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“Ghosts” in the Criminal Code

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One of the most highly publicized criminal trials in recent Alberta history ended in the fall of

2016 with a degree of judicial embarrassment. Having broken new ground by allowing the live broadcasting of his decision in the case, the trial judge mistakenly found Travis Vader guilty of the murders of Lyle and Marie McCann using a section of the Criminal Code which had been declared unconstitutional by the Supreme Court of Canada 26 years earlier. Once his error was pointed out by the lawyers, the judge corrected himself and ultimately found Vader guilty of the lesser offences of manslaughter.

This situation gives rise to a number of lingering questions. How could an error such as this be made? How many other situations exist where Parliament has left unconstitutional laws “on the books”, so to speak?

To answer those questions, some background about the legislative and judicial processes involved must be considered.

Parliament owes all of us a duty to keep its legislation current, and this includes acting in a timely fashion to remove or amend provisions of law which have been struck down by the courts.  Parliament is responsible for making our federal laws. Our elected officials in government decide on what policies should be turned into law. Parliament debates and considers the government’s proposals in the course of deciding whether to pass the legislation advanced before it. Once both Houses of Parliament agree and a bill is passed into law, the Governor General gives her assent and the law becomes effective. From the earliest days of Confederation, the criminal law has been within Parliament’s jurisdiction: Parliament decides what acts are to be considered crimes, and what principles govern the enforcement and application of our criminal laws.  For the most part, these rules and procedures are outlined in the Criminal Code of Canada.

However, our courts also have a role to play in overseeing the proper enactment and enforcement of Canadian laws. Since Confederation in 1867, judges have been called upon to review legislation to ensure it is valid. At first, this power was limited to ensuring that laws had been enacted by the proper legislature; that Parliament and the provincial legislatures only enacted laws within their respective areas of jurisdiction, and that neither level of law-maker intruded improperly into an area reserved for the other. As time went by, however, somewhat more substantive reviews of legislation began to take place, until, in 1982 with the passage of the Constitution Act, 1982 – including the Canadian Charter of Rights and Freedoms – courts were given the authority to strike down any law found to be contrary to the basic rights and freedoms of Canadians. Section 24 of the Charter allows individuals who feel their constitutional rights and freedoms have been infringed or denied to apply to a court for a remedy which is “appropriate and just in the circumstances”. In addition, Section 52 of the Constitution Act, 1982 states that any law which is contrary to the constitution is “of no force and effect” to the extent of that non-compliance.

In many situations since 1982, when the courts have declared a law to be “of no force and effect” due to not being consistent with the constitution, our lawmakers have acted responsibly by either repealing the law in question or amending it in an effort to bring the offending part(s) into compliance with the constitution. However, for reasons known only to themselves, our elected officials have not always moved to “clean up” legislation which has been struck down, and that brings us to the Vader case and the events of 2016.

Another, “high profile” example of a legal “ghost” which, despite a Supreme Court declaration of invalidity, remains part of the Criminal Code, is the section governing abortions.  Murder is usually defined as the intentional causing of the death of another human being. To be found guilty of murder, an accused must be proven by the Crown to have had the specific intent to kill (or to have deliberately caused such serious bodily harm that death was likely to result, and to have then been reckless about whether the injured person died). However, pursuant to Section 230(a) of the Criminal Code where death takes place while another offence is occurring (or as the culprit attempts to escape once having committed the other offence), the culprit would also be guilty of murder regardless of his actual specific intention (or lack thereof). The other offences in question included robbery, breaking and entering, sexual assault, hijacking an aircraft, kidnapping and hostage taking, prison escape, and arson. In other words, if during a bank robbery or a kidnapping the criminal hurt someone either for the purpose of committing the offence or for making an escape, that person’s resulting death would be considered murder regardless of whether or not the robber or kidnapper actually intended that the injured person die.

However, in 1990 the Supreme Court of Canada declared Section 230(a) to be unconstitutional.  It is one of the principles of fundamental justice (enshrined in Section 7 of the Charter of Rights), the Court held, that only persons who specifically intend to kill be found guilty and punished for murder. The stigma and the sentence (mandatory life imprisonment) are both so severe that a finding of murder should only be made where the accused person has been proven to have the actual, specific intent to kill. Anything less than that, and a lesser finding – and conviction for a lesser offence – would be the proper outcome.

It is one of the principles of fundamental justice (enshrined in Section 7 of the Charter of Rights), the Court held, that only persons who specifically intend to kill be found guilty and punished for murder. Unfortunately, however, Parliament did not see fit to act in response to the Supreme Court’s ruling. It neither sought to amend Section 230(a) of the Criminal Code in an effort to ensure Charter compliance, nor did it repeal the provision completely. It simply kept Section 230(a) in the Criminal Code, untouched, despite the Court’s declaration that it was invalid (interestingly, a similar, related part of Section 230 was declared unconstitutional in 1987; Parliament then repealed that provision in 1991). Thus, in 2016 when the trial judge was considering the case of Travis Vader, he erroneously considered that Section 230(a) provided a means by which he would find Vader guilty of murder. On the evidence before him he concluded that the deaths of the McCann’s had taken place as Vader committed a robbery (the unlawful taking of their property while using or threatening violence) against them. He then relied upon Section 230(a) to make the finding that Travis Vader was guilty of murder of both of the McCann’s. (As noted at the outset, once his error was pointed out, and after lawyers on both sides of the case had made further arguments about what should be done in that situation, he rendered a new decision, finding Vader guilty of manslaughter in relation to both deceased.)

Another, “high profile” example of a legal “ghost” which, despite a Supreme Court declaration of invalidity, remains part of the Criminal Code, is the section governing abortions.  Section 288 of the Code makes abortions illegal, but provides for exceptions where a therapeutic abortion committee has voted to allow a woman to have an abortion for reasons relating to her own health concerns.  However, in 1988 the Supreme Court of Canada struck down this section on the basis that the state – in the form of such committees or otherwise – had no business interfering in what women decided to do with their own bodies.  Section 7 of the Charter guarantees to all persons the protection of their bodily integrity subject only to limitations which are consistent with the principles of fundamental justice. A majority of judges on the Supreme Court held that it was an unacceptable intrusion into the equality and personal rights of women for the state to dictate when an individual would be required to carry a foetus to full term, and when an abortion would be allowed. As a result of the declaration of invalidity, access to abortion in Canada was widened immensely, with the growth of free-standing abortion clinics where the procedure is carried out as requested by individual women in private consultation with their personal doctors.

However, despite the 1988 Court ruling, Section 288 remains part of the Criminal Code.  In this case, it is perhaps easier to guess about why politicians have not acted: for some, the issue of abortion remains a highly charged, emotional issue, and to remove even an outdated and invalid law purporting to prohibit the procedure likely risks opening too much of a debate for the tastes of most elected officials.  The easier, least controversial route is to simply leave things as they are – in other words, allowing the legal absurdity of having an unconstitutional, invalid law remain part of the legislation – and thus avoid the clamoring of interest groups and protestors who might get in the way of any particular politician’s – or party’s – reelection hopes.

Since Confederation in 1867, judges have been called upon to review legislation to ensure it is valid. Further examples of provisions which remain part of the Criminal Code despite having been struck down by the Supreme Court is in the area of mandatory minimum sentences. Our highest court has recently declared at least two to be unconstitutional (other courts across the country have made rulings against other provisions as well, but only the Supreme Court of Canada makes decisions which govern the application and administration of the law nationwide). In the first case, in 2015, the Court considered the three year mandatory penitentiary sentence for anyone caught in possession of certain firearms without being licensed and having a registration certificate for the weapon. In the second, in 2016, the Court addressed a one year mandatory minimum jail sentence for anyone convicted of drug trafficking if they had already been convicted of a similar offence within the previous 10 years. In both situations, the Supreme Court held, the mandatory minimums were unconstitutional for possibly imposing punishments which would be “cruel and unusual” (contrary to Section 12 of the Charter of Rights) in at least some cases which might come before the courts from time to time. In the firearms case, the Court noted that the mandatory minimum covered situations as minor as an otherwise law-abiding gun owner who might forget to renew a license or firearms registration.  In the drug case, the one year jail sentence would include the situation of a drug addict who simply shares a small amount of her own narcotics with a fellow user out of generosity or compassion.  To be clear, the Court did not say such offences should go unpunished; rather the long mandatory jail sentences at least in such hypothetical situations would, it held, shock the conscience of the public, and accordingly, it struck down those sentencing provisions as being contrary to the constitution.

How many other situations exist where Parliament has left unconstitutional laws “on the books”, so to speak?

In the case of the mandatory minimum sentencing provisions, the explanation for Parliament’s inaction may be how recently the court decisions were made.  The consideration, drafting, debating, amending, and ultimately, passage of legislation in Parliament is a slow, time-consuming process at the best of times.  It is therefore perhaps not surprising that in this situation, only two or three years since the Supreme Court rulings, Parliament has not yet acted in response.  That said, there is no political benefit to be gained, and much political risk, to be seen as being “soft on crime”; even the repeal of an invalid (but harsh) sentencing provision might therefore be too risky for some politicians. The current Liberal government was elected, after all, on a platform which included reviewing and legislating upon its predecessor’s enactment of many mandatory minimum sentences of imprisonment but we still, almost three years later, have yet to see any legislative action in this direction.

The three examples discussed herein are likely the most prominent illustrations of Parliament’s inaction after findings of invalidity by our highest court.  Scattered through the Criminal Code are occasional other examples of similar “zombie” laws.  Most would likely be seen as somewhat less serious or significant as the three cases discussed, but all are equally problematic.  As the Vader case demonstrated, despite years of education and experience, judges remain as human as the rest of us, and thus, as capable of error as anyone else. As happened in that case, a judge may mistakenly rely upon a provision of law which has already been struck down, where Parliament has left the invalid provision in its legislation.

Parliament owes all of us a duty to keep its legislation current, and this includes acting in a timely fashion to remove or amend provisions of law which have been struck down by the courts.  In March, 2017, the government finally introduced legislation before Parliament to address – by repealing – a number of Criminal Code provisions struck down some time ago, including the murder and abortion provisions discussed in this article.  However, this is an on-going concern and the efforts of our Parliamentarians must similarly be constant in order not to allow similar situations – where the written laws of Parliament continue to include provisions long ago declared unconstitutional – to develop again in the future.

Viewpoint 42-4: Understanding Parole: Paul Bernardo Eligible for Full Parole in February 2018

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Viewpoint column logoFebruary 2018 marks 25 years since the arrest of Paul Bernardo for the rapes and murders of two young women in Ontario.  Following one of the longest and most highly publicized criminal trials in Canadian history, he was convicted of two counts of first degree murder and given the automatic and mandatory sentence required by Canadian law: life imprisonment without eligibility for parole for 25 years.  Now that 25 years have passed, Bernardo is eligible to appear before the Parole Board of Canada and seek its permission to leave the correctional institution where he is housed in order to begin reintegration back into Canadian society.

It seems unlikely that Bernardo will exercise this option, and even more unlikely that he will succeed (among other things, he was also responsible for a startling number of other sexual assaults, as well as the death of the sister of his wife and fellow killer Karla Holmoka). However, we can expect that this anniversary may lead to public discussion and controversy about the idea of possible release and return of someone who has committed such terrible crimes to live among the rest of us, in a community somewhere in this country.

It is relatively rare in Canada that someone who is sentenced to imprisonment will actually be in custody for the full length of their sentence. Victims and their supporters (including some vocal political allies) often complain about this and argue for harsher and longer punishments.

For a person convicted of murder, however, the sentence is, literally, “for life”: the sentence will continue for the rest of the convicted person’s life. If they are granted parole and allowed to re-enter the community, it will always be under supervision.However, our system seeks to combine punishment for wrongdoing with correction and rehabilitation in an effort to ensure the individual does not misbehave again in the future.  As a result, various forms of early release privileges have long been an essential part of our penal/correctional system.  Most offenders who receive fixed term of imprisonment (that is, something less than a life sentence) will be released around the time when they have served two-thirds of the total sentence length.  Some offenders are granted parole even earlier than the two-thirds point (where they have been able to demonstrate the risk they will reoffend is very low, and there is no longer a legitimate penal purpose to detain them any longer).  At the same time, it is also possible for an offender to be kept in custody for longer than two-thirds of the sentence – and sometimes right to the very end of the term ordered.  This happens most often when, by their conduct as a prisoner the individual has demonstrated that they continue to pose a significant threat to other persons such that they cannot be safely released into the community.

In the case of adults convicted of murder, the mandatory sentence required by law is life imprisonment.   However, even these prisoners will be eligible to ask for parole someday.  Precisely when depends on the classification of murder as found by the court: for first degree murder, the mandatory waiting period is 25 years, while for second degree murder the parole ineligibility period will be set by the sentencing judge at some point between 10 and 25 years.

All too often the media and the public mistake the parole eligibility date for the length of the sentence; the media frequently incorrectly report on such a sentence as though it ends on the date of parole eligibility (for example, referring to a “25 year sentence” where the individual has actually been ordered to serve 25 years of a life sentence before asking for parole). These dates relate to adults convicted of a single murder. Persons under 18 at the time of the offence will have shorter periods before they can seek release, and persons who are guilty of more than one murder may be ordered to wait even longer than 25 years.

Now that 25 years have passed, Bernardo is eligible to appear before the Parole Board of Canada and seek its permission to leave the correctional institution where he is housed in order to begin reintegration back into Canadian society.

There are two main purposes behind the concept of early release. First, it is hoped that the offer of early release will serve as an incentive to inmates to behave properly, and to take such rehabilitative programming as is offered, while in custody.  Second, because early release is under supervision, and can be revoked, it is considered to be a form of transition for the inmate, to assist them in leaving the custodial setting and becoming used to living in society again. We recognize that such a transitional period of control and supervision actually enhances community safety as it offers the offender a somewhat graduated form of return to “normal” life without the restrictions of custody. To release a prisoner from a jail cell directly into society without any form of supervision, support or control is a recipe for reoffending and more crime.

For offenders serving a fixed-length sentence, they eventually will get to the date when they have served their punishment in full (whether they are still in custody or on a form of early release at the time) and their sentence will expire. For a person convicted of murder, however, the sentence is, literally, “for life”: the sentence will continue for the rest of the convicted person’s life. If they are granted parole and allowed to re-enter the community, it will always be under supervision. The release can be revoked at any time and the individual will then return to prison to continue serving their sentence in custody. It is worth pointing out that in many, if not most, cases convicted murderers end up doing very well on parole compared to other prisoners, with fewer instances of breaking the rules and being returned to prison.

It is relatively rare in Canada that someone who is sentenced to imprisonment will actually be in custody for the full length of their sentence. We grant parole to persons convicted of murder for similar reasons as with all other offenders.  We hope that the offer of release back to society will encourage good behavior and engagement in appropriate rehabilitative programs while serving sentences in custody.  For persons serving life sentences, we also recognize that there usually comes a time when they – and society – no longer require continued incarceration: they have grown older, have taken the programming and have made full use of the other forms of assistance aimed at helping them reduce their risks of reoffending, and generally no longer pose a significant risk to other persons.  At the same time, due to the nature of the offence in question – deliberately taking the life of another person – we recognize that there is an on-going need to supervise and regulate the lives of such persons in order to ensure the continued safety of the public.  Therefore, when release comes it is always upon conditions that the offender will have to obey and follow.  Failure to do so will lead to a return to prison.

The Youth Criminal Justice Act: An Overview

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Young persons who commit crimes must be held accountable, but in Canada (as in most other western democracies), because of their age, we approach “youth crime” differently than how we approach crimes committed by adults. In keeping with international standards and scientific understanding, young persons – under the law, those between 12 and 18 years of age – cannot be held to the same standards and expectations as adults. Therefore, we have a separate law, now the Youth Criminal Justice Act (the “YCJA”), to govern how we respond to young persons who commit criminal offences.

The law recognizes that subjecting a young person to the stigma of publicity because of their criminal conduct is likely to reduce the chances of successful rehabilitation. Historically, children who committed offences were treated as “delinquents” in need of corrective direction. Under the Juvenile Delinquents Act (the “JDA”), children who came into conflict with the law had few procedural protections. For example, the age when young accused were sent to the adult courts varied across the country, and often, between genders. In some provinces, boys aged 16 or 17 would be prosecuted and sentenced as adults while girls more often continued to be treated as children until they turned 18. Actual “trials” were rare under the JDA. More often, a private informal hearing was held where the child had few rights. Following the hearing, a child might be sent to an “industrial school” (despite the name, essentially a jail or prison for young persons), placed into a foster home, or put on probation.

In 1982, Parliament replaced the JDA with the Young Offenders Act. Since then, although there have been changes in aspects of the youth court system, the same principles and goals have generally continued and are now found in the YCJA. Young persons charged with criminal offences have enforceable rights similar to those of adult accused persons, including the right to have lawyers assist and represent them. They have input into the proceedings separate and apart from what their parents or other caregivers might offer. Children who are alleged to have committed offences are not treated differently based upon gender or where they live in Canada.

Rehabilitation of young persons who have gotten into trouble is the main goal of the law.  The range of punishments and penalties is somewhat broader than what might be considered for adults who have committed crimes, in recognition of the special needs and challenges of youth. At the same time, the legislation also confirms that victims and society at large require protection from criminal conduct, and the damage and loss it so often brings.

In general terms, a youth may never be sentenced to a more severe punishment than an adult would receive for the same offence.One of the features of our youth criminal justice law (which has since been adapted to adult situations too) is what the YCJA calls “Extrajudicial Measures” – more commonly referred to as “Alternative Measures” or “Diversion”. These measures reflect that prosecuting and stigmatizing first-time offenders who have committed a fairly minor crime may cause more harm than good, and certainly is not an efficient or economic use of court and corrections resources. Therefore, such matters can often be dealt with outside of the court system (sometimes without even laying charges). In very minor situations, a police officer or prosecutor can officially “caution” a young person about the dangers and unlawfulness of their conduct and, if satisfied that this is sufficient to reduce the risk of re-offending, the matter can be considered closed. In other cases, the youth is required to meet with a community justice committee to discuss why their actions were wrong and to explore ways the child can change their behavior to avoid future conflict with the laws. If a charge has been brought before the court, it will be dismissed or withdrawn if the young person has successfully completed a community-based “diversion” program.

For matters which proceed in court, most of the procedural rules and practices are the same for youth as for an adult accused. The same pleas are permitted (“guilty” or “not guilty”), and the trial procedures and rules of evidence are almost identical.  One exception is that in youth court jury trials are almost never allowed (see below for exceptions). As well, if the Crown wants to introduce evidence of what a young person has said to the police or any other person in authority, there are some extra steps to be taken. They must ensure that the youth’s legal rights were respected and that he or she understood their options and the results, if they decided to speak or answer questions.

Young persons must be held in correctional facilities separate and apart from offenders who are 18 years of age or older.

When sentencing young persons who have been found guilty, Youth Court Judges have a broad range of penalties and sanctions which can be imposed. However, the emphasis is usually upon trying to achieve rehabilitation without the disruption of imprisonment. Adults who are punished for committing crimes usually face fines, probation or jail sentences of various lengths. Youth are fined far less often than adults. A first-time youth offender whose crime is not serious may be ordered to perform community service work, and, or alternatively, be placed on probation to ensure he or she is steered away from future wrongdoing and misbehavior. In the most minor of situations, a formal “reprimand” by the judge can be the sentence. For most “first time offenders” imprisonment of any sort is not possible, unless the offence is one of violence or there is something uniquely serious about the crime. Where imprisonment is ordered for a young person, in some provinces and territories the judge also decides whether it should be served in “open custody” or “closed custody”. The difference relates to the level of restriction and control imposed over the youth’s conduct and behavior and privileges while serving. Young persons must be held in correctional facilities separate and apart from offenders who are 18 years of age or older.

Furthermore, the lengths of youth sentences are usually significantly shorter than would be the case for adults. This is partly because we recognize that during the formative “teen” years, there are developmental changes which occur more quickly than for adults.  In general terms, a youth may never be sentenced to a more severe punishment than an adult would receive for the same offence. A probation order may not last longer than two years and a youth sentence of imprisonment may not last longer than three years. A combined sentence of imprisonment and probation may also not last longer than three years.

Youth are fined far less often than adults. Still, for young persons over the age of 14 who commit particularly serious and especially, violent criminal offences, the Crown has the option of asking the court to treat the accused in ways which more closely resemble adults charged with the same offences. In these cases the youth may elect to have a jury trial. If he or she is found guilty, a lengthy sentencing hearing will usually be held at which the judge receives detailed background social and mental health evidence about the history, experiences and challenges of the young person. Ultimately, the judge must decide whether the young person should be sentenced as if they were an adult when they committed the crime, or whether the usual youth sentencing options would be sufficient to address the misbehavior of the individual and reduce the chances that he or she will re-offend again in the future.

Additionally, special rules apply for young persons charged with murder. These are cases where the Crown most often asks the court to sentence the youth as if they had been an adult at the time of the offence.  However, even in this situation, the sentence imposed if the accused is found guilty is somewhat more lenient on youth. Both adults and youth sentenced as adults can be imprisoned for the rest of their life. However, for first degree murder, a youth will be ordered to serve 10 years before being able to ask for parole whereas an adult would have to wait 25 years. For second degree murder, a youth must wait 7 years before being able to ask for parole whereas an adult must wait anywhere from 10 to 25 years.

If the youth is sentenced as a youth for first degree murder, the longest sentence is 10 years (usually, 6 years in custody and 4 under supervision in the community). For second degree murder, the longest sentence for youth is 7 years (4 in custody and 3 under supervision).

Rehabilitation of young persons who have gotten into trouble is the main goal of the law.  In some rare cases where a serious violent offence has been committed and the accused is being sentenced as a youth, the court may impose an “Intensive Rehabilitative Custody and Supervision Order”. Such orders are possible where:

  1. the young person was suffering from a mental illness, or psychological or emotional disorder at the time of the offence; and
  2. a suitable treatment plan will be implemented by the provincial authorities.

Instead of being held in a correctional facility, the youth will be subjected to intensive, long term treatment, usually in a secure hospital setting, for up to ten years, or until they are considered no longer to present an undue threat to others in society. Release then takes place in gradual steps, and the young person remains under supervision of the authorities similar to an adult offender who is on parole.

A final protection for youth, which is not available to an accused adult, is in the area of publicity and privacy. The law recognizes that subjecting a young person to the stigma of publicity because of their criminal conduct is likely to reduce the chances of successful rehabilitation. The YCJA therefore prohibits the publication of the names of young persons charged or found guilty of committing offences. Court proceedings are held in public and may be reported by the media, but the name and identifying information relating to the accused may not be published. An exception applies to those young persons who the court decides should receive an “adult sentence”. In such cases, once the sentence is ordered the youth also loses the protection of the publication ban and the media may name him or her in their reports on the case.

What Do I Have to Tell the Police if They Stop Me?

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In attempting to narrow the scope of this article, I have settled upon three questions which arise most frequently for many people who do not usually come into contact with the police. These questions involve the intersection of our rights as Canadian citizens to live our lives without intrusion or interference from state agencies and officers.

  1. DO I HAVE TO STOP FOR THE POLICE?

It depends. It depends upon why the police are asking you to stop, and upon whether you are driving a motor vehicle, or travelling on foot.

Canadian society is founded upon the basic principle that we are free to be left alone by the government and government officials, including the police, except as permitted under the law.  In Canada, a police officer does not have the authority to randomly require an individual to stop and identify themselves or to answer police questions.

To require compliance with a demand, a police officer must first have a legal basis for the request.  If the officer has reasonable grounds to believe the person in question has committed an offence, the officer may arrest her. If arrested, the person is considered to be in the lawful custody of the officer and must remain as directed (often she will be handcuffed and placed into a police vehicle).  If the officer does not have reasonable grounds to believe the person has committed a criminal offence, but is investigating an allegation along these lines, the officer may temporarily require her to remain with the officer under what has become known as “investigative detention.” In both situations – arrest and investigative detention – the police are required to explain, and the citizen has the right to know, why she is being held.

Absent one of those situations, however, the police have no right to detain people at random.  Someone facing a general police demand to stop and speak with them is entitled to not comply and continue on his or her way.

Police officers who have reasonable suspicions that a driver has alcohol in her body have the power to demand that she provide a “roadside sample” of her breath into a hand-held unit the police carry with them.  However, the situation is quite different once that same individual is behind the wheel of a motor vehicle.  Because driving is a privilege only (it is not a right) and because of the need for and nature of the regulation of motor vehicles and their use, the police have an almost unrestricted power to stop motor vehicles and obtain certain information from drivers.  Police have the legal authority to carry out random checks to ensure vehicles are roadworthy; to check drivers for their licenses; and to ensure vehicles are properly registered and insured.  And of course, if a police officer has reason to believe the vehicle has been involved in a traffic violation (or a criminal offence) he or she will have grounds to stop the vehicle.  Failing to stop a vehicle as directed by a police officer is a provincial and territorial traffic violation, but in more serious cases the Criminal Code charge of “criminal flight from the police” can be laid.  Conviction for that offence – which often involves high speed police chases – usually leads to imprisonment.

  1. DO I HAVE TO SPEAK WITH THE POLICE?

In general, “no”.

Another of our basic legal principles is the right of every person to refuse to assist the state to prosecute himself.  The main illustration of this concept is the well-known right to remain silent (sometimes called the protection against self-incrimination). An individual who is suspected or accused of committing a crime has the unequivocal right to refuse to say anything to the police and cannot be punished for refusing to do so. Even witnesses are entitled to refuse to speak with the police if they wish. Witnesses may have a moral duty to assist police investigating an incident, but that is not the same as a legal duty. The right to remain silent is so important that the police are required to tell anyone being arrested that they have that right and if they give up the right to remain silent, anything they say can be used in court.

Because driving is a privilege only (it is not a right) and because of the need for and nature of the regulation of motor vehicles and their use, the police have an almost unrestricted power to stop motor vehicles and obtain certain information from drivers.  However, the police are entitled to try to persuade the individual to speak, including by way of continuing to ask their questions even as the individual continues to insist that he or she wishes to say nothing.  The Supreme Court of Canada has said that the right to remain silent only means the individual has the right to be silent, but it does not mean the authorities cannot speak to him or her (although if, after many hours of remaining silent, the individual does answer to the allegations or questions, there might be good arguments against allowing the state to make use of any such statements obtained only after “wearing down” the person being interrogated).

There are at least a couple of small exceptions to the right to remain silent.

One exception is in relation to the identification of a suspect or accused person.  Strictly speaking, the right to remain silent includes confirming one’s identity and basic personal information (mainly, date of birth) to the police. However, in many situations involving relatively minor offences, the police are not permitted to arrest the accused but instead, issue legal documents requiring that individual to come to court to answer the charges and then let the person go on their way. In such cases, if the person does not identify themselves, the police have the power to arrest in order to establish their identity, usually through fingerprinting.

Another example of an exception of the right to remain silent also arises in the area of motor vehicles.  Just as the police have the power to require motor vehicles to stop, they also have the power to demand the driver provide them with proof of registration and insurance, and allow them to inspect his personal driver’s license.  If the vehicle has been involved in an accident, in most jurisdictions the driver is also required to provide a statement as to what happened.  Failure to comply with these duties is a provincial offence. However, this applies only to the driver of a motor vehicle; passengers are fully entitled to remain silent and do not have to identify themselves unless the police have proper legal grounds to ask them to do so.

  1. DO I HAVE TO PROVIDE A SAMPLE OF MY BREATH TO THE POLICE?

This demand is almost exclusively made as part of impaired driving investigations, and the general answer is “yes”.

In Canada, a police officer does not have the authority to randomly require an individual to stop and identify themselves or to answer police questions. 

Police officers who have reasonable suspicions that a driver has alcohol in her body have the power to demand that she provide a “roadside sample” of her breath into a hand-held unit the police carry with them.  This device will indicate in very general terms whether the driver has alcohol in their system and roughly how much. The device analyzes the breath sample and provides readings of either “pass”, “warn” or “fail”.  A driver who blows a “fail” will then be arrested for “impaired driving”. The officer will then formally demand that the driver accompany the officer to an Intoxylizer device (usually back at the detachment) and provide samples of breath to be analyzed by that instrument.  This machine will provide an actual scientific numerical result which tells the officer the amount of alcohol in the bloodstream of the driver.  Anything over 80 milligrams of alcohol in 100 millitres of blood is against the law and a driver whose breath samples leads to such a result will then face a second charge, of “driving a motor vehicle with too much alcohol in his/her blood stream” (often referred to as “over 80”).

Because of the concerns about the frequently tragic results of impaired driving shared throughout Canadian society, Parliament has decreed that failing to provide a breath sample as demanded either at the roadside and/or for the purposes of the Intoxilyzer device, is also a criminal offence, to be punished in the same way as blowing a sample which is “over 80”.  A first offender will be fined a minimum of $1000 and will be prohibited from driving for a least one year. A second offence will lead to a minimum jail term of 30 days and a prohibition on driving for two or more years. A third or higher offence will lead to an automatic jail sentence of not less than 120 days and at least a three year driving prohibition.

Reasonable Doubt in Criminal Law

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Canadian law recognizes  different states of mind for decision-makers in various situations.  Police officers and others engaged in an investigation are authorized to act where they have “reasonable grounds to believe” an offence has been committed and a particular person may be guilty. In some situations, the standard is even lower. For example, a police officer may demand a breath sample from a vehicle driver where the officer has a “reasonable suspicion” that the driver has consumed alcohol.

The sentencing judge must be “sure” the offence includes the aggravating factor before he or she can rely upon that factor to increase the sentence to be imposed upon the offender.The highest “standard of proof” under our law is reserved for decision- making in criminal cases.  Although lower standards sometimes apply to  questions which are not at the very center of the dispute, upon the final and most important issue – that is, whether the Crown has proven the accused person is guilty of committing an offence – nothing less than “proof beyond a reasonable doubt” will do.  As our judges tell juries every day, this means that the decision-maker must ultimately be sure that the accused is guilty before he or she can be convicted of a crime.

These two concepts form the most fundamental pillars of our criminal decision-making process: that the Crown bears the onus of proving its case and that the onus is high: proof beyond a reasonable doubt.  These are tied to a third essential principle: that the accused is presumed by law to be innocent, and does not have to testify, call any other witnesses to testify, or prove anything at all.

The reason for these principles is because of the high value our society places upon individual freedom. Someone who is charged with committing a criminal offence stands in jeopardy of losing their freedom and liberty. Historically, conviction of a crime almost always meant imprisonment, and sometimes worse!

In more modern times, even where a convicted person is not sent to jail, a finding of guilt almost invariably brings restrictions on freedom, even if only in the form of an order to pay a fine, or by way of a probation order placing the accused under supervision. Conviction also usually leads to a criminal record, and other orders being made against the offender. Depending on the crime, these can include prohibitions on driving and handling weapons, and a requirement to provide DNA for the national forensic data bank. In the case of sexual offenders, they may have to register with the police annually and obey various restrictions on their activities, whereabouts and contacts with other persons, especially children.  So, only where an independent decision-maker (a judge or jury in court) is left sure that we are guilty of the crime alleged, can we be punished and our freedom restricted or removed.

..the law requires that before the Crown can make use in court of something the accused has said to a person in authority over him (a police investigator, a prison guard, and so on) the Crown must prove beyond a reasonable doubt that the decision of the accused to provide a statement was a voluntary one. Judges have long struggled with how best to explain the concept of “proof beyond a reasonable doubt” to jurors. In times past they would equate this standard to ideas such as “moral certainty”, but in the case of R. v. Lifchus in 1997, the Supreme Court of Canada ruled that such wording should not be used because different jurors might give different meanings to the idea of a “moral certainty”. The Court rejected virtually all of the other, traditional ways of explaining the concept of “proof beyond a reasonable doubt” to juries, and formulated a new way to tell juries how to use this standard.

The Supreme Court directed that jurors should be told that a “reasonable doubt” is not a frivolous or imaginary doubt.  It is not a doubt which a juror might conjure up as a result of sympathy towards, or prejudice against, the accused or anyone else involved in the case.  A “reasonable” doubt is a doubt which arises from reason or logic or common sense. It can be based in the evidence presented, or it can arise from the lack of evidence on a particular point, or in the case overall. Jurors are to be reminded that the Crown need not prove its case to an “absolute” certainty, as almost nothing in the daily lives of human beings can meet this unattainable standard. However, in the spectrum of decision-making, proof beyond a reasonable doubt will be closer to the very high level of “absolute certainty” than mere probabilities.

At the end of the decision-making process, the judge or the jury  can only find the accused person guilty of an offence if they are “sure” he or she committed the crime alleged. Nothing less than being “sure” will do: being suspicious, or thinking the accused “likely” or “probably” committed the offence is not enough, and a judge or jury which only reaches this level of certainty will be duty bound to find the accused “not guilty”.

Proof beyond a reasonable doubt is the standard applied to the decision about guilt or innocence.  Most other decisions which must be made by a court in the process of deciding whether the Crown has proven the guilt of the accused are not subject to the same very high standard.  However, there are a few other situations in which the same very high level of proof must be met by the Crown. One of these is in relation to the use of anything an accused person has said to state officials or any other person in authority. This, too, is rooted in our high value for human liberty.

A “reasonable” doubt is a doubt which arises from reason or logic or common sense.In order to ensure that the state does not improperly force a suspect to speak, the law requires that before the Crown can make use in court of something the accused has said to a person in authority over him (a police investigator, a prison guard, and so on) the Crown must prove beyond a reasonable doubt that the  accused made the statement:

  • voluntarily;
  • without undue influence by way of threats made against him or her; and
  • without promises of benefit, favour or advantage being held out.

The Crown must also prove the accused had an “operating mind” at the time he or she spoke.  Someone who is under the influence of drugs or alcohol at the time of speaking to the police may, for example, be found to not have understood the option of remaining silent or the results of speaking.

Finally, the Crown must prove beyond a reasonable doubt that the general setting and circumstances of the accused were not unduly harsh or “oppressive”. Our law recognizes that if individuals are subjected to conditions which are unpleasant enough, that alone might undermine their free will when it comes to deciding whether to speak to the police. For example, someone who has been deprived of food or water or sleep for many hours may decide to speak to the police in the hope of being freed from those conditions and either released, or at least housed in more humane surroundings. These are factors that may leave a judge in doubt about the truly free and voluntary nature of the decision to talk to the police. Where the Crown cannot provide proof which leaves the judge “sure” the accused gave a statement voluntarily, evidence of what the accused said will not be allowed in court. This right exists through the entire process until the end of the trial. Just as a suspect has the right to refuse to answer police questions or to assist the investigation, he or she has the continuing right to remain silent during the court proceedings and does not have to call evidence or testify at trial.

These two concepts form the most fundamental pillars of our criminal decision-making process: that the Crown bears the onus of proving its case and that the onus is high: proof beyond a reasonable doubt.  The other common situation where the Crown must prove a point beyond a reasonable doubt is where some aspect of the criminal offence is considered to make the crime especially serious, and therefore worthy of a more severe sentence. Such additional elements are called “aggravating factors”. Because they are likely to increase the severity of the punishment for the accused, like the concept of guilt itself, they must be proven beyond a reasonable doubt. The sentencing judges must be “sure” the offence includes the aggravating factor before they can rely upon that factor to increase the sentence for the offender.

Some examples may help to illustrate this point.

It is considered an assault to touch another person without their consent.  However, the crime of assault covers a wide variety of conduct.  A deliberate brushing against, or pat with a hand, by one person upon another is a very minor form of assault, while repeated deliberate, forceful punches is a more serious form of the same crime. Sometimes, an accused will admit to a less serious form of assault, while the Crown alleges something more significant. The Crown must prove to the sentencing judge that the more serious form of the offence took place if it seeks a more severe sentence. If the judge is not “sure” the more serious misconduct took place, the sentence imposed cannot reflect that aspect of the allegations.

Only where an independent decision-maker (a judge or jury in court) is left sure that we are guilty of the crime alleged, can we be punished and our freedom restricted or removed.

Another example concerns theft. While it is always wrong to take the property of another person, if the thief was entrusted by the owner with special responsibilities regarding the property, the crime will be considered more significant and the punishment is likely to be more severe. Thus, employees who steal from their employers are usually sentenced more harshly than someone not in that special position of trust. If the accused does not admit to being in a position of trust, the Crown must prove this beyond a reasonable doubt. If it cannot do so, the punishment will be less severe than if the aggravating factor was proven.

In all of these situations:

  • proving the guilt of an accused person;
  • entering into evidence against the accused something he or she has told a person in authority; and
  • establishing aggravating factors with a view to having a more severe sentence imposed upon a convicted person,

the law demands “proof beyond a reasonable doubt”. The common element: the state is attempting to obtain a result which is significantly contrary to the interests of the individual. Because our society places the highest value upon individual freedom and liberty of its citizens, in each of these situations the Crown must prove its case to the highest standard known to our law: proof beyond a reasonable doubt.

The Evolution of Canadian Law

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With the 150th anniversary of Confederation upon us, it is perhaps appropriate to reflect on the high points of 150 years of legal change in Canada.  Such an exercise is always a challenge, of course, because what might be considered significant to some may be seen as minor or less important to others.

In this brief review, I will focus first upon “the grand scale”: those developments and changes which seem to me to have had the most impact on our national and social evolution over the last 150 years, and then discuss specific areas which likely have the most impact on the daily lives of Canadians.

What changed with the 1982 Charter of Rights and Freedoms was that our essential rights and freedoms were elevated to the status of constitutionally-protected interests, capable of being enforced by applications to the courts.  Canada in 1867 was focused mainly in the centre (what became the provinces of Ontario and Quebec); was predominantly white and was mainly of British extraction and English-speaking.   While we think of 1867 as the year we became a new country, many of the powers we now take for granted as a completely sovereign state were still reserved for Britain to exercise on our behalf.  Legally, the highest judicial authority in the United Kingdom – in the form of the Judicial Committee of the Privy Council – was also the highest court of appeal for Canada.  The legislation which is considered to be our founding document was an Act of the British Parliament – the British North America Act (now, The Constitution Act, 1867) – and it described the division of powers between the national Parliament and the provincial legislatures.  It also set out some basic rules about how we would be governed but many other basic principles remained unwritten and were encompassed by the broad, general statement that our constitution was to be “similar in principle to that of the United Kingdom.”

Canada on its 150th birthday is a hugely different place. Constitutionally, we have moved from the status of being “almost still a colony” of Great Britain, to being a completely independent and sovereign entity. While this evolution has, of course, also included major events in other areas (politics, military, and so on) the most important legal steps have been in the form of both statutory and common (“judge-made”) law.   One of the most significant took place in 1931, with the passage of the Statute of Westminster.  Until 1931, the British Parliament had retained ultimate authority in most areas of jurisdiction, reserving to the government in London the authority to override or nullify laws passed in Canada (and the other Commonwealth Dominions) as it saw fit.  The Statute of Westminster removed most of this authority from Great Britain and passed it to the legislative bodies in each country, including Canada.  The exception for Canada was in relation to the power to amend our Constitution: by agreement among the provinces and Ottawa, the United Kingdom Parliament  continued to retain this authority.

When it came to legal rulings and decisions, however, the Judicial Committee continued to be our final court of appeal until 1949.  That year, Parliament (in Ottawa) amended The Supreme Court Act to abolish appeals to the Judicial Committee in London, making the Supreme Court of Canada our ultimate judicial decision-maker.

A case from Alberta decided in the 1930s advanced the freedom of the press, and a number of decisions originating in Quebec in the 1950s addressed our freedoms of speech, association, and religion – as well as affirming the most fundamental principle for a society ruled by law: that everyone, from the highest office holder to the lowliest citizen, is equally bound to obey the law of the land, without exception.The final, and perhaps most important, milestone in our constitutional development as an independent country occurred in the early 1980s with the so-called “repatriation” (or  transfer) of our final constitutional authority from the United Kingdom to Canada. Prime Minister Pierre Trudeau led the way towards a truly “made in Canada” Constitution which included, for the first time, a written list of our most basic rights and freedoms, as well as a method for changing the Constitution itself.   The Constitution Act, 1982 was signed into law by The Queen in Ottawa on April 17, 1982.  The remaining legal ties to Britain were severed and Canada was finally independent.

A significant aspect of the 1982 landmark was the inclusion of a written listing of our most fundamental rights and freedoms, and a way to meaningfully enforce them, in the form of the Canadian Charter of Rights and Freedoms.  While in 2017 we tend to take “the Charter” for granted, it too represents the culmination of 150 years of legal change.

With a few, isolated exceptions, in 1867 – and for decades afterwards – laws were enacted, applied and enforced by white (usually British) men over all others who lived in this country.   Women had few rights, and non-white members of society faced many barriers, legal and otherwise, to equality. Aboriginal Canadians were subjected to various regimes of discrimination and racial abuse more usually associated with apartheid South Africa and the darkest days of racial strife in the southern United States.

The steps toward equality and the protection of rights were many and often small.  One of the more significant developments along the way towards full legal equality for women was the well-known “Persons Case” decided in 1929 by the Judicial Committee of the Privy Council in London.   Five women challenged the section of the British North America Act, 1867 defining the qualifications for membership in Canada’s Senate, which had been interpreted so as to restrict the meaning of “persons” to “males”.  The J.C.P.C. ultimately ruled, however, that the word “persons” had to be read to include all persons, of both genders: women were persons too!  None of the “Famous Five” who took up this challenge was appointed to the Senate, but about a year after the decision the first female senator was named by the Governor General.

Other court rulings over the years recognized and affirmed the existence of various rights and freedoms for Canadians.  A case from Alberta decided in the 1930s advanced the freedom of the press, and a number of decisions originating in Quebec in the 1950s addressed our freedoms of speech, association, and religion – as well as affirming the most fundamental principle for a society ruled by law: that everyone, from the highest office holder to the lowliest citizen, is equally bound to obey the law of the land, without exception.

Prime Minister John Diefenbaker hoped, when he oversaw enactment of the Bill of Rights in 1960, to secure more protection for the rights and freedoms of individual Canadians. However, this legislation was little more than mere symbolism because it was only “ordinary” legislation, passed by Parliament like any other statute.  It was considered not to be sufficient to assert and enforce the rights it described over any other enactment of Parliament.

While in 2017 we tend to take “the Charter” for granted, it too represents the culmination of 150 years of legal change.

What changed with the 1982 Charter of Rights and Freedoms was that our essential rights and freedoms were elevated to the status of constitutionally-protected interests, capable of being enforced by applications to the courts.  Unlike the situation of the Bill of Rights, once the Charter became part of our Constitution, any legislation along with any other governmental or state action which infringed upon or violated the enshrined rights of individuals could be struck down and declared invalid.  Only where the government could demonstrate a reasonable justification for the limitation of rights in a democracy like ours, would the violation of rights be allowed. Otherwise, the courts were given the task of fashioning an appropriate remedy for persons whose rights or freedoms had been infringed or breached.

The changes in Canadian laws and society flowing from the enactment of the Charter in 1982 touch virtually all aspects of our modern lives.  Things which we take for granted in 2017 which resulted from enshrining our fundamental rights and freedoms include:

  • Sunday shopping (a result of our freedom of religion);
  • protection from improper and arbitrary government prying into our private affairs and the requirement for a search warrant before state officials can snoop around our private property (all parts of our rights to be protected from unreasonable search or seizure);
  • our right to speak with a lawyer if we are arrested or detained; to know all aspects of the case against us if we are charged with an offence, and to be treated fairly in the court system (all parts of our rights to fair trials);
  • the legalization of abortion (the rights of women to decide for themselves what will be done with their bodies); and
  • protection of the media from harassment or persecution for investigating and exposing government and political wrong-doing (part of the freedom of the press).

More recent Charter developments touching the most basic aspects of life in Canada include the legalization of gay marriage; the introduction of physician-assisted death; and innovations such as supervised injection sites.

To move from these general areas of how we govern ourselves, to more particular areas of law which touch our daily lives, reveals just as many examples of monumental change from 1867 to where we are today.

In the field of criminal law, for example, in 1867 most of our legal provisions were taken from the rulings of English judges, and the British Parliament.  In 1892, however, Parliament enacted the first Canadian Criminal Code, which continues to be the main source of our criminal law today.   Over the years since 1892, the Code has been amended often, in order to address new situations not foreseen in earlier years (it now includes computer offences, for example).  Other amendments have included the abolition of all forms of physical punishment (flogging and hard labour, for example), and, in 1976, the death penalty.

Family law, and divorce in particular, have also changed immensely since 1867.  Until 1968 divorce was mainly governed by provincial laws which differed across the country.  Many could only be divorced by an Act of Parliament: Someone wanting out of an abusive or otherwise bad marriage had to seek the assistance and support of their Member of Parliament who would introduce a Private Members Bill in the House of Commons declaring the marriage ended and the parties divorced. However, with the passage of the Divorce Act in 1968, the rules and procedures across the country were standardized, and all such matters were placed into the hands of the courts.  Divorce became far more available and further change followed in 1986, when the Divorce Act was amended to simplify the situation even further through “no fault” divorces.

Prime Minister Pierre Trudeau led the way towards a truly “made in Canada” Constitution which included, for the first time, a written list of our most basic rights and freedoms, as well as a method for changing the Constitution.. Another significant development over the last 150 years is the evolution of legal protections for spousal partners when it comes to the division of family assets.  In 1867, after a divorce the ex-wife, and any children she might attempt to have living with her, were often left penniless.  In the last 150 years, however, various support laws have been enacted so that now both former partners must  share the obligations of child support and neither party is able to benefit unfairly from the marriage and its termination.  In addition, property acquired during the marriage is to be divided equally between the former spouses, unless one side or the other can prove in court a significantly greater contribution.

Another major change in the area of family law is the recognition and acceptance under our laws that marriage need not be restricted to a man and a woman, but that other equally valid and binding unions are possible.  As a result of a number of rulings under the equality provisions of the Charter of Rights, Canada was one of the first countries to legalize same-sex marriages.  It is now well-accepted in Canadian law – and in society at large – that non-heterosexual couples can marry and parent children as well and as validly as in the more traditional forms of marriage.

When it decided the Persons Case in 1929, the Judicial Committee of the Privy Council described our Constitution as a “living tree” which would grow and adapt to changing circumstances and values.  The analogy can be applied to our laws in general.  Just as they have grown and modified in the last 150 years in ways no one living in 1867 could have imagined, so too will they continue to change and adapt to the challenges and developments in society which will take place in the future as well. I wonder what a review like this one will discuss at Canada’s 200th or 250th birthday?

The Law of Sexual Assault in Canada

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crim-code-2Perhaps no offence under our laws is as politically charged as sexual assault.  And in no other offence situation are the gender lines as clearly drawn: while there are some exceptions, most sexual assault allegations are made by women who say they have been violated by men. Because of the infinite variations of factors which are at play when men and women interact, this crime covers a very wide range of situations. So, ordinarily non-criminal individuals may nonetheless find themselves facing charges.

To properly understand our present laws about sexual assault we should begin with the legal history involved.

For centuries, our laws failed to properly protect women and children from the criminal behaviour of men.  Women and children were often considered little more than items of property and this left them vulnerable to many forms of abuse and mistreatment.  Until the early 1980s in Canada, it was impossible to convict a man for raping (having intercourse without her consent) a woman on the evidence of the complainant alone.  A woman’s evidence of rape was considered so inherently unreliable and untrustworthy that the Crown had to offer independent, supporting confirmation in some form before a man could be found guilty of this offence.  Children suffered from the same disadvantage: in some situations they were simply not able to testify, and even when they were allowed to give evidence, there virtually always had to be some form of independent support for what they were alleging.  These rules had the effect of allowing many perpetrators of horrendous crimes against women and children to go free.

In the 1980s, as a result of a government review (the Badgley Commission) into issues about sexual abuse of women and children and the law, the Criminal Code underwent a significant revision.  The old rules were abolished, and the evidence of women and children was placed on a level equal to that of men. For children , there continued to be legal changes over the years in order to receive their evidence with fewer legal hurdles.

The main change in the law was the replacement of the crime of rape (and many other forms of sexual crime) with the broader, all-inclusive concept of “sexual assault”.  Under the new law, the offence would be treated as a form of assault, and prosecuted in accordance with principles common in this area although, as we will see, there would be additional, special rules applied in particular situations. As part of these changes to the Criminal Code new, special sexual offences in relation to children were also brought into our law. To be clear, sexual assault applies where children are the victims  even where some of the other, more specialized provisions of the Criminal Code also apply.

The mindset of the complainant is important because, to be an assault, the contact between the parties must be without the consent of the person touched.Any crime in Canada involves two basic elements: a wrongful or prohibited act committed by the accused person, and an accompanying intention to commit the offence (sometimes referred to as a “guilty mind”).  Under the law of sexual assault – as with any other form of assault – the wrongful physical action is any intentional application of force without the consent of the person being touched.  What takes unwanted touching from being an “ordinary” assault to a sexual assault is the sexual element itself. The act of touching may be found to be the basis of a sexual assault if the force was applied for a sexual purpose, or violated the sexual integrity of the person being touched.

The scope of this offence is extremely broad.  It covers everything from an unwanted kiss on the cheek or a hand touching another person’s buttocks on top of clothing, to the most violent, horrific rape of a stranger, and everything in between.  Even the removal of another person’s clothing – pulling down someone’s pants, or lifting a woman’s shirt – can be the basis for a sexual assault charge.  And even where an action is not intended for any sexual purpose or gratification, if it is considered to violate the sexual integrity of the person touched, it can still be found to amount to a sexual assault.  For example, a babysitter or parent whose hand strays too close to the crotch of a child with whom they are rough-housing or tickling may be found to have committed a sexual assault even where sexual contact was the furthest thing from their minds.  Virtually any type of touching between two persons may potentially be found to amount to a sexual assault if there is even a hint of sexual content to the action in question.

In addition to the physical actions, as with any other form of assault, this offence can only be proven if the touching was without consent of the person touched (I will refer to this person as “the complainant” in the rest of this article), and if the accused is shown to have had the necessary “guilty mind” at the time of the touching.  This is where things tend to get complicated; confusing these two factors – the state of mind of the complainant and the state of mind of the accused – has led to much judicial debate and a number of significant court rulings in this area.

The mindset of the complainant is important because, to be an assault, the contact between the parties must be without the consent of the person touched.

At any time a “yes” can be made into a “no” by the complainant telling (by word or deed) the accused exactly that.Our laws permit people to agree to have others touch them in many everyday situations.  Someone who takes the arm of another person who has reached for assistance as they start to fall does not commit an assault. A doctor who touches a patient in the course of a requested medical examination does not commit an assault as long as the touching is limited to what is necessary for proper medical purposes.

Similarly, persons who willingly engage in intimate physical activity together do not commit sexual assaults upon one another as long as each remains consenting to the conduct and behaviour of the other.  To be valid:

  • consent must be voluntary and it must be given by the person who is being touched in the situation: no one can give valid consent to the unwanted sexual touching of another person;
  • the individual in question must be capable of consenting at the time: he or she cannot be so mentally ill, or affected by alcohol or drugs, for example, that they do not know what they are doing;
  • consent must not be obtained by the accused exercising a position of trust or authority over the other person: adult caregivers cannot therefore seek to obtain the consent to having sexual contact with persons in their charge by means of their power over those other persons;
  • consent cannot be given in advance to sexual contact which takes place while a person is asleep or unconscious;
  • because it is always revocable, consent must be on-going and conscious throughout the activity in question; and finally
  • to protect children, no one under 16 may consent to have sexual contact with an adult (there are a number of special rules which sometimes apply where both parties are under 19 years old which are intended to avoid criminalizing consensual teenage sexual activities) .

Even when consent is given, it may be retracted and it may also be limited. Agreeing to a minor form of sexual activity does not mean everything sought by one side has necessarily been agreed to by the other.  At any time a “yes” can be made into a “no” by the complainant telling (by word or deed) the accused exactly that.

Only in certain, limited situations will self-induced intoxication provide a form of defence; sexual assault is not one of those.At the same time, care must be taken not to confuse later regret or embarrassment with a lack of consent. “In the heat of the moment” – and especially after alcohol has been consumed (though not so much as to render someone incapable of consenting to what is being done to them) – men and women may engage in activities of which they would never dream in most other situations.  Sometimes, after a sexual encounter has ended, one or both parties feel ashamed and embarrassed. However, those later feelings do not nullify the consent which existed at the time of the contact; an assault has only taken place where, at the time of the actions of the accused person, the complainant was not consenting to that contact, even if the complainant later wishes he or she had behaved differently in that situation.

In addition to what is in the mind of the complainant, what is in the mind of the accused person is essential to deciding whether a criminal act has been committed.  The accused person must be proven to have had a “guilty mind” before he or she can be convicted of committing a criminal offence.  In the case of sexual assault the Crown must be prove that the accused intended to touch the complainant in a sexual fashion, knowing the complainant was not consenting to that activity or contact.  If the touching was accidental, or if the accused believed that the complainant was consenting, or if there is doubt about the accused’s state of mind, he or she must be acquitted.  Again, this is not a special principle in sexual assault law, but rather, is a basic rule followed and applied in every criminal prosecution in Canada.

If the accused committed the act with an innocent state of mind, he or she is not guilty of a criminal offence.That said, there are some special and unique rules which are applied in the context of sexual assault to determine whether the accused validly – but mistakenly – believed the complainant was consenting to the conduct in question.  To begin with, the accused cannot rely upon his or her own self-induced drunkenness as a basis for having mistakenly believed the complainant was consenting.  This is consistent with other areas of the criminal law. Only in certain, limited situations will self-induced intoxication provide a form of defence; sexual assault is not one of those. If, because of self-induced intoxication from drugs or alcohol, an accused person is not able to or does not realize the other person is not consenting to sexual contact, the accused will not be able to later rely upon their lack of understanding.

The accused is also not permitted to rely upon his or her own alleged mistake about the complainant’s consent if the lack of understanding is the result of   recklessness or willful blindness.

Recklessness is defined as not caring whether the complainant is consenting or not.  It may be found where a complainant has not given consent, but the accused continued without bothering to stop to ask  about consent.

Willful blindness may be found where the accused is proven to have known that a reasonable person would see a need to make further enquiry, but the accused failed to do so specifically so he or she would not know the true state of affairs. In other words, the accused willfully kept him- or herself ignorant.

At the same time, there are some situations where an accused’s mistaken belief about consent will be a defence.  In most criminal prosecutions an accused who believes in a mistaken set of facts may be found not guilty if those facts,had they been true,would have cloaked his or her actions in innocence.  This is the application of the basic requirement that the accused must have criminal intent at the time of the wrongful act. If the accused committed the act with an innocent state of mind, he or she is not guilty of a criminal offence.

In the context of sexual assault, this principle allows for the possibility that even though the complainant may not have actually consented to the act in question, the accused person may have mistakenly but honestly believed that the complainant was consenting. In sexual assault prosecutions there is an added wrinkle to this defence, in that the accused person must take “reasonable steps” to determine that the complainant is consenting.  What amount to “reasonable steps”will depend on the circumstances in each case.  Where the complainant seems reluctant and unwilling, but not overtly and clearly so, and the accused continues with his or her sexual contact without taking reasonable steps to determine the actual state of mind of the complainant, the accused is not likely to be able to argue “mistake”.  On the other hand, where the actions of the complainant seem, objectively and reasonably, to suggest he or she is willing to take part in sexual activity, it may be reasonable for the accused to continue, taking minimal, or even perhaps no steps to determine consent.

The principles about consent and mistake can  be summed up by the adage “ambiguity is not consent”. If one person says or does something ambiguous or uncertain about whether he or she wishes to have sexual contact with the other person, the other party cannot simply continue without first checking to see if consent is present or not.

Some examples may serve to illustrate how these various rules and principles apply in our courts on a daily basis.  These situations are taken from the facts of actual court cases.

A frequent scenario is that, after consuming a fair amount of alcohol, the complainant goes to sleep (or “passes out”) only to awake some time later to find the accused engaged in sexual activity with them. Because consent must be given to any touching that takes place, individuals may not engage in sexual activities of any sort with a person who is unconscious or asleep. Furthermore, even where a complainant gave consent to sexual activity before falling asleep or passing out, to continue to be valid, the person giving consent must remain conscious throughout the activity.  Therefore, in a situation involving an unconscious or sleeping complainant there is unlikely to be any issue of consent.  An accused who says, due to his or her own consumption of copious amounts of alcohol, that they did not know what they were doing will not have a defence to the charge.  He or she is likely to be found guilty.

Virtually any type of touching between two persons may potentially be found to amount to a sexual assault if there is even a hint of sexual content to the action in question.Another common fact situation is where the complainant appeared to be giving consent even though he or she later claims to have no recollection of doing so.   Anyone with a history of drinking large amounts of alcohol has probably experienced “black outs” – periods of time when they have no recollection of things they did or said, or events going on around them.  However, persons in this condition often do not appear to be unconscious. While it is clear they have been drinking, they seem to other people around them to still be possessed of their faculties and generally in control of their behaviour.  In many sexual assault situations there is evidence of the complainant appearing to be willing to take part in sexual activity with the accused, even though he or she claims later to have no memory of having behaved in this way.  These are the kinds of cases where there may be doubt about whether the complainant really did not consent and where, even if the complainant was not consenting, the accused had a valid mistaken belief in consent.  Although perhaps while sober the complainant would not have consented to sexual contact, if there is evidence of conduct on the part of the complainant which indicates a willingness to take part in sexual activity, a court is more likely to conclude that the accused was operating under a mistaken belief about consent, and to find him or her not guilty.

Again,  Canadian law requires consideration of the circumstances in order to determine the validity of the accused’s mistaken belief.  If the evidence is that, upon the accused saying or doing something to suggest he or she wanted sexual contact, the complainant only murmured unintelligibly in response, or snuggled closer to the accused, or did anything else of a somewhat ambiguous and unclear nature, the accused will not likely be able to later argue “mistaken belief in consent.”  Rather, this is the kind of situation where the accused would be expected to take reasonable steps to ensure the complainant actually is consenting.
For centuries, our laws failed to properly protect women and children from the criminal behaviour of men.On the other hand, where there is evidence that the two parties went together into a bedroom and disrobed one another, kissing throughout, the accused is more likely to be found not guilty of committing a sexual assault even if the complainant later claims that he or she did not realize what was going on and did not consent to having sexual contact due to being “blacked out”.  This is the kind of situation where, in light of the complainant’s apparent willing participation as suggested by the physical actions, the accused person is likely not to be expected to take additional steps to determine if the complainant was actually consenting; all the outward signs and indications were that he or she clearly was doing so.

Another common fact pattern is where complainants later changes their minds about wanting to have sexual contact.  If this takes place while the activity is on-going, there is no consent. The accused will likely be found guilty if he or she continues even as the complainant asks or tells the accused to stop, or signals a withdrawal of consent by a physical action – pulling away, or pushing the other person away, or some other similar conduct.  But where the change of heart takes place after the act has ended, there has been no sexual assault committed and the accused should be found not guilty. “Regret does not vitiate consent”.

To summarize, the law in this area is complicated and sometimes confusing.  Some sexual assault cases are relatively clear and straightforward: having sexual contact with a sleeping or unconscious person is, for example, simply against the law and will be punished.  But other situations involve ambiguity, uncertainty, or “mixed signals”. that can be misinterpreted as indications of willingness to take part in intimate activities.  It can all perhaps be reduced to a couple of straightforward concepts:

  • first, everyone has the right to decide what happens to their bodies and this includes the right to agree, or refuse, to take part in sexual contact with other persons; and
  • second, be clear (and seek clarity) in order to be sure the other person involved in the situation really does want that kind of contact

If there is no clear and voluntary consent, everyone must keep their hands (and all other parts of their bodies) to themselves!

Medically Assisted Death Offers Options

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vipassana-1100778__180In 2015 the Supreme Court of Canada issued a decision in the case of a B.C. woman who wanted the right to be able to determine the timing and circumstances of her own death; what was termed at the time “doctor-assisted suicide”, and what has now become referred to as medical assistance in dying or MAID. This  reflects the fact that sometimes other medical professionals, including nurse practitioners  and pharmacists, may be involved.

Those for whom death is imminent and who do not wish to spend their final moments in a hospital bed will have the ability to make other arrangements to allow themselves to spend the final days in a more comfortable and personal setting, such as their own homes or in a hospice for the terminally ill.   It has virtually always been a crime in Canada for any person to assist another to commit suicide (presently section 241 of the Criminal Code).  In 1993 the Supreme Court refused to strike down this law when it decided the case of Rodriguez v. Attorney General of British Columbia.  However, by 2015 the legal and social landscape had changed, and the Supreme Court ruled that Canadians should have the right to the assistance of a doctor in ending their own lives, in certain circumstances (Carter v. Attorney General of Canada).

The details of the decision, and arguments against physician-assisted death are being explored in other articles in this issue.  In this piece, I will attempt to identify and discuss what might be considered the advantages of allowing individuals this final, ultimate choice.

The most obvious benefit to this change in the law is also the point which was most central to the Supreme Court’s decision: the alleviation of extreme personal suffering and pain.  Many of the individuals who have litigated these issues (including Sue Rodriguez in 1993 and Gloria Taylor in, as well as “S.M.”, the applicant in the first decision in Canada permitting physician assisted death made on February 29, 2016 in Calgary) suffered from amyotrophic lateral sclerosis (“ALS”). It was described in the 2015 Supreme Court decision as leading to the gradual loss of all basic body functions: “ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and eventually breathe.”  Despite medical procedures and the use of medication and drugs, death comes painfully and at least sometimes, slowly.

And unfortunately, it is not just persons suffering from ALS who must endure such ordeals: many other diseases and conditions involve unending, permanent pain and unpredictable periods of suffering. Some conditions end in death, while others do not. In some situations, the individual must look forward to a long, painful life of disability and suffering.

Watching a family member or loved one suffer endlessly and being helpless to alleviate that condition carries its own form of mental and emotional pain and upheaval.   With the change in the law triggered by the Supreme Court decision in 2015, in at least some situations, those persons who wish to avoid prolonged periods of suffering may now have that choice.  The Court recognized that liberty and security of the person (both interests which are protected under Section 7 of the Charter of Rights and Freedoms) included giving individuals the power to make their own decisions about essential medical care and their responses to such grievous medical situations.  Even the protected interest of life itself was negatively impacted by the prohibition on physician-assisted dying. It was under review because the law forced at least some persons to take their own lives prematurely and without assistance (suicide is not against the law, but assisting someone to take their own life is) for fear that waiting until their condition worsened would leave them incapable of doing so later. In short, a fundamental aspect of personal autonomy and freedom was found to include having the power to decide when to end one’s own suffering, and the ability, with assistance if necessary, to act on that decision.

On June 17, 2016 an Act to amend the Criminal Code, removing the ban on assisted suicide received Royal Assent. It also created new provisions to allow medical assistance in dying (MAID).  However, controversy continues about this legislative response to the Carter decision. The main point of contention lies in the scope of the government’s proposed changes to the law.  While the Supreme Court did not limit the results of its ruling to persons for whom death is imminent, that is a central feature of the new law.  As the amendments are presently worded, the law would be changed in such a way as to allow medical assistance in dying  to be available only for persons whose death “has become reasonably foreseeable” even though this would not require a precise prediction of when the end will actually come. At issue is whether the law would  restrict the benefits or options of seeking medical assistance in dying to those persons for whom death is already near.

In a decision rendered on May 17, 2016, the Court of Appeal of Alberta rejected federal government arguments that such a limitation flowed from the Supreme Court decision in Carter.  The higher court’s ruling was intended to address the situations of persons suffering from conditions which were intolerable and unending, but not necessarily such that the conditions in question were themselves “life-threatening or that reduce one’s life expectancy.”  The Court of Appeal noted that, under the government’s position, the cruelty of unending suffering which the high court intended to relieve against would be continued without relief or end, in cases where the illness itself was not considered terminal.

…another group who may find some relief and a form of benefit from the change in the law are medical professionals.Thus, at this time it remains an open question as to whether the law narrows the scope of this benefit – or the group of persons who may make use of the benefit – or whether the options available as a result of the Carter decision will be available to a wider selection of persons (that is, those whose suffering is a permanent condition but whose deaths are not necessarily being hastened as a result).

A second, related “benefit” to the change in the law is likely the emotional and mental health result which flows from placing of control over the timing of one’s death into the hands of the person involved.  Alleviating physical suffering and anguish is the most obvious beneficial result of the Supreme Court’s decision, but the emotional value of providing a greater degree  of certainty  and control of the timing of one’s own death cannot be underestimated either.   Most people have, at some point in their lives, contemplated the philosophical question of whether or not it is preferable to know in advance the timing and circumstances of their deaths.   Where that intellectually and emotionally interesting (and usually fairly theoretical) issue becomes very real and meaningful, however, is in the throes of a serious and permanent medical condition causing unending, extreme suffering for the patient.  Along with enduring the physical results of the disease or disorder, until now patients also had to suffer the mental anguish of not knowing how long their condition would persist (in the sense they had no way of knowing when they would finally die, and thus, end their suffering) or what physical state they might be in when their final moments finally arrived.

Alleviating physical suffering and anguish is the most obvious beneficial result of the Supreme Court’s decision, but the emotional value of providing a greater degree  of certainty  and control of the timing of one’s own death cannot be underestimated either.   With Medical Assistance in Dying now available, persons suffering in such ways will have perhaps a small measure of comfort which comes from being given a greater degree of control as to when, and in what circumstances, they will finally pass away.  Those for whom death is imminent and who do not wish to spend their final moments in a hospital bed will have the ability to make other arrangements to allow themselves to spend the final days in a more comfortable and personal setting, such as their own homes or in a hospice for the terminally ill.   Unlike the individuals whose court cases have led to these changes, they will now have greater control over how long they are prepared and willing to suffer physically and will be able to take charge of their own end of life scenarios in a way previously not possible.

The relief from the anguish which comes from such uncertainty and lack of control will also be available for family members and others who care about the condition of the afflicted.  Watching a family member or loved one suffer endlessly and being helpless to alleviate that condition carries its own form of mental and emotional pain. With the change in the law brought about by the Supreme Court decision, family members will have greater comfort knowing the person about whom they care deeply can decide for him- or herself how long they will continue to endure the suffering, and can then plan for their final ending accordingly.

Having this control also means being able to properly plan and prepare for the aftermath of death. Family members and others can arrange in advance for details such  as funeral arrangements and the holding of any commemorative events. Having a chance to make proper preparations for death and the events which follow would  be preferable to a scenario where such decisions must be made while loved ones are still in states of shock and grief (and sometimes, even horror) which follow an unexpected death.

In short, a fundamental aspect of personal autonomy and freedom was found to include having the power to decide when to end one’s own suffering, and the ability, with assistance if necessary, to act on that decision.Finally, another group who may find some relief and a form of benefit from the change in the law are medical professionals. While the profession is somewhat divided about what the role of doctors and nurse practitioners should be when it comes to the end of life, those who are willing to assist patients who wish to end their own suffering will be able to do so, within the bounds imposed by the new law, as well as the internal guidelines and policies being formulated by various medical associations  and health ministries across the country).  Until now, anyone – including doctors, nurse practitioners, pharmacists and others – who in any way knowingly assisted any other person to end their own lives were liable to be prosecuted for extremely serious criminal offences: assisting in a suicide (which carries a maximum punishment of 14 years imprisonment) or even murder (mandatory minimum sentence of life imprisonment without a chance of parole for 10 to 25 years, depending on a number of factors).  Now, medical caregivers who wish to assist their patients in this way will no longer be open to prosecution.  They will be able to act according to their consciences in an effort to humanely alleviate and end the terrible sufferings of some of their patients.

Without any doubt, the concept of medical assistance in dying is a very difficult one, with many intertwined ethical and moral issues.  Various groups within Canadian society are divided about the merits and wisdom of allowing any form of assisted suicide and there are grounds for some of the fears expressed in the public debate which surrounds the Carter decision.  But with the proper restrictions and safeguards and the careful enforcement of them, those who wish to take advantage of this very significant change in our law will be able to do so.  Deciding how much suffering to endure, and whether and when to terminate one’s own life in order to end that pain will always be an extremely personal decision.  But the new medical assistance in dying law has now opened the way to such steps being taken.

Aboriginal Offenders

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Aboriginal OffendersMuch has been written about the alarmingly high numbers of aboriginal Canadians who spend time in our jails and penitentiaries. Hundreds of thousands of pages of texts, court decisions, reports and inquiries have been published about why so many indigenous Canadians end up in custody, and what happens to them once they are there. In this article I will try to provide an overview of at least some aspects of this situation and what has led us to where we now find ourselves, as a society and country.

In short, our courts and correctional systems – as in our society in general – are still coming to terms with, and attempting to address and undo, the results of decades of institutional and personal racism aimed at the destruction of aboriginal communities, cultures and practices. Canadians like to think of themselves as a fair and open-minded people but in recent years we have been forced to face a darker part of our past. In short, as much as we would like to think otherwise, the ugly truth is that Canada has historically been a racist country. More than one non-white minority has experienced this at different times, but none has suffered the brunt of Canadian racism for as long as our aboriginal citizens. This has taken both official and unofficial forms. Over many decades both before and especially after Confederation, many laws were enacted which amounted to a regime of official racism. Various Parliamentary enactments prohibited traditional practices of aboriginal persons, denied them basic rights, forced many onto reserves, and generally, sought to wipe out all remnants of their cultures and languages in an effort to assimilate them into mainstream society. Unofficially, governments, their officers, and individual Canadians adopted and practiced racist views and actions in many ways.

Sadly, Canadian courts were no different. Judges, prosecutors, police and defence lawyers were all the products of their times. These were the institutions and officials whose role it was to enforce the racist laws enacted by elected representatives (though it must be noted that aboriginal Canadians did not help to choose these representatives, as one form of the racism to which they were subjected was the denial of the right to vote, until the 1960s). Even laws which seemed to apply to everyone equally were often applied more harshly against aboriginal persons. For many years, for example, young indigenous first-offenders were imprisoned for crimes which, had they been white and from “nice middle class homes”, would have resulted in probation, a fine or some other much more lenient sentence. And this is not a practice which ended 50 or 60 years ago. As a criminal defence lawyer I still see criminal records for aboriginal persons whose first offences were committed in the 1970s and early 1980s who were sent to jail in situations where a white young person guilty of the same crime would have been sent home with a probation order and community service work to be performed. Sadly, as many commentators have noted over the years, “growing up Indian” meant, as a matter of course, spending time in jail.

The individuals who went through the residential school experience grew up not knowing or seeing anything by way of parental guidance and affection, and left the schools having little or no idea of how to parent and raise their own children. As a result of changing attitudes, various public studies and debates, and a number of public events and controversies, an awakening to this ugly side of Canadian reality started to take place in the 1990s. In 1996 Parliament amended the Criminal Code to include a provision (Section 718.2(e)) specifically directing courts to exercise restraint, and to consider the particular situation of aboriginal persons as they formulated the sentence to be imposed for crimes committed by native offenders.

In 1999, the Supreme Court of Canada interpreted and explained for the first time what Parliament had intended by enacting this provision, and how lower courts should apply it. In the Gladue decision, the Court said sentencing judges were to consider the circumstances of aboriginal offenders carefully and individually, and with an eye on the systemic and historical factors which might have impacted their current behavior. Sentences were to be formulated with cultural characteristics in mind. This did not mean aboriginal offenders would necessarily be treated more leniently, especially where violence was involved. But, the Court did indicate that alternate forms of punishment should be considered in at least some cases involving First Nations accused.

Clearly, the correctional system is failing aboriginal offenders and the communities from which they have come and to which they are likely to return.Unfortunately, despite the Supreme Court’s decision in 1999, the situation did not change noticeably. In 2012, in a case called Ipeelee, the Court issued another powerful ruling directing lower courts in their use and consideration of s. 718.2 of the Code and observed that, instead of falling, the numbers of aboriginal Canadians in our jails and penitentiaries had actually increased since the decision in Gladue. Somewhat more forcefully, the Court pointed out that historical events such as the forcible confinement of aboriginal children in residential schools; the dislocation of aboriginal communities from their ancestral lands and territories; and years of racist and colonial policies and laws all influenced the lives of aboriginal persons, including those who end up before the courts for having committed criminal offences. The Judges noted the higher incidence of poverty, lack of education, substance abuse and other social challenges and problems in so many First Nation communities and drew a connection between such background factors and the moral culpability of aboriginal offenders. The lower courts were again urged to approach the sentencing of aboriginal offenders differently and to consider forms of punishment which might have a more meaningful effect, at least in situations where a threat to public protection and safety was not considered pressing.

It is probably too soon to know whether the Ipeelee decision has had any impact on the frequency with which we imprison aboriginal offenders, but early signs are not encouraging. Statistics from 2013 and 2014 suggest the rate of incarceration of First Nations persons has not noticeably changed. In a number of federal penitentiaries in Western Canada, aboriginal persons made up the majority of the inmate populations. Aboriginal offenders were still being imprisoned at a younger age than non-aboriginal persons. Female aboriginal offenders were even more disproportionately represented in our prison and penitentiary populations.

In at least some situations, imprisonment is the only viable option. In both the Gladue and Ipeelee decisions, the Supreme Court of Canada explicitly confirmed that as the types and results of criminal conduct increase in severity, so too will the judicial and penal response. The more serious and more violent the criminal behavior, the more likely imprisonment will be imposed, for both aboriginal and non-aboriginal offenders.

However, imprisonment alone is rarely, if ever, an effective response to criminal conduct over the long term. Except in cases where offenders must be kept in custody for the rest of their lives, incarceration must have a rehabilitative component if the individual is to be released safely back into mainstream society.

Statistics from 2013 and 2014 suggest the rate of incarceration of First Nations persons has not noticeably changed.Unfortunately, once aboriginal persons are placed inside our correctional institutions, authorities seem unable to provide much by way of meaningful long-term assistance. Culturally relevant correctional programs remain an on-going challenge for the Correctional Service, perhaps in part because of the diversity of aboriginal traditions and backgrounds. In Western Canada there are now three male and one female healing lodges – correctional facilities which are meant to be operated according to First Nations values and principles. However, these facilities together can house around 200 inmates out of a total of over 3,000 aboriginal offenders in the federal correctional system. Furthermore, being located in Western Canada means it is mainly the values and cultures of aboriginal communities from this part of the country which are represented. First Nations and Inuit offenders from the north and other parts of Canada do not necessarily have the same traditions and customs, so attempts to be accommodating usually fall short in relation to those inmates.

Clearly, the correctional system is failing aboriginal offenders and the communities from which they have come and to which they are likely to return. According to the Correctional Investigator – Canada’s “ombudsman” for federally sentenced prisoners – First Nations men and women are usually assessed as being higher security risks than other prisoners, serve more time on their sentences before being released, and are more likely to be returned to custody when they are granted any form of early release. Only where Correctional Services is able to take the time and spend the money on programs aimed specifically for aboriginal persons do the statistics suggest reason for optimism. In his 2013-2014 report, for example, the Correctional Investigator noted that allowing aboriginal prisoners escorted absences to permit them to attend cultural and traditional community events often led to better long-term results for those individuals when it came to successful rehabilitation and reintegration back into their communities.

So much of where we find ourselves at this time seems to relate back to the historical factors discussed in the Supreme Court decisions mentioned above, and in particular, the residential school experiences of so many aboriginal Canadians. The individuals who went through the residential school experience grew up not knowing or seeing anything by way of parental guidance and affection, and left the schools having little or no idea of how to parent and raise their own children. Many turned to alcohol in an effort to deal with their own experiences, and the anger and shame they carried often revealed itself in various forms of violence, both in the home and outside. Until these historical factors, and their lingering results, are dealt with directly by Correctional Services at all levels, the prognosis for the future is not good.

Sadly, as many commentators have noted over the years, “growing up Indian” meant, as a matter of course, spending time in jail.When it issued its Report and recommendations in 2015, the Truth and Reconciliation Commission of Canada included a number of “Calls for Action”. Some of these aimed at changing how aboriginal offenders are dealt with in the courts and inside our correctional systems. The Commission called upon the Government of Canada to build more aboriginal healing lodges, and to expand the availability, use and content of aboriginal-specific programs both inside and outside our correctional institutions. Because of the high incidence of Fetal Alcohol Spectrum Disorder among First Nations populations, the Commission also called for reforms in how our courts and corrections systems address the needs of persons afflicted by that challenge. Like the Supreme Court before it, the Commission also called for greater input by aboriginal communities in determining the appropriate penalties for criminal conduct and, where possible, the establishment of aboriginal justice systems to deal with some offenders and some criminal conduct in ways which are more conducive to addressing the underlying causes of such behaviours.

Canadians like to think of themselves as a fair and open-minded people but in recent years we have been forced to face a darker part of our past.In short, our courts and correctional systems – and our society in general – are still coming to terms with, and attempting to address and undo, the results of decades of institutional and personal racism aimed at the destruction of aboriginal communities, cultures and practices.

Experience clearly demonstrates that locking offenders away is not enough – and may actually be contrary – to protect and promote community safety in the longer term. Until the underlying personal challenges and difficulties which led individual offenders into conflict with the law in the first place are addressed, criminal behavior will likely continue. Until our correctional systems, at all levels, begin to address the needs of inmates in a meaningful individualized fashion, there is little reason to hope that we will see much change. For aboriginal persons and communities, the injustices and unfairness of the past will only continue.

Magna Carta Informs Our Criminal Law

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magnacarta-ccMagna Carta was signed in June 1215 in an effort to end an internal conflict between King John and a group of barons who were opposed to his conduct as sovereign. Much of the document (also known by its English name, “The Great Charter”) addresses the rights of the church and of businessmen and property owners, but included within its terms are a number of ideas and principles which have evolved over the last eight centuries to become key elements of our modern criminal court system.

Our Criminal Code now describes proportionality as the “fundamental principle” underlying all of our sentencing laws. The original was in Latin, and was a single “run on” document (that is, it was written as a single sentence several hundred words in length). The words and clause numbers I will use in this article are taken from an English translation found on the website of the British Library, which is now the home to two of the four remaining copies of the Charter.

Perhaps the underlying theme of those parts of Magna Carta which is most relevant to this discussion can be summarized as follows: prosecution and imprisonment based upon the arbitrary whim of the sovereign was to be ended, and would now take place only according to law. While English history after the signing in 1215 is full of examples where this principle was clearly not followed, nonetheless, a number of the clauses recognized fundamental protections which went some distance towards ending arbitrariness. There remained centuries of struggle – both armed and otherwise – to lead us to where we stand today, but in 1215 this general theme found voice in a number of the terms of the Great Charter.

The Rule of Law

Clause 39 of the document provided that “no free man” (at the time, this mainly meant the barons) could be imprisoned, lose his possessions or be “deprived of his standing in any way … except by the lawful judgment of his equals or by the law of the land”.

Its concluding phrase – that no one could be punished or penalized except “… by the law of the land” – is perhaps the most significant of all, both in relation to criminal law and indeed, to our entire system of governance. This concept describes the Rule of Law, which underlies our form of democracy and law: the government, at whatever level and through whatever agency, may only act against a citizen where the law gives it authority to do so. Most important for criminal law, these words meant the state could only imprison or otherwise punish individuals where properly enacted legal provisions say this is possible. Arbitrary and illegal detention and imprisonment would not be tolerated any longer; citizens were no longer subject to being locked up simply because the king or queen took a disliking to their words or actions.

Another principle included in  Magna Carta which continues to play an important role in our system of criminal justice today is that of proportionality.Today, this finds expression in our basic constitutional law: in the principles recognized by the courts as forming part of our “unwritten” constitution prior to the enactment of the Canadian Charter of Rights and Freedoms in 1982, in the Constitution Act, 1982 and in other foundational parts of our constitution and Criminal Code. Specific provisions in the Charter provide examples of this principle: Section 9 ensures we all have the right not to be arbitrarily detained or imprisoned, and Section 7 guarantees that, if we are to be deprived of “life, liberty or security of the person”, this will only take place “in accordance with the principles of fundamental justice”. Furthermore, Section 11(d) provides that if we are charged with an offence we must be tried “according to law” before we can be punished.

Jury Trials

Clause 39 is also important for the other concept it describes: the right of the barons to be judged by their peers. This is, of course, an early description of our modern right to be tried by a jury. By agreeing that “no free man” could be punished in any way “except by the lawful judgment of his equals …” the King conceded that that instead of his officials – including those he appointed as judges – deciding the guilt or innocence of an accused person, that decision would now be made by the peers of the accused.

Today, centuries later, the right of trial by a jury of one’s peers is enshrined in our own Constitution, in Section 11(f) of the Canadian Charter of Rights and Freedoms. The constitutional right to a jury is enshrined for the most serious cases, where the possible punishment is imprisonment for five years or more. The concept of who are one’s “peers” is fairly flexible. In May 2015, the Supreme Court of Canada held that we have the right to a jury which is “representative” of the community, which may or may not be the same as a jury composed of persons who are the accused’s “equals”. In law, all persons are considered equal, but outside of the legal context we know society is composed of many different groups and levels. Thus, when it comes to factors such as social and economic standing, racial or ethnic background, and religious heritage the 12 citizens chosen to sit as a jury in any particular case may share only some – and sometimes, none – of the background characteristics and features of the accused.

Nonetheless, the idea that important questions of guilt or innocence should at least sometimes be decided by members of the community and not always by government-appointed judges, remains a strong protection for the liberty of all of us. It has been observed that tyranny has never succeeded in a country where the right to trial by jury exists. Indeed, in a very real way, despite the personal inconvenience to individual jurors, bringing 12 members of the community into court to make decisions is an essential characteristic of our democracy. Perhaps the most well-known example of this value in action is the repeated acquittals of Dr. Henry Morgentaler by juries in the 1970s and 80s who refused to find him guilty of conducting illegal abortions even though the Criminal Code still contained this offence.

Appointment of Qualified Judges

In the context of criminal law everyone has equal access to the courts without regard for financial standing and without being required to pay the Crown in order to exercise this right. Another part of Magna Carta which foreshadowed an aspect of our present situation which we now take for granted is Clause 45, which stipulated that “only men who know the law of the realm and are minded to keep it well” would be appointed as justices and other law enforcement officials. We now live in a country where only lawyers with several years experience (usually ten) may be appointed as judges, and where other legal officers must usually be educated and trained in the law before they are placed into their positions of authority. And upon taking office, most such officials are required to swear obedience to the law and their duty to uphold it in good faith and to the best of their abilities.

Use of Evidence at Trials

The concept of conducting trials by way of evidence was also mentioned in the Great Charter. In Clause 38, the King agreed that “no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” While it sounds somewhat bizarre by today’s standards, the implication of this provision seems to be that until 1215, individuals could be forced to defend themselves against an allegation of misconduct made by a government official, and nothing else.

Now, of course, trials by their very nature involve a hearing where witnesses are called and evidence is introduced by the prosecution in an effort to prove the truth of the allegations being made. To ensure court proceedings are not brought frivolously the charge(s) of wrong-doing must be made under oath or affirmation, and any evidence given can also only be received after the witness has sworn or affirmed that he or she will tell the truth. The accused always has the right to question witnesses who are called to testify against him or her, may call evidence in response to the case introduced by the Crown, and may make submissions and offer argument before the court makes its decision about whether he or she has been proven guilty.

Access to Justice

Clause 40 of Magna Carta also described principles we continue to value and attempt to follow today: in this provision the King agreed not to “sell … deny or delay right or justice.” The barons who were making the agreement with the King were to have equal access to justice and to be able to assert their rights without regard to their financial status and without having to pay for that right. Furthermore, King John apparently agreed that justice should not be delayed and that court hearings should occur within a reasonable time.

Clause 39 is also important for the other concept it describes: the right of the barons to be judged by their peers. This is, of course, an early description of our modern right to be tried by a jury.Today, we continue to try to keep delay to a minimum, and Section 11(b) of our Charter of  Rights provides us all with the right to be “tried within a reasonable time.” Our courts recognize that even when the accused is on bail, merely facing charges of criminal wrongdoing saddles him or her with a “cloud of suspicion” in the eyes of others. Bail usually comes with a number of conditions and terms which restrict the freedom of the accused, so delay in the proceedings can unfairly continue these limitations. Society at large also has an interest in avoiding delay: victims of crime face psychological pressures as they wait for their day in court, and the passage of time can mean memories fade and witnesses die or move away.

However, the realities of modern life are such that what is a “reasonable time” is a fairly elastic concept: much depends on the complexity of the case, the seriousness of the charges, and the number of witnesses to be called. Nonetheless, even with serious charges, proceedings may not be drawn out indefinitely, and there have been cases under the Charter in which even murder prosecutions have been halted by judges who have ruled that the Crown has taken too long to bring the allegations to trial.

In the context of criminal law, everyone has equal access to the courts without regard for financial standing and without being required to pay the Crown in order to exercise this right. Complainants who make allegations of criminal activity, and accused persons who must respond to such charges, are able to do so without paying fees or court charges of any kind. Those who wish the assistance of a lawyer and who cannot pay for one themselves usually have a form of Legal Aid to ensure their rights are protected and they can defend themselves in court. Police investigations and criminal prosecutions are funded by the state and do not depend upon financial contribution or payments by individual persons. Indeed, it is a serious criminal offence to offer or pay a bribe to a police officer, prosecutor or any other public official in order to have them investigate or prosecute a case, and attempting to influence a decision-maker by way of such improper inducements is an equally serious crime.

Proportionality

Another principle included in Magna Carta which continues to play an important role in our system of criminal justice today is that of proportionality. Clause 20 provided that “for a trivial offence a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly…” and Clause 21 went on to provide for earls and barons that they too would only “be fined by their equals, and in proportion to the gravity of their offence.”

Most important for criminal law, these words meant the state could only imprison or otherwise punish individuals where properly enacted legal provisions say this is possible.For many years after 1215, the criminal system in England continued to impose punishments which were grossly disproportionate to the offences committed. For centuries, death remained the sentence for many offences: until the early 1800s, capital punishment was still the penalty for even fairly minor crimes such as theft, forgery and counterfeiting. Drawing and quartering was the punishment for treason until 1867. In Canada, whipping remained a lawful form of punishment until the 1970s for offences as varied as sexual crimes, strangling, some forms of burglary, and for breaching rules of prison discipline. Nonetheless, the idea that a punishment to be imposed for an offence should be proportionate to the crime itself has remained with us. Section 12 of the Charter of Rights prohibits “any cruel and unusual treatment or punishment”, which the courts have said prevents sentences which are “grossly disproportionate” and contrary to community standards of decency. Our Criminal Code now describes proportionality as the “fundamental principle” underlying all of our sentencing laws. We reject “revenge” as a sentencing principle or factor as being contrary to our values and practices. The principle of “proportionality” directs our judges to fashion punishments which are a measured, restrained response to criminal conduct based upon the degree of responsibility of the offender, and the gravity of the offence itself.

Conclusion

When they forced King John to sign Magna Carta, the barons were motivated mainly by their own self-interest: they wanted to secure and protect their own rights and positions, and were not aiming to guarantee the rights of others in English society at the time. In fact, Magna Carta contains some clauses which are shocking in their anti-Semitic content, while others are clearly aimed at subjugating women and denying them many rights we now take for granted. In the 800 years since that day on the field at Runnymede when the document was signed there have been many situations in which those values have been openly rejected and violated by the sovereign of the day. But despite – and through – all of that, these ideas have survived, and have evolved to become some of the most important aspects of our modern day criminal justice system. It is now unthinkable that our criminal legal and court system would exist without these basic principles at its heart.

Authorities considered: Salhany, The Origin of Rights (1986) and Bauslaugh, The Secret Power of Juries (2013) as well as various on-line sources and articles.

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