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Fundamental Charter provision is s. 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
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The principles of fundamental justice include:
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Nullum Crimen sine lege, nulla poena sine lege: no crime or punishments unless it is in accordance with law that is certain, unambiguous and not retroactive.
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Must be an offence at the time of commission.
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The law must be sufficiently clear to circumscribe the conduct of persons.
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The requirement that the accused be sufficiently morally blameworthy:
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Actus Reus: the act element of offences
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Mens Rea: the fault (subjective or objective) element of offences
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Presumption of innocence until guilt is established beyond a reasonable doubt.
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Two basic operational principles:
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1. The rules dictating when conduct has a connection to the interests in Canada; and
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2. The rules relating to time limits for prosecution (i.e. Limitation Act).
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Retrospective Operation:
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Penal Statues are not permitted to operate retrospectively.
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Exception made for war crimes.
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The Charter does not operate retrospectively.
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Accused are entitled to benefits of change in the interpretation of the law occurring while the accused is still in the trial-appeal system.
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Advantages of Changes in Penal Severity:
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“Any person charged with an offence has the right… if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to benefit from the lesser punishment.”
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Effect of Repeal:
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The repeal does not affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment incurred under the enactment so repealed.
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Clarity of Law: Interpretation for Void for Vagueness
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S. 12 of Interpretation Act: “every enactment shall be deemed remedial, and shall be given such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects.”
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A criminal law should not have too uncertain of meaning – otherwise persons could not know what it prohibited. It must give the citizen fair notice while not allowing the state excessive scope to interfere with individual rights.
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A criminal law is void for vagueness if it “fails to give sufficient guidance for legal debate.”
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Vagueness is distinct from the fundamental principle of overbreadth.
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A law may be perfectly clear but overbroad.
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Especially important that criminal laws not be vague because liberty is at stake.
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Raises issues with s. 7 (deprivation of liberty) and s. 1 (no justification).
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Canadian Foundation for Children, Youth and the Law vs. Canada: challenged s. 43 of the Criminal Code that states that “every schoolteacher, parents or person standing in the place of the parent, is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force foes not exceed what is reasonable under the circumstances,” on the grounds that it is both vague and overbroad.
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Not found to be vague because it delineates:
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Who may access its sphere (parents, schoolteachers or those acting in their place)
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What conduct falls within its sphere (force for corrective use only)
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Societal consensus says that this doesn’t include children <2 or >12.
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Cannot exempt force used out of anger or force that causes harm.
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“Reasonable under the circumstances” does not permit judges’ opinions.
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Criminal law is thick with the notion of reasonableness.
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McLaughlin said: reasonableness may evolve
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Not found to be overbroad because the specifications above dictate exactly what conduct is and is not covered. Does not capture behavior that should be allowed and label it as criminal.
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Blameworthiness has two aspects:
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Actus Reus: the act element of offences.
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The fault (subjective or objective) element of offences (passive states are not penalized – requires a positive morality).
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Subjective fault (Mens Rea): exists if the accused, with knowledge of the circumstances, consciously or intentionally performs the act or seeks to bring about the prohibited consequence.
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Objective fault (Penal Negligence): occurs on the basis of whether the accused committed the actus reus in circumstances in which the reasonable person would say that the accused was negligent. Were the accused’s actions a “marked departure” from the standards of the reasonable person?
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The constitutional fault requirements.
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Subjectivist Orthodoxy: “where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constitution the offence or with willful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction.”
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Absolute (or Strict) Liability: offences for which an accused may be convicted on proof of the actus reus only. No fault need be proved.
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If an absolute liability offence has the potential of depriving an accused of life, liberty or security of the person (i.e. chance of imprisonment), fundamental justice requires that some fault element be proved for an accused to be convicted.
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Ref. Re S. 94 (2) of the Motor Vehicle Act, BC: argued that absolute liability and imprisonment cannot be combined because it violates a person’s right to liberty under s. 7 of the Charter.
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No doubt the section is an absolute liability offence for which imprisonment is occasionally a consequence.
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Administrative expediency was considered in conjunction with s.1 of the Charter.
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Struck down as unconstitutional (failed the “minimal impairment” part of Oakes)
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Constitutionalization of Fault Requirements:
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If s.7 rights are engaged (life, liberty, security of the person, etc.) AT LEAST objective fault (criminal negligence) is required for conviction.
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The Presumption of Innocence and the Burden of Proof:
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When considering burdens of proof issues, six main questions must be distinguished:
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1. What is the nature of the burden?
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2. Who bears the burden?
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In criminal law it is (normally) the duty of the prosecution to prove the prisoner’s guilt.
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Common-law or statute may allocate the burden of a specific issue onto the accused.
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The party bearing the legal burden bears the “risk of non-persuasion.”
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3. How is the burden set?
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Legal burdens are set by legal rules – common-law, statute or the Charter.
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4. Who decides whether the burden is satisfied?
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The trier of law or trier of fact (judge or jury or both).
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5. According to what standard of proof is the burden of proof judged?
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Three main standard of proof:
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“Beyond a reasonable doubt.”
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“Balance of probabilities.”
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“Evidence to the contrary.” – raising a reasonable doubt, which is the standard that an accused must meet to rebut statutory presumptions.
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6. What evidence is considered in determining whether the burden is satisfied?
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All the (admissible) evidence must be heard as a whole.
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“Credibility Contests:” Has at least four inherent faults:
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Suggests that the accused has the burden of establishing that their claims are true,
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Suggests that for an accused to succeed, their claims must be more likely or somehow more persuasive than the Crowns.
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Even if the accused’s evidence is not believed, it may give rise to a reasonable doubt,
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Even if the accused’s testimony does not give rise to a reasonable doubt, other evidence in the case may.
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Must acquit if:
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Testimony of the accused is believed,
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Jury is unable to decide who to believe,
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The testimony of the accused is not believed but still raises a reasonable doubt, or
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Other evidence in the case raises a reasonable doubt.
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Direct and Circumstantial Evidence:
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Don’t like to hear heresy in court; however, many exceptions to the rule.
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Generally, out of court exculpatory statement is not admissible unless inculpatory and exculpatory statements are mixed.
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Circumstantial – each piece works with other pieces of evidence
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One piece – not decisive; all together – may exclude a reasonable doubt
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Illes: re: first degree murder
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A and Witness 1 were alone in van with V when V was shot
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3 crown witnesses – all in drug trade
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Crown Witness 1 testified in exchange for immunity and witness protection
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Crown witness 1, 2 and 3 involved in disposition of evidence (V’s head)
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Crown relied on letters as circumstantial evidence of guilt (post-offence conduct)
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“Duncan” instruction:
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Incriminating parts of A’s statements likely to be true
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Excuses for one’s behavior do not necessarily carry the same weight
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SCC said cannot use Duncan instruction
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Effect of use? unfair trial? Yes, in this case.
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Applies to situations where there is inculpatory evidence mixed with exculpatory evidence – not applicable here – gave too much priority to the Crown’s inference.
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Crown cannot come in a privileged position – presumption of innocence.
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Woolmington vs. The Director of Public Prosecutions: defendant is accused of murder; admits that she was killed by the gun that was in his possession but claimed it was pure accident;
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“In every charge of murder, the fact of killing being first proved, all the circumstances of the accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him: for the law will presume the fact to have been founded in malice until the contrary appeareth.”
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It would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is the common-law.
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It is not for the prisoner to establish his innocence but for the prosecution to establish his guilt.
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R. vs. Lifchus: raised the issue of whether the expression “beyond a reasonable doubt” should be explained to a jury.
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Judge explained to the jury that they should think of the words “proof beyond a reasonable doubt” in their ordinary, natural and everyday sense.
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Scott, C.J.M. ruled that the trial judge provided an unacceptable direction.
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Directions regarding the definition should include:
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Proof beyond a reasonable doubt is intrinsically linked with the presumption of innocence;
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The burden of proof rests on the prosecution and never shifts to the accused;
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Reasonable doubt is based on reason and common sense, not sympathy or prejudice;
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It is logically connected to the evidence or absence of;
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It does not involve proof to an absolute certainty; and
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A jury that concludes only that the accused is probably guilty must acquit.
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Presumptions: common-law and legislation have created ‘presumptions.’
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First, the basic fact is proved (e.x. John was in the driver’s seat of the car).
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By virtue of proving the basic fact, some other fact is deemed to be the case (e.x. John was in the care or control of the vehicle).
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The presumption allocates the burden of proof to the accused. If the accused fails to discharge the burden the accused must be found, as a matter of law, to be bound by the presumption (e.x. if John cannot prove she was not in the care and control of the vehicle, it is presumed that she was).
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Presumptions and S. 11(d) of the Charter: the accused has the right to be presumed innocent.
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The Crown’s burden has three aspects:
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1. Must prove its case beyond a reasonable doubt.
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2. If a reasonable doubt exists, the accused must be acquitted.
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3. The Crown should discharge this burden through its own resources, without conscripting the accused into the ranks of prosecution.
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If the accused does adduce the evidence (“evidence to the contrary”), the presumption cannot operate.
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If an accused fails to prove some fact on the balance of probabilities, an accused may be convicted despite the existence of a reasonable doubt in favor of the accused.
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The only proof of the presumed fact is the basic fact – the effect is to presume the accused is guilty and calls for the accused to respond before the Crown.
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Mandatory nature of both the balance-of-probabilities and the evidence-to-the-contrary presumptions is what draws them into violation of s. 11(d).
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S. 195 [now s. 212(3)] infringes s. 11(d) of the Charter since it can result in the conviction of an accused despite the existence of a reasonable doubt.
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Presumptions and S. 1 of the Charter: guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
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R vs. Laba: respondents were charged with conspiracy to commit the indictable offence of selling or purchasing any stolen rock, mineral or other substance that contains precious metals, contrary to section 394 (1)(b) of the Criminal Code.
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Trial judge found that it violated s. 11(d) of the Charter. Appealed.
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Issue: Is s. 394 (1)(b) a reasonable limitation on the s. 11(d) Charter right, pursuant to s. 1 of the Charter?
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Purpose is to criminalize trade in stolen precious metal ore.
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Theft is a serious problem in Ontario and Quebec especially.
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Big problem of identifying and tracking precious metals.
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Different compositions.
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No way to know how much is there before hand.
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Too costly to establish a database of metals and mines.
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Charter is to be interpreted in light of the context in which it is being applied.
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Does 394 (1)(b) pass the Oakes test?
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The “Oakes Test:”
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1. In order to be sufficiently important to warrant overriding a constitutionally protected right or freedom, the impugned provision must relate to concerns which are pressing and substantial in a free and democratic society.
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2. The means chosen to achieve the legislative objective must pass a three part proportionality test which requires that they:
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a) be rationally connected to the objective;
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b) impair the right or freedom in question as little as possible; and
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c) have deleterious effects which are proportional to both their salutary effects and the importance of the objective which has been identified as being of “sufficient importance.”
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The Oakes test in relation to section 394(1)(b):
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1. Pressing and Substantial Objective: YES, the objective is to deter theft of precious metal ore, an objective deemed to be a significant issue in the area concerned; the reverse onus is necessary to facilitate the prosecution of offenders. Due to difficulties tracking the ore, using the traditional onus would result in few, if any, convictions by the Crown.
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2. A) Rational Connection: Where there is good reason to believe that it would be difficult for the Crown to prove that goods have been stolen, it is rational to place some kind of burden of proving that they have not been stolen upon the accused.
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2. B) Minimal Impairment: Parliament is not required to search out and adopt the absolutely least intrusive means of attaining its objective. A purchaser may be required to adduce viva voce evidence or produce a document tending to show that the person from whom he or she purchased the material was the owner, agent of the owner, or duly authorized.
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2. C) Proportionality: Although the imposition of an evidentiary burden violates the presumption of innocence I find that this only minimally increases the likelihood of an innocent person being convicted and represents a justifiable limitation upon the right to be presumed innocent.
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I would strike down the portion of s. 394(1)(b) which is unconstitutional by removing the portion which imposes the legal burden of proving ownership. I do not find it necessary to strike down the aspect which imposes evidentiary burden.
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Operational Issues:
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Territorial Application:
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State’s criminal law typically applies only to acts committed within the territory.
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Common-law test is whether the acts have a “real and substantial link” with Canada.
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If Canada has a legitimate interest in prosecuting and if prosecuting would not offend international comity, Canada has jurisdiction.
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Canada claims criminal jurisdiction even if the acts took place outside Canada for:
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War Crimes
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Official torture
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Hostage taking on ships and aircraft
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Crimes against diplomats
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S. 465(4): gives Canada territorial jurisdiction over conspiracies to commit certain acts in Canada. (Also see S. 48(3) treason; s. 74(2) piracy.)
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Libman vs. The Queen: raised the issue of international jurisdiction.
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Defendant was charged with seven counts of fraud and one count of conspiracy to commit fraud.
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Phone based company that attempted to sell shares in two gold mining companies for which the shares were deemed essentially of no value.
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“Boiler room” (telephone solicitation room) was based in Canada, along with the accused who devised the plan and obtained the money after sales of the shares.
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Shares were sold to US citizens who paid their money to Panama or Costa Rica.
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Defendant argued that because the deprivation of the victim, the essential element of the offence of fraud, occurred outside of Canada and was outside its jurisdiction.
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Primary basis for criminal law is territorial, however, it is permissible under international law to exercise jurisdiction on other bases.
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S. 5(2) of the Criminal Code sets forth the general rule that no person shall be convicted for an offence committed outside of Canada.
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Must consider whether there is anything in the facts that offends the international community. The law would be lame if its structures could be avoided simply by going outside the country to obtain the fruits of a scheme hatched largely in Canada.
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It would be a sad commentary on our law if it was limited to underlining society’s values by the prosecution of minor offenders while permitting more seasoned practitioners to operate on a worldwide scale from a Canadian base by the simple manipulation of a technicality of the law’s own making.
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All that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada.
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Should not be indifferent to the protection of the public in other countries.
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Appeal dismissed; SCC held that Canada did have jurisdiction and charges held.
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Time Limitations on Prosecution:
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Summary conviction offences have a six month limitation period.
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If in a hybrid offence, the Crown elects to proceed summarily after six months the proceedings are a nullity.
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Indictable offences have no limitation periods.
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Exception: certain treason provisions have a three-year limitation period.
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