This week’s top three summaries: G v Ontario (Attorney General), 2019 ONCA 264, R v Simard, 2019 BCSC 531, and R v Barrett, 2019 SKCA 6.
G. v. Ontario (Attorney General) (ONCA)
[Apr 4/19] Section 15 - SOIRA and Christopher's Law Effect on those Discharged after findings of Not Criminally Responsible due to Mental Disorder - 2019 ONCA 36 [Reasons by Doherty J.A., with van Rensburg and Hourigan JJ.A. concurring]
AUTHOR’S NOTE: The Charter right to Equality before the law and freedom from discrimination is rarely used in the Criminal Law. This case not only brought a significant measure of fairness to persons found NCRMD, but provides a useful roadmap for criminal defence lawyers to use this provision to achieve fairness for other marginalized groups where circumstances allow.
Overview
"The appellant was found not criminally responsible on an account of mental disorder (“NCRMD”) on two charges of sexual assault and two related charges in June 2002. He was absolutely discharged by the Ontario Review Board (the “ORB”) in August 2003." (Para 1)
"The finding that the appellant was NCRMD in respect of sexual offences made him subject to the provincial sex offender registry, which was established in 2001 pursuant to Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1. When the federal sex offender registry legislation came into force in December 2004, the appellant also became subject to the provisions in that Act: Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). The appellant is required, under both registries, to personally register with the police and provide the information required by the applicable statues and regulations. The appellant must give the police a current photograph and report annually. He must advise the police of any change in the data he has provided, including any change of address. Failure to comply with any of the requirements is an offence potentially punishable by imprisonment." (Para 2)
"Because the appellant was found NCRMD in respect of two sexual assaults, he remains subject to the sex offender registry provisions in Christopher’s Law for the rest of his life. Similar provisions in SOIRA also impose a lifetime order. However, SOIRA contains provisions allowing the appellant to apply to a court for a termination of the SOIRA order. The appellant can apply for a termination order in 2022, 20 years after he was found NCRMD." (Para 3)
"I would hold that aspects of the legislation do violate the appellant's rights under s. 15 of the Charter, and that those violations cannot be justified under s. 1. I would declare the provisions of no force or effect as applied to persons found NCRMD who have received an absolute discharge." (Para 7)
Pertinent Facts
"The appellant was born in 1961. He was a successful student, had a good job, and a loving family. Prior to September 2001, he had no history of major mental illness and no criminal record." (Para 8)
"[I]n October 2001, the police charged him with two counts of sexually assaulting his then-wife, one count of unlawfully confining her, and one count of harassment. The charges arose out of two incidents that occurred in the family home in late September 2001." (Para 9)
"The two incidents occurred while the appellant was in a manic state brought on by bipolar affective disorder. He was also drinking heavily during that period of time. In the course of the incidents, the appellant confined his then-wife in their home, and on one occasion he had sexual intercourse with her, without her consent." (Para 10)
"In June 2002, the appellant was found NCRMD on all charges.... He lived in the community under the terms of that conditional discharge until August 2003, when the Board ordered that the appellant be absolutely discharged.... There is no suggestion that, in those 15 years, the appellant has engaged in criminal activity, much less criminal activity involving sexual misconduct. By all accounts, he lives a law-abiding and productive life." (Para 12)
Section 15 Analysis
"Section 15(1) provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." (Para 102)
"The s. 15(1) equality analysis looks first for differential treatment of individuals based on a ground enumerated in s. 15(1), or an analogous ground. The differential treatment may be the consequence of the express terms of the challenged legislation, or it may arise in the impact or effect of facially neutral legislation: see Winko, at paras. 77-78; Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548, at para. 19; Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, at paras. 30-31, 64. Although the Supreme Court of Canada rejected a “mirror comparator group” approach to s. 15(1) in Withler, the court has consistently recognized that equality is an inherently comparative concept: see Withler, at paras. 52, 60. Therefore, in evaluating a s. 15(1) claim, it may be useful to consider how the law treats individuals in the protected group as compared with individuals who are not part of that group: Withler, at paras. 61-65." (Para 103)
"The appellant and interveners point to the interaction of the sex offender legislation with s. 730 of the Criminal Code and s. 4 of the Criminal Records Act, R.S.C., 1985, c. C-47 to support their claim that persons found NCRMD are treated more harshly under the sex offender registry legislation." (Para 105)
"Section 730 is not available to persons found NCRMD in respect of a designated offence. The section is unavailable, not because persons found NCRMD cannot meet the criteria for discharge, but because persons found NCRMD are not, in the eyes of the criminal law, guilty of anything and cannot be found guilty. Ironically, the absence of criminal culpability denies the person found NCRMD the opportunity to avoid being placed on the sex offender registries." (Para 107)
"Section 4 of the Criminal Records Act operates in combination with the sex offender registries to create a second distinction between persons found guilty of designated offences and persons found NCRMD. Section 4 allows most persons who have been convicted of a designated offence to apply for a record suspension either five or ten years after completing their sentence. An offender who receives a record suspension is automatically removed from the provincial sex offender registry, and can apply for a termination of his SOIRA order." (Para 108)
"The criteria governing the granting of a record suspension consider a variety of factors, including the seriousness of the underlying offence and the offender’s post-sentence behaviour. There is nothing in the criteria that makes any of them inapplicable to persons found NCRMD. However, because persons found NCRMD are not convicted, they have no criminal record and therefore no basis upon which to apply for a record suspension." (Para 109)
"Neither Christopher’s Law nor SOIRA purports to draw any distinction between persons found NCRMD and convicted persons. However, I am satisfied that the effect of the legislation and, in particular, the absence of any “exit ramp” for persons found NCRMD, constitutes differential treatment for the purposes of s. 15(1). Someone like the appellant, who has committed more than one designated offence, can only hope to exit SOIRA by way of a termination order. He is not eligible for that order until 20 years after the NCRMD finding. A person in the appellant’s position has no possible exit from the obligations under Christopher’s Law. He must comply for the rest of his life." (Para 114)
"There is only one legally relevant distinction between persons who were found guilty of designated offences and who are therefore able to access the “exit ramps”, and those who were found NCRMD in respect of designated offences and who cannot access those exits. Persons in the latter group suffer from a mental disorder that rendered them incapable of appreciating the nature and quality of their acts, or knowing that those acts were wrong: Criminal Code, s. 16. A mental disorder leading to an NCRMD finding is a mental disability under s. 15(1) of the Charter. Mental disability is an enumerated ground. In my view, the many differences between the treatment of persons found NCRMD and the treatment of persons found guilty of the same offence, including the differential impact of the sex offender registries on those two groups, is based on the mental illness of those found NCRMD: Winko at para. 78-79." (Para 115)
"Discriminatory differences are those which perpetuate arbitrary disadvantage by imposing burdens or disadvantages, or withholding benefits and advantages from individuals in the identified group based on their membership in that group: Taypotat, at para. 20. Distinctions based on the grounds enumerated in s. 15(1), including mental disability, are inherently suspect: Taypotat, at para. 19; Quebec (Attorney General) v. Alliance du personnel professional et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 26. In this case, that suspicion is confirmed by an examination of the historical record relating to Canada's treatment of the mentally ill in the criminal law context: see R. v. Swain, [1991] 1 S.C.R. 933, at para. 39." (Para 117)
" In my view, the absence of any “exit ramp” from the sex offender registries (apart from a termination order after 20 years in the case of SOIRA) reflects an assumption that persons who committed criminal acts while NCRMD do not change, but rather pose the same ongoing and indeterminate risk they posed at the time of the offence. This assumption feeds into the stereotypical notion that persons found NCRMD are inherently and indefinitely dangerous: see Swain; Winko; see also Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 325-32 (per Abella J., writing for the majority on this point)." (Para 122)
"I acknowledge the point made by the respondents that many persons who have committed designated offences will not be good candidates for either a discharge under s. 730 of the Criminal Code or a record suspension under the Criminal Records Act." (Para 124)
"This argument does not, however, provide any answer to the s. 15 claim. The right to equality under s. 15(1) does not depend on a head count of those for whom access to equality before the law might provide some practical value. There are persons who commit designated offences that will be good candidates for a discharge or for a record suspension. In fact, on this record, the applicant would appear to have been a very good candidate for a record suspension, had he been found guilty rather than NCRMD. It does not matter, for the purposes of s. 15(1), how many individuals are in a similar position to the appellant." (Para 125)
"[T]he second stage of the s. 15(1) inquiry begins by recognizing the long historical record of discrimination in the criminal law against persons with mental disabilities: see Taypotat, at para. 21; Withler, at paras. 36-39. That long history demands that those found NCRMD be treated differently than persons who are convicted of criminal offences. Treating NCRMD persons fairly means acknowledging their mental illness as the root cause of their criminal conduct, and, to the extent consistent with public safety, seeking to treat and alleviate the adverse effects of that mental disability." (Para 133)
"The potentially adverse consequences of the application of the sex offender registry provisions to persons found NCRMD who have received an absolute discharge is apparent on the facts of this case. The ORB decided that the appellant was entitled to an absolute discharge. In the ORB's view, the criminal law no longer had any legitimate claim to exercise authority over the appellant. No one questions the ORB's decision. In hindsight, it appears to have been the correct decision. However, at the very same time as the ORB released the appellant from the authority of the criminal law, Christopher's Law and SOIRA automatically imposed mandatory, lifelong sex offender registry orders on the appellant. Those orders, unlike all of the decisions made by the ORB, were imposed without any consideration of the effect they would have on the appellant's mental health and continued recovery. On this record, those orders had a negative impact on the appellant's mental health." (Para 135)
"I do not suggest that s. 15(1) imposes an obligation on the state to demonstrate that the NCRMD person who has received an absolute discharge poses some personalized risk of reoffending as a condition precedent to his placement on the sex offender registries. Rather, I would hold that the equality command of s. 15(1) dictates that NCRMD persons who have received an absolute discharge must have some opportunity to address both their risk of reoffending and the potentially negative effects of sex offender registry orders on their mental health and continued recovery. Neither Christopher’s Law nor SOIRA provides that opportunity. Consequently, both infringe s. 15(1) of the Charter." (Para 137)
Does the Legislation Impose a Reasonable Limit on the s.15 Right?
"The parties agree that the public safety purpose underlying the sex offender registry legislation is pressing and substantial. The outcome of the s. 1 inquiry turns on the proportionality analysis." (Para 139)
"Proportionality is measured against three criteria. First, is the law rationally connected to its objective? Second, does the law impair Charter rights “no more than is necessary to accomplish the objective”: Peter W. Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters, 2007) (loose-leaf revision 2018-1), ch. 38 at p. 38-18? Finally, are the salutary effects of the legislation proportionate to its deleterious effect on Charter rights: see Carter, at para. 94; Hogg, ch. 38 at p. 38-18?" (Para 140)
"The parties agree that there is a rational connection between requiring all individuals found guilty or NCRMD to register and report under the sex offender registry legislation, and the public safety objective of that legislation." (Para 141)
"The minimal impairment requirement accepts that legislation is often a response to complex multifaceted problems which present a variety of possible legislative responses. Courts must afford legislatures a degree of deference and ask whether the legislation is reasonably tailored to the objective: Carter, at para. 102." (Para 142)
"In my view, existing provisions in both Christopher’s Law and SOIRA demonstrate that the legislation is not minimally impairing of rights. The legislative schemes do not limit the s. 15(1) rights of persons found NCRMD who have been absolutely discharged only to the extent that is reasonably necessary to achieve the legislative objective." (Para 143)
"No rationale has been offered to support the exclusion of persons found NCRMD who have received absolute discharges from any possible exemption or exception from the requirements of the sex offender registry legislation. There is no evidence that, while the objective of the legislation is consistent with exceptions and exemptions for persons found guilty, it is somehow undermined by comparable exceptions and exemptions for persons found NCRMD." (Para 145)
"The respondents have not met the onus of demonstrating that the infringement of the applicant's s. 15(1) right to equality before the law is reasonably necessary to achieve the objective of the sex offender registry legislation. The discriminatory impact of Christopher's Law and SOIRA cannot be justified under s. 1." (Par 148)
"The appellant’s criminal actions were isolated and totally out of character. They were the direct product of his acute mental disorder. In the over 17 years since those events, the appellant has not committed any criminal acts. His mental illness is being effectively treated. He is a high-functioning, contributing member of the community. If one assumed that s. 4 of the Criminal Records Act or s. 730 of the Criminal Code applied to the appellant, one would inevitably come to the view that the public interest favoured a record suspension under the Criminal Records Act, or a discharge under s. 730 of the Criminal Code. There is no societal interest in requiring the appellant to continue to comply with the sex offender registries. I would therefore order that he be removed from the registries, and that he no longer be required to comply with the various obligations set out in the legislation." (Para 156)
Conclusion
"I would allow the appeal and set aside the order below. An order may issue declaring that the provisions of Christopher's Law and SOIRA are of no force or effect to the extent that they impose mandatory registration and reporting requirements with no possibility of exemption on persons found NCRMD who have received an absolute discharge. I would suspend that declaration for 12 months. I would further hold, however, that the suspension does not apply to the appellant. He is entitled to an order relieving him from any further compliance with the sex offender registries, and an order deleting his information from those registries." (Para 157)
R. v. Simard (BCSC)
[Apr 10/19] S. 232(2)CCC – Provocation – Homicide – 2019 BCSC 531 [ThompsonJ.]
AUTHOR’S NOTE: This decision concludes another Harper-era amendment to the Criminal Code of Canada is unconstitutional. Included within the Zero Tolerance for Barbaric Cultural Practices Act, the amendment required any conduct by the victim that might amount to provocation be capable of constituting an indictable offence punishable by 5 or more years in prison. Thompson J. concluded s. 232(2)as amended in 2015 was overly broad and arbitrary. The appropriate remedy in the circumstances was severance of the offending phrase from the balance of the provision. After severance, s. 232(2) provides that “Conduct of the victim that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.”
by Kelsey Sitar
Pertinent Facts
Simard and Larocque were in an “on again, off again” relationship that began in 2014. In October 2016, he killed Larocque and another individual (Turner) and was charged with two counts of second-degree murder. Simard brought a constitutional challenge to the 2015 provocation amendments, contending it infringed s. 7 of the Charter. (para 1)
Pre-amendment, the Code defined provocation as: “A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.” (para 3, emphasis added)
Post-amendment, s. 232(2) of the Code articulated: “Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.” (para 3, emphasis by Thompson J.)
The amendment requires conduct be “serious criminal behaviour” before it might amount to provocation. Under the amended provision, Simard could not argue provocation – neither Larocque nor Turner committed an offence under the Code, much less an offence punishable by 5 or more years’ incarceration. (para 4)
Section 7 Analysis
“The burden is on Mr. Simard to demonstrate on the balance of probabilities that a) the impugned law results in a deprivation of life, liberty or security of the person; and b) that this deprivation is not in accordance with the principles of fundamental justice.” (para 9)
In accordance with Nur, etc., Simard sought a declaration of invalidity based on effects of the provision on hypothetical third parties. (para 10)
Deprivation of Liberty
“In this case, it is clear that s. 232(2) engages s. 7 of the Charter. Second-degree murder carries a mandatory minimum sentence of life in prison. On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence, in which case the minimum term of imprisonment is four years). Circumscribing the availability of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.” (para 11)
Violation of the Principles of Fundamental Justice
“In determining whether a deprivation violates the principles of fundamental justice, the focus of the inquiry must be on the individuals whose rights are affected. Consideration of broader social issues or competing public interests are not engaged at this stage of the analysis: Carter v. Canada (Attorney General), 2015 SCC 5 at paras. 79-80.” (para 12)
“Mr. Simard relies on the three central principles of fundamental justice, arguing that the impugned provision is arbitrary, overbroad, and has effects that are grossly disproportionate to its purpose. In addition, he argues that the provision does not recognize the principle of moral voluntariness, another established principle of fundamental justice.” (para 13)
“Identifying the purpose of the legislation is the first step in the process of considering whether the legislation is arbitrary, overbroad, or has consequences that are grossly disproportionate to its object: Carter, at paras. 72-73.”
Purpose of the Amendment
Determining legislative purpose must consider the entire context of the challenged provision. In this case, this required examination of the text of the amended provision as well as its legislative history, as well as the broader context of provocation in the criminal law. (para 15-16)
“[T]he provocation defence emerged centuries ago in a patriarchal English society infused with Aristotelian conceptions of virtue, especially manly honour and courage. It was expected that a worthy man’s blood would become heated when he was confronted with an affront to his honour. His anger was seen not as weakness or frailty but as justifiable outrage that was a natural consequence of his strength of character. If a man failed to respond to insulting conduct then he showed himself to lack courage and exposed himself as fundamentally flawed.” (para 19)
“However, it was also expected that the insulted man’s [sic] would respond in a measured way: it was never the right response to go so far as to kill the provoker. If the response departed from the mean and death resulted, the partial defence of provocation was available — reflecting the policy behind the law that to respond to provocation was understandable but to go to extremes was culpable. A successful provocation defence led to a manslaughter verdict rather than a murder conviction. In essence, the common law reflected the social norm that demanded or at least permitted a response. At the same time, the law recognized that the insulted man went too far.” (para 20)
“As time passed, so did society’s enthusiasm for men taking it upon themselves to avenge their honour.” While the defence of provocation survived, it has proved flexible, changing to reflect contemporary social norms and values. Tran “signalled that the transformation of the defence from its grounding in archaic conceptions of manly honour and courage to being a concession to human frailty was all but complete.” (para 22-23)
“Mr. Simard submits that the object of the s. 232(2) amendments is to prevent justifications based on “barbaric cultural practices that are contrary to Canadian values”, such as “honour killings”, from being used as a partial defence for murder. The Crown urges the finding of two broader purposes: (1) to remove as mitigation for murder provocation in the form of insulting or offensive words or gestures that are otherwise lawful behaviour on the part of the victim, which has often been raised in the context of spousal homicides and other homicides involving vulnerable women and girls; and (2) to limit the victim’s “unlawful behaviour” to circumstances where the victim’s conduct constitutes serious criminal behaviour.” (para 26)
“Mr. Simard’s argument relies in part on the controversial title of the Zero Tolerance for Barbaric Cultural Practices Act. It is unquestionably correct that courts may look to the legislative record and the title of legislation as a guide to determining its purpose.
I agree with [Crown counsel] that in examining the legislative history in this case, it is best to “look past the parts of the record that are best characterized as political rhetoric.” I adopt this approach to the title of this legislation. I have found the voluminous legislative materials provided to me — Senate Debates, proceedings of the Standing Senate Committee on Human Rights, and House of Commons Debates — more illuminating than the legislation’s title.” (para 27)
After reviewing the key aspects of that material, Thompson J. concluded “that the “main thrust” of the provocation amendment is to protect vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence.” (para 30)
Overbreadth
“The principle of overbreadth and the principle of arbitrariness are close cousins. Each targets the “absence of a connection between the infringement of rights and what the law seeks to achieve — the situation where the law's deprivation of an individual's life, liberty, or security of the person is not connected to the purpose of the law”: Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 108.” (para 31)
“A law will be overbroad if it interferes with some conduct that bears no relation to the law’s purpose: Bedford, at para. 101. Caution must be exercised when analyzing a provision for overbreadth, as the legislative means chosen are entitled to a measure of deference: Heywood, at p. 793.” Here, the purpose of the legislation is to protect vulnerable women by removing “honour” as a basis for invoking the defence of provocation. (paras 32-33)
While limiting the use of provocation to protect vulnerable women and girls is important, the provision extends to behaviour far beyond that objective. The defence has never been restricted to situations where victims are vulnerable women; provocation continues to be utilized in a wide variety of scenarios. However, s. 232(2) is a law of general application and will bar the defence of provocation where the victim’s conduct does not amount to serious criminal behaviour, regardless of the context of the altercation. (para 35-36)
After reviewing various hypothetical situations put forward by the defence (see paras 37-39), Thompson J. noted most involved “verbal attacks [that] cut to the core of the accused’s dignity and humanity, and the hypothetical accused reacts to these attacks. […] These scenarios capture conduct that bears no relation to the amending law’s purpose. The targets of abuse, be they women or racialized persons, will be deprived of their liberty in a context completely unrelated to the protection of vulnerable women.” (paras 40 & 42)
“The overbreadth of s. 232(2) is perhaps most obvious when considering a long-term victim of domestic violence who responds to the abuser’s taunts by killing him. […] Within this context, an abuser may use a series of calibrated verbal taunts or insults, calculated to be terribly cruel and cutting. […] In such circumstances, it is reasonably foreseeable that a victim of long-term domestic abuse may respond suddenly and violently to her abuser’s carefully calibrated insults — not out of apprehension of death, but out of rage or despair. In such a case, the provocative conduct would not rise to the level of being an indictable offence. […] Accordingly, it is reasonably foreseeable that s. 232(2) may prevent provocation from being used by a victim of a pattern of serious domestic violence — the very kind of “vulnerable woman” this amendment purports to protect. Denying access to provocation in this situation bears no relation to the object of the provision. In fact, inability to access the partial defence of provocation in this type of situation runs directly contrary to the object of the provision.” (paras 43-45)
“Accordingly, I conclude that it is reasonably foreseeable that s. 232(2) as amended will deprive persons of their liberty, and that this deprivation is overbroad and thus not in accordance with the principles of fundamental justice.” (para 47)
Arbitrariness
“Arbitrariness is distinct from, though closely related to, overbreadth. A law is arbitrary where there is no connection between the object of the law, and the limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An arbitrary law is not capable of fulfilling its objectives, and therefore exacts a constitutional price without furthering the public good: Carter,at para. 83.” (para 48)
“The means that Parliament has adopted in order to achieve its objective of protecting vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence are overly blunt and disconnected from their purported purpose. This is particularly so in the context of spousal homicides. Understanding the complex dynamics of violence, and in particular domestic violence, typically requires a careful, contextual approach. The presence or absence, in the moment, of an indictable offence punishable by five years’ imprisonment is not determinative of whether the provision will protect vulnerable women.” (para 49)
“Section 232(2) exacts a serious constitutional price: life imprisonment for those no longer able to access the defence. It exacts this price without a rational connection between the object of the legislation and the limits it imposes. It follows that s. 232(2) results in a deprivation of liberty that is arbitrary and thus not in accordance with the principles of fundamental justice.” (para 54)
Section 1 Analysis
“The Crown bears the burden of establishing, on the balance of probabilities, that the Charter violation is justified, taking into consideration the “specific factual and social context” within which the law is applied: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 270. Although the law’s impact on the claimant is a significant factor, the “broader societal context in which the law operates must inform the s. 1 justification analysis”: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 69.”
“The test for whether a Charter violation is justified was set out in R. v. Oakes, [1986] 1 S.C.R. 103. First, the purpose of the law must address a pressing and substantial objective; and second, the legislative means by which the objective is furthered must be proportionate. The proportionality branch of the Oakes test has three components: the means must be rationally connected to the objective; they must be minimally impairing; and there must be proportionality between the effects of the law and the objective.” (para 58)
“ It is “difficult, but not impossible” to justify a s. 7 violation under s. 1: R. v. Safarzadeh-Markhali, 2016 SCC 14 at para. 57.” (para 59)
A Pressing and Substantial Objective
“There is no doubt that the protection of vulnerable women by removing any chance of access to a provocation defence based on an affront to honour is an objective that is both pressing and substantial. The first branch of the Oakes test is fulfilled.” (para 60)
Means Not Proportionate
“I conclude that the means selected to fulfil this objective are not proportionate. […] I have already found that there is no rational connection between the object of the law and the limits it imposes. […] In the event that this rational connection analysis is flawed, I would find that the laws are not minimally impairing.” (paras 61-62)
“As discussed above, the provision is a highly ineffective way of constricting the defence of provocation’s availability in cases of homicidal and honour-based male violence against vulnerable women. It foreseeably results in a significant deprivation of liberty — mandatory life imprisonment — for persons who are not the targeted culprits, without directly or effectively furthering its objective.” (para 63)
There are alternatives that could achieve the objective with a lesser degree of limitation of rights, such as the approach in Queensland, Australia which has added limitations to the defence of provocation in instances of domestic homicide “…if the alleged-provocation is based on anything done by the deceased to end the relationship, change the relationship, or indicate that the relationship should change”. (para 64)
Remedy
“Mr. Simard submits that the appropriate remedy is to sever the portion of s. 232(2) that reads “that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and”, or, in the alternative, that s. 232(2) in its entirety be declared of no force or effect.[…] The Crown submits that a less drastic redaction can remedy any constitutional defect: removal of the phrase, “that is punishable by five or more years of imprisonment”. The Crown argues that to sever as Mr. Simard urges might have the unintended consequence of widening the scope of the defence because the phrase “conduct of the victim” is arguably broader than “wrongful act or insult”.” (paras 68 & 70)
“In my view, the impugned provisions cannot be rendered Charter-compliant by removing reference to the length of imprisonment. The focus on indictable offences is reasonably likely to capture situations that are without rational connection — even inherently contrary — to the purpose of the provision. This violation occurs regardless of the additional stipulation regarding length of imprisonment.” (para 71)
“I conclude that the appropriate remedy is severance as sought by Mr. Simard.” After severance, s. 232(2) provides that “Conduct of the victim that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.” (para 75)
R v Barrett (SKCA)
[Jan 18/19] – Defence of Another - Limitation on Raising New Issues on Appeal – 2019 SKCA 6 [Reasons by Leurer J.A., with Jackson, and Caldwell JJ.A. concurring]
AUTHOR’S NOTE: In this decision, the Saskatchewan Court of Appeal interpreted the unified self defence provisions of the Criminal Code. The application was to the defence of a child who was taken by her father into his residence while the mother was trying to establish physical custody. The case demonstrates that in the right factual matrix, self defence can extend to a defence to breaking and entering and assault. As well, the case confirms that the Crown is barred from advancing theories of liability not advanced at trial.
Overview
"The charges arise out of the taking of Ms. Barrett's 6-year-old son and 4-year-old daughter from the de facto custody of Mr. Gamelin. Ms. Barrett had come to believe her children were in peril with Mr. Gamelin, and she developed a plan to peacefully regain custody. Unfortunately for all concerned, things did not turn out as Ms. Barrett had planned." (Para 2)
Pertinent Facts
"Mr. Gamelin was convicted on two occasions in 2010 of physically assaulting Ms. Barrett and other offences. Injuries were caused to Ms. Barrett on the occasion of the second assault. Mr. Gamelin agreed that 'over the course of their relationship he was violent toward [Ms. Barrett]'" (Para 7)
"Ms. Barrett developed an increasing level of concern as to whether the children were being cared for appropriately by Mr. Gamelin. She believed that Mr. Gamelin had recently bitten her son and may have been sexually abusing her daughter. Ms. Barrett witnessed what she thought were adult bite marks on her son, which her son told her were caused by Mr. Gamelin. Ms. Barrett also believed her son "was very vulnerable to harm because of his medical conditions and was at risk of harm when [Mr.] Gamelin was angry". Ms. Barrett shared her concerns, supported by a photograph of the son's arm taken on her phone, with the children's school." (Para 10)
"Ms. Barrett had the idea the children could be taken outside of Mr. Gamelin's house, with the assistance of her brother, Mr. Barrett, and a third person, Dale Mooney. When Mr. Gamelin saw Ms. Barrett planned to take the children with her, he scooped the son in his arms and took him into the house. Concerned with the son's immediate safety, Ms. Barrett, Mr. Barrett, and Mr. Mooney forced their way into Mr. Gamelin's house. Mr. Gamelin wielded a knife. Unknown to the respondents, Mr. Mooney was armed with pepper spray, which he used in his effort to disarm Mr. Gamelin." (Para 3)
"After the respondents left, Mr. Gamelin found Ms. Barrett's cellphone on the living room floor, which he unlocked. "[A]t at some point before he delivered the phone to the police station ... [Mr.] Gamlin removed one or more of the text messages from the phone as well as the photograph, found within the photos file on the phone, taken by [Ms. Barrett] of the bruise on [the son's] arm" (at para 33)." (Para 20)
Section 34 - Defence of Another
"Section 34 of the Criminal Code provides a defence if three preconditions are met, namely: (i) the accused believes on reasonable grounds that force is being used or threatened against a person; (ii) the act that constitutes the offence is committed for the purpose of defending or protecting against that use or threat of force; and (iii) the act committed is reasonable in the circumstances. The Crown alleges error by the trial judge in finding a defence under s. 34, both with respect to the act of break and enter and with respect to crimes alleged to have been committed by the respondents in the house." (Para 26)
The trial judge stated:
[82] A practical problem with the Crown’s position is that the Crown has provided no evidence or other basis to conclude that going to the proper authorities, (whether that be the police, Social Services or others) would reasonably protect the children in the circumstances of this case. In assessing whether the accused’s actions were done for the purpose of protecting the children from the use of force and whether their actions were reasonable in the circumstances, I necessarily need to consider the vulnerability of the children and the time frame within which other measures could reasonably be expected to become effective to protect the children within the context of the accused’s belief that the use or threat of force existed or was imminent. (Para 29)
"The Crown alleges that paragraph 82 (quoted above) demonstrates the trial judge misdirected himself when he said “he could not consider the alternative of reporting their concerns to child protection authorities without proof that course of action would have protected the children”. With respect, the Crown’s position erroneously seeks to place the onus of proof of a defence on the accused. The trial judge correctly instructed himself to consider if an air of reality existed to each element of the defence (see: R v Cinous, 2002 SCC 29 at para 95). He was alive to each element of the defence, including the need for an objectively reasonable basis for belief that “force was being used or threatened within such temporal scope that action was then required to avoid the use or threat of force” (at para 81, emphasis added). Once the trial judge concluded the evidence gave rise to an air of reality to each element, the onus of displacing at least one of the necessary elements beyond a reasonable doubt rested on the Crown (see: R v Piapot, 2014 SKCA 9 at para 29). At that point, if the Crown intended to assert the respondents’ actions were unreasonable because the matter could have been referred to the authorities, the onus rested on it, not the respondents." (Para 30)
"“Reasonable grounds” for the beliefs required by s. 34 may be grounded in information presented to the defender which is not admissible in a court of law as evidence to prove the veracity of information provided to the defender. People act every day on the basis of information that would not withstand the tests of trial admissibility; it is often reasonable to do so. This is not to say that the reasonableness of a belief is unaffected by the quality of the information that is present when a person acts in self-defence or defence of others. However, admissibility of that information as evidence as proof of the underlying fact is not a threshold consideration. The reason for this is that the court’s ultimate inquiry is not into the veracity of the information available to the defender, but the objective reasonableness of his or her subjective belief that force is being used or threatened against them or another person. As stated by Kent Roach, in Criminal Law, 7th ed, (Toronto: Irwin Law, 2018) at 369, “a mistaken belief ... may still qualify under section 34(1) if it is a reasonable mistake in the circumstances”." (Para 35)
"In this case, the issue, which the trial judge squarely faced, was whether the respondents had both subjective and objectively reasonable grounds for belief that force was being used or threatened against the children. In determining an air of reality existed for the defence, the trial judge made reference to a constellation of facts. These facts included what Ms. Barrett had been told by her son and others. Additionally, it included facts Ms. Barrett testified to based on her personal knowledge, such as bite marks she had seen and photographed, blood on her daughter’s underclothing, which she had personally observed, and her son’s medical condition. It included facts Ms. Barrett and Mr. Barrett testified to relating to their personal history with Mr. Gamelin, and then the immediate events of April 3, 2015. It is the totality of the information available to the respondents that formed the basis for the trial judge’s findings that an air of reality existed for each of the three elements of a defence pursuant to s. 34 and that the Crown had not disproven at least one of the elements of the defence." (Para 36)
Crown appeal on s.34 was dismissed (Para 37)
Limitation on Crown Raising New Issues on Appeal
"I agree with the Crown that the trial judge did not directly refer to s. 21(2), nor are the findings of fact made at paragraph 37 of the trial decision a complete analysis of the elements of the section. This is hardly surprising given the Crown did not present the possible application of s. 21(2) as a route to conviction at trial." (Para 41)
"There is a long line of authority, often traced back to R. v. Wexler, [1939] S.C.R. 350 (S.C.C.) [Wexler], constraining the ability of the Crown to advance theories of liability that differ from those presented at trial." (Para 42)
"In R. v. V. (E.) (1994), 18 O.R. (3d) 784 (Ont. C.A.) [Varga], the Ontario Court of Appeal refused to allow an appeal from an acquittal notwithstanding the existence of several legal errors. Justice Doherty stated for the court:
In addition, there are situations in which an appellate court should not address the merits of a ground of appeal advanced by the Crown even though that ground alleges an error in law that is germane to the acquittal. For example, the Crown cannot advance a new theory of liability on appeal: R. v. Wexler, 1939 CanLII 41 (SCC), at pp. 4-5, 8; R. v. Savard and Lizotte, 1945 CanLII 37 (SCC), at pp. 266, 270, 282-83; R. v. Merson (1983), 1983 CanLII 226 (BC CA), at pp. 272-73, 273-74. Nor can the Crown raise arguments on appeal that it chose not to advance at trial: R. v. Penno, 1990 CanLII 88 (SCC), at p. 365, per McLachlin J. (concurring in result); R. v. Egger, 1993 CanLII 98 (SCC), at p. 214.
These examples share a common feature. A Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown's right of appeal, to subject an accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on appeal. Double jeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial." (Para 46)
"In these circumstances, I reject the Crown's attempt to now rely on s. 21(2) as a new basis to find the respondents liable for Mr. Mooney's assault of Mr. Gamelin." (Para 50)
