any terms or conditions it considers desirable, if the Board considers that

(i) in the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment,
(ii) the reform and rehabilitation of the inmate will be aided by the grant of parole, and
(iii) the release of the inmate on parole would not constitute an undue risk to society;

51     While the criteria embodied in s. 10(1)(a) do not purport to replicate the factual findings required to sentence the offender to an indeterminate term of imprisonment, they do afford a measure of tailoring adequate to save the legislation from violating s. 12. …
52     It may be argued that the legislation could be better tailored. For example, it might have been argued that the review process should focus solely on whether the offender continued to possess the characteristics that defined him or her as a proper subject of indeterminate detention. Indeed, one might say that to ask, as the Parole Board does, whether the individual has been reformed or rehabilitated, is to pose a question that ex hypothesi cannot be answered affirmatively, for it was implicit in the designation of the offender as dangerous that he or she was not amenable to rehabilitation by usual means. However, this argument must be rejected for a number of reasons.
53     To begin with, the criteria actually used serve to emphasize the point made earlier in this judgment that sentencing, even under Part XXI, embodies a complex of penological objectives. I do not think it can be argued, either as a matter of logic or of common sense, that by virtue of a decision to sentence an offender according to considerations based primarily on prevention, other equally valid, subsisting penal goals cease to be relevant. To reiterate, protecting society from the dangerous offender never wholly supplants the other legitimate objectives embodied in a Part XXI sentence.
55 ... Of course, the imposition of an indeterminate sentence may, like all sentences, sap the will of the offender to rehabilitate himself or herself. However, I would have thought the incentive to reform is far greater, at least theoretically, in the case of a dangerous offender. In this regard, I note that the availability of parole has been seen to validate mandatory life sentences in the context of similarly motivated legislation in the United States (see Solem v. Helm, supra, per Powell J., for the majority).
56     Furthermore, I am not sure that to inquire into the presence or absence of less restrictive means is wholly compatible with the insistence of this Court in Smith, supra, that s. 12 only redress punishment that is grossly disproportionate to the circumstances of any given case. The word “grossly”, it seems to me, reflects this Court’s concern not to hold Parliament to a standard so exacting, at least in the context of s. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.
57     I would, therefore, conclude that Part XXI does not violate s. 12 of the Charter.…

* * *

R. v. L.M.
Supreme Court of Canada
[2008] 2 S.C.R. 163

English version of the judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ. delivered by
LeBEL J.:—

I. Introduction

A. Nature of the Case

2     The respondent, L.M., was convicted of sexually assaulting his daughter and of making, distributing and possessing child pornography. The trial judge imposed the maximum sentence on him for the count of sexual assault and a consecutive sentence for the counts of making, distributing and possessing child pornography. She also found him to be a long-term offender and ordered him to be supervised in the community for a period of 10 years. L.M. appealed the sentence to the Court of Appeal. The majority of that court allowed the appeal and reduced the global sentence imposed by the trial judge. For the reasons that follow, I would restore that sentence.

B. Origin of the Case

3     In 2002, Switzerland’s federal police were investigating an international ring of pedophiles that included groups suspected of distributing child pornography on the Internet. In the course of this investigation, Swiss police officers contacted the Sûreté du Québec (“S.Q.”) after identifying two Quebeckers in Internet user groups whose names included the root “sampi” (for “sans pilositè”, meaning “hairless”). The first of these men revealed L.M.’s identity to the S.Q. Upon entering L.M.’s home, S.Q. officers noted that several items found there confirmed the origin of photographs discovered on the Internet, not to mention that the child who opened the door, R.M., the daughter of the accused, L.M., appeared in some of those photographs.
4     The investigation and trial revealed that the childhood of R.M., one of the respondent’s four children, had been nightmarish. R.M. was her father’s principal victim, having been sexually assaulted between the ages of two and four. The evening of L.M.’s arrest, R.M. was questioned by police. According to her highly candid testimony, related in the words of a four-year-old child, this little girl had been regularly photographed in the nude by her father, who periodically touched her sexually, penetrated her and spent the night with her in what they referred to as the [TRANSLATION] “love room”.
5     During that time, L.M. made money distributing child pornography on the Internet. At the time of his arrest, his computer contained approximately 5,300 pornographic photographs and 540 pornographic videos involving children. Many of the photographs were either of R.M. or A., a four-year-old child who regularly visited L.M.’s home, or of both of them. For example, one of the hard drives seized by the S.Q. contained a series of 33 pictures of R.M. in which she first appears dressed as a princess, after which the final photographs are close-up shots of her genitals.
6     L.M.’s arrest was not the first time he had been in trouble with the law. At the age of 17, he had been convicted of sexually assaulting a six-year-old girl. At 24, he was charged with sexually assaulting a minor, but the proceedings were terminated when he entered into a recognizance under s. 810.1 Cr. C. (sentencing decision, [2005] Q.J. No. 15934 (QL), at para. 38; judgment on long-term offender designation, [2005] Q.J. No. 15933 (QL), at para. 30).
…

II. Analysis

…

D. Finding That the Offender Is a Long-Term Offender

38     This appeal … raises the issue of the relationship between sentencing and the procedure for finding an offender to be a long-term offender. When the Crown applies to have an offender found to be a long-term offender, must the judge, in determining the length of the term of imprisonment, take the subsequent period of community supervision into account? I do not think so. In my view, a distinction must be made between sentencing per se and the procedure for imposing a period of post-sentence supervision.
(1) Description of the System of Supervision
39     As this Court did with respect to dangerous offenders (R. v. Lyons, [1987] 2 S.C.R. 309, at p. 339; R. v. Jones, [1994] 2 S.C.R. 229, at p. 297), I note the exceptional nature of the finding that an offender is a long-term offender. As I will explain below, the strictness and precision of the rules applicable to this supervisory mechanism necessarily limit the number of people to whom it will apply. In 2005, or eight years after the introduction of this new system of supervision, there were 300 long-term offenders in Canada: 187 of them were incarcerated, and 113 were in the community under supervision. Most of them had committed sexual offences (“Long term offender designation”, Public Safety Canada (see here).

Procedure
40 The Criminal Code provides that the Crown must first of all apply to have an accused found to be a long-term offender after he or she has been convicted, but before sentence is imposed (ss. 752.1(1), 753.1(1)(a) and 753.1(3.1)(a) Cr. C.). After this application is filed, the court may have experts assess the offender. Their report will be used as evidence in the application (ss. 752.1(1) and 753.1(1) Cr. C.). This report will enable the judge to determine whether the offender poses a serious risk to public safety. The Criminal Code sets out three conditions that must be met before a judge may grant an application for supervision:

(i) First, a sentence of imprisonment of two years or more must be warranted for the offence for which the offender has been convicted (s. 753.1(1)(a) Cr. C.).
(ii) Next, the judge must be satisfied beyond a reasonable doubt that there is a substantial risk that the offender will reoffend (s. 753.1(1)(b) Cr. C.; see, for example, Beaulieu v. R., [2007] Q.J. No. 2116 (QL), 2007 QCCA 403, at para. 25). In assessing that risk, the judge must determine (s. 753.1(2) Cr. C.):

(a) that the offender has been convicted of a sexual offence under ss. 151, 152, 153, 163.1(2), 163.1(3), 163.1(4), 163.1(4.1), 172.1, 173(2), 271, 272 or 273 Cr. C., or has engaged in “serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted” (s. 753.1(2)(a) Cr. C.); and

(b) that the offender has shown a pattern of repetitive behaviour that shows a likelihood of the offender’s causing injury to or inflicting severe psychological damage on other persons, or has, by conduct in any sexual matter, shown a likelihood of causing injury to other persons in the future (s. 753.1(2)(b)(i) and (ii) Cr. C.; see, for example, Corneau v. R., [2001] R.J.Q. 2509 (C.A.)). This assessment of [TRANSLATION] “prospective dangerousness” concerns, in sum, past conduct and the facts relating to the commission of the offences (R. v. Mènard, [2002] Q.J. No. 5271 (QL) (C.A.), at para. 23).

(iii) Finally, the judge must find that there is a “reasonable possibility” of eventual control of the risk in the community (s. 753.1(1)(c) Cr. C.). It is interesting to note that the expression used in the French version of this provision is “possibilitè rèelle” (real possibility) (R. v. M. (J.S.) (2003), 173 C.C.C. (3d) 75, 2003 BCCA 66, at para. 27).

41     This Court has previously stated that a sentencing judge must, if satisfied that a community supervision order will make it possible “to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level”, consider the option of finding an offender to be a long-term offender before finding him or her to be a dangerous offender (see Johnson, at para. 40; see also C. Ruby, Sentencing (6th ed. 2004), at p. 541). This is the only situation in which the Criminal Code requires a judge to consider the possibility of supervision before determining the appropriate sentence. The decision is thus based on controlling a serious risk: if this objective can be attained in the community, an offender cannot be found to be dangerous and, as a result, be imprisoned for an indeterminate period (see Ferris, at pp. 301-3).
42     Although they both contribute to assuring public safety, the dangerous offender and long-term offender designations have different objectives. Unlike a dangerous offender (s. 753 Cr. C.), who will continue to be deprived of liberty, since such offenders are kept in prison to separate them from society (s. 718.1), a long-term offender serves a sentence of imprisonment of two years or more and is then subject to an order of supervision in the community for a period not exceeding 10 years for the purpose of assisting in his or her rehabilitation (s. 753.1(3) Cr. C.). This measure, which is less restrictive than the indeterminate period of incarceration that applies to dangerous offenders, protects society and is at the same time consistent with [TRANSLATION] “the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty” (Dadour, at p. 228).

(2) Relationship to Sentencing
43     The respondent relies on an Ontario Court of Appeal decision to argue that the principle of proportionality should apply to the combined effect of the period of community supervision and the sentence of imprisonment. While it was careful to state that a community supervision order is “not a sentence”, the Ontario Court of Appeal made the following comments, on that occasion, regarding the combined effect of the prison sentence and the supervision period:

Although it may be argued that a mandatory community supervision order ... is not a sentence, in my view, as a matter of principle, the principles of sentencing in ss. 718 to 718.2 should apply when measuring the combined effect of a mandatory custodial sentence and mandatory community supervision order. This would include the fundamental principle of proportionality in s. 718.1... .

... Assuming that the principle of proportionality applies ..., I find nothing inappropriate about the eight-year period of community supervision in addition to this sentence. It is necessary to recognize that the custodial sentence for the predicate offences and the community supervision order each serve a discrete purpose. Therefore, in considering the appropriateness of the length of the appellant’s community supervision, it must be considered in the context of the purpose of the dangerous and long-term offender regime, which is to protect the public.
(R. v. Archer (2005), 193 C.C.C. (3d) 376, at paras. 21-22)

The fixed sentence and supervision orders focus on two different goals: the former on punishment for the predicate offence, the latter on prevention of future criminal conduct. In the latter the predicate offence plays a relevant role as an indicator of risk. (R. v. Blair (2002), 167 B.C.A.C. 21, 2002 BCCA 205, at para. 37; see R. v. J.G.E.S., [2006] B.C.J. No. 3455 (QL), 2006 BCSC 2004, at paras. 134 and 137, for another example of this.)

47     Furthermore, the sentencing judge will not calculate the length of each of these steps in the same way. A number of factors are considered in determining the length of a prison sentence, including, to name but a few, the gravity of the offence, the degree of responsibility of the offender, the parity principle and the possibility of imposing a less restrictive sanction. In contrast, the length of a period of community supervision is based on an offender’s criminal past and on the likelihood that he or she will reoffend, which are addressed in the assessment report.
48     Finally, in practice, the effect of a sentence is to deprive the offender of his or her liberty, whereas community supervision is aimed at reintegrating the offender into the community under the supervision of the Correctional Service of Canada. Furthermore, the period of community supervision does not begin until after the sentence (imprisonment) has been served. From this perspective, the preferred approach for a judge considering a period of community supervision is very different from the one that must be taken in determining the length of a sentence of imprisonment.

49     Nevertheless, the judge determining the length of an offender’s sentence of imprisonment will also receive the application to find the offender to be a long-term offender before passing sentence. As a result, the judge will quite likely tend to consider both decisions at the same time. He or she may accordingly find it difficult to observe the conceptual distinction between the two decisions. Despite these practical difficulties, it is important to remain faithful to the distinction between sentencing and the imposition of a supervision period. A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. A judge who does so would also neglect the specific objective of the procedure for finding an offender to be a long-term offender, which requires the application of different principles. Parliament intended that the judge determine the appropriate sentence first. After doing so, the judge is to ask, in light of Parliament’s objective of protecting the public, whether a period of supervision is warranted. The period of community supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from the sentence.

(a) Need to Maintain the Conceptual and Practical Distinction Between the Two Steps
50     It is therefore my opinion that a long-term offender’s period of community supervision cannot be taken into account when determining the acceptable length of the offender’s incarceration. I fear that the principle that a sentence should be similar to other sentences imposed in similar circumstances would be seriously undermined if Canadian courts were to compare fixed sentences (for sex offenders who have not been found to be long-term offenders) with fixed sentences accompanied by supervision orders (for sex offenders who have been found to be long-term offenders).

(b) Application to the Case at Bar
51     Judge Wilhelmy pointed out that protecting society is the fundamental objective being pursued in providing in the Criminal Code for the supervision of offenders. She mentioned that the accused was 31 years old and had never been treated for sexual deviance, although he claimed that he wanted to enter a program for sex abusers. She added that L.M. continued to insist that he had only fondled his daughter (without penetrating her) and to play down the gravity of what he had done to her, whereas the evidence showed that the situation was much more serious. Referring to L.M.’s history of sexual assaults and the recognizance he had entered into under s. 810.1 Cr. C., Judge Wilhelmy concluded that L.M.’s deviance was of long standing. Finally, the experts agreed unanimously that there was a substantial risk that he would reoffend (judgment on long-term offender designation, at para. 27).
52     For all these reasons, Judge Wilhelmy ruled in favour of a long supervision period for L.M. as a long-term offender. She did not take L.M.’s period of incarceration into account when determining the length of his period of community supervision. Instead, she focussed on the future, that is, on the need to protect the public from the risk that L.M. would reoffend. In my view, her analysis was flawless.

III. Conclusion

53     Judge Wilhelmy imposed an appropriate sentence on L.M. The sentence is proportionate to the gravity of his acts, and the mitigating and aggravating circumstances and the objectives of the Criminal Code have been accounted for. As there was no reviewable error in Judge Wilhelmy’s decision, the Court of Appeal was wrong to vary the sentence. In my opinion, the trial judge correctly applied the law, placing the appropriate emphasis on the specific objectives of the finding that an offender is a long-term offender.

IV. Disposition

54     For the foregoing reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the sentence imposed by the Court of Québec.

APPENDIX
Criminal Code, R.S.C. 1985, c. C-46.
753.1(1) [Application for finding that an offender is a long-term offender] The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.

R. v. Cross
[2006] N.S.J. No. 87; 2006 NSCA 30
Nova Scotia Court of Appeal

1     N.J. BATEMAN J.A.:—This is an appeal from the Order of Judge James H. Burrill of the Provincial Court refusing an application by the Crown for an order requiring Mr. Cross to comply with the requirements of the Sex Offender Registration Information Act which are contained in S.C. 2004, c. 10. The decision is reported as R. v. Cross (2005), 235 N.S.R. (2d) 93; [2005] N.S.J. No. 263 (Q.L.).
2     The facts and issues before the Court were summarized by the trial judge as follows:

[2] James Everett Cross, was found guilty of assault (s. 266(a) C.C.), sexual assault (s. 271 C.C.) and unlawful confinement (279(2) C.C.). The offences occurred on May 7, 2002, he was convicted on June 23, 2004, and after several adjournments the matter was before me for sentencing on January 6, 2005. Mr. Cross was sentenced to 42 months imprisonment. The Crown sought an order under the S.O.I.R.A., but the defence objected on the basis that it would violate s. 11(i) of the Canadian Charter of Rights and Freedoms.
...
[4] Section 11(i) of the Charter provides that:
Any person charged with an offence has the right
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
[5] Obviously the offences committed by Mr. Cross occurred prior to the proclamation of the S.O.I.R.A. The issue is whether the requirements of the legislation constitute a "punishment" within the meaning of s. 11(i).
[6] The defence argues that they do and that s. 11(i) exempts Mr. Cross from a registration order. The Crown argues that the requirements of a registration order made pursuant to the S.O.I.R.A. do not constitute a "punishment" and, therefore, do not violate section 11(i). The Crown asks the court to impose a registration order in Form 52.

3     "S.O.I.R.A." in the extract above refers to the Sex Offender Information Registration Act. That Act creates a sex offender registry, specifies the information to be collected in the registry and addresses the control of that information. Related sections of the Criminal Code authorize an application for a sex offender registration order and provide an exemption provision. In this judgment I will use SOIRA to refer, collectively, to the Act and the companion provisions of the Criminal Code. The judge concluded that a SOIRA order is a "punishment" and could not be made in relation to Mr. Cross as it would violate s. 11(i) of the Charter….
4     There is a single issue on this appeal. The Crown says the judge erred at law in ruling the order under s. 490.012 of the Criminal Code is "punishment" within the meaning of s. 11(i) of the Canadian Charter of Rights. The standard of review is correctness….

ANALYSIS

6     The SOIRA sections of the Code which are relevant here provide:

490.012(1) A court shall, on application of the prosecutor, make an order in Form 52 requiring a person to comply with the Sex Offender Information Registration Act for the applicable period specified in subsection 490.013(2), (3) or (4) as soon as possible after it imposes a sentence on the person for an offence referred to in paragraph (a), (c), (d) or (e) of the definition "designated offence" in subsection 490.011(1), or renders a verdict of not criminally responsible on account of mental disorder for such an offence.
...
(4) The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

7     A SOIRA order imposes an ongoing obligation on an offender to provide contact information to the authorities for lengthy periods after sentence….
8     On this appeal counsel concede that the SOIRA legislation provides for an order in relation to certain offenders who were convicted prior to the coming into force of the Act; in the case of Mr. Cross, an offender who had not yet been sentenced. (In R. v. Aberdeen, [2005] A.J. No. 1062 (Q.L.) (Prov. Ct.) and R. v. Rouschop, [2005] O.J. No. 1336 (Q.L.) (Ont. Ct. J.) the courts concluded that the provisions were intended to operate retrospectively (at paras. 17-18 of Aberdeen)). The retrospective effect is said to flow by implication from the combined effect of ss. 490.011(1)(c) and (d) and 490.012 of the Criminal Code. It would be difficult to conceive of more complex wording to express a retrospective intent.
9     Mr. Cross does not contend that a SOIRA order would violate his liberty (s. 7) or privacy (s. 8) rights under the Charter. The only issue is whether s. 11(i) of the Charter precludes such an order.
10     Thus, while the constitutionality of the SOIRA legislation is not raised directly here, the meaning of "punishment" in s. 11(i) of the Charter must be interpreted using the constitutional jurisprudence. If a SOIRA order is, indeed, "punishment", it cannot be made in relation to any offender who committed the crime before the legislation came into force.

The Decision of the Application Judge

11     Burrill, J. was persuaded that a SOIRA order was punitive in effect. He found such an order to be "a severe infringement of the individual's liberty." He said:

[23] ... The requirements of a registration order are, in my opinion, a severe infringement of the individual's liberty which is undiminished by attempting to call it an administrative consequence of conviction rather than a punishment. In the case at bar, Mr. Cross would be required to comply with the order for twenty (20) years. He would have to report in person, at least annually, to the Registration Center closest to his primary residence. I am advised that there are eight Registration Centers in Nova Scotia and depending on the location of his residence this could require the offender to undertake significant travel in order to meet his reporting obligations. While the order imposes no geographical restrictions nor it does prevent the offender from engaging in any particular activity, it does place restrictions on the activities that they can engage in without providing information to the state. The offender can not, for example, take a vacation for more than fifteen (15) days unless they provide what is essentially their itinerary to the authorities.
[24] It is not one, but a combination of the requirements under the S.O.I.R.A. that cause me to conclude that a registration order is indeed punitive in effect. That fact combined with the fact that the requirements are imposed on individuals who have been convicted of an index offence and no one else (unlike a s. 810.1 order which can be imposed on anyone regardless of conviction) cause me to conclude that a registration order it is indeed a "punishment" within the meaning of 11(i) of the Charter. To categorize it as something else is, in my opinion, an attempt to draw a distinction where none exists.

12     In reaching this conclusion the judge adopted the following definition of punishment:

[21] The fact that the registration order is not part of the formal sentence is not dispositive. I agree with the court in Lambert, (supra), [R. v. Lambert (1994), 93 C.C.C. (3d) 88 (Nfld. C.A.) at p. 93] that "punishment" is not confined to the narrow legal definition that corresponds exclusively to the formal sentence of the court. Considering the authorities to which I have referred I conclude that "punishment" within the meaning of section 11(i) also means any deprivation or hardship that places a limit on the future behaviours of an offender and severely impairs restricts their liberty.

The SOIRA Reporting Requirements

13     The obligations on a sex offender who is subject to a SOIRA order are set out in ss. 4 through 6 of the Act. Summarizing, the offender must report to a registration centre within 15 days of making the order or release from custody and not leave Canada until he has done so. On that reporting he must provide his full name and any alias(es) used; date of birth; gender; the address and telephone number of his main and any secondary residence; his employment address; if enrolled in an educational institution, that address; any mobile telephone number; his height, weight and any distinguishing marks.
14     Any change of name or residence must be updated within 15 days and, in any event, the offender must update all information, in person, annually.
15     If an offender will be away from his main or secondary residence for more than 15 consecutive days, but within Canada, he must advise the registration centre by registered mail (or in person) the locations where he will be staying and his estimated departure and return dates. This must be done not later than 15 days after departure. For a trip outside of Canada the requirements are the same, however, the intended addresses of his stay need not be provided. In either event the offender is to advise the registration centre of the actual date of his return to Canada within 15 days.
16     The person at the registration centre to whom the offender is reporting is entitled to record observable identifying characteristics and can require the offender to submit to a photograph.
17     Failure to comply with the above obligations is an offence punishable by a maximum fine of $10,000 or up to six months imprisonment for the first offence and a fine or an increased term of imprisonment for a subsequent offence (s. 490.031 Criminal Code).
18     The offender's obligation to provide the information is for 10 years, 20 years or life, depending upon the nature of the offence (s. 490.013 Criminal Code), subject to the right to apply for termination at the half point of the term of the order or after 20 years if the term is life (s. 490.015 Criminal Code).

The Nature of a SOIRA Order

19     The starting point in this inquiry is to ascertain the purpose, principles and effect of the legislation in question. The purpose and principles of the SOIRA are set out in the Act as follows:

2.(1) The purpose of this Act is to help police services investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.
(2) This Act shall be carried out in recognition of, and in accordance with, the following principles:

(a) in the interest of protecting society through the effective investigation of crimes of a sexual nature, police services must have rapid access to certain information relating to sex offenders;

(b) the collection and registration of accurate information on an ongoing basis is the most effective way of ensuring that such information is current and reliable; and

(c) the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community as law-abiding citizens require that

(i) the information be collected only to enable police services to investigate crimes that there are reasonable grounds to suspect are of a sexual nature, and

(ii) access to the information, and use and disclosure of it, be restricted.

20     Counsel have not suggested that the SOIRA's purpose is broader than that stated above. Mr. Cross's focus is on the effect of the order. On this appeal we must decide whether the judge erred at law in finding that a SOIRA order has a punitive effect. This requires that the effect of such orders be assessed objectively, in accord with basic Charter principles….
23     The meaning of "punishment" within the Charter has been analyzed in various contexts. For example, in Regina v. S.B. (1983), 146 D.L.R. (3d) 69; [1983] B.C.J. No. 2273 (Q.C.) (B.C.C.A.), the court considered whether a nine year confinement in an industrial school under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3 constituted "punishment", the challenge there being under ss. 11(f) and (h) of the Charter. The court commented at pp. 71-72 as follows (per Anderson, J.A.):

The word "punishment" is defined in Murray's New English Dictionary at p. 1604 as follows:

The infliction of a penalty in retribution for an offence; that which is inflicted as a penalty; a penalty imposed to insure the application and enforcement of a law.

The word "punish" is defined at p. 1603 as follows:

To cause to suffer for an offence; to subject to judicial chastisement as retribution or requital or as a caution against further transgressions.

See also Shorter Oxford English Dictionary, pp. 1708 and 1709, where the meaning of the words "punish" and "punishment" is defined in identical terms.

...
It should also be noted that punishment, in the criminal law sense, includes public condemnation of the offender. Another important concern of the courts in "punishing" or inflicting a penalty on an offender is deterrence to others ...

24     In R. v. T.R. (No. 2) (1984), 7 D.L.R. (4th) 263; [1984] A.J. No. 1 (Q.L.) (Alta.Q.B.) McDonald, J., also considered whether the Juvenile Delinquents Act prescribed "punishment" in the context of a s. 11(h) Charter challenge. In an earlier, related, decision (reported as R. v. T.R., [1983] A.J. No. 483 (Q.L.) at para. 7) he expressed disagreement with the approach of the court in R. v. S.B., supra, where it was held that the legislative purpose alone determines whether a provision is "punishment". In endorsing an objective analysis he said in relation to punishment at pp. 268-269:

... All sentences of imprisonment are "punishment" for the purpose of s. 11(h), even if the sentencing judge was moved by reformative or rehabilitative considerations. All fines are "punishment" even if the accused is rich and will scarcely notice the impact. Why is this so in the case of adult crime? The answer lies in identifying the characteristics of "punishment". One characteristic of "punishment", obviously not illustrated by the imposition of a fine but certainly illustrated by the imposition of a term of imprisonment, is that the accused is deprived of his liberty -- his freedom to associate with his family and friends and to carry on his normal employment and other activities. He is, in the words of Professor Rawls ("Two Concepts of Rules", in Acton,The Philosophy of Punishment (1969), p. 104 at p. 111, quoted in J.W. Harris, Legal Philosophies (1980), p. 52) "said to suffer punishment whenever he is legally deprived of some of the normal rights of a citizen on the ground that he has violated a rule of law ..."

A second characteristic of "punishment" is found in the first element of the definition of "punishment" by H.L.A. Hart, in his Punishment and Responsibility, (1968), p. 4. His definition, although published first only in 1968, is commonly referred to now in English, Canadian and American literature on the theory of punishment. Hart's first element in the definition is: "It must involve pain or other consequences normally considered unpleasant." Other authorities which include the same, or a similar, element in their definition of "punishment" are cited by V.J. Bourke, "The Ethical Justification of Punishment," 22 Am. J. Jur. 1, at pp. 2-3 (1977). Involuntary confinement in a prison or jail, and even the payment of a fine, are illustrations of consequences normally considered unpleasant.

A third characteristic of "punishment" is that the penalty, like the conviction itself, carries with it a degree of stigmatisation. This is inherent in the public nature of the adult criminal adjudicatory process.

25     The meaning of punishment in the context of s. 11(i) of the Charter was considered by Steele, J.A. in R. v. Lambert (1994), 93 C.C.C. (3d) 88; [1994] N.J. No. 328 (Q.L.) (Nfld. C.A.). The court held an order requiring the appellant to serve one-half of his sentence before parole eligibility (s. 741.2 of the Criminal Code) constituted a greater "punishment". In so deciding Steele, J.A. wrote at p. 93:

Section 741.2 uses the term "sentence" without any reference to "punishment". In s. 11(i) of the Charter, however, Parliament selected the term "punishment" that appears in the phrases "punishment for the offence" and "benefit of the lesser punishment". I can only assume that in drafting s. 11(i) of the Charter, the term "punishment" was intentionally chosen.

As I construe s. 11(i) of the Charter, "punishment" means or includes the formal sentence of the court (which is the punishment inflicted for the commission of the offence), but in addition, also means or includes any other "severe handling" or "harsh or injurious treatment". The term "punishment" appearing in s. 11(i) of the Charter is not confined to the narrow legal definition that corresponds exclusively to the formal sentence of the court. Punishment may also encompass any coercive or punitive treatment likely to discourage or deter an accused (and sometimes others) from a repetition of criminal activity.

26     In R. v. Wigglesworth, [1987] 2 S.C.R. 541; [1987] S.C.J. No. 71 (Q.L.), the Court was called upon to decide whether s. 11(h) of the Charter was applicable to certain R.C.M.P disciplinary consequences so as to preclude a criminal trial for the same conduct for which the member had been internally disciplined.
27     Section 11(h) protects an individual from not being tried or punished twice for the same offence (double jeopardy):

11. Any person charged with an offence has the right
...
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again ...

28     The R.C.M.P. officer in Wigglesworth had allegedly assaulted a prisoner in custody. He was charged with a major service offence under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9. The officer in question was fined $300, although the maximum penalty for such an offence was one year in prison. He was subsequently charged with common assault under the Criminal Code and succeeded in having the Information quashed by the trial judge. This was upheld on appeal. On further appeal to the Supreme Court of Canada the question was whether the proceeding under the R.C.M.P. Act amounted to a "trial" within s. 11(h) which would preclude the subsequent Criminal Code prosecution. The Court looked at the R.C.M.P. Act to determine whether, under the discipline code, the officer faced "a true penal consequence," answering that question in the affirmative. The appeal was allowed, however, with the majority holding that the proceeding under the R.C.M.P. Act and that under the Criminal Code were not "the same offence" within s. 11(h).
29     Wilson, J. confirmed that the rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions (at p. 554), that is criminal or quasi-criminal proceedings and those giving rise to penal consequences (at p. 558).
30     Helpful here is her consideration of whether the R.C.M.P. proceeding was "in respect of a criminal or penal matter." She rejected an analysis which was based solely upon the harshness of the sanction (p. 559 "There are many examples of offences which are criminal in nature but which carry relatively minor consequences following conviction ..." ) and, instead, asked whether consequences were "truly penal in nature" (per Wilson, J. for the majority, at p. 560 S.C.R.):

This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity...

31     This lends support to the objective analysis adopted by McDonald, J. in R. v. T.R., supra. The nature of the consequence is initially assessed in the context of the purpose of the measure in question, which in Wigglesworth was the regulation of conduct within the R.C.M.P. Notwithstanding its stated purpose, if the sanction is of such magnitude that it appears to be directed at redressing a wrong done to society it will be considered "a true penal consequence."
32     In R. v. Shubley, [1990] 1 S.C.R. 3; [1990] S.C.J. No. 1 (Q.L.), in determining whether internal prison disciplinary proceedings engaged the double jeopardy section of the Charter, McLachlin, J. (as she then was), for the majority, considered the nature of the proceeding and concluded that the purpose of the disciplinary proceedings was not "to mete out criminal punishment, but to maintain order in the prison." (p. 20). She endorsed Wilson, J.'s caution in Wigglesworth, supra, against too broad an application of s. 11 (at p. 23).
33     While in Wigglesworth and Shubley the Court was concerned with an over-expansive interpretation of "offence" as used in the opening words of s. 11, I would suggest that the same concern applies to assigning an overly broad meaning to "punishment" in s. 11(i).…
36     In Cunningham v. Canada, [1993] 2 S.C.R. 143 the constitutionality of changes to the Parole Act, R.S.C. 1985, c. P-2 were at issue. The facts are summarized as follows at p. 143:

In 1981 the appellant was sentenced to 12 years' imprisonment for manslaughter. Under the Parole Act in force at the time, he was entitled to be released on mandatory supervision after serving approximately two-thirds of his sentence, provided that he was of good behaviour. In 1986 the Act was amended to allow the Commissioner of Corrections, within six months of the "presumptive release date," to refer a case to the National Parole Board where he has reason to believe, on the basis of information obtained within those six months, that the inmate is likely, prior to the expiration of his sentence, to commit an offence causing death or serious harm. The Parole Board may, if it sees fit, deny release of the inmate. Shortly before his release date, the appellant received a notice that the Commissioner had decided to seek his continued detention. Following a hearing, he was ordered to be detained until his sentence expired, subject to annual reviews.

37     The issue was whether the 1986 amendment to the Parole Act amounted to a denial of the appellant's liberty contrary to the principles of fundamental justice under s. 7 of the Charter. The Court concluded that Mr. Cunningham had been deprived of a liberty interest but in accord with the principles of fundamental justice. The Court commented, however, that every alleged infringement of a Charter right does not attract scrutiny, only those that are "... sufficiently serious to attract Charter protection" (per McLachlin J., as she then was, at p. 148).…
38     In support of its submission that a SOIRA order is not punitive, the Crown cites R. v. Budreo (2000), 142 C.C.C. (3d) 225; [2000] O.J. No. 72 (Q.L.) (Ont. C.A.), a constitutional challenge to s. 810.1 of the Criminal Code. That section allows a court to require a recognizance by any person likely to commit a sexual offence against a child which prohibits that person, for up to one year, from engaging in activities or attending places where children are likely to be present. The restriction may be applied although the person has not committed an offence and has no criminal record.
39     At issue on the appeal was whether the provision violated s. 7 of the Charter. The Crown had acknowledged that a s. 810.1 order meets the first branch of the s. 7 test in that it deprives the subject of his liberty. The question was whether that deprivation accorded with the principles of fundamental justice. Mr. Budreo argued that it did not because: (i) s. 810.1 created a status offence; (ii) the section was over-broad; and, (iii) it was void for vagueness. In rejecting the submission that s. 810.1 created a "status based offence," the Court noted that the purpose of the provision was not to mete out punishment but to prevent crime. It was in that context the court said, per Laskin, J.A.:

[30] By these standards, s. 810.1 does not create an offence. Its purpose is not to punish crime but to prevent crime from happening. Its sanctions are not punitive, nor are they intended to redress a wrong; they are activity and geographic restrictions on a person's liberty intended to protect a vulnerable group in our society from future harm.

40     Thus, every measure impacting upon the behaviour of an individual need not be regarded as punitive rather than preventative.
41     In R. v. Beare, [1988] 2 S.C.R. 387; [1987] S.C.J. No. 92 (Q.L.), the provisions of the Identification of Criminals Act, R.S.C. 1985, c. I-1, s. 2 and ss. 453.3(3) and 455.5(5) of the Criminal Code were subjected to constitutional challenge. That Act permits the fingerprinting of suspects who are charged with an indictable offence. There, the court recognized the importance of not placing undue restraint on criminal investigations (at pp. 404 and 410). The fingerprinting requirements oblige an individual to appear at a specific time and place for the purpose of fingerprinting. The alleged violation was to the suspect's liberty interest (Charter, s. 7). The interference with that interest is not violative of the Charter if it accords with the principles of fundamental justice. In conducting the inquiry the Court recognized the importance of identification techniques in assisting criminal investigations and endorsed a "sense of proportion" in the analysis. LaForest, J., for the Court, wrote at pp. 403-404:

… Is the taking of fingerprints any more serious an invasion of the right of a person in custody than examining the person's body for birthmarks and the like? I do not think so and, as I noted, being arrested and charged for an offence seems to me to be more serious. As Augustus Hand J. stated in United States v. Kelly, 55 F. 2d 67 (2nd Cir. 1932), at p. 70:

It is no more humiliating than other means of identification that have been universally held to infringe neither constitutional nor common-law rights. Finger printing is used in numerous branches of business and of civil service, and is not in itself a badge of crime. As a physical invasion it amounts to almost nothing, and as a humiliation it can never amount to as much as that caused by the publicity attending a sensational indictment to which innocent men may have to submit.…

45     [W]hile the assessment is an objective one, the "effect" of the consequence cannot be evaluated in complete isolation from its purpose. Whether a measure is, in fact, "a true penal consequence" is not determined simply by assessing the seriousness of the impact on the individual. Relatively minor consequences of a criminal offence may be considered "penal" yet those with a more serious impact on the person may be "non-punitive". The question cannot be answered in the abstract, divorced from the context in which the measure arises. I conclude that if the impact of the sanction aligns with its legislative purpose and is not of such magnitude that it reveals, instead, a punitive intent, it is not "punishment".
46     In summary, I draw the following guidance from the authorities:

-- Punishment in s. 11(i) encompasses more than the official sentence of the court;
-- In interpreting s. 11(i) one must be alive to practical consideration and not overshoot the purpose of the right;
-- The characteristics of punishment generally include some deprivation of liberty; unpleasant consequences; and public condemnation;
-- All ex post facto treatments of an offender, consequent on conviction, are not viewed as punishment;
-- A true penal consequence is one which, by its magnitude, would appear to be imposed for the purpose of redressing the wrong done to society;
-- The Charter does not protect against insignificant or trivial limitations of rights.

47     To assist in resolving the issue here I would therefore ask: 'Objectively, is the impact of the SOIRA requirements on an offender such that they appear to be imposed for the purpose of redressing the wrong done to society rather than to further the objective of helping police services investigate crimes of a sexual nature'?
...
52     Of those decisions which deal directly with the s. 11(i) issue, exemplifying the judicial divide are R. v. Aberdeen, supra, and R. v. Rouschop, supra.
53     In Aberdeen, Judge LeGrandeur of the Alberta Provincial Court was persuaded that a SOIRA order is "punishment". He wrote:

para. 69 It is certainly arguable that any one of these impacts may not be sufficiently significant so as to lead to a finding that the making of a reporting order is a "punishment" within the meaning of s. 11(i). However, considered cumulatively the factors and consequences referred to aforesaid are far from trivial. Such an order is coercive and constraining, clearly undermining the individual's autonomy and privacy which are fundamental liberty interests. The significant ongoing nature of the application of the order and its consequences are tantamount to continuing community supervision, even after the primary sentence has been served or completed, such that any order granted under s. 490.012 looks very much like the continuation of the primary sentence which may have been a fine, a suspended sentence or a term of imprisonment ...

para. 70 It seems to me, prima facie, when one considers all the aforementioned factors cumulatively, given that reporting orders are sanctioned by law under the Criminal Code and S.O.I.R.A., such orders result in an interference with liberty as I have described and clearly impose an extra burden on an accused with respect to reporting and the providing of information, which is coercive in the sense that it is required on pain of criminal sanction; ...

Foreign Sex Offender Legislation

....
75     In Smith v. Doe 538 U.S. 84 (2003), the [U.S. Supreme] Court addressed a challenge to the Alaska Sex Offender Registration Act. The Alaska Act required sex offender residing in the state to register. Much of the information provided on registration, including an offender's name and address, was to be made public. The offender applied for relief from the registration requirements on the basis that the application in his circumstances amounted to retroactive punishment.
76     Finding that nothing on the face of the statute suggested the legislature intended to create other than a civil scheme designed to protect the public from harm, the court considered the effect of the Act….
78     Stevens, J., dissenting, saw the statute as imposing "significant affirmative obligations and a severe stigma" to every person to whom the registration requirements apply. Stevens, J. described those obligations in detail:

para. 61 ... an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information -- including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment -- at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a web page under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page.

79     He opined that the registration and reporting duties were comparable to those imposed on other convicted offenders during periods of supervised release. He said:

para. 63 It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction.

….
81     Burrill, J. indicated a preference for the dissenting opinion of Stevens, J. and quoted, with approval para. 63 from the Smith reasons. The trial judge did not, however, acknowledge that the reporting requirements of the Alaskan legislation are substantially more demanding and intrusive than those of the SOIRA, as is evident from Steven, J.'s summary in para. 61, above.
82     The positions of the minority and majority in Smith v. Doe, supra, are not unlike the differences of opinion among the judges of the various Canadian jurisdictions. There are those who see the SOIRA requirements as clearly punitive, and those, who, with equal conviction, disagree. There is no bright line and it would be disingenuous to suggest otherwise.
83     While foreign law is not determinative in assessing whether the SOIRA provisions equate to punishment, the above judgments reveal that the majority of judges who have considered similar or more onerous provisions have concluded that they are not "punitive".

Summary:

1.         The order is not a direct consequence of conviction—a judge cannot on his or her own motion, when crafting a sentence, include a SOIRA order. Such can only be done on application of the prosecutor;
2.         The requirement to initially report in person and, thereafter, report annually, while an inconvenience does not equate to severe handling or harsh treatment;
3.         The reporting of temporary absences from one's residence can be done by registered mail— at most an inconvenience;
4.         The information to be provided is not of a highly personal nature and is that which is routinely collected by many other entities and would normally be available to the authorities with some searching;
5.         The creation of the registry has a logical connection to a legitimate non-punitive goal—the efficient investigation of crime and the conservation of scarce investigative resources.
6.         The fact that the collection and use of the information by the authorities is strictly controlled and available only for investigation of specific crimes lends support to the Act's stated objective of crime solving.
7.         That the requirement of registration may deter an offender from re-offending is not a direct or inevitable consequence of registration.
8.         Where the registration requirements would be particularly burdensome for an offender and approach a punitive sanction, the exemption provision provides relief from its operation.
9.         The SOIRA requirement to provide contact information to the authorities, does not equal the intrusiveness of the reporting required under a probation order.
10.       The consequences of an order do not align with the traditional indicia of punishment -- there is no confinement or other than a trivial interference with liberty; there is no stigma attached nor a general deterrent effect -- the provision of the information is done in confidence and the informational content held secure and private; the order is not directed at ensuring compliance with the law.

490.012.(4) The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

86     The exemption section succeeds in striking an appropriate balance between individual rights and societal interests. It is a "constitutional compromise" which, in this context, addresses the need to assist and streamline criminal investigations yet protect offenders from the unfairness of subjecting them to harsh or severe sanctions not contemplated at the time of the offence (see R. v. Araujo, [2000] 2 S.C.R. 992 at para. 26; R. v. Duarte, [1990] 1 S.C.R. 30 at para. 23 to 25; and R. v. R.C., supra, at para. 21). I am satisfied that the exemption clause provides adequate protection in the exceptional situation where the impact of the order on the offender could otherwise be punitive.

DISPOSITION
87     In my view, the judge erred in law by not making the order on the record before him. There was no evidence before the judge that would bring Mr. Cross within the exemption provision (s. 490.012(4)).
88     I would allow the appeal and direct that an order issue under s. 490.012(1).

* * *
Erratum
Released: April 11, 2006
[1] Substitute the word "after" for the word "before" in the second line of paragraph [15].

* * *

Tatjana Hörnle, “Human-Rights Issues in the General Part of Substantive Criminal Law:German Constitution, Penal Code and Court Practice”

            German penal law permits very severe reactions to crimes not based on the principle of culpability. The German Penal Code knows different preventive reactions of a non-blaming, future-oriented nature. They are called “Maßregeln der Besserung und Sicherung” [measures of rehabilitation and incapacitation]. The German Penal Code provides for the preventive detention (Sicherungsverwahrung, § 66 German Penal Code) of dangerous offenders in addition to the punishment for the crime and after they have served their penalty. Preventive detention as well is executed in ordinary prisons (although in separate wards, see § 140 I German Law on Imprisonment, StVollzG). From the offender’s perspective, the difference between criminal punishment and preventive detention thus is marginal.

Preventive detention under the German Penal Code is mandatory if the offender shows a tendency to serious crimes which considerably harm victims or cause serious economic harm, and if he has previously been sentenced twice to at least one year imprisonment for misdemeanours (or once to three years for felonies, misdemeanour sex offences or assault), and if he has been in prison once for at least two years (§ 66 I, III German Penal Code). Preventive detention is not limited to certain offence types and has no time limits. Offenders just causing economic crimes have to be released after ten years, but if the tendency to harm victims physically or psychologically is found to persist, preventive detention may be life-long (§ 67 d III German Penal Code). Thus, the threshold for “two or three strikes and you’re out” is high, but for serious repeating offenders § 66 allows outcomes which are closer to efforts in the US than most German lawyers probably are aware of. A second armed robbery would do.

Critics rightly argued that such a far-reaching preventive measure should at least be limited to highly dangerous sex-offenders who kill or gravely injure their victims. Fortunately, German courts have been very reluctant with the required prediction of dangerousness: in 1997, 46 offenders were sentenced to preventive detention, in 1998, 61 offenders. The number might, however, increase, as modifications to facilitate preventive detention came into effect with a 1998 law labelled “Law for the Combat of Sexual Offences and Other Serious Offences” , which despite its title did not attempt to tailor preventive detention to serious sex crimes.

The Bundesverfassungsgericht [Federal Constitutional Court] and the majority of German scholars have no general objections to preventive detention, which is justified by the state’s duty to protect citizens against dangerous behaviour by others. According to the leading opinion, preventive measures are not limited by the “Schuldprinzip” [guilt principle] because they serve public interests and are not criminal punishment. The principle of “Verhältnismäßigkeit” [proportionality] applies to preventive measures (§ 62 German Penal Code), that is, they must be appropriate in view of the danger the offender poses to public security. Preventive measures are not limited to prevent most serious crimes; petty offences are, however, not sufficient.…

Preventive detention furthermore can be in a psychiatric hospital (§ 63 German Penal Code), or in an institution for alcohol or drug addicts, the latter independent of the culpability question and limited to two years (§§ 64, 67 d I German Penal Code). If he was criminally responsible, the offender is sentenced to both punishment and treatment. However, he usually is admitted to the hospital first and the time there is deducted from the punishment—not from the total, but from 2/3 of it (§ 67 I, II, IV German Penal Code). The problem with overly long detention time thus is somewhat less pressing than in the § 66-cases, but it exists….

[Consider also recent] addition[s] to the area of preventive detention [such as the] “Straftäter-Unterbringungsgesetz” [Law for the Detention of Offenders]. It provides for continued incarceration after an offender has served his sentence, merely on preventive grounds, if he endangers the life, physical integrity and sexual autonomy of others, e.g., [by refusing] to participate in psychotherapy or social therapy (§ 1 StrUBG). The prison [warden] proposes preventive detention, the decision is made by judges (the so-called Strafvollstreckungskammer [punishment execution court], see §§ 3, 4 StrUBG). The length of preventive detention is not limited, the Schuldgrundsatz does not apply as this detention comes after the criminal punishment.

This law was not drafted as part of the criminal law, as the federal legislature has to decide about criminal law issues. Rather, the Baden-Württemberg [state] legislature (... not content with the “too liberal” criminal policy of the federal government...) claimed its competence on the grounds of police law. To pass a law allowing unlimited detention under the heading “police law” permitsone to focus solely on the dangerousness of the offender and to neglect the criminal law background.

Chapter 3. Sources and Limits of the Power to Punish

A. POGG and Criminal Law Power

Reference re: Dairy Industry Act (Canada) s. 5(a)
[“Margarine Reference”]
Supreme Court of Canada
[1949] 1 D.L.R. 433; [1949] S.C.R. 1

RAND J.:—His Excellency in Council has referred to this Court the following question:

• Is section 5(a) of the Dairy Industry Act, R.S.C. 1927, Chapter 45, ultra vires of the Parliament of Canada either in whole or in part and if so in what particular or particulars and to what extent?

The section is as follows:

No person shall

(a) manufacture, import into Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream;

To a proper understanding of the controversy, a statement of the history of the legislation is necessary.… Chapter 42 of the statutes of 1886 [provided]:

WHEREAS the use of certain substitutes for butter, heretofore manufactured and exposed for sale in Canada, is injurious to health; and it is expedient to prohibit the manufacture and sale thereof….

Ordinarily a preamble indicates the purpose of the statute and it may be a guide to the meaning and scope of the language where that is doubtful or ambiguous. But when the question is the real character of the legislation for the purposes of jurisdiction between two legislatures under a federal constitution, different considerations arise. A legislation cannot conclude the question by a declaration in a preamble: at most it is a fact to be taken into account, the weight to be given to it depending on all the circumstances….

But whatever might have been the case of the 1886 legislation, the situation now is that not only has the preamble disappeared, but its recital of fact is admittedly no longer true of either margarine or oleomargarine. It is conceded that both of them--the latter containing animal fat other than milk added to the ingredients, chiefly vegetable oils, of the former--are substantially as nutritious, possess as much energy value and are as free from deleterious effects as butter itself; and that I take to have been the state of things in 1914. … To ascertain then the true nature and substance of the legislation—which is the initial determination—I deal with it as free from any such indication of purpose.

The appearance of the provision in a statute dealing comprehensively with the dairy industry and the inclusion of prohibition of importation, the ordinary mode of protection of industry in its ultimate form, are, for this initial purpose, of considerable significance. On the other hand, the scope and importance of agriculture in the economy of this country, the part played by the dairy industry as an essential branch of it, and the desirability of maintaining a market demand for butter to meet the seasonal exigencies of that industry, are beyond controversy. What, then, in that whole background is the true nature of the enactment?

Mr. Varcoe argues that it is simply a provision of criminal law, a field exclusively Dominion, and the issue, I think, depends upon the validity of that contention. In The Proprietary Articles Trade Association v. Attorney-General of Canada, [[1931] A.C. 310], Lord Atkin rejected the notion that the acts against which criminal law is directed must carry some moral taint. A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

In examining the question, we are to consider not only the matters and conditions upon which the legislation will operate but as well its consequences….

Criminal law is a body of prohibitions; but that prohibition can be used legislatively as a device to effect a positive result is obvious; we have only to refer to Adam Smith’s Wealth of Nations, Vol. II, chapters 2 and 3 to discover how extensively it has been used not only to keep foreign goods from the domestic market but to prevent manufactures in the colonies for the benefit of home industries; and as late as 1750 for that object, certain means of iron and steel production in British North America were by statute forbidden; Ashley, Surveys, Historic & Economic, page 327….

Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law, but they do not appear to be the object of the parliamentary action here. That object, as I must find it, is economic and the legislative purpose, to give trade protection to the dairy industry in the production and sale of butter; to benefit one group of persons as against competitors in business in which, in the absence of the legislation, the latter would be free to engage in the provinces. To forbid manufacture and sale for such an end is prima facie to deal directly with the civil rights of individuals in relation to particular trade within the provinces.

The public interest in this regulation lies obviously in the trade effects…. But to use it as a support for the legislation in the aspect of criminal law would mean that the Dominion under its authority in that field, by forbidding the manufacture or sale of particular products, could in what it considered a sound trade policy, not only interdict a substantial part of the economic life of one section of Canada but do so for the benefit of that of another. Whatever the scope of the regulation of interprovincial trade, it is hard to conceive a more insidious form of encroachment on a complementary jurisdiction….

Is the legislation then within the regulation of trade and commerce? As early as Citizens’ Insurance v. Parsons [(1881-82) 7 A.C. 96] it was laid down that the reconciliation of the powers granted by the constitutional act required a restriction of the “full scope of which in their literal meaning they ‘the regulation of trade and commerce’) are susceptible”; and it was so necessary “in order to preserve from serious curtailment, if not from virtual extinction, the degree of autonomy, which as appears from the scheme of the Act as a whole, the provinces were intended to enjoy”. That and subsequent pronouncements of the Judicial Committee were summarized by Duff, C.J. in the Natural Products reference, [[1936] S.C.R. 398 at 410]:

It would appear to result from these decisions that the regulation of trade and commerce does not comprise, in the sense in which it is used in section 91, the regulation of particular trades or occupations or of a particular kind of business such as the insurance business in the provinces, or the regulation of trade in particular commodities or classes of commodities in so far as it is local in the provincial sense; while, on the other hand, it does embrace the regulation of external trade and such ancillary legislation as may be necessarily incidental to the exercise of such powers.

… Finally, it was said the legislation related to Agriculture. Its object, I agree, is to benefit the trade in a product of agriculture; but that is a mere consequential effect and does not of itself relate the legislation to agriculture. The Natural Products reference, supra by ruling out of the scope of Dominion power the regulation of local trade in the products of agriculture has done so likewise in respect of the manufacture of substitute products.
Then undoubtedly the dairy industry has an aspect of concern to this country as a whole, but as it was said in Attorney-General of Ontario v. Attorney-General of Canada, [[1896] A.C. 348 at 361] if the fact of such an interest or that the matter touched the peace, order and good government of Canada was sufficient to attach the jurisdiction of Parliament, “there is hardly a subject enumerated in s. 92 upon which it might not legislate, to the exclusion of the provincial legislatures”. There is nothing before us from which it can be inferred that the industry has attained a national interest, as distinguished from the aggregate of local interests, of such character as gives it a new and preeminent aspect within the rule of the Russell case, [[1899] A.C. 829] as interpreted in Attorney-General of Ontario v. Canada Temperance Federation, [[1946] A.C. 193]. Until that state of things appears, the constitutional structure of powers leaves the regulation of the civil rights affected to the legislative judgment of the province.

There is next the prohibition of importation of these substances. … Only Parliament can deal with foreign commerce; provincial power cannot in any mode, aspect, or degree govern it: and it would be anomalous that the jurisdiction to which regulation is committed, which alone can act, and which in this segment of trade is in substance sovereign, should be powerless to employ such an ordinary measure of control.

The remaining question is whether manufacture, sale, etc. and importation can be taken as severable. Having regard to the purpose of the legislation, the restrictions are undoubtedly intended to be cumulative. They are in no sense dependent upon or involved with each other, though no doubt both are necessary to the complete benefit envisaged. But distinct in operation and effect, they are to be taken as enacted distributively and not with the intention that either all or none should come into force.

My answers to the questions, therefore, are:

• The prohibition of importation of the goods mentioned in the sections is intra vires of Parliament.
• The prohibition of manufacture, possession and sale is ultra vires of Parliament.

* * *

R. v. Hydro-Québec
Supreme Court of Canada
[1997] 3 S.C.R. 213

The judgment of La Forest, L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by
85     LA FOREST J.:—This Court has in recent years been increasingly called upon to consider the interplay between federal and provincial legislative powers as they relate to environmental protection. Whether viewed positively as strategies for maintaining a clean environment, or negatively as measures to combat the evils of pollution, there can be no doubt that these measures relate to a public purpose of superordinate importance, and one in which all levels of government and numerous organs of the international community have become increasingly engaged. In the opening passage of this Court’s reasons in what is perhaps the leading case, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 16-17, the matter is succinctly put this way:

The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures.

86     The all-important duty of Parliament and the provincial legislatures to make full use of the legislative powers respectively assigned to them in protecting the environment has inevitably placed upon the courts the burden of progressively defining the extent to which these powers may be used to that end. In performing this task, it is incumbent on the courts to secure the basic balance between the two levels of government envisioned by the Constitution. However, in doing so, they must be mindful that the Constitution must be interpreted in a manner that is fully responsive to emerging realities and to the nature of the subject matter sought to be regulated. Given the pervasive and diffuse nature of the environment, this reality poses particular difficulties in this context.
87     This latest case in which this Court is required to define the nature of legislative powers over the environment is of major significance. … What is … at stake is whether Part II (“Toxic Substances”) of the Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), which empowers the federal Ministers of Health and of the Environment to determine what substances are toxic and to prohibit the introduction of such substances into the environment except in accordance with specified terms and conditions, falls within the constitutional power of Parliament.
…

D. Constitutional Questions

97     On December 21, 1995, Lamer C.J. framed the following constitutional question:

• Do … the enabling legislative provisions, ss. 34 and 35 of the Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), fall in whole or in part within the jurisdiction of the Parliament of Canada to make laws for the peace, order and good government of Canada pursuant to s. 91 of the Constitution Act, 1867 or its criminal law jurisdiction under s. 91(27) of the Constitution Act, 1867 or otherwise fall within its jurisdiction?

…

Overview of the Legislative Structure of the Canadian Environmental Protection Act

99     The Canadian Environmental Protection Act was adopted by Parliament in 1988 with a view to consolidating and replacing several other laws dealing with different types of environmental protection. Sections 34 and 35 appear in Part II, entitled “Toxic Substances”. This Part is, in large measure, an adaptation of the Environmental Contaminants Act, R.S.C., 1985, c. E-12 (which was abrogated when the present Act came into force). It should not be overlooked, however, that other parts of the Act are relevant to toxic substances. The subject of toxic substances is introduced in the preamble, which after declaring that the protection of the environment is essential to the well-being of Canada sets forth the following clauses that are of direct relevance in this case:

Whereas the presence of toxic substances in the environment is a matter of national concern;
Whereas toxic substances, once introduced into the environment, cannot always be contained within geographic boundaries;

Whereas the Government of Canada in demonstrating national leadership should establish national environmental quality objectives, guidelines and codes of practice;. . .
And Whereas Canada must be able to fulfil its international obligations in respect of the environment;

As well, the first substantive provision of the Act, s. 2, in para. 2(j) imposes the following duty on the Canadian government:

2. In the administration of this Act, the Government of Canada shall, having regard to the Constitution and laws of Canada,. . .
(j) endeavour to act expeditiously to assess whether substances in use in Canada are toxic or capable of becoming toxic.

…
101     Part II of the Act deals first with the identification of other substances that could pose a risk either to the environment or to human life and health, and then provides a procedure for adding them to the List of Toxic Substances in Schedule I and for imposing by regulations requirements respecting the terms and conditions under which substances so listed may be released into the environment….
102     Part II begins with s. 11, which reads:

11. For the purposes of this Part, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions
(a)        having or that may have an immediate or long-term harmful effect on the environment;
(b)        constituting or that may constitute a danger to the environment on which human life depends; or
(c)        constituting or that may constitute a danger in Canada to human life or health.

12(1) …, in providing for the creation of a Priority Substances List, authorizes the Ministers of Health and of the Environment to “specify substances in respect of which the Ministers are satisfied priority should be given in assessing whether they are toxic or capable of becoming toxic.”…

Above all, the respondent is concerned with the term “toxic” as it is used in s. 11, which, together with the definitions just quoted, it contends, constitute an impermissibly broad interference with provincial legislative powers....

The Issues

108     In this Court, the appellant Attorney General of Canada seeks to support the impugned provisions of the Act on the basis of the national concern doctrine under the peace, order and good government clause of s. 91 or under the criminal law power under s. 91(27) of the Constitution Act, 1867. The respondent Hydro-Québec and the mis en cause Attorney General of Quebec dispute this. In broad terms, they say that the provisions are so invasive of provincial powers that they cannot be justified either under the national dimensions doctrine or under the criminal law power. The attack on the validity of the provisions under the latter power is also supported, most explicitly by the intervener the Attorney General for Saskatchewan, on the ground that they are, in essence, of a regulatory and not of a prohibitory character. …
110     [T]he impugned provisions are valid legislation under the criminal law power -- s. 91(27) of the Constitution Act, 1867. It thus becomes unnecessary to deal with the national concern doctrine, which inevitably raises profound issues respecting the federal structure of our Constitution which do not arise with anything like the same intensity in relation to the criminal law power….

Analysis

Introduction

117 …There was a marked attempt to raise concerns appropriate to the national concern doctrine under the peace, order and good government clause to the criminal law power in a manner that, in my view, is wholly inconsistent with the nature and ambit of that power ….

The Criminal Law Power

118     Section 91(27) of the Constitution Act, 1867 confers the exclusive power to legislate in relation to criminal law on Parliament. …
119     [A]s early as 1903, the Privy Council, in Attorney-General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524, at pp. 528-29, had made it clear that the power conferred on Parliament by s. 91(27) is “the criminal law in its widest sense” (emphasis added). … Accordingly, it is entirely within the discretion of Parliament to determine what evil it wishes by penal prohibition to suppress and what threatened interest it thereby wishes to safeguard, to adopt the terminology of Rand J. in the Margarine Reference, supra, at p. 49, cited infra.
120     Contrary to the respondent’s submission, under s. 91(27) of the Constitution Act, 1867, it is also within the discretion of Parliament to determine the extent of blameworthiness that it wishes to attach to a criminal prohibition. So it may determine the nature of the mental element pertaining to different crimes, such as a defence of due diligence like that which appears in s. 125(1) of the Act in issue. This flows from the fact that Parliament has been accorded plenary power to make criminal law in the widest sense. This power is, of course, subject to the “fundamental justice” requirements of s. 7 of the Canadian Charter of Rights and Freedoms, which may dictate a higher level of mens rea for serious or “true” crimes; cf. R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, and R. v. Rube, [1992] 3 S.C.R. 159, but that is not an issue here.
121     The Charter apart, only one qualification has been attached to Parliament’s plenary power over criminal law. The power cannot be employed colourably. Like other legislative powers, it cannot, as Estey J. put it in Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 237, “permit Parliament, simply by legislating in the proper form, to colourably invade areas of exclusively provincial legislative competence”. …
122     In the Margarine Reference, supra, at p. 50, Rand J. helpfully set forth the more usual purposes of a criminal prohibition in the following passage:

Is the prohibition . . . enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law.... [Emphasis added.]

As the final clause in the passage just cited indicates, the listed purposes by no means exhaust the purposes that may legitimately support valid criminal legislation. … In short, in a case like the present, all one is concerned with is colourability. Otherwise, one would, in effect, be reviving the discarded notion that there is a “domain” of criminal law, something Rand J. … was not prepared to do. …

B.        Harm Principle

R. v. Malmo-Levine; R. v. Caine
Supreme Court of Canada
[2003] 3 S.C.R. 571

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
1 GONTHIER and BINNIE JJ.:— In these appeals, the Court is required to consider whether Parliament has the legislative authority to criminalize simple possession of marihuana and, if so, whether that power has been exercised in a manner that is contrary to the Canadian Charter of Rights and Freedoms. The appellant Caine argues in particular that it is a violation of the principles of fundamental justice for Parliament to provide for a term of imprisonment as a sentence for conduct which he says results in little or no harm to other people. The appellant Malmo-Levine puts in issue the constitutional validity of the prohibition against possession for the purpose of trafficking in marihuana.
2     The British Columbia Court of Appeal rejected the appellants’ challenges to the relevant provisions of the Narcotic Control Act, R.S.C. 1985, c. N-1 (“NCA”), and, in our view, it was right to do so. Upholding as we do the constitutional validity of the simple possession offence, it follows, for the same reasons, that Malmo-Levine’s challenge to the prohibition against possession for the purpose of trafficking must also be rejected.
3     All sides agree that marihuana is a psychoactive drug which “causes alteration of mental function”. That, indeed, is the purpose for which the appellants use it. Certain groups in society share a particular vulnerability to its effects. While members of these groups, whose identity cannot in general be distinguished from other users in advance, are relatively small as a percentage of all marihuana users, their numbers are significant in absolute terms. The trial judge estimated “chronic users” to number about 50,000. A recent Senate Special Committee report estimated users under 16 (which may overlap to some extent with the chronic user group) also at 50,000 individuals (Cannabis: Our Position for a Canadian Public Policy (2002) (the “Senate Committee Report”), vol. I, at pp. 165-66). Pregnant women and schizophrenics are also said to be at particular risk. Advancing the protection of these vulnerable individuals, in our opinion, is a policy choice that falls within the broad legislative scope conferred on Parliament.
4     A conviction for the possession of marihuana for personal use carries no mandatory minimum sentence. In practice, most first offenders are given a conditional discharge. Imprisonment is generally reserved for situations that also involve trafficking or hard drugs. …
5     The appellants have assembled much evidence and argument attacking the wisdom of the criminalization of simple possession of marihuana. They say that the line between criminal and non-criminal conduct has been drawn inappropriately and that the evil effects of the law against marihuana outweigh the benefits, if any, associated with its prohibition. These are matters of legitimate controversy, but the outcome of that debate is not for the courts to determine. The Constitution provides no more than a framework. Challenges to the wisdom of a legislative measure within that framework should be addressed to Parliament. Our concern is solely with the issue of constitutionality. We conclude that it is within Parliament’s legislative jurisdiction to criminalize the possession of marihuana should it choose to do so. Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marihuana laws that it no longer considers to be good public policy.
…

II. Relevant Statutory and Constitutional Provisions

…

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Constitution Act, 1867

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, --
...
(27) The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

V. Analysis

E. Section 7 of the Charter

…
(d) The “Harm Principle”

102     The appellants contend that unless the state can establish that the use of marihuana is harmful to others, the prohibition against simple possession cannot comply with s. 7. Our colleague Arbour J. accepts this proposition as correct to the extent that “the state resorts to imprisonment” (para. 244). Accordingly, a closer look at the alleged “harm principle” is called for.
103     We should be clear about the direction of the appellants’ argument. It is agreed by all parties that the existence of harm, especially harm to others, is a state interest sufficient to ground the exercise of the criminal law power. The appellants’ contention, however, is that the absence of demonstrated harm to others deprives Parliament of the power to impose criminal liability. That is what they call the “harm principle”.
104     We think it right to state at the outset that we do not agree that the “harm principle” plays the essential role assigned to it by the appellants in testing the criminal law against the requirements of the Charter. Further, with respect to our colleague’s focus on the availability (if not the imposition) of imprisonment for the simple possession of marihuana, we think the punishment debate is more appropriately addressed under s. 12 of the Charter (“cruel and unusual treatment or punishment”), rather than under s. 7, although clearly it has implications for both s. 7 and s. 1, as will shortly be discussed.
105     The British Columbia Court of Appeal also dealt with this case on the premise that the harm principle was a controlling principle under s. 7 of the Charter. It is therefore appropriate that we deal with it in some detail.

(i) History and Definition of the Harm Principle

106     What is the “harm principle”? The appellants rely, in particular, on the writings of the liberal theorist, J. S. Mill, who attempted to establish clear boundaries for the permissible intrusion of the state into private life:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant... . The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. [Emphasis added.]
(J. S. Mill, On Liberty and Considerations on Representative Government (1946), at pp. 8-9)

107     Thus Mill’s principle has two essential features. First, it rejects paternalism -- that is, the prohibition of conduct that harms only the actor. Second, it excludes what could be called “moral harm”. Mill was of the view that such moral claims are insufficient to justify use of the criminal law. Rather, he required clear and tangible harm to the rights and interests of others.
108     At the same time, Mill acknowledged an exception to his requirement of harm “to others” for vulnerable groups. He wrote that “this doctrine is meant to apply to human beings in the maturity of their faculties... . Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury” (p. 9).
109     Mill’s statement has the virtues of insight and clarity but he was advocating certain general philosophic principles, not interpreting a constitutional document. Moreover, even his philosophical supporters have tended to agree that justification for state intervention cannot be reduced to a single factor—harm—but is a much more complex matter. One of Mill’s most distinguished supporters, Professor H. L. A. Hart, wrote:

Mill’s formulation of the liberal point of view may well be too simple. The grounds for interfering with human liberty are more various than the single criterion of ‘harm to others’ suggests: cruelty to animals or organizing prostitution for gain do not, as Mill himself saw, fall easily under the description of harm to others. Conversely, even where there is harm to others in the most literal sense, there may well be other principles limiting the extent to which harmful activities should be repressed by law. So there are multiple criteria, not a single criterion, determining when human liberty may be restricted. [Emphasis added.]
(H. L. A. Hart, “Immorality and Treason”, originally appearing in The Listener (July 30, 1959), at pp. 162-63, reprinted in Morality and the Law (1971), 49, at p. 51)

To the same effect, see Professor J. Feinberg, The Moral Limits of the Criminal Law (1984), vol. 1: Harm to Others, at p. 12; vol. 4: Harmless Wrongdoing, at p. 323.

(ii) Is the Harm Principle a Principle of Fundamental Justice?

110     The appellants submit that the harm principle is a principle of fundamental justice for the purposes of s. 7 that operates to place limits on the type of conduct the state may criminalize. This limitation exists independently of the division of powers under ss. 91 and 92 of the Constitution Act, 1867. In other words, the appellants contend that there is a double threshold. Even if the Crown is able to establish that the creation of a particular criminal offence is a valid exercise of the criminal law power, there is a second level of constraint on the type of conduct that can be made criminal by virtue of s. 7 of the Charter.
111     We agree that there is a form of “double threshold”, in that the Charter imposes requirements that are separate from those imposed by ss. 91 and 92 of the Constitution Act, 1867. However, we do not agree with the attempted elevation of the harm principle to a principle of fundamental justice. That is, in our view the harm principle is not the constitutional standard for what conduct may or may not be the subject of the criminal law for the purposes of s. 7.
112     In Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) explained that the principles of fundamental justice lie in “the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system” (p. 503). This Court provided further guidance as to what constitutes a principle of fundamental justice for the purposes of s. 7, in Rodriguez, supra, per Sopinka J. (at pp. 590-91 and 607):

A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles.

While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are “fundamental” in the sense that they would have general acceptance among reasonable people. [Emphasis added.]

113     The requirement of “general acceptance among reasonable people” enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental “in the eye of the beholder only”: Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

114     In our view, the “harm principle” is better characterized as a description of an important state interest rather than a normative “legal” principle. Be that as it may, even if the harm principle could be characterized as a legal principle, we do not think that it meets the other requirements, as explained below.

115     Contrary to the appellants’ assertion, we do not think there is a consensus that the harm principle is the sole justification for criminal prohibition. There is no doubt that our case law and academic commentary are full of statements about the criminal law being aimed at conduct that “affects the public”, or that constitutes “a wrong against the public welfare”, or is “injurious to the public”, or that “affects the community”. No doubt, as stated, the presence of harm to others may justify legislative action under the criminal law power. However, we do not think that the absence of proven harm creates the unqualified barrier to legislative action that the appellants suggest. On the contrary, the state may sometimes be justified in criminalizing conduct that is either not harmful (in the sense contemplated by the harm principle), or that causes harm only to the accused.
116     The appellants cite in aid of their position the observation of Sopinka J., writing for the majority in Butler, supra, that “[t]he objective of maintaining conventional standards of propriety, independently of any harm to society, is no longer justified in light of the values of individual liberty which underlie the Charter” (p. 498). However, Sopinka J. went on to clarify that it is open to Parliament to legislate “on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society” (p. 493 (emphasis added)).
117     Several instances of crimes that do not cause harm to others are found in the Criminal Code, R.S.C. 1985, c. C-46. Cannibalism is an offence (s. 182 ) that does not harm another sentient being, but that is nevertheless prohibited on the basis of fundamental social and ethical considerations. Bestiality (s. 160) and cruelty to animals (s. 446) are examples of crimes that rest on their offensiveness to deeply held social values rather than on Mill’s “harm principle”.
118     A duel fought by consenting adults is an example of a crime where the victim is no less culpable than the perpetrator, and there is no harm that is not consented to, but the prohibition (s. 71 of the Code) is nevertheless integral to our ideas of civilized society. See also R. v. Jobidon, [1991] 2 S.C.R. 714. Similarly, in R. v. F. (R.P.) (1996), 105 C.C.C. (3d) 435, the Nova Scotia Court of Appeal upheld the prohibition of incest under s. 155 of the Criminal Code despite a Charter challenge by five consenting adults. In none of these instances of consenting adults does the criminal law conform to Mill’s expression of the harm principle that “[o]ver himself, over his own body and mind, the individual is sovereign”, as referenced earlier at para. 106.
119     Various jurists and commentators are said by the appellants to have endorsed the idea that harm is required, but we think that these sources, read in context, do not support the “harm principle” as defined by the appellants.
120     One source relied on by the appellants—the writings of Sir James Fitzjames Stephen—illustrates this point. Reference was made to Stephen’s statement that the criminal law

must be confined within narrow limits, and can be applied only to definite overt acts or omissions capable of being distinctly proved, which acts or omissions inflict definite evils, either on specific persons or on the community at large.
(J. F. Stephen, A History of the Criminal Law of England (1883), vol. II, at pp. 78-79)

121     However, Stephen himself was a prominent critic of Mill’s harm principle. He believed that “immoral” behaviour can be a proper subject for the criminal law. Clearly, his reference to “evils” inflicted on the community includes the idea of moral harm, which Mill specifically excluded from the scope of his “harm principle”. Stephen thus supported a much larger view of the legitimate purposes of the criminal law than is permitted by the appellants’ argument.
122     The appellants also rely on a 1982 report by the Law Reform Commission of Canada entitled The Criminal Law in Canadian Society which concludes, at p. 45, that the criminal law “ought to be reserved for reacting to conduct that is seriously harmful”. This seems, on its face, to support the harm principle. However, the report goes on to state, at p. 45, that such harm

may be caused or threatened to the collective safety or integrity of society through the infliction of direct damage or the undermining of what the Law Reform Commission terms fundamental or essential values—those values or interests necessary for social life to be carried on, or for the maintenance of the kind of society cherished by Canadians. [Emphasis added.]

123     Our colleague Arbour J. takes the view that when the state wishes to make imprisonment available as a sanction for criminal conduct, it must be able to show the potential of such conduct to cause harm to others (para. 244). With respect, we do not think there is any such principle anchored in our law. As this Court noted in Rodriguez, supra, attempted suicide was an offence under Canadian criminal law (found in the original Code at s. 238) until its repeal by S.C. 1972, c. 13, s. 16. Sopinka J. emphasized, at p. 597, that

the decriminalization of attempted suicide cannot be said to represent a consensus by Parliament or by Canadians in general that the autonomy interest of those wishing to kill themselves is paramount to the state interest in protecting the life of its citizens.

The offence of attempted suicide was removed from the Criminal Code because Parliament came to prefer other ways of addressing the problem of suicide. In that case, as here, there was an important distinction between constitutional competence, which is for the courts to decide, and the wisdom of a particular measure, which, within its constitutional sphere, is up to Parliament.

124     Putting aside, for the moment, the proper approach to the appropriateness of imprisonment (which, as stated, we think should be addressed under s. 12 rather than s. 7), we do not accept the proposition that there is a general prohibition against the criminalization of harm to self. Canada continues to have paternalistic laws. Requirements that people wear seatbelts and motorcycle helmets are designed to “save people from themselves”. There is no consensus that this sort of legislation offends our societal notions of justice. Whether a jail sentence is an appropriate penalty for such an offence is another question. However, the objection in that aspect goes to the validity of an assigned punishment -- it does not go to the validity of prohibiting the underlying conduct.
125     A recent discussion policy paper from the Law Commission of Canada entitled What is a Crime? Challenges and Alternatives (2003) highlights the difficulties in distinguishing between harm to others and harm to self. It notes that “in a society that recognizes the interdependency of its citizens, such as universally contributing to healthcare or educational needs, harm to oneself is often borne collectively” (p. 17).
126     In short, there is no consensus that tangible harm to others is a necessary precondition to the creation of a criminal law offence.

127     Even those who agree with the “harm principle” as a regulator of the criminal law frequently disagree about what it means and what offences will meet or offend the harm principle. In the absence of any agreed definition of “harm” for this purpose, allegations and counter-allegations of non-trivial harm can be marshalled on every side of virtually every criminal law issue, as one author explains:

The harm principle is effectively collapsing under the weight of its own success. Claims of harm have become so pervasive that the harm principle has become meaningless: the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate. Today, the issue is no longer whether a moral offense causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms compare. On those issues, the harm principle is silent. [Emphasis in original.]
(B. E. Harcourt, “The Collapse of the Harm Principle” (1999), 90 J. Crim. L. & Criminology 109, at p. 113)

* * *

James Fitzjames Stephen, Liberty, Egality, Fraternity (2d ed. 1874)

            [Stephen was not only the drafter of the code that became the blueprint for the Canadian Criminal Code; he was also one of the most vociferous and widely read critics of Mill’s harm principle, and of On Liberty in general. Here is a sample.]

            [I]t is remarkable that, having thus fully and carefully enunciated his doctrine, Mr. Mill never attempts to prove it, as a whole. …
[T]here is hardly anything in the whole essay which can properly be called proof as distinguished from enunciation or assertion of the general principles quoted….

Why draw so strongly marked a line between social and legal penalties? Mr. Mill asserts the existence of the distinction in every form of speech. He makes his meaning perfectly clear. Yet from one end of his essay to the other I find no proof and no attempt to give the proper and appropriate proof of it. His doctrine could have been proved if it had been true. It was not proved because it was not true.

            [T]he object of morally intolerant legislation … is to establish, to maintain, and to give power to that which the legislator regards as a good moral system or standard. [T]his object is good if and in so far as the system so established and maintained is good. How far any particular system is good or not is a question which probably does not admit of any peremptory final decision; but I may observe that there are a considerable number of things which appear good and bad, though no doubt in different degrees, to all mankind. For the practical purpose of legislation refinements are of little importance. In any given age and nation virtue and vice have meanings which for that purpose are quite definite enough. In England at the present day many theories about morality are current, and speculative men differ about them widely, but they relate not so much to the question whether particular acts are right or wrong, as to the question of the precise meaning of the distinction, the manner in which the moral character of particular actions is to be decided, and the reasons for preferring right to wrong conduct. The result is that the object of promoting virtue and preventing vice must be admitted to be both a good one and one sufficiently intelligible for legislative purposes.

If this is so, the only remaining questions will be as to the efficiency of the means at the disposal of society for this purpose, and the cost of their application. Society has at its disposal two great instruments by which vice may be prevented and virtue promoted—namely, law and public opinion; and law is either criminal or civil. The use of each of these instruments is subject to certain limits and conditions, and the wisdom of attempting to make men good either by Act of Parliament or by the action of public opinion depends entirely upon the degree in which those limits and conditions are recognized and acted upon.

[T]ake the case of criminal law. What are the conditions under which and the limitations within which it can be applied with success to the object of making men better? In considering this question it must be borne in mind that criminal law is at once by far the most powerful and by far the roughest engine which society can use for any purpose. Its power is shown by the fact that it can and does render crime exceedingly difficult and dangerous. Indeed, in civilized society it absolutely prevents avowed open crime committed with the strong hand, except in cases where crime rises to the magnitude of civil war. Its roughness hardly needs illustration. It strikes so hard that it can be enforced only on the gravest occasions, and with every sort of precaution against abuse or mistake. Before an act can be treated as a crime, it ought to be capable of distinct definition and of specific proof, and it ought also to be of such a nature that it is worthwhile to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it. These conditions are seldom, if ever, fulfilled by mere vices. It would obviously be impossible to indict a man for ingratitude or perfidy. Such charges are too vague for specific discussion and distinct proof on the one side, and disproof on the other. Moreover, the expense of the investigations necessary for the legal punishment of such conduct would be enormous. It would be necessary to go into an infinite number of delicate and subtle inquiries which would tear off all privacy from the lives of a large number of persons. These considerations are, I think, conclusive reasons against treating vice in general as a crime.

Chapter 4. Legality Principle

A. Rule of Law/Rechtsstaat

Lon L. Fuller, The Morality of Law (rev’d ed. 1969)

... eight distinct routes to disaster. The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes are: (2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, (8) a failure of congruence between the rules as announced and their actual administration.

B.        Legislativity

Frey v. Fedoruk
 [1950] S.C.R. 517
Supreme Court of Canada

The judgment of the Chief Justice and of Taschereau, Rand, Kellock, Locke and Cartwright, JJ. was delivered by:
CARTWRIGHT J.:—This appeal raises questions as to whether the conduct of the Plaintiff, which is popularly described as that of a “peeping tom”, constitutes a criminal offence and if so, whether the Defendants Fedoruk and Stone were justified in arresting the Plaintiff without a warrant.
In this Court, the appeal was presented as depending upon undisputed facts which may be briefly stated as follows:

About 11.15 p.m. on the 4th of March 1947, the mother of the Defendant, Fedoruk, while standing in her nightgown in her lighted bedroom in her son’s house saw the Plaintiff peeping into her window, the curtains of which were only partially drawn. She was frightened and called to her son who seized a butcher knife and ran outside. He shouted at the Plaintiff who was then just leaving Fedoruk’s property. The plaintiff started to run; Fedoruk chased him about one hundred yards to a point where the Plaintiff was trying to unlock and get into his truck. The lights of the truck were out. Fedoruk took the Plaintiff back to his house, threatening him with the knife. Fedoruk’s mother identified the Plaintiff as the man whom she had seen at her window and the police were called. The Defendant Stone, a police constable, arrived accompanied by another police officer, and after some investigation, as a result of which he formed the opinion that the Plaintiff had been “peeping”, he told the Plaintiff he was under arrest and took him to the Police Station where he was confined.…

The learned trial Judge dismissed the action against all three Defendants. The Court of Appeal [95 Can. C.C. 206.] unanimously allowed the appeal as to the Defendant Watt and awarded the Plaintiff $100 damages against him, and from this award no appeal was taken. The majority of the Court of Appeal dismissed the Plaintiff’s appeal as against Fedoruk and Stone. Robertson, J.A. dissenting would have allowed the appeal as to these Defendants also and would have awarded the Plaintiff damages of $10 against Fedoruk and $50 against Stone. Leave to appeal was granted to the Plaintiff by the Court of Appeal.

The majority of the Court of Appeal were of opinion that the Plaintiff was guilty of a criminal offence at Common Law, and that the Defendants were justified in the circumstances in arresting him without a warrant. Robertson, J.A. was of the view that on the facts as found, no criminal offence was committed by the Plaintiff.

The claim being one for damages for false imprisonment, in my opinion, the following short passage from Halsbury’s Laws of England, Second Edition, Volume 33, page 38 correctly states the law:

The gist of the action of false imprisonment is the mere imprisonment; the plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification.

There is no question on the facts but that the Plaintiff was imprisoned first by Fedoruk and afterwards by Stone, and in order to succeed it was therefore necessary for each of them to plead and prove that the imprisonment was legally justifiable. The justification pleaded by Fedoruk consists of a brief statement of the facts outlined above followed by the allegation that fearing that the Plaintiff was under the circumstances in question, doing an act which was likely to cause a breach of the peace, to wit, peeping without any lawful excuse into the windows of his mother’s bedroom while hiding outside, he pursued the Plaintiff through his property and arrested the Plaintiff because of the violation of law committed by the said Plaintiff.

The justification pleaded by Stone is that he placed the Plaintiff under arrest by reason of the commission of an act by the said Plaintiff that was likely to cause a breach of the peace by reason of the said Plaintiff peeping at night through the window of the home of Stephen Fedoruk, and in particular through the window of the bedroom of the said Defendant’s mother while she was undressing and preparing for bed and only after having investigated the explanation given by the Plaintiff and having found that the same could not be in accordance with the facts.

It will be observed that the Defendant Stone does not plead that he believed a breach of the peace had been committed or that such breach had in fact been committed. He limits his plea to the allegation that the Plaintiff had committed an act likely to cause a breach of the peace.
The only charge laid against the Plaintiff was that he:

unlawfully did act in a manner likely to cause a breach of the peace by peeping at night through the window of the house of S. Fedoruk, there situated, against the peace of our Lord the King, his Crown and dignity; Contrary to the form of Statute in such case made and provided.

On this charge the Plaintiff was convicted by a police magistrate sitting for the summary trial of an indictable offence. The formal conviction concludes with the words:

and I adjudge the said Bernard Frey for his said offence to keep the Peace and be of good behaviour for the term of one year.

This conviction was quashed by the Court of Appeal on the ground that the evidence on the record did not support the conviction, without that court finding it necessary to decide whether or not the acts charged constituted a criminal offence. This is stated in the judgment of O’Halloran, J.A. who was a member of the Court which quashed the conviction.

It would appear that the acquittal of the Plaintiff on the criminal charge does not preclude the Defendants from showing as their justification for having imprisoned him that he had in fact committed the offence of which he had been acquitted.

O’Halloran, J.A., with whom Sidney Smith, J.A. agrees, stated his conclusion that the Plaintiff had committed an offence at Common Law in the following words:

He himself committed a breach of the “King’s Peace” by acting in a way that produced fear in the inmates of the house; he disturbed their tranquillity and privacy in a manner that he would naturally expect to invite immediate violence against him. Among other things it is instinctive in man to take physical reprisal against invasion of the privacy of his womenfolk particularly at night. Accordingly his breach of the “King’s peace” was more than likely to cause an immediate breach of the King’s peace by the inmates of the house; and he contributed another sinister incident by running when Fedoruk shouted at him instead of stopping and talking to Fedoruk.

No attempt is made to define completely the Common Law offence of “breach of the King’s Peace”, except to say, it is not used here in its common and more narrow sense.

O’Halloran, J.A. later continues:

As previously intimated, breach of the peace has two significations; the narrow and common one applicable to riots, tumults and actual physical violence; and the other and wider one which goes so deeply into the roots of the Common law, viz., any disturbance of the tranquillity of people, which if not punished, will naturally lead to physical reprisals, with wider and more aggravated disturbances of the “King’s Peace.”

While O’Halloran, J.A. takes the view that the Criminal Code does not expressly make the Plaintiff’s conduct criminal and that at Common Law merely looking through a window at night is not in itself a criminal offence, he goes on to hold that the circumstances in which the act is done may change its character, and continues:

It is my judgment that the circumstances here surround the intruder’s act of looking in the window with such sinister implications, that in the lack of a credible explanation, his conduct as a whole must be regarded as criminal at Common Law. It was late at night, the intruder was on private property some thirty to forty feet back from the street line; he was looking in a side window which did not face the street, the window was lighted and he could see a woman preparing for bed. Quite apart from the “peeping tom” aspect, the presence of a prowler in such circumstances, the dread of the hostile unknown at night, would naturally frighten the inmates of the house, and incite them to immediate violent defensive or offensive action against him.

Robertson, J.A. dissenting, was of opinion that the Plaintiff did not commit an actual breach of the peace. He points out that “an indictment will not lie for a bare trespass not amounting to an actual breach of the peace.” This statement of the law is amply supported by the authorities cited by Robertson, J.A. all of which were decided long after the passing of C. 8 of 5 Rich. II (1381), referred to in the judgment of O’Halloran, J.A. as making unlawful entry into any lands a criminal offence even if unaccompanied by violence. In my view that statute contemplates entry with the intention of taking possession and has no reference to an isolated and temporary act of trespass such as occurred in this case. I agree with the conclusion of Robertson, J.A. that the Plaintiff did not commit any criminal offence.

We have been referred to no reported case in which the conduct of a “peeping tom” was held to be a criminal offence. It is well settled that, while the rule may not be so strict as in criminal cases, in a civil case where a right or defence rests on an allegation of criminal conduct a heavy onus lies upon the party alleging it, and questions that are left in doubt by circumstantial evidence must be resolved in favour of innocence.

There is no suggestion in the evidence of any attempt on the part of the Plaintiff to offer violence to anyone. A reasonable inference to be drawn from the facts recited above is that the Plaintiff had no intention of himself doing any violent act and hoped that he would not be discovered. When he was discovered he at once ran away. In my opinion, the mere fact that his presence at night in close proximity to the window would have the probable effect of frightening the inmate of the room does not make such conduct criminal at Common Law.

While I agree with the view expressed by O’Halloran, J.A. that such conduct, if discovered, would naturally frighten the inmates of the house and that it would tend to incite them to immediate violent action against the intruder, I am doubtful whether such action could be properly described as defensive. I would describe it rather as offensive and retributive. I do not think action is defensive when the person against whom it is taken has given no indication of any intention to attack and is already in flight. I do not think that it is safe to hold as a matter of law, that conduct, not otherwise criminal and not falling within any category of offences defined by the Criminal Law, becomes criminal because a natural and probable result thereof will be to provoke others to violent retributive action. If such a principle were admitted, it seems to me that many courses of conduct which it is well settled are not criminal could be made the subject of indictment by setting out the facts and concluding with the words that such conduct was likely to cause a breach of the peace. Two examples may be mentioned. The speaking of insulting words unaccompanied by any threat of violence undoubtedly may and sometimes does produce violent retributive action, but is not criminal. The commission of adultery has, in many recorded cases, when unexpectedly discovered, resulted in homicide; but, except where expressly made so by Statute, adultery is not a crime.

If it should be admitted as a principle that conduct may be treated as criminal because, although not otherwise criminal, it has a natural tendency to provoke violence by way of retribution, it seems to me that great uncertainty would result. I do not think it safe by the application of such a supposed principle to declare an act or acts criminal which have not, up to the present, been held to be criminal in any reported case.

This would be my view if the matter were not covered by authority, but it also appears to me to be supported by authority. In my view it has been rightly held that acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency, and that the only way in which such conduct can be dealt with and restrained, apart from civil proceedings for damages, is by taking the appropriate steps to have the persons committing such acts bound over to keep the peace and be of good behaviour.
…
In Rex v. Sandbach Ex parte Williams [[1935] 2 K.B. 192.], Humphreys, J. citing Blackstone, Volume (iv), page 256 points out that a man may be bound to his good behaviour for causes of scandal contra bonos mores, as well as contra pacem.

In my view, the Plaintiff’s conduct in peeping through the window was contra bonos mores, but was not contra pacem in the sense of being a breach of the criminal law.
…
In my view, the definition of a breach of the Peace in Wharton’s Law Lexicon, 14th Edition, page 143, quoted by Robertson, J.A. “offences against the public which are either actual violations of the peace, or constructive violations, by tending to make others break it”, is too wide if the concluding words “or constructive violations, by tending to make others break it” are intended to include conduct likely to produce violence only by way of retribution against the supposed offender.

O’Halloran, J.A. does not refer to any reported case in which the conduct of a “peeping tom” has been held to be a criminal offence. As mentioned above, we were referred to no such case by counsel, and I have not been able to find one.

I do not understand O’Halloran, J.A. to suggest in his elaborate reasons that there is precedent for the view that the Plaintiff’s conduct in this case was criminal. Rather he appears to support the finding of the trial Judge to that effect on the grounds stated in the following paragraph:

Criminal responsibility at Common law is primarily not a matter of precedent, but of application of generic principle to the differing facts of each case. It is for the jury to apply to the facts of the case as they find them, the generic principle the Judge gives them. Thus by their general verdict the jury in practical effect decide both the law and the facts in the particular case, and have consistently done so over the centuries, and cf. Coke on Littleton (1832 Ed.) vol. 1, note 5, para. 155 (b). The fact finding Judge in this case, as the record shows, had not the slightest doubt on the evidence before him that what the appellant has been accused of was a criminal offence at Common Law.

In my opinion when it is read against the background of the rest of the Reasons of O’Halloran, J.A., it appears that, in relation to the facts of this case, the “generic principle” which the learned Judge has in mind is too wide to have any value as a definition. The genus appears to be “a breach of the King’s Peace” in the wider signification which is attached to that expression elsewhere in the Reasons.

It appears to me that so understood, the genus is wide enough to include the whole field of the criminal law. As it is put in Pollock and Maitland, History of English Law (1895) Volume 1, page 22: “All criminal offences have long been said to be committed against the King’s peace.  And in Volume 2 of the same work at page 452, it is stated: to us a breach of the King’s peace may seem to cover every possible crime.”

Once the expression “a breach of the King’s Peace” is interpreted, as O’Halloran, J.A. undoubtedly does interpret it, not to require as an essential ingredient anything in the nature of “riots, tumults, or actual physical violence” on the part of the offender, it would appear to become wide enough to include any conduct which in the view of the fact finding tribunal is so injurious to the public as to merit punishment. If, on the other hand, O’Halloran, J.A. intended to give to the expression a more limited meaning so that it would include only conduct of a nature likely to lead to a breach of the peace in the narrower sense of which he speaks, the authorities referred to elsewhere in this Judgment seem to me to show that this is not an offence known to the law.

I am of opinion that the proposition implicit in the paragraph quoted above ought not to be accepted. I think that if adopted, it would introduce great uncertainty into the administration of the Criminal Law, leaving it to the judicial officer trying any particular charge to decide that the acts proved constituted a crime or otherwise, not by reference to any defined standard to be found in the code or in reported decisions, but according to his individual view as to whether such acts were a disturbance of the tranquillity of people tending to provoke physical reprisal.

To so hold would, it seems to me, be to assert the existence of what is referred to in Stephen’s History of the Criminal Law of England, Volume 2, Page 190, as:

the power which has in some instances been claimed for the Judges of declaring anything to be an offence which is injurious to the public, although it may not have been previously regarded as such.

The writer continues: “this power, if it exists at all, exists at Common Law.”

In my opinion, this power has not been held and should not be held to exist in Canada. I think it safer to hold that no one should be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts.

Having reached the conclusion that the Plaintiff’s conduct did not amount to any criminal offence known to the law, the question whether the Defendants were justified in arresting Frey presents little difficulty. The justification put forward in argument was based on certain sections of the Criminal Code all of which, with the exception of Section 30, would require as a condition of their affording justification to the Defendants the fact that some criminal offence had been committed.

Section 30 {now repealed} would be of no avail to Fedoruk who was not a peace officer, but it must be examined in regard to Stone. The section reads as follows:

Every peace officer who, on reasonable and probable grounds, believes that an offence for which the offender may be arrested without warrant has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed that offence, is justified in arresting such person without warrant, whether such person is guilty or not.

It may be that Stone’s Statement of Defence is not aptly framed to raise this section as a defence but I do not think it necessary or desirable to decide this point upon the precise form of the pleadings. In my opinion, assuming, without deciding, that the form of the pleadings permits Stone to rely upon it, this section does not afford any justification for his arresting the Plaintiff.

I think that this section contemplates the situation where a Peace Officer, on reasonable and probable grounds, believes in the existence of a state of facts which, if it did exist would have the legal result that the person whom he was arresting had committed an offence for which such person could be arrested without a warrant. It cannot, I think, mean that a Peace Officer is justified in arresting a person when the true facts are known to the Officer and he erroneously concludes that they amount to an offence, when, as a matter of law, they do not amount to an offence at all. “Ignorantia legis non excusat”.
…
For the reasons set out above, I am of the opinion that the Plaintiff’s conduct did not amount to a criminal offence, and that the Defendants Fedoruk and Stone have failed to satisfy the onus which lay upon them of showing some justification in law for having imprisoned him. I agree with Robertson, J.A. that the Plaintiff was entitled to succeed as against both Defendants.

I would not vary the assessment of the damages proposed by Robertson, J.A. The Plaintiff’s counsel does not ask that they be increased and I do think that the amounts suggested are excessive. While I agree with Robertson, J.A. that in a sense “the whole matter was brought upon the Plaintiff by himself”, the facts remain that his arrest was effected by Fedoruk by the threatening use of a deadly weapon, he was deprived of his liberty for several hours and subjected to some minor indignities at the police station, all without any justification in law.

In the result I would allow the appeal and direct that judgment be entered against Fedoruk for $10 and against Stone for $50 with cost of the appeal to the Court of Appeal and of the appeal to this Court. There should be no costs of the action against the Respondents unless the Appellant is able to secure an order under section 77 of The Supreme Court Act of British Columbia, allowing him costs of the action so far as the issue of false arrest is concerned.

Appeal allowed with costs.

* * *

Shaw v. Director of Public Prosecutions
House of Lords
[1962] A.C. 220

The appellant published a booklet, the Ladies’ Directory, of some 28 pages, most of which were taken up with the names and addresses of prostitutes; the matter published left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases; for the practice of sexual perversions. The appellant’s avowed purpose in publication was to assist prostitutes to ply their trade when as a result of the Street Offences Act, 1959, they were no longer able to solicit in the street. The prostitutes paid for the advertisements and the appellant derived a profit from the publication. The appellant pleaded not guilty to an indictment charging him with (1) conspiracy to corrupt public morals in that he conspired with the advertisers and other persons by means of the Ladies’ Directory and the advertisements to debauch and corrupt the morals of youth and other subjects of the Queen; (2) living on the earnings of prostitution contrary to section 30 of the Sexual Offences Act, 1956; and (3) publishing an obscene article contrary to section 2 of the Obscene Publications Act, 1959. The jury convicted the appellant on all three counts and he was sentenced to nine months imprisonment. The Court of Criminal Appeal upheld the convictions and the sentence and the accused was granted leave to appeal to the House of Lords, which likewise affirmed.

VISCOUNT SIMONDS:…I am concerned only to assert what was vigorously denied by counsel for the appellant, that such an offence is known to the common law, and that it was open to the jury to find on the facts of this case that the appellant was guilty of such an offence. I must say categorically that, if it were not so, Her Majesty’s courts would strangely have failed in their duty as servants and guardians of the common law. Need I say, my Lords, that I am no advocate of the right of the judges to create new criminal offences? I will repeat well-known words: “Amongst many other points of happiness and freedom which your Majesty’s subjects have enjoyed there is none which they have accounted more dear and precious than this, to be guided and governed by certain rules of law which giveth both to the head and members that which of right belongeth to them and not by any arbitrary or uncertain form of government.” These words are as true today as they were in the seventeenth century and command the allegiance of us all. But I am at a loss to understand how it can be said either that the law does not recognise a conspiracy to corrupt public morals or that, though there may not be an exact precedent for such a conspiracy as this case reveals, it does not fall fairly within the general words by which it is described. … The fallacy in the argument that was addressed to us lay in the attempt to exclude from the scope of general words acts well calculated to corrupt public morals just because they had not been committed or had not been brought to the notice of the court before. It is not thus that the common law has developed. We are perhaps more accustomed to hear this matter discussed upon the question whether such and such a transaction is contrary to public policy. At once the controversy arises. On the one hand it is said that it is not possible in the twentieth century for the court to create a new head of public policy, on the other it is said that this is but a new example of a well-established head. In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for. That is the broad head (call it public policy if you wish) within which the present indictment falls. It matters little what label is given to the offending act. To one of your Lordships it may appear an affront to public decency, to another considering that it may succeed in its obvious intention of provoking libidinous desires it will seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society. Today a denial of the fundamental Christian doctrine, which in past centuries would have been regarded by the ecclesiastical courts as heresy and by the common law as blasphemy, will no longer be an offence if the decencies of controversy are observed. When Lord Mansfield, speaking long after the Star Chamber had been abolished, said (Rex v. Delaval (1763) 3 Burr. 1434, 1438, 1439) that the Court of King’s Bench was the custos morum of the people and had the superintendency of offences contra bonos mores, he was asserting, as I now assert, that there is in that court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society. Let me take a single instance to which my noble and learned friend Lord Tucker refers. Let it be supposed that at some future, perhaps, early, date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement? Or must we wait until Parliament finds time to deal with such conduct? I say, my Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. But I say that her hand is still powerful and that it is for Her Majesty’s judges to play the part which Lord Mansfield pointed out to them….

I will say a final word upon an aspect of the case which was urged by counsel. No one doubts—and I have put it in the forefront of this opinion—that certainty is a most desirable attribute of the criminal and civil law alike. Nevertheless there are matters which must ultimately depend on the opinion of a jury. In the civil law I will take an example which comes perhaps nearest to the criminal law—the tort of negligence. It is for a jury to decide not only whether the defendant has committed the act complained of but whether in doing it he has fallen short of the standard of care which the circumstances require. Till their verdict is given it is uncertain what the law requires. The same branch of the civil law supplies another interesting analogy. For, though in the Factory Acts and the regulations made under them, the measure of care required of an employer is defined in the greatest detail, no one supposes that he may not be guilty of negligence in a manner unforeseen and unprovided for. That will be a matter for the jury to decide. There are still, as has recently been said, “unravished remnants of the common law.” (Lord Radcliffe: “The Law and its Compass,” p.53)

So in the case of a charge of conspiracy to corrupt public morals the uncertainty that necessarily arises from the vagueness of general words can only be resolved by the opinion of twelve chosen men and women. I am content to leave it to them.

The appeal on both counts should, in my opinion, be dismissed.

LORD REID (dissenting):…My Lords, I turn to the first count. …
In my opinion there is no such general offence known to the law as conspiracy to corrupt public morals. Undoubtedly there is an offence of criminal conspiracy and undoubtedly it is of fairly wide scope. In my view its scope cannot be determined without having regard first to the history of the matter and then to the broad general principles which have generally been thought to underlie our system of law and government and in particular our system of criminal law.

It appears to be generally accepted that the offence of criminal conspiracy was the creature of the Star Chamber. So far as I am able to judge the summary in Kenny’s Outlines of Criminal Law, section 59, 17th ed., p. 88, is a fair one. There it is said that the criminal side of conspiracy was “emphasised by the Star Chamber which recognised its possibilities as an engine of government and moulded it into a substantive offence of wide scope whose attractions were such that its principles were gradually adopted by the common law courts.” The Star Chamber perhaps had more merits than its detractors will admit but its methods and principles were superseded and what it did is of no authority today. The question is how far the common law courts in fact went in borrowing from it.

I think that Lord Goddard C. J. was repeating the generally accepted view when he said: “A conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means.” (Reg. v. Newland [1954] Q.B. 158) But what is “an unlawful act?” To commit a crime—yes, and what about offences which can only be dealt with summarily and punished lightly: they are certainly unlawful acts but (I quote from the Law of Criminal Conspiracies, by R.S. Wright J., p. 83) they “are not in themselves of grave enough consequence to be matters for indictment; and, if so, it must in general be immaterial whether the results are produced by one person or by two or more persons. To permit two persons to be indicted for a conspiracy to make a slide in the street of a town, or to catch hedge sparrows in April, would be to destroy that distinction between crimes and minor offences which in every country it is held important to preserve.” To commit a tort—yes in certain cases, but for somewhat similar reasons it seems to be at least doubtful whether it is an offence to conspire to commit a tort which is neither malicious nor fraudulent nor accompanied by violence.

Then there is undoubtedly a third class of act which an individual can do with impunity but a combination cannot. Perhaps the best known example is conspiring to injure a man in his trade if done without justification. I need only refer to the series of cases in this House from Mogul S.S. Co. v. McGregor, Gow &Co. ([1892] A.C. 25) to the Harris Tweed case ([1942] A.C. 435). No one has ever attempted to define what makes an act “unlawful” so as to bring it within this class; the law seems to be haphazard, depending largely on historical accident. Perhaps as good a summary as any is that which goes back to early editions of Professor Kenny’s book (now [17th ed.], section (iv), pp. 393, 451): “. . . certain other acts, which . . . are not breaches of law at all, but which nevertheless are outrageously immoral or else are, in some way, extremely injurious to the public.” One thing does, however, appear to be reasonably clear. So far as I have been able to trace all who took part in the Mogul S.S. Co. series of cases and who mentioned the matter, except Lord Esher, were of opinion that to make or carry out a contract which is unenforceable by reason of immorality or otherwise is not an unlawful act in this sense.

There are two competing views. One is that conspiring to corrupt public morals is only one facet of a still more general offence, conspiracy to effect public mischief; and that, like the categories of negligence, the categories of public mischief are never closed. The other is that, whatever may have been done two or three centuries ago, we ought not now to extend the doctrine further than it has already been carried by the common law courts. Of course I do not mean that it should only be applied in circumstances precisely similar to those in some decided case. Decisions are always authority for other cases which are reasonably analogous and are not properly distinguishable. But we ought not to extend the doctrine to new fields.

I agree with R.S. Wright J. when he says (op. cit. p. 86): “There appear to be great theoretical objections to any general rule that agreement may make punishable that which ought not to be punished in the absence of agreement.” And I think, or at least I hope, that it is now established that the courts cannot create new offences by individuals. So far at least I have the authority of Lord Goddard C. J. in delivering the opinion of the court in Newland: “The dictum in Rex v. Higgins ((1801) 2 East 5) was that all offences of a public nature, that is, all such acts or attempts as tend to the prejudice of the public are indictable, but no other member of the court stated the law in such wide terms. It is the breadth of that dictum that was so strongly criticised by Sir Fitzjames Stephen in the passage in his History of the Criminal Law (vol. 3, p. 359) . . . and also by Dr. Stallybrass in the Law Quarterly Review, vol. 49, p. 183. In effect it would leave it to the judges to declare new crimes and enable them to hold anything which they considered prejudicial to the community to be a misdemeanour. However beneficial that might have been in days when Parliament met seldom or at least only at long intervals it surely is now the province of the legislature and not of the judiciary to create new criminal offences.” Every argument against creating new offences by an individual appears to me to be equally valid against creating new offences by a combination of individuals.

But there is this historical difference. The judges appear to have continued to extend the law of conspiracy after they had ceased to extend offences by individuals. Again I quote from R.S. Wright J. (p. 88): “In an imperfect system of criminal law the doctrine of criminal agreements for acts not criminal may be of great practical value for the punishment of persons for acts which are not, but which ought to be made punishable irrespectively of agreement.”

Even if there is still a vestigial power of this kind it ought not, in my view, to be used unless there appears to be general agreement that the offence to which it is applied ought to be criminal if committed by an individual. Notoriously, there are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that when there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in.

It may, perhaps, be said that there is no question here of creating a new offence because there is only one offence of conspiracy—agreeing or acting in concert to do an unlawful act. In a technical sense that is true. But in order to extend this offence to a new field the court would have to create a new unlawful act: it would have to hold that conduct of a kind which has not hitherto been unlawful in this sense must now be held to be unlawful. It appears to me that the objections to that are just as powerful as the objections to creating a new offence. The difference is a matter of words; the essence of the matter is that a type of conduct for the punishment of which there is no previous authority now for the first time becomes punishable solely by a decision of a court.

Finally I must advert to the consequences of holding that this very general offence exists. It has always been thought to be of primary importance that our law, and particularly our criminal law, should be certain: that a man should be able to know what conduct is and what is not criminal, particularly when heavy penalties are involved. Some suggestion was made that it does not matter if this offence is very wide: no one would ever prosecute and if they did no jury would ever convict if the breach was venial. Indeed, the suggestion goes even further: that the meaning and application of the words “deprave” and “corrupt” (the traditional words in obscene libel now enacted in the 1959 Act) or the words “debauch” and “corrupt” in this indictment ought to be entirely for the jury, so that any conduct of this kind is criminal if in the end a jury think it so. In other words, you cannot tell what is criminal except by guessing what view a jury will take, and juries’ views may vary and may change with the passing of time. Normally the meaning of words is a question of law for the court. For example, it is not left to a jury to determine the meaning of negligence: they have to consider on evidence and on their own knowledge a much more specific question - Would a reasonable man have done what this man did? I know that in obscene libel the jury has great latitude but I think that it is an understatement to say that this has not been found wholly satisfactory. If the trial judge’s charge in the present case was right, if a jury is entitled to water down the strong words “deprave,”“corrupt” or “debauch” so as merely to mean lead astray morally, then it seems to me that the court has transferred to the jury the whole of its functions as censor morum, the law will be whatever any jury may happen to think it ought to be, and this branch of the law will have lost all the certainty which we rightly prize in other branches of our law.

Appeal dismissed.

C.        Specificity

R. v. Nova Scotia Pharmaceutical Society
Supreme Court of Canada
[1992] 2 S.C.R. 606

The judgment of the court was delivered by
GONTHIER J.:—

I. Facts and proceedings

The 12 appellants were indicted on May 31, 1990, with two counts of conspiracy to prevent or lessen competition unduly, contrary to s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23. Both counts related to the sale and offering for sale of prescription drugs and pharmacists’ dispensing services between January 1, 1974 and June 16, 1986, for the first, and between July 1, 1976 and June 16, 1986, for the second. The trial was set to begin in October, 1990.

On August 21, 1990, the appellants made a motion for an order to quash the indictment, on the basis that s. 32(1)(c), (1.1) and (1.3) of the Act violated ss. 7, 11(a) and (d) of the Canadian Charter of Rights and Freedoms and were therefore invalid. The arguments raised revolved essentially on the issues of vagueness and mens rea. On September 5, 1990, Roscoe J. of the Nova Scotia Supreme Court, Trial Division, allowed the motion and quashed the indictment: 32 C.P.R. (3d) 259, 73 D.L.R. (4th) 500, 59 C.C.C. (3d) 30, 98 N.S.R. (2d) 296. The respondent appealed to the Nova Scotia Supreme Court, Appeal Division. On April 24, 1991, a unanimous bench (Clarke, C.J.N.S., Jones and Hallet JJ.A.) allowed the appeal: 36 C.P.R. (3d) 173, 80 D.L.R. (4th) 206, 64 C.C.C. (3d) 129, 7 C.R.R. (2d) 352, 102 N.S.R. (2d) 222. A notice of appeal was filed in this court on May 22, 1991.

II. Relevant statutory provisions

Combines Investigation Act

32(1) Every one who conspires, combines, agrees or arranges with another person…

1. to prevent, or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance upon persons or property,…

is guilty of an indictable offence and is liable to imprisonment for five years or a fine of ten million dollars or to both.
The Act was amended in 1976 by 1974-75-76, c. 76, also known as “Stage I” of competition law reform. Section 32(1.1) was then added [by s. 14]:

32(1.1) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in violation of subsection (1), it shall not be necessary to prove that the conspiracy, combination, agreement or arrangement, if carried into effect, would or would be likely to eliminate, completely or virtually, competition in the market to which it relates or that it was the object of any or all of the parties thereto to eliminate, completely or virtually, competition in that market.

In 1986, in the course of “Stage II” of the reform, 1986, c. 26, further added [by s. 30] s. 32(1.3) to the Act (renamed the Competition Act [by 1986, c. 26, s. 19]):

32(1.3) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it is necessary to prove that the parties thereto intended to and did enter into the conspiracy, combination, agreement or arrangement, but it is not necessary to prove that the parties intended that the conspiracy, combination, agreement or arrangement have an effect set out in subsection (1).

These sections are now respectively know as s. 45(1)(c), (2) and (2.2) of the Competition Act, R.S.C., 1985, c. C-34.…

V. Sections 32(1)(c) and 32 (1.1) of the Act and Vagueness under S. 7 of the Charter     

A. Vagueness under the Canadian Charter of Rights and Freedoms

1. The Case Law of this Court

… The foregoing [discussion of vagueness] may be summarized by way of the following propositions:

1. Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be “prescribed by law”. Furthermore, vagueness is also relevant to the “minimal impairment” stage of the Oakes test: Morgentaler, Irwin Toy, Prostitution Reference.
2. The “doctrine of vagueness” is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion: Prostitution Reference, Committee for the Commonwealth of Canada.
3. Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist: Morgentaler, Irwin Toy, Prostitution Reference, Taylor, Osborne.
4. Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations: Prostitution Reference, Committee for theCommonwealth of Canada. On the other hand, vagueness as it relates to the “minimal impairment” branch of s. 1 merges with the related concept of overbreadth: Committee for the Commonwealth of Canada, Osborne.
5. The court will be reluctant to find a disposition so vague as not to qualify as “law” under s. 1 in limine, and will rather consider the scope of the disposition under the “minimal impairment” test: Taylor, Osborne.

…
3. The Content of the “Doctrine of Vagueness”

As was said by this court in Osborne and Butler, the threshold for finding a law vague is relatively high. So far discussion of the content of the notion has evolved around intelligibility.

The two rationales of fair notice to the citizen and limitation of enforcement discretion have been adopted as the theoretical foundations of the doctrine of vagueness, here (Prostitution Reference, Committee for the Commonwealth of Canada) as well as in the United States (see Grayned v. City of Rockford, 408 U.S. 104 (1972) at pp. 108-9) and in Europe, as will be seen later. These two rationales have been broadly linked with the corpus of principles of government known as the “rule of law”, which lies at the core of our political and constitutional tradition.

a. Fair Notice to the Citizen

Fair notice to the citizen, as a guide to conduct and a contributing element to a full answer and defence, comprises two aspects.

First of all, there is the more formal aspect of notice, that is acquaintance with the actual text of a statute. In the criminal context, this concern has more or less been set aside by the common law maxim, “Ignorance of the law is no excuse”, embodied in s.19 of the Criminal Code: see R. v. MacDougall (1982), 142 D.L.R. (3d) 216, I C.C.C. (3d) 65, [1982] 2 S.C.R. 605. In the civil context, the maxim does not apply with equal force: see J.-L. Baudouin, Les obligations, 3rd ed. (Cowansville, Quebec: Editions Yvon Blais, 1989), at p. 122, and Chitty on Contracts: General Principles, 25th ed. (London: Sweet & Maxwell, 1983), at paras. 314 and 353. Some authors have expressed the opinion that this maxim contradicts the rule of law, and should be revised in light of the growing quantity and complexity of penal legislation: see E. Colvin, “Criminal Law and The Rule of Law”, in P. Fitzgerald, ed., Crime, Justice & Codification: Essays in commemoration of Jacques Fortin (Toronto: Carswell, 1986), p. 125, at p. 151, and J.C. Jeffries, Jr., “Legality, Vagueness, and the Construction of Penal Statutes” (1985), 71 Va. L. Rev. 189 at p. 209. Since this argument was not raised in this case, I will refrain from ruling on this issue. In any event, given that, as this court has already recognized, case law applying and interpreting a particular section is relevant in determining whether the section is vague, formal notice is not a central concern in a vagueness analysis.

As Lamer J. pointed out in Re B.C. Motor Vehicle Act, supra, principles of fundamental justice, such as the doctrine of vagueness, must have a substantive as well as procedural content. Indeed, the idea of giving fair notice to citizens would be rather empty if the mere fact of bringing the text of the law to their attention was enough, especially when knowledge is presumed by law. There is also a substantive aspect to fair notice, which could be described as a notice, an understanding that some conduct comes under the law. Jeffries, op. cit., calls this the “core concept of notice” (at p. 211).

Let me take homicide as an example. The actual provisions of the CriminalCode dealing with homicide are numerous (comprising the core of ss. 222 to 240 and other related sections). When one completes the picture of the Code with case law, both substantive and constitutional, the result is a fairly intricate body of rules. Notwithstanding formal notice, it can hardly be expected of the average citizen that he know the law of homicide in detail. Yet no one would seriously argue that there is no substantive fair notice here, or that the law of homicide is vague. It can readily be seen why this is so. First of all, everyone (or sadly, should I say, almost everyone) has an inherent knowledge that taking the life of another human being is wrong. There is a deeply rooted perception that homicide cannot be tolerated whether one comes to this from a moral, religious or sociological stance. Therefore, it is expected that homicide will be punished by the state. Secondly, homicide is indeed punished by the state, and homicide trials and sentences receive a great deal of publicity.

I used homicide as an example because it lies so at the core of our criminal law and our shared values that substantive notice is easy to demonstrate. Similar demonstrations could be made, at greater length, for other legal provisions. The substantive aspect of fair notice is therefore a subjective understanding that the law touches upon some conduct, based on the substratum of values underlying the legal enactment and on the role that the legal enactment plays in the life of the society.

I do not wish to suggest that the state can only intervene through law when some non-legal basis for intervention exists. Many enactments are relatively narrow in scope and echo little of society at large; this is the case with many regulatory enactments. The weakness or the absence of substantive notice before the enactment can be compensated by bringing to the attention of the public the actual terms of the law, so that substantive notice will be achieved. Merit point and driving license revocation schemes are prime examples of this; through publicity and advertisement these schemes have been “digested” by society. A certain connection between the formal and substantive aspects of fair notice can be seen here.

Fair notice may not have been given when enactments are in somewhat general terms, in a way that does not readily permit citizens to be aware of their substance, when they do not relate to any element of the substratum of values held by society. It is no coincidence that these enactments are often found vague. For instance, the vagrancy ordinance invalidated by the United States Supreme Court in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), or the compulsory identification statute struck down in Kolender v. Lawson, 461 U.S. 352 (1983), fall into this group.

Hence, aside from a formal aspect which is in our current system often presumed, fair notice to the citizen comprises a substantive aspect, that is an understanding that certain conduct is the subject of legal restrictions.

b. Limitation of Law Enforcement Discretion

Lamer J. in the Prostitution Reference used the phrase “standardless sweep”, first coined by the United States Supreme Court in Smith v. Goguen, 415 U.S. 566 (1974) at p. 575, to describe the limitation of enforcement discretion rationale for the doctrine of vagueness. It has become the prime concern in American constitutional law: Kolender, at pp. 357-8. Indeed, today it has become paramount, given the considerable expansion of the discretionary powers of enforcement agencies that has followed the creation of the modern welfare state.

A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute. Such is the crux of the concern for limitation of enforcement discretion. When the power to decide whether a charge will lead to conviction or acquittal, normally the preserve of the judiciary, becomes fused with the power to prosecute because of the wording of the law, then a law will be unconstitutionally vague.

For instance, the wording of the vagrancy ordinance invalidated by the United States Supreme Court in Papachristou, and quoted at length in the Prostitution Reference at p. 86, was so general and so lacked precision in its content that a conviction would ensue every time the law enforcer decided to charge someone with the offence of vagrancy. The words of the ordinance had no substance to them, and they indicated no particular legislative purpose. They left the accused completely in the dark, with no possible way of defending himself before the court.
…
d. The Scope of Precision

This leads me to synthesize these remarks about vagueness. The substantive notice and limitation of enforcement discretion rationales point in the same direction: an unintelligible provision gives insufficient guidance for legal debate and is therefore unconstitutionally vague.

Legal provisions by stating certain propositions outline certain permissible and impermissible areas, and they also provide some guidance to ascertain the boundaries of these areas. In his survey article “La teneur indécise du droit” (1991),107 Rev. dr. publ. 1199, P. Amselek rightly underlines the etymological and metaphorical relationship between law and geometry and writes at pp. 1200-1 (translation):

Legal rules are mental tools…authoritatively introduced, given effect by public authorities placed at the head of human communities to govern them: such rules are thought content with a specific purpose, to be used as a tool to guide conduct, thought content which determines the boundaries of possible action depending on the circumstances—for the Romans, these boundaries were the meaning of the very concept of jus in its earliest sense and are also reflected in our concept of “law”, implying the very idea of possibility, of latitude. These boundaries impose limits on the will of those to whom they apply, serving as a support, a yardstick enabling them to remain within the area of right conduct, of rectitude, within the parameters of conduct which the concept lays down and which it then gives effect to, setting the process in motion.

These rules, as Amselek later points out, are characterized by their unresolved nature, inasmuch as they are neither objective nor complete.

Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. In the meanwhile, conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances.

By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens.

Indeed, no higher requirement as to certainty can be imposed on law in our modern state. Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective.…

A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary. This is an exacting standard, going beyond semantics. The term “legal debate” is used here not to express a new standard or one departing from that previously outlined by this court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the equality and limits of human knowledge and understanding in the operation of the law.

e. Vagueness and the Rule of Law

The criterion of absence of legal debate relates well to the rule of law principles that form the backbone for our polity. Here one must see the rule of law in the contemporary context. Continental European studies on the “État de droit” or “Rechtsstaat” are relevant: see L.C. Blaau, “The Rechtsstaat Idea Compared with the Rule of Law as a Paradigm for Protecting Rights” (1990), 107 S. Afr. L.J. 76 at pp. 88-92, for an exposition of the historical differences between these concepts.

J.P. Henry, “Vers la fin de l’État de droit” (1977), 93 Rev dr. publ. 1207, gives the following definition of the “État de droit” at p. 1208 (translation):

In theoretical terms, the état de droit is a system of organization in which all social and political relations are subject to the law. This means that relations between individuals and authority, as well as relations between individuals themselves, are part of a legal interchange involving rights and obligations.

One must move away from the non-interventionist attitude that surrounded the development of the doctrine of the rule of law to a more global conception of the state as an entity bound by and acting through law. The modern state intervenes in almost every field of human endeavour, and it plays a role that goes far beyond collecting taxes and policing. The state has entered fields whence the positions are not so clear-cut; in the realm of social or economic policy, interests diverge, and the state does not seek to enforce a definite and limited social interest in public order, for instance, against an individual. Often the state attempts to realize a series of social objectives, some of which must be balanced against one another, and which sometimes conflict with the interests of individuals. The modern state, while still acting as an enforcer, assumes more and more of an arbitration role.

This arbitration must be done according to law, but often it reaches such a level of complexity that the corresponding enactment will be framed in relatively general terms. In my opinion, the generality of these terms may entail a greater role for the judiciary, but unlike some authors (see F. Neumann, The Rule of Law (1986), at pp. 238-9), I fail to see a difference in kind between general provisions where the judiciary would assume part of the legislative role and “mechanical” provisions where the judiciary would simply apply the law. The judiciary always has a mediating role in the actualization of law, although the extent of this role may vary.

Indeed, as the [European Court of Human Rights] has recognized in Sunday Times, supra, and particularly in the Barthold case, judgment of March 25, 1985, Series A, No. 90, at p. 22, and in the case of Müller and others, judgment of May 24,1988, Series A, No.133, at p. 20, laws that are framed in general terms may be better suited to the achievement of their objectives, inasmuch as in fields governed by public policy circumstances may vary widely in time and from one case to the other. A very detailed enactment would not provide the required flexibility, and it might furthermore obscure its purposes behind a veil of detailed provisions. The modern state intervenes today in fields where some generality in the enactments is inevitable. The substance of these enactments remains none the less intelligible. One must be wary of using the doctrine of vagueness to prevent or impede state action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. A delicate balance must be maintained between societal interests and individual rights. A measure of generality also sometimes allows for greater respect for fundamental rights, since circumstances that would not justify the invalidation of a more precise enactment may be accommodated through the application of a more general one.

What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled. Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements. In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion. The need to provide guidelines for the exercise of discretion was at the centre of the E.C.H.R. reasons in Malone, supra, at p. 32-.3, and the Leander case, judgment of March 26, 1987, Series A, No. 116, at p. 23.

Finally, I also wish to point out that the standard I have outlined applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. The citizen is entitled to have the state abide by constitutional standards of precision whenever it enacts legal dispositions. In the criminal field, it may be thought that the terms of the legal debate should be outlined with special care by the state. In my opinion, however, once the minimal general standard has been met, any further arguments as to the precision of the enactments should be considered at the “minimal impairment” stage of s. l analysis.

The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. This statement of the doctrine best conforms to the dictates of the rule of law in the modern state, and it reflects the prevailing argumentative, adversarial framework for the administration of justice.
…
In summary, I find that s. 32(1)(c) of the Act and its companion interpretative provision s. 32(1.1) do not violate s. 7 of the Charter on grounds of vagueness. The word “unduly” as such carries a connotation of seriousness. Considering further that s. 32(1)(c) of the Act is one of the oldest and most important parts of Canadian public policy in the economic field, and that it mandates a partial rule of reason inquiry into the seriousness of the competitive effects of the agreement, Parliament has sufficiently delineated the area of risk and the terms of debate to meet the constitutional standard. Moreover, the rest of the Act and the case law have outlined a process of examination of market structure and behaviour under s. 32(1)(c) of the Act, thus making it even more precise….

R. v. Heywood

Supreme Court of Canada

[1994] 3 S.C.R. 761

[Heywood was convicted of vagrancy for “loitering in or near…a playground” after having photographed young children; the police had been alerted when he had brought photos of the crotch area of young girls to be developed. Section 179(1)(b) of the Criminal Code provides: “Every one commits vagrancy who … (b) having at any time been convicted of an offence under section 151, 152 or 153, subsection 160(3) or 173(2) or section 271, 272 or 273, or of an offence under a provision referred to in paragraph (b) of the definition ‘serious personal injury offence’ in section 687 of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read before January 4, 1983, is found loitering in or near a school ground, playground, public park or bathing area.”  The definition of "serious personal injury offence" in s. 687 of the Criminal Code, as it read before January 4, 1983, was as follows: “an offence mentioned in section 144 (rape) or 145 (attempted rape) or an offence or attempt to commit an offence mentioned in section 146 (sexual intercourse with a female under fourteen or between fourteen and sixteen), 149 (indecent assault on a female), 156 (indecent assault on a male) or 157 (gross indecency).”  In 1987 Heywood had been convicted of two counts of sexual assault; these prior convictions made him subject to s. 179(1)(b). The British Columbia Court of Appeal overturned the vagrancy conviction; the Crown appealed.]

CORY J. (Lamer C.J., Sopinka, Iacobucci, and Major JJ. concurring):—Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. As the Ontario Court of Appeal observed in R. v. Zundel (1987), 58 O.R. (2d) 129, at pp. 157‑58, cited with approval by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, supra, the meaning of a law may be unambiguous and thus the law will not be vague; however, it may still be overly broad. Where a law is vague, it may also be overly broad, to the extent that the ambit of its application is difficult to define. Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective.  In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective.

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

In summary, s. 179(1)(b) is overly broad to an extent that it violates the right to liberty proclaimed by s. 7 of the Charter for a number of reasons. First, it is overly broad in its geographical scope embracing as it does all public parks and beaches no matter how remote and devoid of children they may be. Secondly, it is overly broad in its temporal aspect with the prohibition applying for life without any process for review. Thirdly, it is too broad in the number of persons it encompasses. Fourth, the prohibitions are put in place and may be enforced without any notice to the accused.

GONTHIER J. (La Forest, L’Heureux-Dubé, and McLachlin JJ. concurring (in dissent)):—The interpretation I advocate eliminates Cory J.’s concern that the prohibition is overbroad. A lifetime prohibition of activities with a malevolent or ulterior purpose related to re-offending is in no way objectionable or overbroad. Such a prohibition would impose a restriction on the liberty of the affected individuals to which ordinary citizens are not subject, but that restriction is directly related to preventing re-offending. The affected persons’ history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re-offending justify what is in effect a minor intrusion which does not breach the principles of fundamental justice.

D.        Strict Construction/Lenity

R. v. Robinson
[1951] S.C.R. 522
Supreme Court of Canada

The judgment of the Chief Justice and of Kerwin, Taschereau, Estey and Fauteux, JJ. was delivered by:
FAUTEUX J.:—The nature and the course of proceedings, eventually leading to these four separate appeals, are substantially alike in all of the cases. Each of the respondents was separately indicted on two counts: one being that, at some definite time in 1950, in the province of British Columbia, he was found in unlawful possession of drugs, under the Opium and Narcotic Drug Act 1929 as amended, and the second one charging him to be a habitual criminal within the meaning of the provisions of Part X(A) of the Criminal Code of Canada. The first count—which is not relevant to the point raised in the present appeal—was either admitted by the accused or found by the jury. As to the second count, the accused pleaded not guilty but were found guilty by the jury. An appeal, subsequently lodged against the latter conviction, was unanimously maintained by the Court of Appeal of the province [[1950] 2 W.W.R. 1265.], which quashed the conviction and directed a verdict of acquittal to be entered thereon. Identical in all of the cases, the judgment rests on the interpretation of the provisions of section 575(c) (1) (a) of Part X(A). On this point, and under the authority of section 1025 of the Criminal Code, leave to appeal to this Court was granted to the appellant….

The opposing contentions of the parties, which are now to be considered, may more clearly be stated once the relevant part of section 575(c) is quoted:

A person shall not be found to be a habitual criminal unless the judge or jury as the case may be, finds on evidence,
(a) that since attaining the age of eighteen years he has at least three times previously to the conviction of the crime charged in the indictment, been convicted of an indictable offence for which he was liable to at least five years' imprisonment, whether any such previous conviction was before or after the commencement of this Part, and that he is leading persistently a criminal life; ….

The submission of respondent, which prevailed in the Court of Appeal, rests on an argument, centred solely on the meaning of the words "at least"—twice appearing in the above provision—and purporting to implement the rule of literal interpretation. In both instances the words are said to mean "not less than". "Not less than"—it may be pointed out—is the qualifying phrase used by Parliament in relation to minimum mandatory sentences, which are few in number. Paraphrasing the relevant part of the provision, in a manner strictly consistent with the submission made, the provision would read: "A person shall not be found to be a habitual criminal unless it is found on the evidence that, since attaining the age of eighteen years, he has not less than three times, previously to the conviction of the crime charged in the indictment, been convicted of an indictable offence for which the minimum mandatory punishment enacted is not less than five years' imprisonment." In this category, it may immediately be noted, there is only one offence in the Criminal Code. The offence is dealt with in section 449: Stopping the mail with intent to rob.

In the appellant's view, the words "at least", in the context, mean "as much as" and the questioned part of the provision should read: "... unless... he has... been convicted of an indictable offence for which he was liable or exposed to suffer as much as five years' imprisonment." Thus, it is said, that, in the context -- and not detached therefrom -- these words are indicative of a minimum manifestly related to the maximum number of years of imprisonment which the offender is liable or exposed to suffer as punishment. There are, in the Criminal Code, some one hundred and eighty indictable offenses for which the offender is liable to receive as a maximum punishment a sentence of at least five years' imprisonment….

In my respectful view, the submission of the respondents cannot rest, as alleged, on the rule of literal construction.
As to the application of the narrow construction doctrine, in the construction of penal statutes, this may be said. The matter, in England, is dealt with in Maxwell on Interpretation of Statutes, 9th Edition, 1946, p. 267, in the following terms:

The rule which requires that penal and some other statutes shall be construed strictly was more rigorously applied in former times when the number of capital offenses was very large (a), when it was still punishable with death to cut down a cherry-tree in an orchard, or to be seen for a month in the company of gipsies (b), or for a soldier or sailor to beg and wander without a pass. Invoked in the majority of cases in favorem vitae, it has lost much of its force and importance in recent times, and it is now recognized that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object.

            In Canada, section 15 of the Interpretation Act disposes of all discussion in the premises. This section, by force of section 2, extends and applies to the Criminal Code and the following words in section 15: "or to prevent or punish the doing of anything which it deems contrary to the public good," make it clear that its provisions embrace penal as well as civil statutory provisions in any Canadian statute except if there is inconsistency or a declaration of inapplicability.

The appeal of His Majesty against each of the four respondents should be maintained, and the judgment of the Court of Appeal should be quashed.…

The judgment of Rand, Kellock and Locke, JJ. was delivered by:
LOCKE J.:—The contention of the Crown is that while the words "at least", where they first appear in subsection (a) of section 575C(1) of the Criminal Code, are to be construed as meaning "not less than", where they again appear following the words "liable to", they are to be taken as meaning "as much as". Thus, if the respondents were shown to have been convicted three times or more of criminal offenses for which the maximum permissible punishment was five years' imprisonment or more, this condition of the section would be complied with. The Court of Appeal [[1950] 2 W.W.R. 1265.], has unanimously rejected this contention, the learned judges all being of the opinion that in the context the expression should be construed, where used for the second time, in the same manner as when first used.

Since no mention is made of section 15 of the Interpretation Act, R.S.C. 1927, c. 1, in the reasons for the judgment appealed from or in the factum of either party, I judge that it was not argued in the Court of Appeal that the rules of statutory construction prescribed by that section were to be applied. Mr. Justice O'Halloran refers to the common law rules of construction but, while the result may not be affected, I am of the opinion that it is to the statute we must look. Section 15^[4] reads:

Every Act and every provision and enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of any thing which Parliament deems to be for the public good, or to prevent or punish the doing of any thing which it deems contrary to the public good; and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment, according to its true intent, meaning and spirit.

This section appears to have had its origin in section 5 of c. 10, Statutes of Canada 1849 which was, with minor differences which do not affect the meaning, expressed in the same terms. It was reproduced in substantially the same form in section 6 of c. 5 Consolidated Statutes of Canada 1859 and appeared as the 39th paragraph of section 7 of the Interpretation Act, passed at the First Session of the Parliament of Canada in 1867, and has been continued in language identical in meaning up to the present time. Section 3 of the Act as passed in 1867 provided that section 7 and each provision thereof should extend and apply to every Act passed in the session held in that year and in any future session of the Parliament of Canada, except in so far as the provision was inconsistent with the intent and object of the Act or the interpretation which such provision would give to any word, expression or clause inconsistent with the context and except in so far as any provision thereof in any such Act is declared not applicable thereto. Section 2 of the Interpretation Act, R.S.C. 1886, c. 1, declared that the Act and every provision thereof should extend and apply to every Act of the Parliament of Canada then or thereafter passed, with the like exceptions, and the legislation was in this state when the Criminal Code was first enacted in 1892. Section 2 of the present Act is in like terms and its application does not, in my opinion, restrict in any way the application of section 15 to the language here to be construed.

Section 15 appears to me to be substantially a restatement of the rules for the construction of statutes contained in the Resolutions of the Barons in Heydon's Case [(1584) 3 Co. Rep. 7(a)].…

In my opinion, the requirement that statutes and their provisions are to be deemed remedial and that they shall accordingly receive "such fair, large and liberal construction and interpretation" as will best ensure the attainment of the object of the Act does not mean that the object of the Act is not to be clearly manifest from the language employed. The object of these amendments to the Criminal Code is to be ascertained by determining the identity of the persons against whom they are directed. In accordance with the canons for the interpretation of statutes the Act as a whole may be examined as an aid to the construction of the language of the amending sections. As appears from section 575B the legislation is designed for the protection of the public against the danger inherent in permitting habitual criminals being at large....

The persons to whom the habitual criminal sections of the Criminal Code are applicable are, if the respondents' contention be accepted, only those who have on three occasions or more been convicted of offenses against section 449, dealing with the offence of stopping a mail with intent to rob or search the same, and presumably such other offenses for which there may hereafter be prescribed a minimum term of five years' imprisonment. Construing the subsection in the manner contended for by the Crown means that conviction on three or more occasions of any of the many other offenses described in the Code for which the maximum imprisonment might be five years or more would comply with the subsection….

It is inconceivable to me that these new sections of the Code were directed against the very limited class of criminals who would be affected if the respondents' contention were correct. We are required by section 15 to interpret the subsection in such manner as will best ensure the attainment of its object according to its true intent, meaning and spirit, and to construe this language in this manner is, in my judgment, not to legislate but to comply with the directions of the statute.
I would allow these appeals and refer each case back to the Court of Appeal, in order that the other grounds of appeal raised before that Court may be there dealt with.

CARTWRIGHT J.:—The only question raised on this appeal is as to the proper interpretation of section 575C of the Criminal Code.…

The controversy is as to the proper construction of the words "been convicted of an offence for which he was liable to at least five years' imprisonment."….

The meaning which I ascribe to the word "liable" is given in the Oxford English Dictionary (1933) Volume VI, page 235. In Black's Law Dictionary, 3rd Edition (1933), page 1103, the meaning given is: "Exposed or subject to a given contingency, risk or casualty which is more or less probable". Inre Soltau's Trusts [(1893) 2 Ch. 629.], North J. agreeing with a decision of Stirling J. in an earlier case held that the expression "is liable to be laid out in the purchase of land" does not mean "has to be laid out in the purchase of land" but means "subject to some disposition under which it may be laid out in the purchase of land".

If the words of the section only were to be considered it would be my view that their natural meaning is that attributed to them by the appellant….
It will next be observed that the Code contains only one offence, that described in section 449, for which a mandatory minimum sentence of as much as five years' imprisonment is prescribed. The words of a statute must be construed so as to give the statute a sensible meaning if possible. Here the construction for which the appellant contends gives the statute a sensible and effective meaning while that for which the respondent argues would render Part XA without effect.         

In my opinion if the words of an enactment which is relied upon as creating a new offence are ambiguous, the ambiguity must be resolved in favour of the liberty of the subject, but whether or not such ambiguity exists is to be determined after calling in aid the rules of construction. I have reached the conclusion that the words of the section construed with the aid of the applicable rules, mentioned above, leave no room for doubt as to the intention of Parliament, and that such intention is that for which the appellant contends….

* * *

Heydon's Case, (1584) 76 ER 637

* * *

R. v. Paré
Supreme Court of Canada
 [1987] 2 S.C.R. 618

The judgment of the Court was delivered by
1 WILSON J.:—Section 214(5)(b) {now s. 231(5)(b)} of the Criminal Code, R.S.C. 1970, c. C-34, as amended by S.C. 1974-75-76 c. 105, which was in force at the time of the commission of the offence provided that murder is first degree murder when the death is caused by a person while the person is committing indecent assault.^[5]

The respondent, Marc-André Paré, indecently assaulted and murdered a seven-year-old boy, Steeve Duranleau. The central issue in this appeal is whether the respondent murdered the child “while committing” the indecent assault….

The suggestion … is that the words “while committing” in s. 214(5) do not require an exact coincidence of the murder with the underlying offence. Rather, they require a close temporal and causative link between the two. Which of the competing interpretations should be adopted?

(iii) Strict Construction

24     Counsel for the respondent argue that the doctrine of strict construction of criminal statutes requires that this Court adopt the interpretation most favourable to the accused. According to this argument the words “while committing” must be narrowly construed so as to elevate murder to first degree only when the death and the underlying offence occur simultaneously. In order to assess the validity of this position we must examine the doctrine of strict construction.
25     The doctrine is one of ancient lineage. It reached its pinnacle of importance in a former age when the death penalty attached to a vast array of offences. As Stephen Kloepfer points out in his article “The Status of Strict Construction in Canadian Criminal Law” (1983), 15 Ottawa L. Rev. 553, at pp. 556-60, the doctrine was one of many tools employed by the judiciary to soften the impact of the Draconian penal provisions of the time. Over the past two centuries criminal law penalties have become far less severe. Criminal law remains, however, the most dramatic and important incursion that the state makes into individual liberty. Thus, while the original justification for the doctrine has been substantially eroded, the seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused.
26     This point was underlined by Dickson J. (as he then was) in Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115:

It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

The continued vitality of the doctrine is further evidenced by the decision in R. v. Goulis (1981), 60 C.C.C. (2d) 347 (Ont. C.A.) and Paul v. The Queen, [1982] 1 S.C.R. 621. The question, therefore, is not whether the doctrine of strict construction exists but what its implications are for this case.

(iv) Applying the Doctrine

27     [I]t is clearly grammatically possible to construe the words “while committing” in s. 214(5) as requiring murder to be classified as first degree only if it is exactly coincidental with the underlying offence. This, however, does not end the question. We still have to determine whether the narrow interpretation of “while committing” is a reasonable one, given the scheme and purpose of the legislation.

[Wilson, J., concludes that it is not, and instead finds “an organizing principle for s. 214(5)”:]

This principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament has chosen to treat these murders as murders in the first degree.
33     [I]t is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a “single transaction”. This approach, in my view, best gives effect to the philosophy underlying s. 214(5).…

4. Conclusion

35     The respondent murdered Steeve Duranleau two minutes after indecently assaulting him. The killing was motivated by fear that the boy would tell his mother about the indecent assault. The jury found the respondent guilty of first degree murder. They were entitled to do so. The murder was temporally and causally connected to the underlying offence. It formed part of one continuous sequence of events. It was part of the same transaction.
36     I would allow the appeal and restore the conviction of first degree murder.

R. v. McIntosh
 [1995] 1 S.C.R. 686
Supreme Court of Canada

The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
LAMER C.J.:—
21     The Crown labels its approach "contextual". There is certainly support for a "contextual approach" to statutory interpretation. Driedger, in Construction of Statutes (2nd ed. 1983), has stated the modern principle of contextual construction as follows (at p. 87):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.... Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island, [1921] 2 A.C. 384, at p. 387, put it this way:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

….
27     [W]e cannot lose sight of the overriding principle governing the interpretation of penal provisions. In Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle as follows, at p. 115:

Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal ... I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.

R. v. Sharpe
[2001] 1 S.C.R. 45, 2001 SCC 2
Supreme Court of Canada

The judgment of McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
THE CHIEF JUSTICE:—
33        Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); P.A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E. A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”….

R. v. L.B.
 [2011] O.J. No. 891
Ontario Court of Appeal

The judgment of the Court was delivered by
D.H. DOHERTY J.A.:—
(ii)        The Proper Approach to Statutory Interpretation
51     Crown counsel's interpretation of s. 233 and s. 662(3) is supported by the language of those sections. Statutory interpretation, however, requires more than a close reading and careful parsing of the words of the text of the specific sections in issue: Re Rizzo & Rizzo Shoes, [1998] 1 S.C.R. 27, at para. 21; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, at para. 9. Statutory interpretation is a multi-faceted exercise that looks to the language used in the relevant provisions, the statutory context in which those provisions appear and the object and purpose of the provisions in issue: Re Application under s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248, at para. 34. Professor Driedger's "modern principle" has become the accepted approach to statutory interpretation:

There is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

52     I take the "modern principle" of statutory interpretation to mean that the words of a statute, like any other words, derive their meaning from their context in the broadest sense of that word: R. v. Sharpe, [2001] 1 S.C.R. 45, at para. 33; Redeemer Foundation v. Canada (National Revenue), [2008] 2 S.C.R. 643, at para. 15; R. v. Ahmad, 2011 SCC 6, at para. 28.

E.        Prospectivity

Application under s. 83.28 of the Criminal Code
Supreme Court of Canada
[2004] 2 S.C.R. 248

The judgment of McLachlin C.J. and Iacobucci, Major and Arbour JJ. was delivered by
IACOBUCCI and ARBOUR JJ.:—

I. Introduction

…
2     This appeal raises for the first time in this Court fundamental questions about the constitutional validity of provisions of the Anti-terrorism Act, S.C. 2001, c. 41 (the “Act”), which were adopted as amendments to the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). The Act is a legislative component of Canada’s response to the enormous tragedy of the September 11, 2001 terrorist attacks in the United States. …
3     The specific issues relate to the constitutional validity of s. 83.28 of the Code, the “judicial investigative hearing” provision, under which the appellant was ordered to attend and be compelled to answer questions. We use “appellant” here to refer to the “Named Person”, who is the subject of the s. 83.28 order and brought the appeal to this Court….
…

IV. Issues

26     …
1. Can s. 83.28 of the Criminal Code be applied retrospectively where the terrorism offences were committed in 1985, before the Anti-terrorism Act came into force?

V. Analysis

A. Introduction

28     The following recital to the Act expresses the basic issue before us in this case, namely the tension between responding to terrorism in the interest of national security and respect for the Charter’s rights and freedoms:

WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;

…

B. Statutory and Constitutional Interpretation Generally

...
40     We conclude that the purpose of the Act is the prosecution and prevention of terrorism offences.
41     Section 83.28 provides for a two-stage process, whereby an order for the gathering of information from a named individual is first issued, and an examination of the individual so named is subsequently held. The provision provides a series of parameters which govern the judicial investigative hearing. At its core, s. 83.28 permits the investigation of terrorism offences, at both a pre- and post-charge stage through testimonial compulsion on the part of the named witness. Consequently, the purpose of the provision is to confer greater investigative powers upon the state in its investigation of terrorism offences.
42     The procedure is initiated at the behest of a peace officer who, with the Attorney General’s consent, applies to a judge for an order for the gathering of information: s. 83.28(2) and (3). The judge may so order, and thereby initiate the hearing, if he or she is satisfied (a) that there are reasonable grounds to believe either that a terrorism offence has been committed and that information concerning the offence or concerning the whereabouts of a suspect is likely to be obtained; or (b) that there are reasonable grounds to believe that a terrorism offence will be committed, that there are reasonable grounds to believe that the witness has direct and material information relating to the terrorism offence or in relation to the whereabouts of a suspect, and reasonable prior attempts have been made to obtain that information from the witness: s. 83.28(4). The scope of the order will ultimately dictate the parameters of the subsequent hearing.
43     Pursuant to s. 83.28(5), the judge may (a) order the examination, under oath or not, of the person named in the order (the “named person”); (b) order the named person to attend for the examination and to remain in attendance until excused by the presiding judge; (c) order the named person to bring to the examination anything in their possession or control and produce it to the presiding judge; (d) designate another judge as the judge to preside over the examination; and (e) include any other terms or conditions considered desirable, including those for the protection of the named person, third parties, and an ongoing investigation. Under s. 83.28(7), the terms of the order may be varied.
44     The powers of the presiding judge and the Attorney General at the judicial investigative hearing itself also fall within the ambit of s. 83.28. Under s. 83.28(8), the named person must answer questions put to him or her by the Attorney General and produce tangibles he or she was ordered to bring to the examination. The named person may refuse to answer a question or produce any such thing that would violate any law relating to the non-disclosure of information or to privilege: s. 83.28(8). Section 83.28(9) empowers the presiding judge to rule on any objection or other issue relating to a refusal to answer a question or produce an item. Section 83.28(10) provides the named person with use and derivative use immunity with respect to self-incrimination…. The named person has a right to retain and instruct counsel at any stage of the proceedings: s. 83.28(11). The presiding judge may also order tangibles to be given into police custody if satisfied that any such item is relevant to the investigation of any terrorism offence: s. 83.28(12).
45     While the provision covers many facets of the initial order and the subsequent judicial investigative hearing, in important respects the specific meaning of s. 83.28 is unclear and ambiguous. In our opinion, s. 83.28 reasonably bears two differing interpretations: one narrow and restrictive in scope, the other broad and purposive. Two principal ambiguities are apparent on the face of the provision. The first concerns the role of counsel and the second relates to the threshold for relevance and admissibility. [W]e endorse a broad and purposive interpretation of s. 83.28….
…

D. Discussion of Issues

(1) Retrospectivity
55     The appellant submits that s. 83.28 ought not to apply retrospectively to incidents that occurred prior to its enactment. In support of this contention, the appellant argues that judicial investigative hearings are not strictly procedural as they essentially create new offences by operation of the triggering “terrorism offence” definition, and therefore are substantive in nature. … With respect, we do not agree. We find that s. 83.28 effects only procedural change.
56     As expressed in Sullivan, supra, at p. 582, procedural legislation concerns the conduct of actions. Accordingly, s. 83.28 is prima facie procedural, as it outlines the process by which judicial investigative hearings are to be carried out. Nevertheless, an assessment of whether a provision is procedural or not must be determined in the circumstances of each case. Furthermore, for a provision to be regarded as procedural, it must be exclusively so: Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256. We now consider whether s. 83.28 is procedural in substance and in effect.
57     Driedger and Sullivan generally describe procedural law as “law that governs the methods by which facts are proven and legal consequences are established in any type of proceedings”: Sullivan, supra, at p. 583. Within this rubric, rules of evidence are usually considered to be procedural, and thus to presumptively apply immediately to pending actions upon coming into force: Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403. However, where a rule of evidence either creates or impinges upon substantive or vested rights, its effects are not exclusively procedural and it will not have immediate effect: Wildman v. The Queen, [1984] 2 S.C.R. 311. Examples of such rules include solicitor-client privilege and legal presumptions arising out of particular facts.
58     As discussed above, s. 83.28 provides for a process in which various rules of evidence are detailed. The appellant’s concerns with the nature of the provision arise largely with respect to the “terrorism offence” referenced in s. 83.28(4). The definition of “terrorism offence” is not before us in this appeal. However, it is necessary here to consider whether the application of that definition in relation to s. 83.28 creates a “substantive gloss” on the provision. In our view, the reference to “terrorism offence” does not alter the procedural nature of the provision.
59     The term “terrorism offence” is defined in s. 2 of the Code that creates new offences under para. (a), but also refers to pre-existing offences under paras. (b) and (c). Neither s. 83.28 nor the definition in s. 2 alters the substantive elements of these offences. Clearly, the offences listed under paras. (b) and (c) are not substantively new because they were present prior to the enactment of the anti-terrorism provisions. We agree with Holmes J.’s characterization of a “terrorism offence” as “a descriptive compendium of offences created elsewhere in the Criminal Code”. The mere association of such offences with a “terrorist group” or “terrorist activity” does not constitute a substantive change in the law so as to transform the procedural nature of s. 83.28 into a substantive one.
…
61     Having found that s. 83.28 is purely procedural in nature, we turn to consider whether the presumption of immediate effect has been rebutted.
62     At common law, procedural legislation presumptively applies immediately and generally to both pending and future acts. As Sullivan, supra, discusses at p. 582, the presumption of immediate application has been characterized in a number of ways: that there is no vested right in procedure; that the effect of a procedural change is deemed beneficial for all; that procedural provisions are an exception to the presumption against retrospectivity; and that procedural provisions are ordinarily intended to have immediate effect. The rule has long been formulated in the following terms:

... where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.
(Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94, at p. 96; see also Sullivan, supra, at p. 582.)

63     This presumption will yield where the contrary intent of Parliament has been evinced: R. v. Ali, [1980] 1 S.C.R. 221, at p. 235.
64     On this point, the appellant submits that the legislative intent of Parliament precludes retrospective effect given the preventive focus of the anti-terrorism legislation. In support, the appellant notes that the Act is silent on the issue of temporal application in contrast with s. 487.052 of the Code, which expressly provides for retrospective application in the context of DNA identification.
65     The appellant’s arguments on this point are not compelling. While the prevention of future acts of terrorism was undoubtedly a primary legislative purpose in the enactment of the provision, as discussed earlier, it does not follow that Parliament intended for procedural bifurcation respecting past acts of terrorism vis-à-vis anticipated or future acts. The provision itself provides for judicial investigative hearings to be held both before and after the commission of a terrorism offence under s. 83.28(4)(a) and (b). While the legislation is not express on the issue of temporal application, the purpose and effect of the inclusion of s. 83.28(4)(a) indicate that Parliament intended that the provision may be applied retrospectively.
66     For the reasons above, s. 83.28 does not interfere with the substantive rights of the appellant, and is, accordingly, strictly procedural. The appellant has not rebutted the presumption of immediate application. As such, s. 83.28 has immediate effect, and applies retrospectively to the effects of past events.
* * * * *
APPENDIX

Relevant Constitutional and Legislative Provisions

A. Constitutional Provisions

Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

B. Legislative Provisions

Criminal Code, R.S.C. 1985, c. C-46, as amended by S.C. 2001, c. 41
INTERPRETATION

2. In this Act...
“terrorism offence” means
(a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23,
(b) an indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with a terrorist group,
(c) an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity, or
(d) a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c);

“terrorist activity” has the same meaning as in subsection 83.01(1);
“terrorist group” has the same meaning as in subsection 83.01(1);

INVESTIGATIVE HEARING

83.28 (1) In this section and section 83.29, “judge” means a provincial court judge or a judge of a superior court of criminal jurisdiction.
(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.
(3) A peace officer may make an application under subsection (2) only if the prior consent of the Attorney General was obtained.
(4) A judge to whom an application is made under subsection (2) may make an order for the gathering of information if the judge is satisfied that the consent of the Attorney General was obtained as required by subsection (3) and
(a) that there are reasonable grounds to believe that
(i) a terrorism offence has been committed, and
(ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order; or
(b) that

1. there are reasonable grounds to believe that a terrorism offence will be committed

(ii)        there are reasonable grounds to believe that a person has direct and material information that relates to a terrorism offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit a terrorism offence referred to in that subparagraph, and

1. reasonable attempts have been made to obtain the information referred to in subparagraph (ii) from the person referred to in that subparagraph.
2. An order made under subsection (4) may

(a) order the examination, on oath or not, of a person named in the order;
(b) order the person to attend at the place fixed by the judge, or by the judge designated under paragraph (d), as the case may be, for the examination and to remain in attendance until excused by the presiding judge;
(c) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge
(d) designate another judge as the judge before whom the examination is to take place; and
(e) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.

(a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136; and
(b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136.

1. (11) A person has the right to retain and instruct counsel at any stage of the proceedings.
2. (12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, shall order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf.

F.         Publicity

R. v. Furtney
Supreme Court of Canada
 [1991] 3 S.C.R. 89

The judgment of the Court was delivered by
1 STEVENSON J.:—The appellants appeal, by leave of this Court, a decision of the Ontario Court of Appeal, affirming the decision of a summary conviction appeal court directing a new trial on charges that the appellants counselled the violation of terms and conditions of licences relating to bingo lotteries.
2     The issues before us relate to the constitutionality of the provisions of the Criminal Code permitting certain licensed gambling and whether the non-publication of the conditions under which the licences were issued is a bar to conviction.

Facts

3     The appellants were charged in an information that, on five occasions, they counselled licensees of bingo lottery schemes to violate the terms and conditions of their licences relating to bingo lotteries, contrary to s. 190(3) of the Criminal Code, R.S.C. 1970, c. C-34 {now s. 207(3)}. In particular, they were accused of counselling the breaking of the so-called 15%-20% rule (a maximum of 15% of the revenues can go to management costs and a minimum of 20% of the revenues must go to the charity). The terms and conditions for such lotteries are set out in Order-in-Council 2797/82 and other rules, regulations and directions issued by the Ministry of Consumer and Commercial Relations of Ontario. The allegation was that the substantive offence of breaching the terms and conditions of the licences was an offence under s. 190(3) of the Code and that, therefore, s. 22 applied (counselling an offence).
4     The appellants challenged the provisions of ss. 190(1)(b) and 190(2) {now ss. 207(1)(b) and 207(2)}. … They … argued that … Order-in-Council 2797/82… , together with the other rules and directions, were not published and, therefore, did not create an offence known to law. …
5     The Crown appealed the summary conviction acquittals to the Supreme Court of Ontario (Weekly Court). Campbell J., allowing the appeal, set aside the acquittals and ordered a new trial for the appellants: (1988), 44 C.C.C. (3d) 261, 66 C.R. (3d) 121.
6     The appellants’ appeal to the Court of Appeal for Ontario was dismissed: (1989), 52 C.C.C. (3d) 467, 73 C.R. (3d) 242.

Judgments …

Court of Appeal …

14     The Court of Appeal was of the view that the essential elements of the offence are found not in the terms and conditions of the licences but, rather, in the wording of s. 207(3) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 190(3)). In other words, it was incumbent upon the Crown to establish that the appellants counselled the licensees, for the purpose of a lottery scheme, to do something not authorized by a provision of s. 207 in connection with the conduct, management or operation of the lottery scheme.
…
17     The court rejected … the appellants’ submission that the information disclosed no offence known to law. That argument depended upon their submission that the terms and conditions of the bingo licences are the essential elements of the substantive offence, a submission which was rejected by the court. In the court’s view, it was impossible to obtain a bingo licence without becoming aware of its terms and conditions.

Relevant Legislation

Canadian Charter of Rights and Freedoms

18

11. Any person charged with an offence has the right...
(g) 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;

Criminal Code, R.S.C., 1985, c. C-46

207. (1) Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful
...

(b) for a charitable or religious organization, pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, to conduct and manage a lottery scheme in that province if the proceeds from the lottery scheme are used for a charitable or religious object or purpose;...

(2) Subject to this Act, a licence issued by or under the authority of the Lieutenant Governor in Council of a province as described in paragraph (1)(b), (c), (d) or (f) may contain such terms and conditions relating to the conduct, management and operation of or participation in the lottery scheme to which the licence relates as the Lieutenant Governor in Council of that province, the person or authority in the province designated by the Lieutenant Governor in Council thereof or any law enacted by the legislature of that province may prescribe.

(3) Every one who, for the purposes of a lottery scheme, does anything that is not authorized by or pursuant to a provision of this section

(a) in the case of the conduct, management or operation of that lottery scheme,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, or
(ii) is guilty of an offence punishable on summary conviction; or

(b) in the case of participating in that lottery scheme, is guilty of an offence punishable on summary conviction.

44     … In my view s. 11(g) of the Charter is directed towards the need that impugned conduct be criminal at the time of its commission. That proposition is fundamental, but has nothing to do with the question of how the law is to be made known. Indeed, s. 11(g) embraces criminal law recognized by the community of nations, international law, which is not by its very nature subject to requirements of domestic publication.
45     The appellants made no reference in argument to s. 7. I do not propose discussing whether that section may have any impact on the question of publication.
46     The essence of their complaint is that the terms and conditions of lottery licences are not published or gazetted. Assuming that s. 11 embraces some concept of availability, I am of the view that the most that can be said is that the law be ascertainable by those affected by it. The terms and conditions are furnished to every licensee. I note, also, that as licences may vary, the suggestion that the law requires some additional publication of them offends common sense.

Disposition

48     I would dismiss the appeal.

G.        Codification

United Nurses of Alberta v. Alberta (Attorney General)
Supreme Court of Canada
[1992] 1 S.C.R. 901

The reasons of Lamer C.J. and Cory J. were delivered by
1 CORY J. (dissenting):—The United Nurses of Alberta, a trade union, was found on two occasions to have been guilty of criminal contempt as a result of breaches of orders of the Labour Relations Board of Alberta. The union was fined a total of $400,000. This appeal raises issues as to how criminal contempt should be defined and its relationship to civil contempt.
…

The Law of Criminal Contempt

(a) Are Unions Subject to Criminal Contempt?

3     There can be no doubt that unions have the legal status to sue and to be sued in civil matters. They can and do present and defend cases before the courts. They make full use of the courts and the remedies they provide. If unions avail themselves of court facilities, they must be subject to the court’s rules and restraints placed on the conduct of all litigants. It follows that they are subject to prosecution for the common law offence of criminal contempt. There can be no question that unions fall within the scope of the term “societies” in the Criminal Code’s definition of person and they must be equally liable for prosecution for a common law crime.

(b) Definition of Criminal Contempt

4     What is criminal contempt? The common law recognizes two separate species of contempt. That which is civil and that which is criminal in nature. Contempt of court may arise in many different ways and may take many different forms. This case of course deals with the disobedience of a judicial order. The United Nurses of Alberta violated a directive of an administrative board (the Labour Relations Board of Alberta) which had been filed with the court. For the purpose of this case it can be taken that the union defied an order of the court. There can be no doubt that such defiance brings a party into civil contempt. However, both civil and criminal contempt may apply and attach to the same activity. In this case it must be determined what element transforms civil into criminal contempt.
5     The leading Canadian case on this issue is Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516. There, Kellock J. examined the English jurisprudence which considered the distinction between the two types of contempt. He cited Scott v. Scott, [1913] A.C. 419 (H.L.), as authority for the proposition that mere disobedience of a Court Order is not necessarily criminal. He noted at p. 520 that “... it may be so, depending upon the nature and quality of the conduct involved”. Kellock J., at p. 522, adopted Oswald’s treatise Contempt of Court, 3rd ed., at p. 36, as setting out the critical factor which transforms disobedience of the court order into criminal contempt, particularly the following paragraph:

And, generally, the distinction between contempts criminal and not criminal seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempt in disregarding orders or judgments of a Civil Court or in not doing something ordered to be done in a cause, is not criminal in its nature. In other words, where contempt involved a public injury or offence, it is criminal in its nature, and the proper remedy is committal--but where the contempt involves a private injury only it is not criminal in its nature.

6     The distinction drawn by Oswald makes eminently good sense. The purpose of the criminal law is to protect society whereas the civil law regulates and facilitates private relationships. The sole reason for the existence of a separate category of criminal contempt is to answer the need to discourage and to punish those acts which occasion serious injuries to the public interest. Where the injury caused by disobedience to an order is private in nature, the civil contempt powers suffice. In order to determine whether by their conduct individuals are subject to criminal contempt, the court should ask: who has been injured and what are the extent of the injuries caused by the contumacious conduct?
…
10     The actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury. In the context of a labour dispute that would be conduct which threatens the rule of law. These would include acts of violence or threats of violence by large groups, or activities which could lead to a serious breakdown of the social order. The requisite mens rea of the offence is that the perpetrator wilfully or knowingly caused this harm, or alternatively, acted with a reckless disregard that such harm was a reasonably foreseeable consequence of the act.

(c) The Effect of Publicity

11     My colleague McLachlin J. concludes that in essence all that is necessary to transform a defiance of a court order into criminal contempt is that the conduct occur in public. With respect, I cannot agree. To accept such a standard would be to ignore the basis of the distinction between criminal and civil contempt. It would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order. I would certainly agree that the intentional defiance of a court order, which takes place in full public view, may well be a significant factor in leading a court to conclude that there had been an injury to the public interest. However, to make it the sole determining factor expands the scope of criminal contempt powers far beyond the limits necessary to achieve their end. Criminal contempt provides the court with an awesome power which may have devastating consequences. It should be exercised with the greatest restraint and caution.
12     The Law Reform Commission of Canada examined the offence of criminal contempt in a 1982 report: Contempt of Court, Report 17. Although the Commission acknowledged that criminal contempt had an important role to play in sustaining the administration of justice it nevertheless advocated strict limits on its exercise. The Commission recommended that the use of the criminal contempt power should be confined to those rare situations in which it was essential to protect our system of justice. It noted at pp. 3-4:

Penal sanctions should be reserved for very serious cases and used with moderation in order to reaffirm fundamental values solemnly. Criminal law must thus set tolerance thresholds. In matters of contempt, these thresholds must be established on the basis of the values to be protected, and must take into account the fact that civil contempt is often sufficient to reaffirm the values contravened, or to restore peace, efficacy and impartiality to a situation jeopardized by the act of an individual.

(d) Alternate Remedies

21     It is clear that alternate methods were available for enforcing the compliance of the provisions of the Labour Relations Board order. First the defiance of the court order automatically invokes liability for civil contempt. Rule 704(1) of the Alberta Rules of Court provides:

704. (1) Every person in civil contempt is liable to any one or more of the following:

(a) imprisonment until he has purged his contempt;
(b) imprisonment for one year;
(c) a fine of $1,000 and in default of payment thereof, to imprisonment for one year.

22     Although the fines are limited, to $1,000 a day, nevertheless that fine on a daily basis imposed upon an individual with a prospective jail term if it is not paid, must have a deterrent effect.
23     More importantly, the Labour Relations Act provides a code for the labour management relations and the resolution of disputes in that field. Particularly it provides penalties for a violation of Board orders in these terms:

153. Any employer, employee or other person who

(a) contravenes or fails to comply with an order, decision, notice, declaration or directive of the Board,

...

is guilty of an offence.

154(1) Any employer, employers’ organization or employer on whose behalf an employers’ organization bargains collectively who commences or causes a lockout contrary to this Act is guilty of an offence and liable to a fine not exceeding $1000 for each day that the lockout continues.

(2) Any person not referred to in subsection (1) who commences, causes or consents to a lockout contrary to this Act is guilty of an offence and liable to a fine not exceeding $10 000.

155(1) Any trade union that causes a strike contrary to this Act is guilty of an offence and liable to a fine not exceeding $1000 for each day that the strike continues.

(2) Any officer or representative of a trade union who strikes or causes or consents to a strike contrary to this Act is guilty of an offence and liable to a fine not exceeding $10 000.

...

156. Subject to section 154 and 155, any person, employee, employer, employers’ organization or trade union who contravenes or fails to comply with any provision of this Act or of any decision, order, directive, declaration or ruling made by the Board under this Act, is guilty of an offence and liable

(a) in the case of a corporation, employers’ organization or trade union, to a fine not exceeding $10 000, or
(b) in the case of an individual, to a fine not exceeding $5000.

157. No prosecution for an offence referred to in this Act shall be commenced without the consent in writing of the Minister.

24     These provisions clearly indicate that the legislators turned their minds to the issue of enforcement of board directives. They designed a comprehensive and balanced scheme to deal with any infringement of orders. Ceilings are fixed on the amount of the fines that may be levied by these sections. This suggests that the imposition of huge fines in labour disputes such as the $400,000 fine in the case at bar is contrary to the intent of the Labour Relations Act. The use of criminal contempt proceedings and the imposition of such crushing penalties are inappropriate except in circumstances of violence or threats of serious violence. The concerns voiced by the respondent that, without the criminal contempt power, the courts and labour boards will have difficulty enforcing their orders and that respect for the rule of law will be threatened are, in my view, groundless in light of the effective alternate remedies that were available.
…

Disposition

34     I would allow the appeal and set aside the conviction.

The judgment of La Forest, Gonthier, McLachlin and Iacobucci JJ. was delivered by
35 McLACHLIN J.:—In January, 1988, the United Nurses of Alberta went on strike. This was contrary to directives forbidding the strike made under the Alberta Labour Relations Act, R.S.A. 1980, c. L-1.1, and filed with the Court of Queen’s Bench. The union was found to be in criminal contempt of the orders and fined $250,000 and $150,000 on successive motions. The Alberta Court of Appeal dismissed its appeal. The union now appeals to this Court.
36     The appeal raises the following issues:

1. Does the union possess the status to be found in criminal contempt?
2. Does the offence of criminal contempt violate the Canadian Charter of Rights and Freedoms?
3. Can a directive of a provincial board filed in the court give rise to criminal contempt?
4. Did the proceedings violate the Charter because the union was not permitted to cross-examine on the affidavits filed by the Crown?

Facts

37     On January 22, 1988 the Alberta Labour Relations Board declared that the appellant union, the United Nurses of Alberta, had failed to comply with s. 105(3) of the Alberta Labour Relations Act (as amended by S.A. 1983, c. 34) by threatening to strike or cause a strike prohibited by the Act. The Board also issued a directive pursuant to s. 142(5) of the Act ordering that the union cease and desist from causing a strike or threatening to strike, that it refrain from conducting a strike vote, and that the union and its officers notify the members of the union of the directive and their obligation to comply. On that same day the members of the union voted to strike, and the following day the union gave notice to the employer of most of the union members, the Alberta Hospital Association (AHA), that it would commence strike action on Monday, January 25, 1988. On Sunday, January 24, the Board declared that the union had breached the directive of January 22, again declared that the union had breached s. 105(3) of the Labour Relations Act, and specifically declared that the strike scheduled to commence on Monday morning was illegal. The union was again directed to cease threatening strike action, and was specifically directed not to strike on Monday, January 25. This directive also gave notice to the union that the directives would be filed as an order of the Court of Queen’s Bench. The first directive was so filed, pursuant to s. 142(7) of the Act, on January 24, the day before the strike was scheduled to commence. The second directive was filed with the court forthwith.^[6]
Thus, on January 25, two court orders forbad the union to strike.
38     The strike began as scheduled on January 25. That afternoon a press conference was held at which approximately 30 members of the media were present. While the president of the union, Margaret Ethier, indicated that the union was primarily concerned with achieving an appropriate settlement, she acknowledged the existence of “the court orders that are coming at us now”, and when asked whether the union was breaking the laws of the province, answered “Yes, that’s correct.” When asked whether the possibility of an injunction meant anything, Ethier replied that the strike would be continuing “until such time that a settlement is reached.” She indicated that she was aware that “they now have [the cease and desist orders] filed with the court.” When questioned further about the illegality of the strike, she declined to agree that “the law’s an ass”, but continued to say that “I’ve never looked too much to the law. We’ve got a business to run; it’s a private business dispute ... .”
39     On January 29 the Attorney General of Alberta filed a notice of motion seeking that the union be held in criminal contempt, and on February 3 the union was found guilty by Sinclair J. and a fine of $250,000 was levied. A second press conference was held that day, and when the president of the union was asked whether the fact of a conviction would change the union’s position in terms of staying off the job, she replied “Well, as I said to you before we are prepared to go back any time we have an appropriate settlement and from the response of the AHA we don’t have one.” On February 9 a second motion was filed alleging that the strike was continuing, and that the union continued to be in criminal contempt. On February 18 the union was convicted of this second charge of criminal contempt by O’Byrne J. and fined $150,000.

Analysis

1. Status of the Union

40     The Court of Appeal (1990), 73 Alta. L.R. (2d) 152, Veit J. dissenting, found that the union possessed the necessary status to be found in criminal contempt. The union is an unincorporated association. It is recognized under the Alberta Labour Relations Act as a bargaining agent and given various powers related to that status.
41     The question is whether the union may be held liable for a criminal offence at common law, criminal contempt being a common law offence. The cases have held unions responsible for torts and breaches of statute law: see International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; International Longshoremen’s Association v. Maritime Employers’ Association, [1979] 1 S.C.R. 120. As this Court held in the latter case, at p. 137:

The Locals are legal entities capable of being sued and of being brought before the Court to answer the claims being made herein for an injunction prohibiting the participation in the activities found to constitute an illegal strike.

2. The Constitutionality of the Law of Criminal Contempt

44     It is argued that the offence of criminal contempt violates s. 7 of the Charter because it is not codified and is vague and arbitrary. Sections 11(a) and 11(g) of the Charter are also raised. Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or a trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. [Emphasis added.]

“... the public disobedience of a court order is a criminal contempt because it involves a public challenge to the Court’s authority.” [Emphasis added.]

The disobedience of the order was public, indeed it was notorious. The union knew of the previous conviction and the penalty imposed. Their actions constitute an open defiance of the law with full knowledge of the consequences. [Emphasis added.]

Disposition

75     I would dismiss the appeal.

The following are the reasons delivered by
76 SOPINKA J. (dissenting):—I have had the privilege of reading the reasons proposed herein by Justice McLachlin. I cannot, however, agree with the result which she has reached because in my opinion, s. 142(7) of the Alberta Labour Relations Act, R.S.A. 1980, c. L-1.1 (the Act) does not convert the directives of the Board into an order of a court of superior jurisdiction so as to attract the power of such a court to punish for criminal contempt.

The Nature of Contempt

77     The criminal law of contempt must be distinguished from civil contempt. The purpose of criminal contempt was and is punishment for conduct calculated to bring the administration of justice by the courts into disrepute. On the other hand, the purpose of civil contempt is to secure compliance with the process of a tribunal including, but not limited to, the process of a court. A useful summary of the two forms of contempt can be found in Black’s Law Dictionary (6th ed. 1990), at p. 319:

Contempts are also classed as civil or criminal. The former are those quasi contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect. A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court was issued, and a fine is imposed for his indemnity. But criminal contempts are offenses upon the court such as wilful disobedience of a lawful writ, process, order, rule, or command of court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment.

The effect of the rule of strict construction might be summed up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other.

Chapter 5. Jurisdiction        

R. v. Stucky
[2009] O.J. No. 600
Ontario Court of Appeal

The following judgment was delivered by
K.M. WEILER and E.E. GILLESE JJ.A.:—
1     Mr. Stucky, a resident of Ontario, operated a direct mail business in Ontario that sold lottery tickets and merchandise only to persons outside of Canada. He was charged with sixteen counts of making false or misleading representations "to the public" between 1995 and 2002 in order to promote his business interests, contrary to s. 52(1) of the Competition Act, R.S.C. 1985, c. C-34 (the "Act"). The charges pertained to four direct mail promotions sent primarily to people in the United States, Great Britain, Australia, and New Zealand. The promotions were not mailed to anyone in Canada.
2     Section 52(1) of the Act currently reads as follows:

No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect. [Emphasis added.]

It would be a sad commentary on our law if it was limited to underlining society's values by the prosecution of minor offenders while permitting more seasoned practitioners to operate on a world-wide scale from a Canadian base by the simple manipulation of a technicality of the law's own making. What would be underlined in the public's mind by allowing criminals to go free simply because their operations have grown to international proportions, I shall not attempt to expound.

[T]he words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Davidson v. British Columbia (Attorney General)
British Columbia Court of Appeal
 [2006] B.C.J. No. 2630

The judgment of the Court was delivered by LEVINE J.A.:—

Introduction

1     The appellants, Gail Davidson and Lawyers Against the War, attempted to bring a prosecution under the Criminal Code against George W. Bush, the President of the United States, for counseling, aiding and abetting torture in the Abu Ghraib prison in Baghdad, Iraq, and at the U.S. Naval Base at Guantanamo Bay, Cuba.
2     The appellants appealed from decisions of a Provincial Court judge and a Supreme Court justice dismissing the proceedings. The Crown brought a preliminary application to dismiss the appeal for want of jurisdiction.
3     The issues raised by the preliminary application concern the procedural requirements that must be followed to bring criminal charges against a person who is neither a citizen nor a resident of Canada, for alleged acts of torture committed outside of Canada.
4     In my opinion, the Crown’s application should be granted, and the appeal dismissed. The Court does not have jurisdiction to hear the appeal, because the consent of the Attorney General of Canada has not been obtained to continue the proceedings, as required by the Code.

Statutory and Factual Background

5     Section 6(2) of the Code sets out the general rule of jurisdiction in criminal matters: “Subject to this Act and any other act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.”
6     Section 7 of the Code extends Canadian criminal jurisdiction to persons who commit certain crimes outside of Canada. Under s. 7(3.7)(e) of the Code, anyone who commits an act outside Canada that, if committed in Canada, would constitute torture or counseling torture contrary to s. 269.1 of the Code, is deemed to commit that offence in Canada, if that person is present in Canada after the commission of the offence.
7     Section 7(5) provides that proceedings in respect of any offence set out in s. 7 may be commenced in any territorial division in Canada.
8     Ms. Davidson attended before a Justice of the Peace in Vancouver on November 30, 2004 and swore an information, under s. 504 of the Code, alleging that President Bush had committed crimes of torture contrary to s. 269.1 of the Code between February 2002 and November 2004. Section 504(1)(a) provides that such an information may be laid:

1. ... where it is alleged
2. (a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or
(ii) resides or is believed to reside,
within the territorial jurisdiction of the justice;

9     President Bush was present in Ottawa on November 30, 2004, at the invitation of the Government of Canada.
10     Section 7(7) of the Code requires that the Attorney General of Canada consent to proceedings under s. 7:

(7) If the accused is not a Canadian citizen, no proceedings in respect of which courts have jurisdiction by virtue of this section shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced.

11     When an information is laid under s. 504 by a person who is not a peace officer, a public officer, the Attorney General or the Attorney General’s agent, the justice who receives the information must refer it to a provincial court judge to consider whether to compel the appearance of the accused (ss. 507.1(1), 507(1)).
12     On November 30, 2004, Ms. Davidson sent a copy of the information to the Department of Justice. On December 2, 2004, she applied to the Provincial Court for a hearing under s. 507.1. December 6, 2004 was assigned as the date on which to present the application and fix a date for the hearing. On December 2, 2004, Ms. Davidson wrote to the Attorney General of Canada seeking his consent to continue the proceedings for the limited purpose of the hearing under s. 507.1. She had not received a reply from the Attorney General of Canada by December 6, 2004, and has not received his consent to the prosecution of President Bush.
13     At the hearing on December 6, 2004, Crown counsel on behalf of the Attorney General of British Columbia applied to the Provincial Court judge for a declaration that the information was a nullity on the ground that President Bush enjoyed head of state immunity from criminal prosecution in Canada. Although Ms. Davidson was not given notice of the Crown’s application, she made oral submissions to the Provincial Court judge in opposition. The Provincial Court judge accepted the Crown’s position, and declared the information a nullity, directing that no further proceedings be taken on it.
14     Sections 507.1(5) and (6) of the Code provide:

(5) If the judge ... does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge ... to issue a summons or warrant, the information is deemed never to have been laid.
(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

Preliminary Application to Dismiss

19     The Attorney General of British Columbia raised a preliminary objection to the appeal in this Court, under R. 17(1) of the Court of Appeal Criminal Appeal Rules. He claimed that the Court has no jurisdiction to hear the appeal, on three bases:

1. the appellant has not obtained the consent of the Attorney General of Canada to continue the proceedings, as required by s. 7(7) of the Code;
2. the appellant did not apply to compel the provincial court judge to issue a summons or warrant within six months of the provincial court judge failing to do so, or at any time, as required by s. 507.1(5) of the Code, and the information is therefore deemed never to have been laid;
3. section 784(1) of the Code does not provide a right of appeal from the order of the Supreme Court justice dismissing the application on the ground that the proceedings are an abuse of process.

20     During the hearing of the Crown’s application, Crown counsel abandoned the second ground for claiming the Court has no jurisdiction to hear the appeal.
21     In my opinion, the Crown’s application must succeed on the first ground: the proceedings cannot continue because the appellant failed to obtain the consent of the Attorney General of Canada not later than eight days after the information was laid. That makes it unnecessary to deal with the third ground.

Section 7(3.7) – Prosecution for Torture

22     Section 7(3.7) of the Code, which provides for the prosecution of any person for torture, wherever committed, was Canada’s response to its international commitments under Articles 4 and 5 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), Can. T.S. 1987 No. 36, (entered into force June 26, 1987):

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5
. . .
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him ...

23     On introduction of Bill C-28, to amend the Code to implement the Convention, the Government recognized that extraterritorial jurisdiction was required in order to effectively implement the Convention. Mr. François Gèrin (Parliamentary Secretary to Minister of Justice and Attorney General of Canada) said (House of Commons Debates, 33rd Parliament, 2nd Session, 1987, vol. IV, March 26 (Ottawa: Canadian Government Publishing, 1997) at 4601):

In order to enforce the convention, a system of extraterritorial jurisdiction is created to prevent safe havens for torturers or for their accomplices. States are obligated to investigate allegations of torture and to prosecute alleged torturers. With respect to a foreign torturer found on its territories, each state is obligated to either extradite or prosecute the alleged torturer.

Section 7(7) – Consent of the Attorney General of Canada

24     The expanded jurisdiction provided in s. 7 is qualified by the requirement in s. 7(7) that the consent of the Attorney General of Canada be obtained. This requirement is not specific to the offence of torture. It also applies to other offences that extend Canadian criminal jurisdiction beyond its borders and thus have an international aspect, such as air piracy, offences against diplomats, terrorist offences, and protection of nuclear material.

Purpose of s. 7(7)

25     The consent of the Attorney General to the prosecution of offences with international implications recognizes the importance of Canada’s relationships with other states, and the role of the federal government in managing those relationships.
26     In Regina v. Ford; Regina v. Gilkey (1956), 115 C.C.C. 113 at 114 (B.C.C.A.), Sidney Smith J.A. articulated the purpose behind s. 420(2) of the Code, which provided that no proceedings could be taken against an “accused who is not a Canadian citizen” with respect to an offence committed within the “three mile limit” of Canadian territorial waters except with the consent of the Attorney General:

Obviously the intention was that international friction should not be provoked unknown to the central Government.

The law requires that the Attorney-General of Canada both consent to and conduct the prosecution of war crimes and crimes against humanity. However, that requirement is there to stop politicized private prosecutions, not to allow the Attorney-General to refrain from prosecuting sound cases for political reasons.

Application of s. 7(7)

30     The issue between the parties with respect to the application of s. 7(7) is the proper interpretation of when “the proceedings are commenced”. The Crown argues that the laying of the information is the commencement of proceedings for the purpose of s. 7(7). Thus, Crown counsel says that the consent of the Attorney General of Canada must be obtained not later than eight days after the information is sworn. The appellant contends that the proceedings do not commence until after process (a summons or warrant) is issued, relying on the authority of R. v. Dowson, [1983] 2 S.C.R. 144.
31     In Dowson, the Supreme Court of Canada considered when the Attorney General could enter a stay of proceedings on an indictment. The Attorney General had entered a stay of proceedings on a private information which alleged that an R.C.M.P. officer had committed forgery and other offences. The Supreme Court concluded that a stay could not be entered until after process had issued.
32     Section 508(1) of the Code, as it then read, provided that a stay could be entered “at any time after an indictment has been found”. Under then s. 732.1 of the Code, it was clear that a stay could be entered in summary conviction proceedings any time after the information was laid. As explained by Lamer J. (as he then was), writing for the Court, (at 155), the Court preferred, in the case of an indictment, an interpretation that increased the accountability of the Attorney General. Justice Lamer acknowledged (at 158) that the disparity between stays for indictments and summary conviction proceedings was an anomaly, but preferred for policy reasons to limit the Attorney General’s “necessary but no less dangerous discretion to circumvent the courts and deny a citizen his right to bring another to court ...”.
33     Section 508 (now s. 579(1)) of the Code was subsequently amended to provide that the Attorney General could enter a stay of proceedings in both indictable and summary proceedings after “proceedings ... are commenced”.
34     In R. v. Wren, [1987] B.C.J. No. 1336 (C.A.) (a decision binding on this Court), the Court considered a stay of proceedings entered after a private information had been laid, before process had issued. In reasons for the Court, Hinkson J.A. stated (referring to Lamer J.’s comment about the anomaly of the disparity between stays for summary convictions and indictable offences):

Subsequent to that comment in the Supreme Court of Canada the Criminal Code was amended. S. 732(1) was repealed and at the same time s. 508(1) was amended. Previously s. 508 provided that a stay could be entered “at any time after an indictment has been found”. That phrase was deleted in the amendment and now with respect to both summary conviction offences and indictable offences the Attorney General may enter a stay at any time after proceedings are commenced.

It was decided in Dowson that a summons or warrant must first be issued before the power to stay may be exercised. Subsequent amendments to the Code permit the Attorney-General to direct a stay any time after an information is laid.

I completely share the opinion of the Superior Court judge when he stated that a person is an accused as of the laying of the information, which constitutes the beginning of the proceedings. He concluded, with reason, that this new disposition is the legislative response to the case of R. v. Dowson [citations omitted] ...

Conclusion

39     The appellants failed to obtain the consent of the Attorney General of Canada to continue the proceedings as required by s. 7(7) of the Code, with the result that this Court does not have jurisdiction to hear the appeal.
40     I would grant the application of the Crown to dismiss the appeal for want of jurisdiction, and order that the appeal be dismissed.

* * *
 

Canadian Criminal Code § 7

Space Station — Canadian crew members

(2.3) Despite anything in this Act or any other Act, a Canadian crew member who, during a space flight, commits an act or omission outside Canada that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada, if that act or omission is committed

(a) on, or in relation to, a flight element of the Space Station; or

(b) on any means of transportation to or from the Space Station.

Space Station — crew members of Partner States

(2.31) Despite anything in this Act or any other Act, a crew member of a Partner State who commits an act or omission outside Canada during a space flight on, or in relation to, a flight element of the Space Station or on any means of transportation to and from the Space Station that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada, if that act or omission

(a) threatens the life or security of a Canadian crew member; or

(b) is committed on or in relation to, or damages, a flight element provided by Canada.

…

(2.33) No proceedings in relation to an offence referred to in subsection (2.3) or (2.31) may be instituted without the consent of the Attorney General of Canada.

* * *

NATIONAL DEFENCE ACT (R.S., 1985, c. N-5)

Application

Persons subject to Code of Service Discipline
60.  (1) The following persons are subject to the Code of Service Discipline:
(a) an officer or non-commissioned member of the regular force;
(b) an officer or non-commissioned member of the special force;
(c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is
(i) undergoing drill or training, whether in uniform or not,
(ii) in uniform,
(iii) on duty,
(iv) [Repealed, 1998, c. 35, s. 19]
(v) called out under Part VI in aid of the civil power,
(vi) called out on service,
(vii) placed on active service,
(viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,
(ix) serving with any unit or other element of the regular force or the special force, or
(x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;
(d) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;
(e) a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;
(f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;
(g) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;
(h) an alleged spy for the enemy;
(i) a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and
(j) a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

Place of Commission of Offence

Service offence, wherever committed, is triable
67.  Subject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada.
R.S., c. N-4, s. 57.

Place of Trial

No territorial limitation
68.  Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada.
R.S., c. N-4, s. 58.

Limitations with respect to Certain Offences

Offences not triable by service tribunal
70.  A service tribunal shall not try any person charged with any of the following offences committed in Canada:
(a) murder;
(b) manslaughter; or
(c) an offence under any of sections 280 to 283 of the Criminal Code.
(d) to (f) [Repealed, 1998, c. 35, s. 22]
R.S., 1985, c. N-5, s. 70; 1998, c. 35, s. 22.

Jurisdiction of Civil Courts

No interference with civil jurisdiction
71.  Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.
R.S., 1985, c. N-5, s. 71; R.S., 1985, c. 31 (1st Supp.), s. 46.
Division 2
Service Offences and Punishments

Disgraceful Conduct

Scandalous conduct by officers
92.  Every officer who behaves in a scandalous manner unbecoming an officer is guilty of an offence and on conviction shall suffer dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service.
R.S., c. N-4, s. 82.
Cruel or disgraceful conduct
93.  Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.
R.S., c. N-4, s. 83.
Traitorous or disloyal utterances
94.  Every person who uses traitorous or disloyal words regarding Her Majesty is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.
R.S., c. N-4, s. 84.
Abuse of subordinates
95.  Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., c. N-4, s. 85.
Making false accusations or statements or suppressing facts
96.  Every person who
(a) makes a false accusation against an officer or non-commissioned member, knowing the accusation to be false, or
(b) when seeking redress under section 29, knowingly makes a false statement affecting the character of an officer or non-commissioned member or knowingly, in respect of the redress so sought, suppresses any material fact
is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
R.S., 1985, c. N-5, s. 96; R.S., 1985, c. 31 (1st Supp.), s. 60.
Drunkenness
97.  (1) Drunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non-commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed.
When committed
(2) For the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug,
(a) is unfit to be entrusted with any duty that the person is or may be required to perform; or
(b) behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.
R.S., 1985, c. N-5, s. 97; R.S., 1985, c. 31 (1st Supp.), s. 60.
Malingering, aggravating disease or infirmity or injuring self or another
98.  Every person who
(a) malingers or feigns or produces disease or infirmity,
(b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or
(c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,
is guilty of an offence and on conviction, if he commits the offence on active service or when under orders for active service or in respect of a person on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.
R.S., c. N-4, s. 88.

* * *

LRCC ch. 5

* * *

German Criminal Code

§ 3 Offences committed on the territory of the Federal Republic of Germany
German criminal law shall apply to acts committed on German territory.

§ 4 Offences committed on German ships and aircraft
German criminal law shall apply, regardless of the law applicable in the locality where the act was committed, to acts committed on a ship or an aircraft entitled to fly the federal flag or the national insignia of the Federal Republic of Germany.

§ 5 Offences committed abroad against domestic legal interests
German criminal law shall apply, regardless of the law applicable in the locality where the act was committed, to the following acts committed abroad:
1. preparation of a war of aggression (section 80);
2. high treason against the Federation (sections 81 to 83);
3. endangering the democratic state under the rule of law
(a) in cases under section 89 and section 90a (1), and section 90b, if the offender is German and has his main livelihood in the territory of the Federal Republic of Germany; and
(b) in cases under section 90 and section 90a (2);
4. treason and endangering external national security (sections 94 to 100a);
5. offences against the national defence:
(a) in cases under section 109 and sections 109e to 109g; and
(b) in cases under section 109a, section 109d and section 109h, if the offender is German and has his main livelihood in the territory of the Federal Republic of Germany
6. causing the danger of political persecution (section 234a, section241a) if the act is directed against a German who has his domicile or usual residence in Germany;
6a. abduction of minors in cases under section 235 (2) No 2, if the act is directed against a person who has his domicile or usual residence in Germany;
7. violation of business or trade secrets of a business physically located within the territory of the Federal Republic of Germany, or of an enterprise, which has its seat there, or of an enterprise with its seat abroad and which is dependent on an enterprise with its seat within the territory of the Federal Republic of Germany and which forms a group with the latter;
8. offences against sexual self-determination:
(a) in cases under section 174 (1) and (3), if the offender and the victim are German at the time of the offence and have their main livelihood in Germany; and
(b) in cases under sections 176 to 176b and section 182, if the offender is German;
9. abortion (section 218), if the offender at the time of the offence is German and has his main livelihood in the territory of the Federal Republic of Germany;
10. false testimony, perjury and false sworn affidavits (sections 153 to 156) in proceedings pending before a court or another German authority within the territory of the Federal Republic of Germany that has the authority to administer oaths or affirmations in lieu of oath;
11.offences against the environment under section 324, section 326, section 330 and section 330a committed within Germanys exclusive economic zone, to the extent that international conventions on the protection of the sea allow for their prosecution as criminal offences;
11a. offences under section 328 (2) Nos 3 and 4, (4) and (5), also in conjunction with section 330, if the offender is German at the time of the offence;
12. offences committed by a German public official or a person entrusted with special public service functions during their official stay or in connection with their official duties;
13. acts committed by a foreigner as a public official or as a person entrusted with special public service functions;
14. acts committed against public officials, persons entrusted with special public service functions, or soldiers in the Armed Forces during the discharge of their duties or in connection with their duties;
14a. bribing delegates (section 108e) if the offender is German at the time of the offence or the offence was committed vis-à-vis a German;
15. trafficking in human organs (section 18 of the Transplantation Act), if the offender is German at the time of the offence.

§ 6 Offences committed abroad against internationally protected legal interests
German criminal law shall further apply, regardless of the law of the locality where they are committed, to the following offences committed abroad:
1.         (repealed);
2.         offences involving nuclear energy, explosives and radiation under section 307 and section 308 (1) to (4), section 309 (2) and section 310;
3.         attacks on air and maritime traffic (section 316c);
4.         human trafficking for the purpose of sexual exploitation, for the purpose of work exploitation and assisting human trafficking (sectionsection 232 to 233a);
5.         unlawful drug dealing;
6.         distribution of pornography under sections 184a, 184b (1) to (3) and section 184c (1) to (3), also in conjunction with section 184d, 1st sentence;
7.         counterfeiting money and securities (section 146, section 151 and section 152), credit cards etc and blank eurocheque forms (section 152b (1) to (4)) as well as the relevant preparatory acts (sectionsection 149, 151, 152 and 152b (5));
8.         subsidy fraud (section 264);
9.         offences which on the basis of an international agreement binding on the Federal Republic of Germany must be prosecuted even though committed abroad.

§ 7 Offences committed abroad-other cases
(1) German criminal law shall apply to offences committed abroad against a German, if the act is a criminal offence at the locality of its commission or if that locality is not subject to any criminal jurisdiction.
(2) German criminal law shall apply to other offences committed abroad if the act is a criminal offence at the locality of its commission or if that locality is not subject to any criminal law jurisdiction, and if the offender:
1.   was German at the time of the offence or became German after the commission; or
2.   was a foreigner at the time of the offence, is discovered in Germany and, although the Extradition Act would permit extradition for such an offence, is not extradited because a request for extradition within a reasonable period of time is not made, is rejected, or the extradition is not feasible.

§ 8 Time of the offence
An offence is deemed to have been committed at the time when the principal or the secondary participants acted, or, in the case of an omission, should have acted. The time when the result occurs is irrelevant.

§ 9 Place of the offence
(1) An offence is deemed to have been committed in every place where the offender acted or, in the case of an omission, should have acted, or in which the result if it is an element of the offence occurs or should have occurred according to the intention of the offender.
(2) Acts of secondary participation are committed not only in the place where the offence was committed, but also in every place where the secondary participant acted or, in the case of an omission, should have acted or where, according to his intention, the offence should have been committed. If the secondary participant to an offence committed abroad acted within the territory of the Federal Republic of Germany, German criminal law shall apply to the secondary participation even though the act is not a criminal offence according to the law of the locality of its commission.

Chapter 6. Analysis of Criminal Liability

A. Three Levels of Liability

Dubber, Comparative Analysis of Criminal Liability^[7]

It is generally assumed that the analysis of criminal liability differs widely in common law and civil law, with one system requiring actus reus and mens rea, and the other Tatbestandsmäßigkeit (tipicidad, tipicità), Rechtswidrigkeit (antijuricidad, antigiuridicità), and Schuld (culpabilidad, colpevolezza). The significance of these structural matters tends to be exaggerated; nonetheless, they are worth one’s attention if only because supposed structural incompatibility is an unnecessary impediment to comparative analysis.  

Modern U.S. criminal law uses an analytic structure that is easily compatible with the German scheme.  The Model Penal Code defines a crime as “conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.”   Criminal liability thus has three basic components: (1) conduct, (2) without justification and, (3) without excuse. To count as a crime, “conduct” must, however, meet several additional criteria, namely it must: (a) inflict or threaten (b) substantial harm to individual or public interests. If we put the two together, we get the Model Penal Code’s complete scheme of criminal liability. A person is criminally liable if he engages in (1) conduct that (a) inflicts or threatens (b) substantial harm to individual or public interests (2) without justification and (3) without excuse.

This scheme is easily mapped onto the traditional common law scheme. It is impossible to crystallize a single coherent liability analysis from hundreds of years of Anglo-American common law. Let’s assume, for present purposes, that a crime in the common law sense consists of two “offense” elements, (1) actus reus (the guilty act) and (2) mens rea (the guilty mind). Actus reus and mens rea are necessary, but not sufficient, prerequisites of criminal liability under the common law; criminal liability requires both a criminal “offense” (consisting of actus reus and mens rea) and the absence of “defenses.”  Particularly in the law of homicide, which has always managed to attract the lion’s share of doctrinal attention, courts generally divided these defenses into two types, justifications and excuses. Criminal liability thus attached to an offense committed (2) without justification and (3) without excuse. The analytic schemes of the Model Penal Code and the common law therefore are more or less interchangeable depending on how one views the connection between conduct and mens rea. The Model Code defines conduct as encompassing both: conduct is “an action or omission and its accompanying state of mind.”  Replacing “actus reus and mens rea” with “conduct,” the common law scheme of criminal liability therefore looks like this: (1) conduct, (2) without justification and, (3) without excuse.

The similarity to the German tripartite scheme now is clear. (1) The inquiry into Tatbestandsmäßigkeit asks whether the accused’s conduct matches the definition of a criminal offense, and is thus criminal in the formal sense. (2)  The second level probes the formally criminal conduct’s Rechtswidrigkeit, or unlawfulness, which is easily reframed as an inquiry into the presence or absence of a justification. (3) Assuming Tatbestandsmäßigkeit and Rechtswidrigkeit, the third and final prerequisite for criminal liability is Schuld, which might be rendered as guilt, responsibility, or perhaps blameworthiness, or—to put it differently once again—the absence of an excuse.

Despite this basic structural compatibility, which should suffice for meaningful comparative analysis, some general differences remains (besides the inevitable distinctions in specific rules). For one, U.S. criminal law attaches far less significance to the definitions of, and distinctions among, the various levels of inquiry. Even the Model Penal Code considered them as no more than occasionally convenient analytic devices. Unlike in other traditions (notably in German criminal law), they are not generally thought to reflect the ontology, or the phenomenology, of criminal liability.  Moreover, even modern Anglo-American criminal has retained the basic distinction between offense and defense, classifying justifications and excuses (themselves defensive concepts) as types of defense, rather than as preconditions for the attachment of criminal liability. This distinction, which is largely ignored in continental criminal law, reflects the continued dominance of procedure over substance in Anglo-American criminal law. The distinction, however arbitrary, also carries considerable doctrinal significance as it separates issues that must be proved by the state, beyond a reasonable doubt, from those that the defendant may be required to prove.

* * *

Criminal Code Bill Commission, Report (1879), at 11

There is a difference in the language used in the sections in this Part which probably requires explanation. Sometimes it is said that the person doing an act is "justified" in so doing under particular circumstances. The effect of an enactment using that word would be not only to relieve him from punishment, but also to afford him a statutable defence against a civil action for what he had done. Sometimes it is said that the person doing an act "is protected from criminal responsibility" under particular circumstances. The effect of an enactment using this language is to relieve him from punishment, but to leave his liability to an action for damages to be determined on other grounds, the enactment neither giving a defence to such an action where it does not exist, nor taking it away where it does....

B.        German Scheme

Wolfgang Naucke, “An Insider’s Perspective on the Significance of the German Criminal Law Theory’s General System for Analyzing Criminal Acts,” 1984 BYU L. Rev. 305

            German courts are time and again confronted by the following set of facts:  A group of young people has difficulty gaining public attention for their political views, and to remedy this problem they decide to “advertise”:  They have some posters printed and paste them up as firmly as possible in as many locations as they see fit. The modern glues are quite permanent, and the material is often bonded to the surface to which it is attached. It is usually a tremendous inconvenience to remove the posters or fliers, and is sometimes impossible.

Under German criminal law, the question is whether the foregoing conduct is sufficient to constitute the crime of damaging property under section 303 of the German Criminal Code. There are conflicting opinions, and the courts and scholars defend their views with numerous arguments. It is unsettled whether firmly pasting a flier or poster on an object damages that object. Those who believe that it does must turn to further questions. Conceivably, such property damage is justified by the right to freedom of speech. Even someone who does not accept the argument that free speech rights legitimize property damage might still argue that the young people should not be punished because they (mistakenly) thought that their right to freedom of speech justified their actions. . . .

In [the general system for analyzing criminal acts] are collected those features of crime that are common to all crimes, whether it be damaging property, theft, murder, or anything else. If, therefore, unauthorized advertising is to be punishable under German law, it must be found to exhibit the general paradigmatic features of crime as determined by German criminal theory, as well as the particular elements of section 303 established by statute.

The general analytical system describes the main features of criminal action with the German terms Tatbestandsmässigkeit (definition of the offense), Rechtswidrigkeit (wrongfulness), and Schuld (culpability). Whatever the governing code provision may be, every criminal act must be wrongful and culpable conduct that conforms to (i.e., is violative of) the definition of the offense. Unauthorized advertising can only be punished if it violates the definition, is wrongful, and is culpable. These central elements are discussed with much effort and pomp in Germany. The discussion . . . has not achieved a conclusive result. A few main points, however, are undisputed.

a. The definition of an offense. The word Tatbestandsmässigkeit embraces all of the elements of a particular crime that are found in the applicable code section. A rough American equivalent would be the phrase “elements of the offense.”  There is a Tatbestand or definition of theft, homicide, fraud, and so on. The problems . . . with applying section 303 to “wild postering” are questions about whether such conduct fits within the scope of the definition of damaging property. A German law student writing an exam on the issue, or for that matter, a German judge deciding a “wild postering” case, would be regarded as engaging in improper analysis if he or she tried to treat these question at a different stage of the analysis—i.e., as an issue of wrongfulness or culpability.

Demanding that the problem of determining which legal interest is protected by section 303 be treated as a problem of the definition of damaging property affects more that the mere formal ordering of legal analysis. This demand also aids the decision of substantive issues. The content of the definition of a crime cannot be extended beyond that formulated by the legislature. In the context of section 303, for example, the authority of the property owner to determine what may happen to his property is protected only to the extent this authority is asserted to prevent damage to, or destruction of, the property. From this perspective it would take a strained interpretation to hold unauthorized advertising to be a violation of section 303, since such conduct leaves the property intact and intrudes solely upon the owner’s authority. . . . If however, the definition of the crime of damaging property were tied to the authority of the owner to control his property, the determination of whether a particular act satisfied the element of the definition would be dependent upon whether the property owner viewed the act as an incursion upon his authority. . . .

b. Wrongfulness. Rechtswidrigkeit, or wrongfulness, embraces all the statutory and extra statutory general grounds for holding that conduct which is violative of the definition may still be found to be justified, thereby escaping punishment. Self-defense is a classic justification that negates the wrongfulness of an act. The right to free speech, which some “wild posterers” cite as the source of the legitimacy of their activity, is a doubtful justification in their case. But it is in any event an argument that must be legally analyzed under the heading of wrongfulness. The category of wrongfulness in the general analytical system not only proves the proper place for the discussion of such justifications but also provokes the discussion of doubtful justification.

c. Culpability. The first task of the element of Schuld or culpability in the general analytical system is to secure the status of culpability as an indispensable prerequisite to punishment. A result of the culpability requirement is that the lawyer must carefully consider possible grounds for excusing the actor, even though his conduct is violative of the definition of the crime and is wrongful. Insanity and duress are illuminating examples of the doctrines that serve to negate culpability in this manner. A party availing himself of either of these defenses typically claims that while he has engaged in conduct specified in the definition of some crime, and though he has done so without justification, he cannot fairly be held responsible for what he did.

Legal discussions of unauthorized advertising commonly encounter the view that this conduct conforms to the definition of damaging property and is wrongful. Those who defend this position are not, however, finished with their analysis. They must take up the further problem presented by the possibility that the actor thought he had a right to paste up posters,  In the terms of the theory of the general analytical system, this is a problem of culpability. A perhaps overly simplistic formulation is that the category of culpability marshals all of the arguments favoring a finding of not guilty that are based on the subjective state of the accused and insures that they are considered in every case.

C.        Victim Compensation Scheme

Dubber, Analysis of Compensability^[8]

The kernel of a general account of victimhood lies ... in the general definition of victimhood [such as the one found in the New York victim compensation statute]: a victim is “a person who suffers personal physical injury as a direct result of a crime.” N.Y. Exec. Law § 620. To receive compensation, however, mere victimhood is not enough. Not victims, but innocent victims trigger the legislature’s empathy ..., as the “declaration of policy and legislative intent” at the very beginning of New York’s victim compensation statute makes clear:

The legislature recognizes that many innocent persons suffer personal physical injury or death as a result of criminal acts. Such persons or their dependents may thereby suffer disability, incur financial hardships, or become dependent upon public assistance. The legislature finds and determines that there is a need for government financial assistance for such victims of crime. Accordingly, it is the legislature’s intent that aid, care and support be provided by the state, as a matter of grace, for such victims of crime (emphasis added).

Combining the definition of “victim” and the declaration of legislative intent, we end up with the following test of compensability: To qualify for victim compensation a claimant must be

            (i) “a person who suffers personal physical injury as a direct result of a crime” and

            (ii) “innocent.”

            A compensable victim [thus] is an innocent person who suffers personal physical injury as a direct result of a crime.

[Based on a review] of victims legislation from throughout the country, we can construct the outline of a general law of compensability. The analysis of compensability falls into two stages:

            (1) At the first stage, the victim’s general eligibility for compensation is determined. To be facially eligible for compensation in the abstract, a “claimant” must establish

            (a) that she falls within the scope of the relevant compensation statute (“jurisdiction”) and

            (b) that she is capable of being a victim (“an innocent person who suffers personal physical injury as a direct result of a crime”).

            Assuming she is eligible in the abstract, she must establish that she is eligible in particular, by showing

            (c) that she was in fact the victim of a crime (“an innocent person who suffers personal physical injury as a direct result of a crime”) and

            (d) that she was in fact not responsible for that crime (“an innocent person who suffers personal physical injury as a direct result of a crime”).

            If she succeeds on all four counts, and she bears the burden of proof on all of them [by a preponderance of the evidence], she is compensable.

            (2) The inquiry then proceeds to the second stage, where the amount of compensation is determined. That amount will depend on various factors, including

            (a) her responsibility for the crime, if any,

            (b) the actual harm suffered, and

            (c) her neediness.

D.        Tort Scheme

Linden & Feldthusen, Canadian Tort Law, 8th Ed.
CHAPTER 3 - DEFENCES TO THE INTENTIONAL TORTS

German Civil Code s. 823. Liability in damages

(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.

E.        An Application: The Queen v. Dudley and Stephens

The Queen v. Dudley and Stephens
Queen’s Bench Division
14 Q.B.D. 273 (1884)

INDICTMENT for the murder of Richard Parker on the high seas . . . .

At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated ”that on July 5, 1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht [the Mignonette], a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That on the twelfth day the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. . . . . That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. . . .”
           

The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges. * * *

Dec. 9.
The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, B-B.) was delivered by LORD COLERIDGE, C.J.

The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.

... From the facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man and try the conscience of the best. . . . But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that “if the men had not fed upon the body of the boy they would probably not have survived,” and that, “the boy being in a much weaker condition was likely to have died before them.”  They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. . . .

. . . [T]he real question in the case [is] whether killing under the circumstances set forth in the verdict be or be not murder. . . . First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. . . .

Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.”  But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, . . . these duties impose on men the moral necessity, not of the preservation but of the sacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, will men ever shrink as indeed, they have not shrunk. . . .

It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity?  By what measure is the comparative value of lives to be measured?  Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men?  The answer must be “No”—

“So spake the Fiend, and with necessity,
The tyrant’s plea, excused his devilish deeds.”^[9]

THE COURT then proceeded to pass sentence of death upon the prisoners. [This sentence was afterwards commuted by the Crown to six months’ imprisonment.]

^[1] See Criminal Code pt. XXIV (“Dangerous Offenders and Long-Term Offenders”)—Ed.

^[2] The vast majority of criminal cases in Canada are resolved through plea bargaining. A 1998 study in Ontario put the figure at 91.3%, including "charges resolved by guilty pleas or withdrawn by the prosecutor". See Milica Potrebic Piccinato, Plea Bargaining (Dep't of Justice Canada, 2004) (available on Blackboard, along with other basic information on the Canadian criminal process).—Ed.

^[3] In 2005, the U.S. Supreme Court converted the Guidelines from mandatory to advisory to render them consistent with the federal constitutional right to a jury trial. United States v. Booker, 543 U.S. 220 (2005).

^[4] {Now s. 12: Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. —Ed.}

^[5] 214. (1) Murder is first degree murder or second degree murder....
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person
(a) while committing or attempting to commit an offence under section 76.1 (hijacking aircraft) or 247 (kidnapping and forcible confinement); or
(b) while committing an offence under section 144 (rape) or 145 (attempt to commit rape) or while committing or attempting to commit an offence under section 149 (indecent assault on female) or 156 (indecent assault on male).—Ed.

^[6] Section 142(7) of the Labour Relations Act provides:
If any directive made by the Board pursuant to subsection (5) or (6) is not complied with, the Board may, on the request of an employer, employers' organization, employee, trade union or other person affected by the directive, file a copy of the directive with the clerk of the Court in the judicial district in which the complaint arose and thereupon the directive is enforceable as a judgment or order of the Court.—Ed.

^[7] From “Comparative Criminal Law”, in Mathias Reimann & Reinhard Zimmermann (eds), Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006).

^[8] From Victims in the War on Crime: The Use and Abuse of Victims' Rights (New York: New York University Press, 2002) at 9-10, 234-35.

^[9] Milton, Paradise Lost iv.393 (1667)