Manitoba Law Journal Volume 43(4) 2020

2020 Volume 43(4), Special Issue Criminal Law Edition (Robson Crim) Faculty Editors-in-Chief RICHARD JOCHELSON LL.B., LL.M. PHD. PROFESSOR, FACULTY OF LAW, UNIVERSITY OF MANITOBA DAVID IRELAND LL.B., LL.M. ASSISTANT PROFESSOR, FACULTY OF LAW, UNIVERSITY OF MANITOBA REBECCA BROMWICH J.D., LL.M. PHD. NATIONAL DIVERSITY & INCLUSION MANAGER, GOWLING WLG JAMES GACEK PHD. ASSISTANT PROFESSOR, DEPARTMENT OF JUSTICE STUDIES, UNIVERSITY OF REGINA Lead Student Editor Brooke Mowatt B.A., J.D. (2022) Assistant Student Editors Alexander Barnes B.Sc., J.D. (2022) Brendan Roziere B.A., J.D. (2020) Owen Sasek B.A., J.D. (2021) Victoria Nash B.A., J.D. (2021) Cover Image BRIAN SEED With thanks to MLJ Executive Editors-in-Chief BRYAN P. SCHWARTZ, LL.B., LL.M., J.S.D. ASPER PROFESSOR OF INTERNATIONAL BUSINESS AND TRADE LAW, FACULTY OF LAW, UNIVERSITY OF MANITOBA DARCY L. MACPHERSON, LL.B., LL.M. PROFESSOR, FACULTY OF LAW, UNIVERSITY OF MANITOBA PUBLICATION INFORMATION Copyright © 2020 Manitoba Law Journal Cite as (2020) 43:4 Man LJ Printed in Canada on recycled and acid-free paper. Published annually on behalf of the Faculty of Law, University of Manitoba. Annual Subscription Rate: Canada: $35.00 CDN; Foreign: $35.00 U.S. Back issues available from: Manitoba Law Journal 4th Floor Robson Hall, Faculty of Law University of Manitoba Winnipeg, Manitoba R3T 2N2 E-mail: lawjournal@umanitoba.ca ACKNOWLEDGEMENTS This issue has been supported by a major grant from the Social Sciences and Humanities Research Council program for Aid of Scholarly Journals. The Manitoba Law Journal gratefully acknowledges the family of Shelley Weiss for the endowment of the Shelley Weiss Publications Office, which houses its ongoing operations at Robson Hall Law School at the University of Manitoba, and for the annual Shelley Weiss scholarship that is awarded to one or more student editors in their second year of our program. We acknowledge the assistance and peer review administration of the editors and collaborators of www.robsoncrim.com/. For a list of our collaborators please visit: https://www.robsoncrim.com/collaborators. We would also like to thank the Manitoba Law Journal Executive Editors for providing their endless support, constant encouragement, and expert editorial advice. THE LEGAL RESEARCH INSTITUTE OF THE UNIVERSITY OF MANITOBA promotes research and scholarship in diverse areas. REFEREE AND PEER REVIEW PROCESS All of the articles in the Manitoba Law Journal Robson Crim Edition are externally refereed by independent academic experts after being rigorously peer reviewed by Manitoba faculty editors, as well as reviewed by student staff. Usually 3 external peer reviewers assess each piece on a double-blind basis. INFORMATION FOR CONTRIBUTORS The editors invite the submission of unsolicited articles, comments, and reviews. The submission cannot have been previously published. All multiple submissions should be clearly marked as such and an electronic copy in Microsoft Word should accompany the submission. All citations must conform to the Canadian Guide to Uniform Legal Citation, 9th Edition. Contributors should, prior to submission, ensure the correctness of all citations and quotations. Authors warrant that their submissions contain no material that is false, defamatory, or otherwise unlawful, or that is inconsistent with scholarly ethics. Initial acceptance of articles by the Editorial Board is always subject to advice from up to three (or more) external reviewers. The Editorial Board reserves the right to make such changes in manuscripts as are necessary to ensure correctness of grammar, spelling, punctuation, clarification of ambiguities, and conformity to the Manitoba Law Journal style guide. Authors whose articles are accepted agree that, at the discretion of the editor, they may be published not only in print form but posted on a website maintained by the journal or published in electronic versions maintained by services such as Quicklaw, Westlaw, LexisNexis, and HeinOnline. Authors will receive a complimentary copy of the Manitoba Law Journal in which their work appears. Manuscripts and communications should be directed to: Criminal Law Special Edition (Robson Crim) Richard Jochelson Manitoba Law Journal 466 Robson Hall, Faculty of Law University of Manitoba Winnipeg, Manitoba R3T 2N2 Phone: 204.474.6158 Fax: 204.480.1084 E-mail: info@Robsoncrim.com Regular MLJ Editors-in-Chief Manitoba Law Journal 466 Robson Hall, Faculty of Law University of Manitoba Winnipeg, Manitoba R3T 2N2 Phone: 204.474.6136 Fax: 204.480.1084 E-mail: lawjournal@umanitoba.ca 2020 Volume 43(4), Special Issue Criminal Law Edition (Robson Crim) CONTENTS i Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON International Contributions 1 Moral Character: Making Sense of the Experiences of Bar Applicants with Criminal Records HADAR AVIRAM 35 Corporate Criminal Liability 2.0: Expansion Beyond Human Responsibility ELI LEDERMAN Current Issues in Criminal Law 85 The Dangers of a Punitive Approach to Victim Participation in Sentencing: Victim Impact Statements after the Victims Bill of Rights Act ELIZABETH JANZEN 107 To What Types of Offences Should the Criminal Code Rules on Organizational Criminal Liability Apply?: A Comment on 9147-0732 Québec Inc c Directeur Des Poursuites Criminelles et Pénales DARCY L. MACPHERSON 145 Criminal Law During (and After) COVID-19 TERRY SKOLNIK 181 If You Do Not Have Anything Nice to Say: Charter Issues with the Offence of Defamatory Libel (Section 301) DYLAN J. WILLIAMS 209 Hart Failure: Assessing the Mr. Big Confessions Framework Five Years Later CHRISTOPHER LUTES Year in Review 245 Robson Crim Year in Review BRAYDEN MCDONALD AND KATHLEEN KERR-DONOHUE Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law D A V I D I R E L A N D A N D R I C H A R D J O C H E L S O N t is our great pleasure to bring you the latest volumes of the Criminal Law Special Edition of the Manitoba Law Journal. Academics, students, and the practicing bench and bar continue to access this publication and contribute to it their knowledge and experience in the criminal law. Publishing a triple volume is a testament to the quality of submissions received. We present 27 articles from 34 authors, highlighting the work of some of Canada’s leading criminal law, criminal justice and criminological academics. The Manitoba Law Journal remains one of the most important legal scholarship platforms in Canada with a rich history of hosting criminal law analyses.1 With the help of our contributors, the Manitoba Law Journal was recently ranked second out of 31 entries in the Law, Government and Politics category of the Social Sciences and Humanities Research Council (SSHRC). We continue to be committed to open access scholarship and our readership grows with each Criminal Law Special Edition released. Our content is accessible on robsoncrim.com, themanitobalawjournal.com, Academia.edu, CanLII Connects, Heinonline, Westlaw-Next, and Lexis Advance Quicklaw. We have expanded to Amazon ebook platforms as well for those that want to consider print on demand options or who enjoy that format. Since our first edition in 2017, our Special Edition has ranked as high as the top 0.1% on Academia.edu and we have had approximately 6,000 downloads and close to 10,000 total views. Since 2016, our own website, robsoncrim.com, has I 1 David Ireland, “Bargaining for expedience? The Overuse of Joint Recommendations on Sentence” (2014) 38:1 Man LJ 273; Richard Jochelson et al, “Revisiting Representativeness in the Manitoban Criminal Jury” (2014) 37:2 Man LJ 365. ii MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 accumulated tens of thousands more engagements with the Special Edition, attracting hits from all over the world. Our readership engages with articles on subjects as diverse as the Tragically Hip and wrongful convictions,2 bestiality law,3 and the British Columbia courts sentencing response to fentanyl trafficking.4 Since launching in 2016, the Robsoncrim research cluster at the Faculty of Law, University of Manitoba, has continued to develop a unique interdisciplinary platform for the advancement of research and teaching in the criminal law. Robsoncrim.com has now hosted over 500 Blawgs,5 with contributions from across the country and beyond. Our cluster has over 30,000 tweet impressions a month and our website has delivered approximately 12,000 reads in the past 12 months. We are as delighted as we are humbled to continue delivering quality academic content that embraces and unites academic discussion around the criminal law. Our team of collaborators extends from coast to coast and is comprised of top academics in their respective criminal justice fields. The peer review process for the Special Edition in Criminal Law remains rigorously double blind, using up to five reviewers per submission. As has become our tradition, we would like to preview for our readers the contents of this year’s special edition. The edition is divided into three volumes. The first volume represents the work of our SSHRC funded conference: Criminal Justice Evidentiary Thresholds in Canada: The Last Ten Years which took place in October of 2019 and attracted scholars from all over Canada and beyond. The second and third volumes are organized into a number of thematic sections. 2 3 4 5 Kent Roach, “Reforming and Resisting Criminal Law: Criminal Justice and the Tragically Hip” (2017) 40:3 Man LJ 1. James Gacek & Richard Jochelson, “Animal Justice and Sexual (Ab)use: Consideration of Legal Recognition of Sentience for Animals in Canada” (2017) 40:3 Man LJ 337. Haley Hrymak, “A Bad Deal: British Columbia's Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers” (2018) 41:4 Man LJ 149. Amar Khoday, “Against the Clock: Criminal Law & the Legal Value of Time” (17 June 2019), online (blog): Robson Crim <tinyurl.com/y3npys9g> [perma.cc/KKN6-6N8C]; L Campbell, “A Reasonable Expectation of Privacy and the Criminal Code: Two Cases, Two Different Definitions” (30 July 2019), online (blog): Robson Crim <robsoncrim.com /single-post/2019/07/30/A-Reasonable-Expectation-of-Privacy-and-the-Criminal-Code -Two-Cases-Two-Different-Definitions> [perma.cc/DG4U-E2FE]; T Sicotte, “The Supreme Court Needs to Clean up the Sex Offender Registry” (18 July 2019), online (blog): Robson Crim <tinyurl.com/y6p5cg27> [perma.cc/VPN9-KFQG]. Continuing the Conversation iii I. VOLUME 43(3) This volume contains papers presented at the Criminal Justice Evidentiary Thresholds in Canada: The Last Ten Years conference, hosted at the Faculty of Law, University of Manitoba. The conference focussed on the evolution of the law of evidence and the sometimes radical transformations it has seen over the last ten years since the seminal decision of R v Grant in 2009, which reoriented the test for exclusion of evidence at trial. The conference explored questions of the conception of knowledge in modern criminal legal proceedings and the changes in the nature of knowing and constructing criminal responsibility over the last ten years as the information age continues to develop the law of evidence. Unparalleled connectivity, state surveillance capabilities, Canada’s commitment to truth and reconciliation with Indigenous communities, and anxieties pertaining to large scale security calamities (like terror events), have altered the landscape in which crime is investigated, and in which evidence is subsequently discovered, and admitted. The conference discussed and unpacked these issues and developed a tremendous body of scholarship which we are proud to present in this volume. Kent Roach leads the conference volume with his piece “Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand, and the United States: The Importance of Compensation, Proportionality, and Non-Repetition.” This article examines the mechanisms of exclusion of evidence in four western democracies, finding similar origins for each mechanism: the protection of the individual. Professor Roach argues that this original rights protection rationale should be reclaimed in the form of prima facie rules of exclusion once used in Canada’s fair trial test and in New Zealand and Ireland. Roach contends that the exclusionary rules should be subject to a more transparent and disciplined process where the state can justify proportionate limits on the exclusionary remedy based on the lack of the seriousness of the violation, the existence of adequate but less drastic alternative remedies, and, more controversially, the importance of the evidence to the ability to adjudicate the case on the merits. Michael Nesbitt and Ian M. Wylie present a fascinating empirical study of expert opinion evidence in Canadian terrorism cases. The authors unpack the prevalence of expert testimony in these cases and offer a number of reasons why expert evidence will continue to play a crucial role in terrorism prosecutions in Canada. Following this, University of Alberta Law iv MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Professor Lisa A. Silver dives into the complex world of social media evidence in “The Unclear Picture of Social Media Evidence.” This article interrogates the uncomfortable relationship between our sometimes-archaic rules of evidence and the growth of social media evidence being presented in Canadian courts. Professor Silver takes a deep look at the construction of evidentiary categories and the preference for social media evidence to be viewed in the courtroom as documentary evidence. She then discusses the application of the relevant provisions of the Canada Evidence Act and offers a practical solution by discussing the enhanced admissibility approach used for expert evidence. Professor David Milward’s article, “Cree Law and the Duty to Assist in the Present Day” is an exploration of Indigenous legal orders through the lens of ‘pastamowin’ or the facet of Cree law dealing with laws against harming others. Milward juxtaposes this Indigenous legal principle with the absence of a general duty to help others in Canadian common law. He then uses this model as a platform to discuss Indigenous communities reviving past laws and developing current legal systems that embrace concepts of true self-governance. This impactful piece asks deep questions relating to reconciliation, the Calls to Action of the Truth and Reconciliation Commission, and the future of Indigenous self-governance. “Involuntary Detention and Involuntary Treatment Through the Lens of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms” by Ruby Dhand and Kerri Joffe discusses civil mental health laws and the involuntary detention of persons with disabilities. The authors apply a section 7 and section 15 Charter analysis to involuntary detention and involuntary treatment provisions in select Canadian jurisdictions. By unpacking the Convention on the Rights of Persons with Disabilities (CRPD), the authors draw upon Article 12 of the CRPD and argue that one way in which Canadian mental health laws violate the Charter is by prohibiting involuntarily detained persons from accessing supports for decision-making. The theme of mental health and the law is continued by Dr. Hygiea Casiano and Dr. Sabrina Demetrioff in their article “Forensic Mental Health Assessments: Optimizing Input to the Courts.” Here, the authors argue that feedback from legal personnel in mental health assessments for fitness to stand trial and criminal responsibility can potentially lead to improved provision of care and due process for a marginalized population. They conclude by proposing further study into these issues. Continuing the Conversation v James Gacek and Rosemary Ricciardelli unpack how changing drug management policies in Canadian federal prisons create new ways of thinking about responses (policy or otherwise) to drug use and the essence of intoxication in “Constructing, Assessing, and Managing the Risk Posed by Intoxicants within Federal Prisons.” The authors shed light on the complexities underpinning interpretations of intoxicants that are present yet ‘managed’ in prison spaces. In “Mr. Big and the New Common Law Confessions Rule: Five Years in Review”, Adelina Iftene and Vanessa L. Kinnear take a look at the judicial progeny of the seminal case of R v Hart. The authors review the last five years of judicial application of the new Hart framework and argue that the flexibility and discretion built into the Hart framework have resulted in an inconsistent application of the two-prong test. As the controversial police practice of Mr. Big stings continues in Canada, this article projects further light onto the propriety of this technique. Alicia Dueck-Read deals with judicial constructions of responsibility in the area of non-consensual distribution of intimate images (NCDII). This article provides a discourse analysis of judicial decision-making on Criminal Code section 162.1 cases. Dueck-Read unpacks whether judges adjudicating cases under section 162.1 draw upon privacy frameworks and/or the rape myths common to sexual assault trials. Continuing this theme of harm in the digital age, Lauren Menzies and Taryn Hepburn explore the underlying logics and implementation of section 172.1 of the Criminal Code (“Luring a Child”) and critique the current practice of governing child luring through proactive investigations by police. The authors argue proactive child luring investigations have been used to police marginalized sexualities and sex work communities and have inflicted substantial harms upon those who are wrongly caught up in investigations. They then question the legitimacy of proactive investigations as a redress to child sexual exploitation online by examining child luring cases. This conference volume concludes with an in-depth exploration of victim impact statements in the context of Canadian corporate sentencings. The recent SNC-Lavalin scandal and its political fallout have drawn public attention to an existing culture of impunity enjoyed by corporate criminal wrongdoers, despite the 2004 changes to the Criminal Code of Canada that were intended to make corporate prosecutions easier. Erin Sheley convincingly argues that the conceptual problems with corporate criminal liability may lie in the criminal justice system’s general misapprehension of vi MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the nature of corporate crime; especially of the distinct nature of the harm experienced by white collar victims. She also considers the challenges to a victim-oriented understanding of corporate crime posed by the introduction of the remediation agreement in Canada and offers a comparative analysis of how corporate criminal sentencings occur in Canada and the United States. II. VOLUME 43(4) Volume 43(4) is divided into three sections. The first section is entitled International Contributions and highlights the work of two leading international scholars. The second thematic section is entitled Current Issues in Criminal Law and delves into issues as diverse as the use of victim impact statements and the Mr. Big investigatory process. The third and final section is a stand-alone Year in Review in which we present a paper summarizing the most recent Supreme Court of Canada and Manitoba Court of Appeal cases. Leading off the International Contributions section is Hadar Aviram’s work: “Making Sense of the Experiences of Bar Applicants with Criminal Records.” This article offers insight into the bar admission process in the United States, seen through the lens of real-life experiences of the Bar takers themselves. The article provides a legal analysis of the California Bar’s determination of moral character, relying on the Bar rules. The author then moves into an empirical examination of the Bar’s policy through the eyes of ten California Bar applicants with criminal records, two ethics lawyers, and a Bar official. Aviram then makes recommendations for law schools and the Bar. Following this piece is “Corporate Criminal Liability 2.0: Expansion Beyond Human Responsibility” by Eli Lederman who asks the question: is corporate criminal liability expanding beyond that of human responsibility? Lederman examines the expansion of criminal liability on non-human legal entities in the U.S. and U.K., reflecting on the possible directions in which corporate liability may be heading. Elizabeth Janzen leads off our Current Issues in Criminal Law section with “The Dangers of a Punitive Approach to Victim Participation in Sentencing: Victim Impact Statements after the Victim Bill of Rights.” This paper examines the Canadian regime governing the participation of victims in sentencing through the use of victim impact statements, with a focus on Continuing the Conversation vii the regime following the 2015 amendments implemented through the Victims Bill of Rights Act. The author argues that an approach to victim impact statements that focuses on their expressive and communicative uses best aligns with both Canadian sentencing principles and respect for victims. Darcy L. MacPherson then presents a case comment on 9147-0732 Quebec Inc c Directeur Des Poursuites Criminelles et Penales in which he argues the assumption that Criminal Code standards will and should apply to provincial offences is highly questionable. MacPherson, a notable expert in this area of the law, presents a cogent analysis of the complex jurisdictional issues brought forward by this case. No current issues section would be complete without a look at “Criminal Law During (and After) COVID-19.” Terry Skolnik delves into this most timely of issues by exploring the current and potential impacts of the pandemic on three specific areas of the criminal law: scope of crimes, bail, and punishment. Skolnik’s analysis shows us why judges, policy makers, and justice system actors should seize on this unique opportunity in history to generate lasting positive changes to the criminal justice system. Following this timely piece comes an equally important analysis of the Charter and the defamatory libel provisions of the Criminal Code. In “If You Do Not Have Anything Nice to Say: Charter Issues with the Offence of Defamatory Libel (Section 301)”, Dylan J. Williams outlines the existing debate and the Charter issues raised by section 301 by tracing relevant lower court decisions, each of which has ultimately struck this offence down. Williams argues that section 301 is unconstitutional because it infringes the freedom of expression found in section 2(b) of the Charter and is likely to fail at both the minimum impairment and proportionality stages of the Oakes test. The Current Issues in Criminal Law section is concluded by Christopher Lutes “Hart Failure: Assessing the Mr. Big Confessions Framework Five Years Later.” This piece compliments Adelina Iftene and Vanessa Kinnear’s work in volume 43(3). While Iftene and Kinnear found that Hart had no substantial impact on the amount of confessions admitted in Mr. Big prosecutions post-Hart, Lutes reports that the admission rate of Mr. Big confessions have actually increased since the framework was implemented. Lutes argues this increase is indicative of police relying on Mr. Big type techniques because of increased protections for accused persons while in police custody. viii MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Finally, we present our “Robson Crim Year in Review” by LL.M. student Brayden McDonald and J.D. student (now articling student) Kathleen Kerr-Donohue. This paper summarizes the leading criminal law cases from the Supreme Court of Canada and Manitoba Court of Appeal in 2019. The cases are presented with relevant statistics and divided by themes for ease of reference. The authors also add commentary on discernable themes in this recent case law. All in all, this article is an invaluable resource for students, professors, and the practicing bench and bar. III. VOLUME 43(5) Our third volume of 2020 is also divided into three sections: Corrections, Judicial Release, and Related Issues; Critical Approaches in Criminal Justice; and Placing Theory into Criminal Law Practice. The first section contains two articles: Sarah Runyon’s “Correctional Afterthought: Offences Against the Administration of Justice and Canada’s Persistent Savage Anxieties” and Alana Hannaford’s “Issues Surrounding Pre-Conviction Abstention Conditions on Persons Suffering from Illicit Substance Addictions.” Runyon’s article interrogates the prevalence of administration of justice charges in the context of Indigenous offenders. She argues that continually charging Indigenous offenders with breaching court orders, so called system generated charges, can create and perpetuate a social hierarchy from which the state justifies continued discrimination and oppression of the Indigenous population. Runyon goes on to revisit the seminal cases of Gladue and Ipeelee in the context of community-based dispositions. The author argues that rather than ameliorating the crisis of over-incarceration, the imposition of a community-based disposition, which relies on an administrative court order as its enforcement mechanism, serves to exacerbate the social problem endured by Indigenous peoples in Canada. Hannaford’s article on abstention clauses builds upon Sarah Runyon’s piece. Hannaford describes the unfair operation of administration of justice charges on non-violent offenders suffering from addictions. The author argues that abstention conditions on bail orders effectively force people suffering from addictions to keep their use private, which increases the risk of overdose and decreases the likelihood that they will seek treatment independently out of fear of harsh legal consequences. In combination, Continuing the Conversation ix these articles highlight many of the issues concerning police overcharging and the inequitable operation of system generated charges. Florence Ashley presents a feminist perspective on the voluntary intoxication defence to lead off our Critical Approaches in Criminal Justice section of this volume. Ashley looks to the Ontario Court of Appeal decision in R v Sullivan, a decision frequently decried as antifeminist, and presents a feminist view of the defence that is far more nuanced than has been previously suggested. The article concludes that a feminist analysis of the voluntary intoxication defence requires more nuanced policy discussions than those that have thus far prevailed in the public sphere. Following this, Lauren Sapic has written “The Criminalization of NonAssimilation and Property Rights in the Canadian Prairies.” The killing of Colten Boushie in Saskatchewan and the eventual acquittal of Gerald Stanley has left an indelible mark on the relationship between Indigenous and non-Indigenous Canadians. Sapic uses this tragic case as a backdrop to a fascinating analysis of how policies in Canadian property law have privileged white settlers’ property rights as a result of the subjugation of Indigenous human rights. Sapic proposes an overhaul of the Canadian property law system, with a focus on negating the abuse of Indigenous men and the abuse of the property law system itself. This important work situates property law in a settler dominant model that speaks of the ongoing and sustained inequities that exist between white settlers and the Indigenous peoples of Canada. The third article in this section offers a critical perspective on Supreme Court Charter cases and the further disenfranchisement and marginalization of racialized communities in Canada. In “The Supreme Court of Canada’s Justification of Charter Breaches and its Effect on Black and Indigenous Communities”, Elsa Kaka employs Critical Race Theory to undertake an analysis of how Supreme Court of Canada decisions pertaining to Charter breaches have allowed for an expansion of police powers that exacerbate the maltreatment of racialized communities by our criminal justice system. This timely article speaks to the importance of the Black Lives Matter movement and the Truth a Reconciliation Commissions’ Calls to Action in achieving real change to ensure that the Charter rights of all Canadians are respected. Katy Stack’s article “Moms in Prison: The Impact of Maternal Incarceration on Women and Children” closes out the Critical Approaches in Criminal Justice section of this volume. Stack examines the impact of incarceration on mothers and children through a case study format. The x MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 author compares maternal incarceration in the U.S. and Canada, examining the impacts on both mothers and children when mothers are imprisoned. The Placing Theory into Criminal Law Practice section contains two articles, “The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8” by Michelle Biddulph and “Social Suppliers and Real Dealers: Incorporating Social Supply in Drug Trafficking Law in Canada” by Sarah Ferencz. Biddulph delves into the Supreme Court of Canada cases of Marakah and Mills, both of which deal with section 8 Charter protections. The author discusses how Marakah has created a ‘privacy paradox’ in that the rights protections are at once extremely broad and also illusory. The result in Mills is then cited as an example of this paradox. This in-depth discussion of section 8 jurisprudence is both academically insightful and also of practical use to lawyers. Finally, Sarah Ferencz’s article deals with the incorporation of social, or non-commercial, drug trafficking within the Canadian legal context. The author recognizes the overly broad ambit of Canada’s drug laws that focus on the inherent predatory nature of trafficking, for profit or otherwise. By unpacking the concept of social supply within this context, Ferencz proposes three avenues for law reform focussing on education and language. IV. LOOKING FORWARD Our goal remains to provide a leading national and international forum for scholars of criminal law, criminology and criminal justice to engage in dialogue. Too often, these disciplines are siloed and apprehensive to engage in cross-disciplinary exchanges. We believe that high quality publications in these disciplines, and indeed, other cognate disciplines, ought to exist in dialogue. We view this as crucial to enhancing justice knowledge: theory and practice, policy and planning, and even, in resistance to injustice. We strive to break down the barriers that keep these works in disciplinary pigeon holes. This is, of course, an ambitious path to continue upon, but the three volumes we have released this year represent further incremental steps toward our goals. The work of the Robson Crim research cluster at the University of Manitoba continues to advance criminal law and justice scholarship in Canada. In doing so, and we are fortunate to work with a tremendously talented group of scholars, students, and jurists from across the country. It Continuing the Conversation xi is this continued collaboration and free exchange of ideas that drives the publication of this Special Edition in Criminal Law and the rest of our work at Robson Crim. We thank our interdisciplinary collaborator team (https://www.robsoncrim.com/collaborators), our editorial team, our student editors, and all of the MLJ staff, without whom these volumes would not exist. We hope you enjoy these volumes and we look forward to our next publication in 2021. xii MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 CALL FOR PAPERS: Closes February 1, 2021 Manitoba Law Journal - Robson Crim’s Fourth Special Issue on Criminal Law The Manitoba Law Journal in conjunction with Robsoncrim.com are pleased to announce our annual call for papers in Criminal Law. We seek submissions related to two major areas: 1) general themes in criminal law; and 2) evidentiary developments in criminal law (see details below). This is our seventh specialized criminal law volume, though Manitoba Law Journal is one of Canada’s oldest law journals. We invite scholarly papers, reflection pieces, research notes, book reviews, or other forms of written or pictorial expression. We are in press for volumes 43(3), 43(4), and 43(5) of the Manitoba Law Journal and have published papers from leading academics in criminal law, criminology, law and psychology and criminal justice. We welcome academic and practitioner engagement across criminal law and related disciplines. We invite papers that relate to issues of criminal law and cognate disciplines as well as papers that reflect on the following sub-themes: • • • • • • • Intersections of the criminal law and the Charter Interpersonal violence and crimes of sexual assault Indigenous persons and the justice system(s) Gender and the criminal law Mental health and the criminal law Legal issues in youth court, bail, remand, corrections and court settings Regulation of policing and state surveillance • • • • • The regulation of vice including gambling, sexual expression, sex work and use of illicit substances Analyses of recent Supreme and Appellate court criminal law cases in Canada Comparative criminal law analyses Criminal law, popular culture and media Empirical, theoretical, law and society, doctrinal and/or philosophical analyses of criminal law and regulation We also invite papers relating to evidentiary issues in Canada’s criminal courts including: • • • • • • • • • • • • Reflections on Indigenous traditions in evidence law (including possibilities); New developments in digital evidence and crimes; Evidentiary changes in the criminal law; Evidence in matters of national security; Thresholds of evidence for police or state conduct; Evolutions of evidence in the law of sexual assault or crimes against vulnerable populations; Evidence in the context of mental health or substance abuse in or related to the justice system; Use of evidence in prison law and administrative bodies of the prison systems; Understandings of harms or evidence in corporate criminality; Historical excavations and juxtapositions related to evidence or knowing in criminal law; Cultural understandings of evidence and harm; and Discursive examinations of evidence and harm and shifts in understandings of harms by the justice system. Last but not least, we invite general submissions dealing with topics in criminal law, criminology, criminal justice, urban studies, legal studies and social justice that relate to criminal regulation. SUBMISSIONS We will be reviewing all submissions on a rolling basis with final submissions due by February 1, 2021. This means, the sooner you submit, the sooner we will begin the peer review process. We will still consider all submissions until the deadline. Submissions should generally be under 20,000 words (inclusive of footnotes) and if at all possible conform with the Canadian Guide to Uniform Legal Citation, 9th ed (Toronto: Thomson Carswell, 2018) - the "McGill Guide". Submissions must be in word or word compatible formats and contain a 250 word or less abstract and a list of 10-15 keywords. Submissions are due February 1, 2021 and should be sent to info@robsoncrim.com. For queries please contact Professors Richard Jochelson or David Ireland, at this email address. THE JOURNAL Aims and Scope The Manitoba Law Journal (MLJ) is a publication of the Faculty of Law, University of Manitoba located at Robson Hall. The MLJ is carried on LexisNexis Quicklaw Advance, Westlaw Next and Heinonline and included in the annual rankings of law journals by the leading service, the Washington and Lee University annual survey. The MLJ operates with the support of the SSHRC aid to scholarly journal grants program. Peer Review We generally use a double-blind peer review process to ensure that the quality of our publications meets the requisite academic standards. Articles are anonymized and then, after editorial review, reviewed by anonymous experts. Occasionally the identity of the author is intrinsic to evaluating the article (e.g., an invited distinguished lecture or interview) and the reviewers will be aware of it. Articles are accepted with revisions, encouraged to revise and resubmit, or rejected. This is an open access journal, which means that all content is freely available without charge to the user. Moral Character: Making Sense of the Experiences of Bar Applicants with Criminal Records H A D A R A V I R A M * I. INTRODUCTION n September 2017, Reginald Dwayne Betts, a graduate of Yale Law School, was admitted to the Connecticut Bar. This achievement for Betts was unsurprising given his career highlights: He graduated from the University of Maryland, won a Harvard University fellowship, wrote two poetry books and a memoir, and has been working on his law doctorate at Yale with an eye toward a legal academic career. But Betts’ path also includes three felony convictions related to a carjacking he had committed at a Virginia mall when he was 16 years old, two decades before he became a Connecticut attorney, for which he served eight years in prison.1 In February 2019, the Yale Law Journal Forum published an opinion piece by attorney Tarra Simmons,2 in which she urges reform of the moral character requirements of the Washington State Bar. Simmons speaks from experience: Her formative experiences in the criminal justice system, shaped I * 1 2 Thomas E. Miller ’73 Professor of Law, University of California, Hastings College of the Law. I am grateful to the participants of my seminar Criminalization and Social Control, as well as to Sarah Fielding and Jesse Stout, for their comments. I am also grateful to the anonymous reviewers of the Manitoba Law Review for their helpful suggestions. Dave Collins, “Felon who Graduated from Yale Allowed to Become Lawyer” (29 September 2017), online: Boston Globe <www.boston.com/news/local-news/2017/09/ 29/felon-who-graduated-from-yale-allowed-to-become-lawyer> [perma.cc/A2Z5-HE52]. Tarra Simmons, “Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations” (25 February 2019), online: Yale Law Journal <www.yalelawjournal.org/forum/transcending-the-stigma-of-a-criminal-record?f bclid=IwAR29QhE2wTjBUg3-9R54NFJMxRkrDVGBK4IGBRMZQpgXP-rkSKF3ON hjoaM> [perma.cc/PB4M-LFMG]. 2 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 by trauma, addiction, and poverty, shaped her feelings of alienation and exclusion in law school and before the Washington State bar. And, in September 2019, the American Lawyer published a story criticizing “the archaic Bar Character and Fitness Exam.”3 The article quoted Prof. Shon Hopwood of Georgetown Law School, an authority on criminal justice and civil rights, whose journey to legal academia and practice started in federal prison, where he spent 12 years for an armed robbery. Barriers of the sort faced by Betts, Simmons, Hopwood, and others receive little attention in the standard literature on reentry and reintegration. This literature, with good reason, tends to focus on the very basic barriers faced by people with criminal records and a history of incarceration: procuring food, shelter, and minimum-wage employment. Addressing re-entry problems related to the very base of Maslow’s hierarchy of needs is understandable and justifiable: as Stephen Raphael explains in The New Scarlet Letter, people with criminal histories face formidable odds, and a tough uphill battle, in the effort to secure employment.4 Raphael and others express concerns about the paucity of evidence-based, efficient vocational programming in prison,5 the absence of a good continuum after incarceration,6 and the impact of stigma7 and disenfranchisement from civic and political life.8 Underscoring these challenges are vast economic inequalities and the debilitating poverty of formerly incarcerated people. In 2011, Alessandro de Giorgi conducted extensive fieldwork among formerly incarcerated people making their first steps on the outside.9 Expecting to 3 4 5 6 7 8 9 The Young Lawyer Editorial Board, “The Archaic Bar Character and Fitness Exam Must Be Reformed” (10 September 2019), online: American Lawyer, <www.law.com/am ericanlawyer/2019/09/10/the-archaic-bar-character-and-fitness-exam-needs-to-be-ref/> [perma.cc/K6D4-LBFP]. Steven Raphael, The New Scarlet Letter?: Negotiating the U.S. Labor Market with a Criminal Conviction (New York: Upjohn Institute for Employment Research, 2014). Christy A Visher, “Effective Reentry Programs” (2006) 5 Criminology & Public Policy 299. Jeremy Travis, “But They All Come Back: Rethinking Prisoner Reentry” (2001) 5:3 Corrections Management Q 23. Christopher Uggen et al, “The Edge of Stigma: An Experimental Audit of the Effects of Low-Level Criminal Records on Employment” (2014) 52:4 Criminology 627. Christopher Uggen & Jeff Manza, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2008). Alessandro de Giorgi, “Back to Nothing: Prisoner Reentry and Neoliberal Neglect” (2017) 44:1 Soc Justice 83. Experiences of Bar Applicants with Criminal Records 3 find and document the “significant expansion of the penal state,” de Giorgi was surprised to find mostly “chronic poverty and the daily struggle for survival in a neoliberal city… the daily struggles of stigmatized people scrambling to disentangle themselves from the treacherous grips of chronic poverty, sudden homelessness, untreated physical and mental suffering, and the lack of meaningful social services.”10 While problems of basic survival are understandably acute, and therefore deserving of a central place in socio-legal scholarship, it is also important to learn how criminal histories operate in professional realms in which they are perceived as more unusual and aberrant. Accordingly, this paper seeks to expand the framework of re-entry and desistance to discuss admission barriers to an elite, selective profession — the legal profession. It seeks to understand, and systematize, the experiences of people with criminal records who apply for admission to the Bar; how they make sense of their past and their present; how they experience the moral character determination process; and how their histories and the moral character process shapes their professional paths and aspirations. The project corresponds with bodies of literature about prisoner re-entry, life-course criminology and desistance, sociology of the professions, and sociopsychological writings about remorse, stigma, and redemption of spoiled identities. Life-course criminologists identify education and employment as important “turning points” away from crime, whether due to control theories involving motivation11 or due to these frameworks creating distance from criminal peers.12 Moreover, research has found that experiencing multiple life events facilitates desistance more than experiencing one– also known as experiencing the “respectability package.”13 In that respect, 10 11 12 13 Ibid at 88–89. John H Laub & Robert J Sampson, “Turning Points in the Life Course: Why Change Matters to the Study of Crime” (1993) 31:3 Criminology 301; Walter Forrest & Carter Hay, “Life-Course Transitions, Self-Control and Desistance from Crime” (2011) 11:5 Criminology & Crim Justice 487. Mark Warr, “Life Course Transitions and Desistance from Crime” (1998) 36:2 Criminology 183. Elaine Eggleston Doherty & Jaclyn Cwick, “Unpacking the Complexity of Life Events and Desistance: An Application of Conjunctive Analysis of Case Configurations to Developmental and Life Course Criminology” (2016) 2:1 J Developmental & Life Course Criminology 45. 4 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 undertaking professional education that leads to an elite profession can be perceived as a cluster of “turning points” rather than a single event. Other scholarship about desistance, particularly Shadd Maruna’s Making Good, highlights the importance of constructing a coherent narrative of transformation for desistance.14 The capacity to tell such a story is sometimes honed by prison programming and sometimes, for better or worse, by the need to present a story of insight and remorse to a parole board.15 Some studies have found inverse statistical correlations between feeling remorse, shame, and guilt, and recidivating; however, research design and the difficulty of operationalizing emotions make these studies difficult to generalize from.16 Moreover, it is important to distinguish between feeling such emotions and expressing them. As Erving Goffman reminds us, situations in which people have to disavow past behavior (and fight against the stigma involving spoiled identity) are performative, in that the way in which we express insight, remorse, and transformation takes into account the audience.17 The need to perform and exhibit good moral character as the price of admission is not unique to the bar. As Deborah Rhode explains, the idea of moral character is important to American law, and plays an important role in organizing professional capacity, despite ample psychological evidence that character is shaped through a situational lens, rather than as an independent monolith.18 This article examines these deep questions through the lens of the experiences of bar takers themselves. Part I provides a legal analysis of the 14 15 16 17 18 Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild Their Lives (New York: American Psychological Association, 2001). For more on the performative aspect of portraying contrition, remorse, and “insight” on parole, see Hadar Aviram, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (Oakland: UC Press, 2020); Victor L Shammas, “The Perils of Parole Hearings: California Lifers, Performative Disadvantage, and the Ideology of Insight” (2019) 42:1 PoLAR 142. June Price Tangney, Jeff Stuewig & Logaina Hafez, “Shame, Guilt and Remorse: Implications for Offender Populations” (2011) 22:5 J Forensic Psychiatry & Psychology 706. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (New York: Touchstone, 2009). Deborah Rhode, “Moral Character as a Professional Credential” (1986) 94 Yale LJ 491; Deborah L Rhode, “Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing, Bar Regulation, and Immigration Proceedings” (2018) 43:3 Law & Soc Inquiry 1027. Experiences of Bar Applicants with Criminal Records 5 California Bar’s determination of moral character, relying on the Bar rules. Part II offers an empirical examination of the Bar’s policy through the eyes of ten California Bar applicants with criminal records, two ethics lawyers, and a Bar official. Part III draws on the legal and empirical analysis to discuss the significance of shame, remorse, and diversity to the experience of Bar applicants. The conclusion section makes some recommendations for law schools and the Bar for making the process more inclusive. II. THE CALIFORNIA BAR AND MORAL CHARACTER DETERMINATION In both the U.S. and Canada, some moral fitness scrutiny is an essential part of the licensing process of lawyers. In the Canadian process, which varies by province, character fitness review is conducted by the bar and also attested to by the lawyer with whom the applicant is articling.19 In the U.S. process the moral character application is one of three hurdles that successful applicants must clear; the other two are the Multistate Professional Responsibility Examination (MPRE), a three-hour, multiplechoice exam developed by the National Conference of Bar Examiners and administered nationally in the same format, and the passage of the state’s Bar examination. The California Bar Examination, recently shortened from three to two days, encompasses the 200-question Multistate Bar Examination (MBE), essays, and a “performance test” (performing a lawyerly duty in a hypothetical case). Title 4 of the Rules of the California State Bar defines “good moral character” as including, but “not limited to qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and the judicial process.”20 The burden of proof of moral character is on the applicant. All bar applicants submit a written moral character application 19 20 See generally Alice Woolley, “Can Good Character Be Made Better? Assessing the Federation of Law Societies’ Proposed Reform of the Good Character Requirement for Law Society Admission” (2013) 26:2 Can J Admin L & Prac 115. For an example of the provincial process, see “Good Character Requirement” (last visited 20 April 2020), online: Law Society of Ontario <lso.ca/becoming-licensed/lawyer-licensing-process/goodcharacter-requirement> [perma.cc/73JD-HTJ8]. The State Bar of California, Rules of the State Bar, San Francisco: State Bar of California, 2007, Rule 4.40 [State Bar of California, Rules]. 6 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 online and provide their fingerprints for a background check.21 The bar website advises applicants that “[i]t’s important to be honest on the application. The Committee of Bar Examiners considers candor to be a significant factor in determining whether an applicant has the good moral character required for admission to practice law.”22 The obligation to disclose relevant information continues even after submitting an application.23 Until Fall 2018, the Bar did not compile statistics for their moral character processing, but its officials estimate that about 50% of applications proceed through without a problem within the 180-day limit established by the Rules.24 For the remaining 50%, the Moral Character Committee examines the applicant’s history and classifies it into one of four categories, according to the severity and recency of the incidents.25 Category 1 encompasses juvenile misdemeanors, vehicle code infractions, uncomplicated bankruptcy history, and academic probation. Category 2 includes misdemeanors, job terminations, minor college infractions, failures to appear, and dismissed complaints against the applicant in an attorney capacity. Category 3 entails driving under the influence of intoxicants (DUI), military discipline proceedings (or other professional discipline incidents) involving moral turpitude, accusations of fraud, and serious discipline issues incurred in college. The most serious issues are included in Category 4: felony convictions, drug sales, two or more DUIs within five years, and violations of the law school honor code. The first step for an application triggering further action is a letter to the applicant, asking for clarification or elaboration on the incidents in the report. The letter sometimes also highlights inconsistencies in the application, discrepancies between the applicant’s record and the application, and differences between the applicant’s original law school application and the moral character application. Within 120 days of receiving the applicant’s additional information, the Committee responds in one of five ways: clearing the application, stating that the applicant did not meet the moral character burden, noting that “the application requires 21 22 23 24 25 Ibid, Rule 4.41. “Moral Character” (last visited 20 April 2020), online: State Bar of California <www.calb ar.ca.gov/Admissions/Moral-Character> [perma.cc/QM52-SDX6]. State Bar of California, Rules, supra note 20, Rule 4.41. Ibid, Rule 4.45. Interview of Mark Torres-Gil (Fall 2018) (on file with author); Mark Torres-Gil, “Moral Character” PowerPoint presentation: (on file with author). Experiences of Bar Applicants with Criminal Records 7 further consideration”, inviting the applicant to an “informal conference”, or advising the applicant to enter into an Agreement of Abeyance with the Committee (typically in cases in which criminal charges are pending against the candidate, and the matter should therefore be resumed only after their completion).26 The “informal conference” is, in essence, an interview with members of the committee (the number of interviewers reported by my interviewees ranged between four and seven). Participation in the interview is voluntary (and, technically, scheduled in response to the applicant’s “request”27), but virtually all applicants who are invited to it attend. The candidate can be represented by an attorney, but the attorney’s role is “limited to observation” and he or she “may not participate” at the hearing. The hearing is, typically, the conclusive stage of the moral character determination; after the hearing, the applicant receives a letter notifying him or her of the outcome. Following an adverse determination, the applicant may “file a request for hearing on the determination with the State Bar Court,”28 but few do; it makes much more sense to save the money on representation, since the negative determination is usually in place for two years, and after those years the candidate may reapply with new evidence of his or her insight, contrition, or rehabilitation. A positive determination is in place for 36 months but may be extended at the applicant’s request.29 Two recent California Supreme Court cases govern the moral character discourse: In re Gossage (2000)30 and In re Glass (2014).31 Eben Gossage became addicted to drugs in the late 1960s, at age 15, and engaged in numerous property offences, including forgeries, to finance his habit.32 He went in and out of jail for several years, was rejected by drug rehabilitation programs because of his violence, and, at age 23, during a visit to his sister, argued with her and killed her.33 He was convicted of voluntary manslaughter, received an indeterminate sentence (as was common in the 1970s), and was paroled two and one-half years later.34 Gossage proceeded 26 27 28 29 30 31 32 33 34 State Bar of California, Rules, supra note 20, Rule 4.45. Ibid, Rule 4.46. Ibid, Rule 4.47 Ibid, Rule 4.51. In re Gossage, 99 Cal Rptr 2d 130 (2000) [Gossage]. In re Glass, 58 Cal 4th 500 (2014) [Glass]. Gossage, supra note 30 at 133. Ibid. Ibid at 134. 8 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 to commit various offences until the early 1980s, when he did a stint in state prison and, according to him, “hit [rock] bottom” there.35 Upon his release he turned his life around, working odd jobs, and in the late 1980s attended Golden Gate University Law School, passing the bar on the first try in 1991.36 Throughout his law school studies, and for several years after his graduation, Gossage committed numerous traffic offences — pertaining mostly to license offences and vehicle registration violations — which were not resolved until the mid-1990s.37 In his moral character application, Gossage disclosed only four of his 17 convictions, omitting most of the forgeries.38 On appeal from the State Bar Court, which found Gossage’s rehabilitation convincing, the California Supreme Court reversed and found Gossage unfit to practice law.39 The standard applied placed a “heavy burden” on Gossage to prove internal transformation: We therefore agree with the Committee that Gossage can be found morally fit to practice law only if the evidence shows that he is no longer the same person who behaved so poorly in the past, and only if he has since behaved in exemplary fashion over a meaningful period of time. This heavy burden is commensurate with the gravity of his crimes.40 In finding that Gossage did not lift this burden, the California Supreme Court relied not only on his long and unreported record of traffic offences, but also on his flawed disclosure. The decision emphasized that “the unusual severity and scope of Gossage's criminal record strengthened - not lessened - his obligation to ensure the accuracy of his Application even if independent research was required” and, lest this seem an unsurmountable task, that “[m]ore rigorous intellectual tasks are often performed by attorneys in the practice of law.”41 Another case in which lack of candor, manifested in imperfect cooperation with the Bar, was in re Glass, which involved hapless journalist Stephen Glass, who in the late 1990s fabricated material more than 40 articles for The New Republic and other publications.42 Glass had invented, out of whole cloth, sources and interviewees for numerous stories, 35 36 37 38 39 40 41 42 Ibid at 135 Ibid at 136. Ibid at 137–38. Ibid at 139. Ibid at 149. Ibid at 144. Ibid at 148. Glass, supra note 31 at 504. Experiences of Bar Applicants with Criminal Records 9 rendering verisimilitude to his creations by fabricating supporting materials and thus eluding the magazine fact checkers.43 Glass was finally exposed and fired in 1998, while already a law student at Georgetown University’s evening program, and in 2000 he graduated and passed the New York Bar examination.44 In Glass’s application to the New York Bar he disclosed only 20 of his fabrications, and also falsely stated that he had assisted The New Republic in uncovering his falsehoods.45 In the early 2000s, Glass wrote a book based on his experiences and also letters of apologies to numerous people he had harmed through his fabrications.46 He had also undergone more than a decade of therapy.47 Glass passed the California bar exam in 2006 and filed his moral character application in 2007. The committee denied his application. The California State Bar Court reversed, finding that Glass “had satisfied his ‘heavy burden of proof’ and established his rehabilitation.”48 But the California Supreme Court reversed the State Bar Court decision. Undertaking “an independent review of the record, with a focus on Glass’s many acts of dishonesty and professional misconduct,”49 the Court examined “whether he has established a compelling showing of rehabilitation and truly exemplary conduct over an extended period that would suffice to demonstrate his fitness for the practice of law.”50 Answering this question in the negative, the Court highlighted the extensive and systematic pattern of deception, Glass’s violations of journalistic ethics, engaging in this dishonest conduct while a law student at Georgetown, and, importantly, the gaps in his disclosures to the New York Bar — even though his disclosures to the California Bar a decade later were complete (albeit characterized by “hypocrisy and evasiveness”).51 Another problem with Glass’s record was that “instead of directing his efforts at serving others in the community, much of Glass’s energy since the end of his journalistic career seems to have been directed at advancing his own career and financial 43 44 45 46 47 48 49 50 51 Ibid at 505 Ibid. Ibid at 511. Ibid at 513. Ibid at 516. Ibid at 518. Ibid at 522. Ibid. Ibid at 523. 10 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 and emotional well-being.”52 Denying Glass’s right to practice law was part of the Court’s “duty to protect the public and maintain the integrity and high standards of the profession.”53 Gossage and Glass are often mentioned, both by Bar officials and by ethics attorneys, as essential readings on moral character — and, indeed, they offer insights as to the importance of honesty and full disclosure, as well as to the principle that the burden on the applicant to show rehabilitation and “exemplary conduct” increases with his or her misdeeds of the past. They also reveal the Bar’s emphasis to gauge whether the applicant has truly transformed himself from the inside as well as contributed to the community. Both cases, however, are based on unique and extraordinary facts, and therefore present some difficulty in generalization. How is the committee process experienced by people with criminal records? How do people perceive and comprehend the ways in which they have to perform remorse, rehabilitation, and “exemplary conduct”? These questions call for empirical examination. III. MAKING SENSE OF THE EXPERIENCES OF BAR TAKERS WITH CRIMINAL RECORDS A. Methods This project seeks to make sense of the experiences of the moral character applicants themselves through in-depth, semi-structured interviews. The project encompasses 13 interviews, sampled through social media appeals to the California community (via Facebook and Twitter and using Facebook pages and hashtags to recruit from local bars and law school alumni associations). Interviewees approached me after friends or colleagues who knew of their personal history informed them of my project. Even though, as explained above, character fitness is part and parcel of admission to the legal profession in all U.S. states and Canadian provinces, I focused the empirical on one jurisdiction in order to rule out distinctions and differences stemming from different procedures. While the 13 interviews were sufficient to achieve content saturation, it is also important to specify that the shame and secrecy surrounding criminal records for bar applicants posed considerable difficulty in locating and approaching interview subjects 52 53 Ibid at 524. Ibid at 526. Experiences of Bar Applicants with Criminal Records 11 in a systematic way. Ten of these are interviews with successful bar applicants who went through the moral character process with criminal backgrounds ranging from expunged juvenile drug convictions to serious violence adult offences that yielded prison terms.54 The interviewees were diverse in terms of gender (six men, four women), race (five white, two African Americans, three Latino interviewees), and age (ranging from 25 to 60). I also conducted two interviews with ethics attorneys who assist bar applicants with their written moral character application and at the “informal conference” and/or subsequent state bar court proceedings. In addition, I spoke to the Assistant General Counsel at The State Bar, who is also responsible for administering the moral character determinations. Interviews ranged from one to two hours and were conducted after informed consent was given in accordance with protocols approved by WIRB. No remuneration was given to subjects. Half of the interviews were recorded (the other half were not, at the interviewees’ requests), and all of them were transcribed in shorthand during the interview. Most were conducted face to face, though a few (with Southern California lawyers) had to be conducted by phone. Notably, several interviewees kept their personal history discreet from their colleagues, and therefore these interviews took place after work hours or early in the morning, when my interlocutors were alone at the office. The analysis was conducted inductively, in accordance with modified grounded theory principles.55 I reviewed the interview transcripts for recurring ideas, concepts or elements, coded the interviews accordingly, and then grouped them into concepts and categories. The themes I identified resonated with several bodies of literature, and primarily with my work on parole hearings.56 Vignettes from the unrecorded, shorthanded interviews were lightly edited for readability. Pseudonyms are used throughout the piece and unique identifying information has been omitted to protect the subjects. 54 55 56 One example of the limitations of the sampling methods is that, for understandable reasons, I was not approached by people who ultimately did not prevail in their moral character process. I was approached by a few law students who were in the process of applying but were yet unable to provide me with an account of the entire process, and while we had interesting conversations, these were not included in the sample. Barney G Glaser & Anselm L Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (New York: Routledge, 2017). Aviram, supra note 15. 12 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 A Note on Positionality: I am a law professor in California and have been a member of the California Bar since 2011. I have provided advice and written recommendations to dozens of students applying for the Bar; I have also testified twice at the State Bar Court in defense of applicants denied entry or reentry to the profession. This background puts me in the unique position of understanding the importance of some gatekeeping into a profession that requires honesty and scrupulous ethics, and at the same time empathizing with people whose background dovetails with much of my criminal justice scholarship. B. Findings 1. Nothing to Hide Except My Shame: The Written Disclosure Phase The California Bar website, as well as law professors and ethics lawyers, remind applicants to err on the side of disclosure: “if you are not sure, disclose.” The summaries of Gossage and Glass above highlight the importance of full disclosure in the determination of moral character, and particularly the way omissions can sometimes be perceived at least as seriously as the underlying offence. The Bar official I interviewed explained: One of the most important things to us is candor. So if we have an incomplete application, that tells us something important about the applicant. And the thing that is omitted could be a minor thing, but — Q: In other words, the coverup is worse than the crime. A: (laughs) exactly. My interviewees who had sealed or expunged juvenile court records had no doubt that they should describe those instances at length and were desperate to explain that they were no longer part of their criminal record. Other than that, my interviewees’ approach in filling in the forms reminded me of the dread stoked by high school principals about our “permanent records”: an uncertainty about what their paper persona looked like from the bar side and a desire to anticipate and preempt any surprises it might contain. Gabe, a public defender with an expunged juvenile record, said: I didn’t honestly know much about the difference between “sealed” and “expunged” or bother to do anything about any of this, though my parents of course did their best to take care of that. But it was crystal clear to me that all of these things needed to be reported. Raúl said: Experiences of Bar Applicants with Criminal Records 13 When I started law school, I talked right away with my professors. I remember especially talking to my ethics professor. He made it clear that all this stuff has to be disclosed. What I kept hearing was “err on the side of disclosure.” Raúl’s experience is typical in the sense that law school professors, particularly ethics professors, tend to be the institutional gatekeepers for moral character information. Most of my interviewees revealed some, or all, of their criminal background to one or two trusted professors, who advised them on the basis of their experience with similar students over the years. Their memories of these professors are invariably warm, in that the professors supported them and assured them that they would, eventually, be admitted. Jolene: I had a really messed-up youth and came to law school as what they call a “nontraditional” student. Q: Were you open about your background at school? A: Sure. I had nothing to hide. I told my professor everything and he did say it was going to be an uphill battle, I mean, to pass the bar. Q: Did that give you pause about staying in law school? A: No. He said it was eventually going to be OK. I figured I’d take law school and see what happens. Even though the prospect of fighting the moral character battle loomed over the interviewees, most of them experienced it as an undercurrent in a sea of stress and anxiety. Gina: Between moot court and journal and a bunch of student orgs and just studying and trying to make good grades, plus having a life, this was one more thing I had to do, but I thought it was all going to work out fine and pushed it out of my mind. Brian: Law school was intense, and there was also intense personal stuff that was going on during those years. You can’t go through all of this and ruminate about the bar all the time. There was considerable variation among the interviewees in terms of when the reality of having to deal with the moral character coalesced for them. A few of them realized that they might need help as soon as they entered law school; for others, this problem became salient only as the bar exam started to loom large. Martin, an ethics attorney, said: People call throughout law school, but most of the calls I get come in around the fall of 3L [the third year of law school – H.A.], which is when people typically submit their paperwork. I wish more people called sooner, because there’s a lot of damage control we can do during the law school years. Q: Such as? 14 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 A: For example, sometimes it is pretty clear that there’s going to be an issue with substance abuse. If the student starts attending LAP [the bar program for substance abuse rehabilitation – H.A.] in law school, that could save some precious time later. For some interviewees, the requirement to provide extensive disclosure presented problems. Raúl and Gina, in particular, talked about the difficulty to provide full and accurate accounts of their juvenile records. Raúl: It’s all a blur. Juvie, jail, I honestly couldn’t tell you a clear story about where I was at any given moment because my whole juvenile experience is chaos. Gina: I was bouncing between juvie and foster homes and group homes for all of my teenage years. And the problem was that, for the law school application, which I kind of finagled last minute, I didn’t bother to check all the dates and such. For the moral character I got lucky. Q: How did you do it? Gina: Fortunately, I kept extensive, detailed journals when I was a teenager, so I went back and consulted those to put the timeline together. But of course, now this timeline didn’t match what I had written in the law school application, so I get this letter saying to “explain the omissions.” The assumption that discrepancies between the application and extraneous data, such as the applicant’s law school application or rap sheet, are the product of intentional omissions, was deemed by several interviewees unrealistic and hurtful. Mike: Some stuff honestly escaped my mind, and now I’m getting a letter from the bar saying that I should explain the omissions. It’s like I’ve been cheating or lying or something. Rasheed, whose property conviction did not stand in his way for his New York bar membership, nonetheless disclosed it with detail when the time came to apply in California, explaining, “Why not? At that point I had nothing to hide, except my shame.” Indeed, the act of writing itself dredged up considerable amounts of shame for many interviewees. Bree: It’s all like a bad dream. You forget, or maybe forget is inaccurate. You put it out of your mind, you try to live your life and put the time and expense and bad experiences aside, and now you have to relive them all. Rasheed: Ironically, it’s the very fact that you’re somewhere else in your life, applying for these prestigious jobs, putting your life together, that makes it most shameful. Because you’ve gone a distance from your past, and now you have to relive the past in writing, go back through all that, the mischaracterizations. This deep sense of shame, stemming from a juxtaposition of the interviewees’ statuses in the past and presence, is strongly evocative of Goffman’s work on spoiled identities and of Everett Hughes’ concept of Experiences of Bar Applicants with Criminal Records 15 master statuses. Shifting one’s self identification to that of a prospective lawyer, the interviewees invoke the dissonance and dismay involved with the need to step back into the shoes of criminal defendants and/or prison inmates. 2. “It was, hands down, the worst experience of my life”: The Informal Conference For some of my interviewees, the request for additional information was not the end of the process: they were invited to the “informal conference.” Their preparation for this even varied widely. About a third of them hired a lawyer, and those who did were ambivalent, at best, about the services they received: Gina: That, honestly, was a waste of money. She sort of told me what to write, but it’s nothing I couldn’t come up with on my own. So the second time [after a negative determination and a two-year wait] I didn’t get a lawyer, I just did it all on my own. Bree: The lawyer’s help was limited. You know they can sit in the room with you but they can’t talk. If anything, it was a boost of support, that there was one person in the room that was on my side, but not a lot more than that. By contrast, the ethics lawyers themselves feel that their services were essential, and that many unrepresented applicants made mistakes. Margaret: I sometimes get people in when it’s time for the informal conference, or even when they’re thinking of an appeal to the State Bar, and it’s too late. You look at their paperwork and you think, if only they had come to talk to me. Martin: The most important service we offer people is framing. It’s a delicate balance between explaining what happened to you in context and being seen as if you’re deflecting blame for what you’ve done. These contradictions might reflect the candidates’ excessive confidence in their own ability to prepare their paperwork, the lawyers’ inflated sense of the value they added to their clients’ petitions, or both; in any case, they reflect some anxiety on the part of the candidates to appear in the best possible light to the committee. The conference itself was uniformly described as an overwhelmingly negative experience. Six of my interviewees volunteered, without prompting from me, that it was “the worst experience of my life.” Importantly, three of these interviewees had spent time incarcerated in jail or in a juvenile facility, and they nevertheless experienced this professional interview as a bad experience. Three interviewees were unable to tell me how many people were in the room (Sandy: “I guess I just blocked this off my mind. I can’t 16 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 even tell you. It’s just a general sense of people in suits asking you questions”). The remaining four accounts are of between four and seven people. Mike, who had a background in law enforcement, said: Like they teach you in interrogations, to stand on the left side of the person and a little bit behind them, because it makes them feel vulnerable? That’s how they played it. The [person who chaired the committee] was on my left a bit behind me. It was disorienting. Gina said: It was horrible. It was shameful. I bawled my eyes out. It was awful to explain these charges to them. It was all taken out of context. I just cried and cried. Honestly I don’t know what came out of my mouth. Bree said: I can’t even give you the blow by blow because the whole thing was just so… I felt so ashamed. I said what I thought they wanted to hear but it all felt fake and I was angry and upset… Brian, a notable exception, said: After everything I’ve been through, this was not a big deal. I’m a felon. I’m used to people disrespecting me. I’m used to being treated like nobody. It was just one more of those. I said to myself, I have a task to complete here, to persuade these people to find a positive finding, and that’s it, then I’m out of here. 3. “There’s no context”: Sticking to the Court Record The bar’s definition of moral character includes “respect for and obedience to the law,” which is perhaps not surprising as a gateway to the legal profession. When asked about the nexus between moral character and criminal records, Martin, the ethics attorney said, “the bar is doing its best to make sure that there are no psychopaths in the profession.” When I suggested that many managing partners of BigLaw firms (a U.S. industry term of art referring to the nation’s largest law firms) might exhibit symptoms of psychopathy, my interlocutor laughed, saying: “a criminal record is not a perfect predictor of psychopathy. But what else do we have?” The assessment of the candidate’s record relies, as a primary source, on the official court record and accepts it unquestionably as truth. Discrepancies between the court record and the applicant’s disclosure are imputed to the applicant’s efforts to cover up unflattering (at best) or incriminating (at worst) information about themselves. Several interviewees were taken aback when discrepancies between their court records and their accounts of the events were interpreted as intentional deception. Typically, Experiences of Bar Applicants with Criminal Records 17 when telling me their criminal histories, they provided a very rich context to their actions, which shed a strikingly different light on them than the official record. Bree told me of a personal relationship that went sour and led to emotion-filled retaliation and expressed frustration that her indictment for a property felony left much of that context out of the conversation. Rasheed mentioned the context for his own property offence, which was an innocently meant prank. Gina’s story of her most recent entanglement with the law was especially evocative: I was at a clinic working on a [human rights case] and we won. It was such a good day, and we all went to celebrate, and I had a few glasses of wine. Now, my car was parked right there, but obviously it would not be a good idea to drive tipsy, so I went to take [the train]. And then it turns out there’s a mechanical problem and there’s no trains going anywhere, and how am I going to get home? So maybe I’m a little frustrated, and there’s no attendant, and a cop comes along, and starts asking questions, and boom, public intoxication. When all I’m trying to do is not commit a DUI. Bree: If all you read was the criminal record, you wouldn’t know the first thing about what happened. It’s such a reductive framework. The stories my interviewees told of their crimes are reflective of experiences that litigants in general,57 and criminal defendants in particular,58 face when the complex genesis of their legal problem is reduced to what the legal system deems relevant. My interviewees’ legal education imbued their experience as criminal defendants with a sour aftertaste, as they felt the reductionist character of the legal system. This contributed to their sense of shame and their feelings that aspects of their conduct that could be understandable, if not excusable, were left out of the official narrative of the crime, and that the richness and uniqueness of their circumstances was blurred to make them faceless, unidentifiable members of the criminal offender population. 4. “I’m Sorry, but I Was Wronged, Too”: The Complicated Experience of Remorse Recall De Giorgi’s formerly incarcerated interlocutors, struggling with basic survival problems: a roof over their heads, something to eat, a job — any job. One of de Giorgi’s important insights was that, despite the very real 57 58 Austin Sarat & William LF Felstiner, “Law and Strategy in the Divorce Lawyer’s Office” (1986) 20:1 Law & Soc’y Rev 93. Sally Merry, Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans (Chicago: University of Chicago Press, 1990). 18 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 problems faced by reentering prisoners, “the main services offered to [them] are aimed at restructuring their personalities along the coordinates of an idealized neoliberal subject: a self-reliant entrepreneur of the self, constantly at work to accumulate human capital and eager to compete with his/her peers in the lowest regions of a deregulated labor market.”59 This narrow focus on accountability is echoed by de Giorgi’s interlocutors, who “appear to have internalized the neoliberal narrative of personal responsibility that is constantly inculcated in prisons, rehabilitation centers, and reentry programs. They wholeheartedly embrace the dominant rhetoric of free choice, as well as hegemonic definitions of social deservingness and undeservingness.”60 As amply demonstrated in Gossage and Glass, expressing remorse and convincing the committee of having transformed one’s life are essential. The importance of not only feeling remorse, but performing it convincingly, so that it is readable to the committee, cannot be understated. I saw parallels between this experience and my research on self-presentation of lifers before parole boards.61 The expectation of the committee seems to be a complete, unqualified expression of remorse, and it has to be read as genuine. In I Was Wrong62 and Justice Through Apologies,63 Nick Smith examines the components of what is generally perceived as a complete apology, listing no less than 13 factors. Some of these address the content of the apology (such as corroborated factual record, acceptance of blame, identification of the harms done and the moral principles behind them, willingness to redress), but some of them address the context and performance of the apology, which lend it verisimilitude. Smith’s list of factors might appear a tall order, but it speaks to the public conversation about whether apologies are “complete” and the tendency to reject “non-apology-apologies” a-la “I’m sorry they were hurt.” Importantly, Smith’s list addresses not only what is said, but also how it is said. In Justice Through Apologies, Smith convincingly argues against the practice of court-ordered apologies, which, as he explains, are inherently incomplete and unconvincing by virtue of the context in which they are 59 60 61 62 63 de Giorgi, supra note 9 at 94. Ibid at 107. Aviram, supra note 15. Nick Smith, I Was Wrong: The Meaning of Apologies (Cambridge: Cambridge University Press, 2008) Nick Smith, Justice Through Apologies: Remorse, Reform, and Punishment (Cambridge: Cambridge University Press, 2014). Experiences of Bar Applicants with Criminal Records 19 offered. Elsewhere,64 I expand Smith’s point to encompass the expectation that remorse be performed at parole hearings, and the moral character “informal conference” is no different. Because of this context, in which people are expected to deliver a convincing performance of remorse, I asked the bar official I interviewed how he could tell whether someone was genuine in expressing remorse. My pleasant interlocutor became angry and replied: “What do you think, that I just fell off the boat? I was a federal prosecutor for 28 years. I can tell when I’m being lied to.” My interviewees who, regardless of their diverse socio-economic background were, as a group, educated, eloquent, and sophisticated, took issue with the simplistic way in which the bar solicited their expressions of remorse. By contrast to de Giorgi’s subjects, my subjects did not embrace the dominant rhetoric of an unqualified remorse, even as they were keenly aware of the need to project it. Bree: It’s not that I’m not sorry. I’m sorry. But I was wronged, too. You should have seen that courtroom. I walked with a really strong sense that an injustice had been done. And there was no room, no space, in that interview, to discuss this. This doesn’t negate my remorse, you know what I mean? I can feel sorry for what I did and at the same time tell you that I was wronged too. The duality that Bree identifies is between her own complex understanding of the factors that led to her crime of conviction and the oversimplified, unambiguous narrative expected by the court. This theme was echoed more explicitly by Jolene and by Gina, both of whom offer their sense that the courtroom hearing is performative: Jolene: What I did all those years ago and what was done to me is all part of a very complicated experience as a young person. And it’s all linked to being a runaway and being involved with drugs. So I knew the expectation was, talk about your part and leave out all the rest, because that makes it seem like you’re not really sorry. Gina: It was very clear to me that I had to grovel. There were no two ways about it. There was no one in the room that I felt could take in a complicated narrative of what happened. It was obvious that I was in a theater production and I just had to follow the script. Gina, in particular, evokes Goffman’s notion of a constant performance, a “presentation of self,”65 in a setting in which it was very clear to her that the performance was inauthentic to the narrative. She also suggests that her 64 65 Aviram, supra note 15. Goffman, supra note 17. 20 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 complicated history was something the people in the room were unable to “take in.” Even more bitterness resulted from situations in which my interviewees provided a “record of rehabilitation” that was read as inauthentic. Mike included in his file evidence of his many volunteer and pro-bono activities. He was dismayed when the committee challenged his motivation in participating in these activities: [The committee member] said, this is all puffery, you’re doing all this stuff to glorify yourself and get good connections. A lot of this is politically expedient. That was upsetting to hear. Being on these boards is a lot of work. Overall, the sense I got was not that my interviewees were not remorseful, but that their remorse was entwined with the complex nature of criminal justice in America, in which apportioning blame is not as easy as it seems, and in which the criminal justice system can only “read” unqualified remorse. One interesting subsection of this experience was the issue of substance abuse, to which we now turn. 5. Substance Abuse: Overdiagnosis or Denial? The classification used by the bar to sort moral character cases classifies substance abuse issues as serious: a single DUI lands an applicant in Category 3, whereas two DUI offences land them in Category 4. The bar official I interviewed explained: We have a serious problem with substance abuse in the legal profession. So our job in dealing with these cases is to try and figure out whether the person really has a substance abuse problem or they were just unlucky. The two obvious things we’re looking at are, do we have a pattern here? Or is this just one incident? And how recent is it? Three of my interviewees — Brian, Mike, and Gina — participated in recovery programs in the legal community. Notably, all three of them denied having a substance abuse problem. Brian participated in The Other Bar,66 a 12-step organization for the legal community, which is not officially affiliated with the California Bar, and explained: To be honest, I don’t think I have a substance abuse problem. But I did find the program useful. It’s not very common to find a place where men talk about their 66 “Success Begins Here’: Help for Alcoholism, Drug Abuse and Related Personal Problems” (last visited 4 July 2020), online: The Other Bar <otherbar.org/> [perma.cc/3 ETC-CWWJ]. Experiences of Bar Applicants with Criminal Records 21 feelings openly, and because we share a profession, a lot of the dilemmas and the things people were talking about were stuff that I, too, deal with in my life. Mike and Gina participated in the Lawyer Assistance Program (LAP), which is affiliated with the California Bar.67 In both cases, they joined the program because at their first informal conference, in which they were denied admission to the bar, they were required to do so. LAP defines its mission statement as helping “lawyers, State Bar applicants, and law students who are grappling with stress, anxiety, depression, substance abuse or concerns about their career.” The program is billed as a voluntary, confidential resource, but it offers “monitoring” services for a fee: The Monitored Lawyer Assistance Program is for attorneys who want to satisfy a specific monitoring or verification requirement imposed by an employer, the Office of the Chief Trial Counsel, State Bar Court, Committee of Bar Examiners or another entity. The program offers long-term structure and the support of a professional case manager. Attorneys may refer themselves to this program or may be referred as the result of an investigation or disciplinary proceeding. It is also available to attorneys seeking help independently who want the additional structure and support that this part of the program provides. There is a fee for group participation and lab testing, if required.68 LAP is a more structured substance-abuse program than The Other Bar, in the sense that it provides periodic drug testing, professional supervision, and even an assessment. The bar official I interviewed explained that LAP provides the Committee with a letter regarding the applicant’s progress in their rehabilitation journey. The letter uses terms of art to describe rehabilitation, which the committee “decodes” in order to decide whether additional time at the program is necessary. Mike: I found it a good program, even though I don’t think I actually have a substance abuse problem. But it was good to have the structure, because at the first hearing they were telling me I was clearly not aware of the problem, that I needed to accept the problem to take care of it, so it was good to have something I could bring to them that would say, “moderately rehabilitated” or “completely rehabilitated” and have them accept it. 67 68 “Lawyer Assistance Program” (last visited 4 July 2020), online: The State Bar of California <www.calbar.ca.gov/Attorneys/Attorney-Regulation/Lawyer-Assistance-Program> [per ma.cc/B964-RHYT]. “Lawyer Assistance Program Services” (last visited 4 July 2020), online: The State Bar of California, <hwww.calbar.ca.gov/Attorneys/Attorney-Regulation/Lawyer-Assistance-Pr ogram/LAP-Services> [perma.cc/5K5R-KXGD]. 22 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Gina: Look, I can have a glass of wine. Or several. And stop at will. I’m not an alcoholic, obviously. But after the first hearing, it was obvious that the way out of this situation was the LAP program. So I participated, and the leader of the program became a mentor for me. He wrote me a really nice letter for my second hearing. For both Mike and Gina, “lumping” them into the substance-abuse-problem population was a reduction and generalization of the role alcohol played in their lives. They describe a sense of being “roped” into an artificial, performative situation, which is the only way to provide the credentials that the system is able to recognize. I asked Martin whether he thought the proliferation of substance abuse diagnoses stemmed from overcautiousness on the part of the bar, or denial on the part of the applicants. He opined: It’s probably both. You know, I used to be an addict. I know very well what it’s like to be in denial of your own problems. And at the same time, if the bar overdiagnoses, I can see why they do it. We have a really serious issue of lawyers who are irresponsible, falling behind, disappointing their clients, even deceiving or cheating their clients, and it’s often linked with substance abuse. Don’t forget that there’s also some comorbidity with issues of mental health, which are also rife in the legal profession, and because there is so much shame in the profession about having a mental health challenge, people simply self-medicate. Overcautiousness about sobriety is not unique to the California Bar. Tarra Simmons, a formerly incarcerated lawyer, appealed the Washington State Review Board’s decision not to approve her moral character application, and found some logic in the Board and the Court’s rigidity after the fact: I appealed to the Washington Supreme Court. . . It must have surprised both the court and the public that the brilliant attorney arguing on my behalf had himself been convicted of armed bank robberies just a few years prior. The court reversed the Board’s rejection. It embraced evidence-based practices for evaluating how long a person must show rehabilitation from substance use disorder and refrain from crime before they pose no substantial risk of recidivism. Although the court declined to adopt a bright-line rule for admission to practice law, it cited to research showing that five years of sobriety and exemplary conduct should be given great weight in determining whether a person has transformed her life. The court refused to adopt our suggested presumption that five years of law-abiding conduct establish the character and fitness necessary to practice law, giving flexibility for people with less time of documented desistance or sobriety. In retrospect, I agree with the court and view this flexibility as important. Through my personal experience mentoring and supporting others in substance use recovery, I understand that a relapse can prompt one towards recovery and result in profound change. A rigid rule could have mistakenly left out those who are equally Experiences of Bar Applicants with Criminal Records 23 committed to overcoming their history of abuse and equally qualified to be members of the legal profession.69 Because of the confidentiality involved, it is impossible to obtain data about the demographics and backgrounds of LAP participants. But the problem of obtaining data runs far deeper and involves important dimensions such as race and class, to which we turn next. 6. Invisible Diversity: The Intersection of Criminal Histories with Race and Class Because the bar did not, until recently, keep statistics on its moral character process, it is impossible to tell the extent to which being identified as a moral character “problem” correlated with race or class.70 But my interviewees were painfully aware of the intersections between their demographics and their path to the legal profession. Notably, interviewees of color connected the moral character process with other aspects of their marginalization, both throughout the process and after it. Rasheed explained: I’ve been sitting in meetings with colleagues and am painfully aware of how I am doubly “other”: because of my race and because of this thing that people can’t see. And neither of these are things you comment on in polite conversation or make overt. White interviewees were also deeply aware of race, but rather as an exception. Interviewees for whom the criminal justice encounter was an aberration in their lives felt like visitors who saw what the system was like for disenfranchised individuals. Bree said: Look, [the trial] was a bad experience, but I’m keenly aware of the fact that I was overall lucky. There was this guy there, and his hearings got delayed, too, and I gotta say — I was so lucky that my [family] is [influential]. It could have been a lot worse. Bree’s comment reflects a keen awareness of the privilege she was able to monetize into a lenient outcome in the criminal justice system. I asked Bree 69 70 Simmons, supra note 2. This problem is, remarkably, not limited to California. In her personal essay about her own Bar admission barrier in Washington State, Tarra Simmons reports that “The WSBA does not keep demographic data on the applicants who are admitted or denied, and the confidential nature of the process does not allow for them to have access to prior Board decisions.” See Simmons, supra note 2. 24 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 whether the experience honed her compassion and care toward those hurt by the system, and she replied: Sure! This is why, why I wanted to practice law, to correct these problems and help people. Except I ended up not doing it because I gotta say, after everything I’ve been through, I can’t deal with criminal law. Just can’t deal with it. Too traumatized. Gina spoke of her sense of being “otherized” in invisible ways: I’ve had this long history, and people think, just because I wear this white face, and I walk around, I’ve made it. Q: That’s an interesting metaphor, ‘wearing a white face.’ A: Well, that’s exactly what it feels like. Like the white face is a mask. And of course it’s different for someone who walks around looking like a person of color. But I have had these experiences, and I feel kinship with people who felt them, even though this white face is shielding me from overt reactions. But this process made me realize even more strongly how people are treated in this country. Q: Did this shape your decision to go into public interest lawyering? A: No, that happened earlier. I’ve always wanted to do this. Gina’s remarkable use of the term “wearing a white face” suggests that the identities of white applicants might be more redeemable than those of applicants of color. Their ability, to use Goffman’s dramaturgical approach, to use their “mask” of a white face to perform an identity that does not appear spoiled to outside viewers, is not available to applicants of color, like Rasheed, for whom the hidden spoiled identity as a person with a criminal record is echoed by the overt spoiled identity of a person of color within a predominantly white profession. Nonetheless, it is important to say that all my interviewees — white people and people of color alike — struck me as having been sensitive to issues of discrimination before their legal career, but many of them said that their own experiences in the criminal justice system made them keenly aware of oppression and inequality. Two white interviewees mentioned meeting other defendants in court who fared much worse than they did. Gabe explained: If anything, my background made me even more aware of what bullshit the war on drugs is, and more committed to helping people that are caught in it. These sensitivities to race and class were just some of the effects of the moral character experience on my interviewee’s legal career after their paths to admission were cleared. Experiences of Bar Applicants with Criminal Records 25 7. Effect on Legal Career All the interviewees, without exception, reported a sense of joy and relief in finally being admitted to the bar. Gabe: I was waiting to hear… my friends got their letters back, and I was wondering what was keeping mine. So when I heard, it was like — my life can begin again. I’m done with all that and now I can move on. Bree: Just immense relief. I cried when I got the letter. Gina: So many people rallied around me for the second hearing. I called in all the favors, all my friends rose to the occasion. So when I heard back — tears of joy, and I right away planned a giant party for all my friends. It was such a wonderful celebration. But the embarrassing and shameful aspect of the experience remained etched in their memories and affected the way they conducted themselves in their professional lives. Three of my interviewees spoke to me early in the morning, before their colleagues came in; the rest spoke to me in the evenings, at home or in cafés. Mike explained his discretion policy: My direct supervisor at work knows, and he also went to bat for me with the committee, writing letters and all that. But the other people who work here don’t really. Which is fine, not everyone needs to know everything. Bree, too, erred on the side of non-disclosure to her colleagues: I’ve certainly become more reserved. The other associates at the firm are going out to drinks and inviting me, and I’m more hesitant about this than I’d been in other workplaces. Nobody here knows about me. Other interviewees had a different approach, relying on their experiences as a way to build bridges with their clients. Gabe, who works as a public defender, explained: Oh, I openly share this with clients. It’s sometimes hard for clients to find common ground with a defense attorney, and they understandably think you don’t know what they’re going through. I’m after all a white guy, wearing this suit, my tattoos are covered, so telling them, yes, I know what it’s like to be in jail for the night, I know what it’s like to go through this and fight the war on drugs, it’s important. It humanizes them. It reminds them that I see that they are human. Martin, who represents bar applicants and lawyers in ethics matters, shared: My [history of addiction] is something that I always share with applicants. It’s an important ice breaker, and also a good reminder that you can go through this and move on to a successful legal career. And for many of them, the concern about being found out never completely vanished. Rasheed described this sense of constant vigilance: 26 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 It’s something that can never truly recede to the back of my mind. Yes, I still Google myself to make sure that whatever’s there stays off of Page 1. I do this periodically. I have a great job and I’m happy, but I’m never going to not Google myself to make sure. He remembered an instance in which his personal history stood in the way of getting a job: I had an interview at [workplace] scheduled, and everyone was so very nice and sending me emails in anticipation of this [interview], and then, a few days before the interview, I Googled myself and found that mention of the incident I was involved with jumped to Page 1. Q: Which you ascribed to… A: Which I ascribed to people looking me up. And a couple of days later, I got an email from them saying that they’ve decided to go a different direction with their hires, and that was that. I knew what it was about. Q: Did they ever tell you it was because of your record? A: They didn’t have to. Rasheed also reflected on how his criminal history impacted his personal life: Another interesting situation is how this has affected dating. But you know, in a funny way this actually does an excellent job of weeding people for me. Whoever might have a problem with my history, or with dating someone with a criminal record, is not someone I want to date anyway. This diversity of opinion about the interviewees’ later careers reveals different personal styles and ways to express and foster resilience. But regardless of how open interviewees were with the people in their professional lives about what they went through, their backgrounds, and the way these backgrounds played out in the moral character process, could not be forgotten. These lasting effects on the interviewees’ psyches are striking given the insights from life course criminology about desistance: certain events in the life course — particularly those that imbue a person with considerable stigma — can leave a strong and lingering imprint on the person’s life even as the person makes the choice to desist in the future. IV. DISCUSSION: SHAME, REMORSE, AND EXCLUSION The most dominant emotion that arose in the interviews was shame, in a way that complicates the existing literature on re-entry. Perhaps by contrast to the simplistic assumption that anyone whose needs are located higher than bare survival in Maslow’s hierarchy is privileged, and thus has problems that merit less attention, my interviewees’ experiences reflected a unique Experiences of Bar Applicants with Criminal Records 27 type of suffering: the shame associated with the sudden, and compelled, bridging of the gap between who they were and who they had become. The shame was exacerbated by the discrepancy between my interviewees’ past experiences and the stereotypes and expectations associated with people of their new professional milieu. Echoing Goffman’s concept of performativity, the interviewees, most of whom had managed to morph their self-identity to conform to their new status as candidates for the legal profession, were reduced by the process into their former shoes as convicts and/or prisoners. Making sense of these sentiments illuminates previously neglected themes in the re-entry literature, namely the costs of upward mobilization from a checkered past. A process that requires disclosure and discussion of people’s histories, even if done in a respectful and courteous way, can and does bring up difficult experiences. Ironically, the social distance traveled from these experiences to seeking admission to an elite profession makes the former status less normal, more aberrant, and more emotionally difficult to face and disclose. The stringent requirements on accuracy in disclosure should be interpreted in light of these emotional difficulties and should take into account not only the practical difficulties of remembering and accurately recreating an unsettled life, but also the anguish involved in completing the paperwork. Omissions and inaccuracies should not be ignored, but they should be approached with nuance and sensitivity. But there are also ways in which the process itself can be made more salutary. Allowing attendees to bring support people to the hearings and allowing those to speak on the applicants’ behalf could help transform a difficult situation into a more healing one. Opening the process to law school professors and fellow students would do the same and contribute to the reduction of stigma. One of the striking findings was the contrast between the Bar officials’ simplistic perception of remorse and the applicants’ more complex perception of their personal histories and moral process. The officials’ certainty that they could glean the essence of the story from the court record and to assess remorse reflected a considerable amount of unwarranted hubris. My interlocutor’s certainty that he can detect true remorse is far from endemic to bar proceedings: police officers, judges, parole commissioners and parole agents all tend to highly estimate their ability to detect sincerity. Experimental research, however, does not bear this out. In one experiment, Saul Kassin et al. surveyed 574 investigators from 16 police 28 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 departments in five American states and 57 customs officials from two Canadian provinces.71 The subjects were asked to rate their own deception detection skills and estimated a 77% level of accuracy. This high level of confidence far surpasses experimental findings. Elsewhere, Meissner and Kassin reviewed literature on police officers’ accuracy in detection and found it to be no different than that of laypeople.72 In a third study, Kassin et al. played ten taped confessions of inmates to college students and police investigators, half of which were true and half false. The students were generally more accurate than police, and accuracy rates were higher among those presented with audiotaped than videotaped confessions. In addition, investigators were significantly more confident in their judgments and also prone to judge confessors guilty. To determine if police accuracy would increase if this guilty response bias were neutralized, participants in a second experiment were specifically informed that half the confessions were true and half were false. This manipulation eliminated the investigator response bias, but it did not increase accuracy or lower confidence.73 Even psychologist Paul Ekman, who believes that facial microexpressions can reveal insincerity,74 finds that lie detection rates among untrained professionals — lawyers, trained law enforcement professionals, psychotherapists, trial attorneys, and judges — tend to be no better than chance.75 These difficulties are especially salient in the context of assessing the sincerity of remorse. In his book Showing Remorse,76 Richard Weisman 71 72 73 74 75 76 Saul M Kassin et al, “Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs” (2007) 31:4 L & Human Behavior 381. Christian A Meissner & Saul M Kassin, “’He's guilty!’: Investigator Bias in Judgments of Truth and Deception” (2002) 26:5 L & Human Behavior 469. Saul M Kassin, Christian A Meissner & RJ Norwick, "’I'd Know a False Confession if I Saw One’: A Comparative Study of College Students and Police Investigators” (2005) 29:2 L & Human Behavior 211. Paul Ekman, Telling Lies: Clues to Deceit in the Marketplace, Politics, and Marriage (New York: WW Norton and Company, 2009) at 341–43. Others have even less faith than Ekman: In a law review article about juror lie detection, Renée Hutchins offers evidence that deducing guilt from demeanor is endorsed, as a matter of routine, in jury instructions, but no guidance is offered as to how juries should make such deductions. As Hutchins explains, expressions denoting shifts in the automatic nervous system can reflect stress, shame, alarm, or other form of heightened emotion that is not necessarily deception. Renée McDonald Hutchins, “You Can’t Handle the Truth! Trial Juries and Credibility” (2014) 44 Seton Hall L Rev 505. Richard Weisman, Showing Remorse: Law and the Social Control of Emotion (New York: Routledge, 2014). Experiences of Bar Applicants with Criminal Records 29 discusses two kinds of people whose remorse would not be recognized by the legal system despite their sincerity: the innocent defendant and the defendant who believes that his or her actions were right. Neither of these people can genuinely express remorse in a satisfying way, because the building blocks of the apology will be perceived as lacking. Notably, in the context of the moral character hearing, as well as in the context of a criminal trial or a parole hearing, convicted defendants are regarded as factually as well as legally guilty. Nonetheless, some of them profess their innocence. Formally, sentencing judges and parole commissioners are not supposed to hold the lack of expressed remorse against people who contest their guilt; practically, however, the extent to which the person is seen as stubbornly avoiding accountability and exhibiting lack of insight, as opposed to courageously fighting to prove their innocence, largely depends on whether the person is perceived as guilty or as innocent. Although the assessment of remorse as genuine is regarded as an important task in the criminal justice system, as Susan Bandes argues,77 there is currently no credible empirical evidence that remorse can be accurately evaluated in a courtroom (or, for that matter, anywhere else where virtual strangers’ credibility is assessed). Without any empirical validity, factfinders rely on their sense of a convincing remorse performance. This adds a thick layer of artifice and superficiality to a process that purportedly demands serious self-reflection. A strongly recurring theme in the interviews was the interviewees’ sense that their expressions of remorse, participation in rehabilitative programming (particularly substance abuse programs) and preparations for subsequent hearings were all part of a performance — not so much a disingenuous one as an artificial one. Again, echoing Goffman, the interviewees were forced to reduce their complex experiences and reflections to a flat narrative that could be comprehended by the committee, causing distress and dissonance in these intelligent, articulate people, who found themselves playing a mediocre part in a cliché play. Even worse, the inability to accurately detect genuine remorse can yield further injustices by creating racial and cultural inequality: the evidence suggests that that race and other impermissible factors can confound the ability to evaluate remorse. In The Cultural Defense, Alison Renteln reminds us that not everyone displays remorse in the same way. Among her examples is the criminal trial of a young Hmong man, in which on appeal the defense 77 Susan A Bandes, “Remorse and Criminal Justice” (2016) 8:1 Emotion Rev 14. 30 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 argued that the jury drew the wrong conclusions from the defendant’s defiant and unemotional demeanor. Factors such as these could play to the disadvantage of applicants of color at moral character hearings.78 Indeed, this is just one of several issues that raise alarm about the demographic effects of professional exclusion from the Bar. The comments by interviewees of color about their double deviance, and by white interviewees about their hidden deviance, underscored the deep and scarring impact of an elitist profession on people with unique, non-elitist personal experiences. The California bar is disproportionately male and white. In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character. My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage. This limited perception of the interviewees’ background matters because criminal histories are, in themselves, an important form of diversity that remains invisible in the world of limited, prescribed categories of diversity consisting of race, gender and sometimes sexual orientation. The truths revealed about workplace diversity by the existing categories are 78 Alison D Renteln, The Cultural Defense (New York: Oxford University Press, 2004). Experiences of Bar Applicants with Criminal Records 31 important, but they obscure other truths, involving other categories of valuable viewpoints from less overt personal histories and characteristics. Rather than seeing my interviewees as valuable resources for the legal profession, they are viewed as liabilities, people to scrutinize and screen, to the profession’s detriment. Also, importantly, having a criminal record intersects in meaningful ways with other personal characteristics, such as race and class. Demographic research robustly shows how poor people and people of color are over-represented in the criminal justice system, though the interplay of race and class can be difficult to untangle. We know that these same populations tend to be underrepresented in the Law student population; what we don’t know is how many people of color, who might have otherwise been interested in pursuing legal careers, refrain from applying because of concerns that their criminal record will be an obstacle in admission to the school or, later, to the bar. Because, until recently, the bar did not collect statistics on its own moral character process, we also do not know whether the applicants that the bar selects for further moral character proceedings (expanded written answers, informal conference) tend to be disproportionately poor people of color. This raises concerns about the contribution of the moral character process to the elitist composition of the bar, either as a weeding implement or as a deterrent, whose scope can only be determined with the data. The fact that data has not been collected until recently is in itself suggestive that the bar did not prioritize transparency about its member selection process. V. CONCLUSION AND RECOMMENDATIONS My interviewees’ comments about remorse suggest that the bar’s goal to “weed out psychopaths,” as suggested by one of my interviewees, is pursued with a healthy dose of hubris. This is, of course, not unique to the legal profession. Strewn throughout the criminal process are situations in which professionals — jurors, judges, police officers, parole commissioners — purport to be able to determine the sincerity of remorse. Scholarship about remorse shows that professionals tend to significantly overestimate their ability to discern sincerity in remorse. As Susan Bandes argues,79 there is no dependable way to detect remorse, and even to the extent that it correlates 79 Bandes, supra note 77. 32 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 with rehabilitation or desistance — which is in itself contested — its sincerity is unknowable. As a consequence, my first suggestion is for more modesty in the bar’s approach. In the absence of reliable information about internal transformation, the bar should adopt a guideline that “rehabilitation is as rehabilitation does.” Gainfully employed people, students in good standing, and the like, are people who desist from crime. In this context, it is remarkable that the bar does not consider law school itself an experience demonstrative of desistance. Life course criminology literature, as well as the desistance literature, highlight education as an important station on the path to desistance. The rigor and stress involved in legal education imply that those who undertake law school are making a considerable effort that guides and colors their lives and can be, if not all-consuming, nearly so. This is especially remarkable given the fact that the bar views very seriously any violations of the law school honor code, classifying them as “category 4” incidents. Tarra Simmons’ experience appealing her denial offers a glimpse into the difficulty of making such arguments as an individual. The considerable amount of shame involved in applying to the Bar with a criminal record means that people usually pursue these legal paths on their own and cannot therefore benefit from the collective experience of others in the same category. This lamentable situation might change, however, with two laudable developments. Underground Scholars, an organization for justiceinvolved university students at Berkeley and UCLA, sees its mission as “creat[ing] a pathway for formerly incarcerated and system impacted individuals into higher education” and “building a prison-to-university pipeline through recruitment, retention, and advocacy.”80 While Underground Scholars focuses mostly on recruitment and retention in undergraduate programs, their important work could mean more access to law school by college graduates with criminal records. A more direct contribution to the ability to advocate as a group is the recent effort by Dieter Tejada, a Vanderbilt Law School graduate who passed the bar in Connecticut but failed the moral character qualification, to form the National Justice Impact Movement, a voluntary bar association bar for 80 Berkeley Underground Scholars, “Our Mission” (last visited 4 July 2020), online: UC Berkeley <undergroundscholars.berkeley.edu/about> [perma.cc/4AL3-JK69]. Experiences of Bar Applicants with Criminal Records 33 formerly incarcerated lawyers.81 Such an organization, particularly if adopted by other states, could have a valuable contribution to reducing negative stigmas, providing positive role models, and infusing the legal community with insider perspectives, compassion, and a deeper comprehension of the criminal justice experience. Finally, law schools themselves share a responsibility to support students with criminal records and help them succeed. Law school applications should be explicit and clear about the fact that their content is read by the bar committee in tandem with the moral character application, and that accuracy in the narrative is therefore imperative even at this early stage. Law schools should provide online information about criminal records and the moral character process on their website. Admissions personnel should be able to offer counsel to prospective applicants with professionalism and compassion about the content of the applications, to make sure that the threshold to entry is not a deterrent or hindrance, but rather a challenge to undertake with full information and resources. Politically speaking, California law schools have invested plenty of advocacy and activism energy on a struggle to raise the minimum score for California bar passage, which is the lowest nationwide.82 I think it would be morally advisable to divert at least some of this energy to the issue of moral character. To the extent that legal education is a major player in shaping the legal profession of the future, law schools should expand their definition of “diversity” beyond well-trodden paths and advocate for their graduates with criminal records, whose intimate acquaintance with the criminal process can shape the legal profession in the direction of empathy, trust, and empowerment. 81 82 Kelan Lyons, “From Prison to Practice: Connecticut Man Hopes to Start Bar Association for Formerly Incarcerated Lawyers” (2 August 2019), online: The CT Mirror, <ctmirror.org/2019/08/02/from-prison-to-practice-connecticut-man-hopes-to-start-barassociation-for-formerly-incarcerated-lawyers/?fbclid=IwAR0xTWBe8X1aGwBdSNv4F zCy6icrnD-5K-zg7R4LopWuL5qfqR8qiRKG0OE> [perma.cc/J62S-592X]. Staci Zaretsky, “Law School Deans Say Absurd Cut Score to Blame For California’s Horrendous Bar Exam Pass Rate” (6 December 2018), online: Above the Law <abovethelaw.com/2018/12/law-school-deans-say-absurd-cut-score-to-blame-for-califor nias-horrendous-bar-exam-pass-rate/> [perma.cc/GXX6-H7DF]. 34 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Corporate Criminal Liability 2.0: Expansion Beyond Human Responsibility E L I L E D E R M A N * ABSTRACT Is corporate criminal liability expanding beyond that of human responsibility? Anglo-American law sought to make the scope of corporate criminal liability (but not corporate punishment), during its development in the 20th century, equal to that of humans in almost all infringements of the law. Since the late 1980s, and especially in the last decade, however, in certain areas, the scope of criminal liability that can be imposed on legal entities has exceeded that which can be imposed on humans. The purpose of this article is to describe these expansions and to analyze their legal-social background. The article is divided into two main parts. The first part examines the two sources of the expansions. One source is the aggregation theory developed by the US judiciary and adopted, in part, by the federal courts. Aggregation makes possible the formation of the required mental element of an offence by assembling components of the required guilt from the minds of separate officers of the defendant corporation. The other source is the result of legislative developments in the UK, the Bribery Act of 2010 (sections 7–9) and the third part of the Criminal Finance Act of 2017 (sections 44–52), both of which impose unique criminal duties on corporate bodies, requiring them to prevent certain offences by those who are “associated with them.” Initiatives in the UK and in other jurisdictions appear to be following this path. The second part follows the central modifications that constitute the legal-social background for the expansion of corporate criminal liability. It does not address the immediate reasons that stimulated the enactment of each of the concerned laws, but rather focuses on the general reasons that helped shape the expansion process. Two of the reasons examined are 36 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 internal to criminal theory: the approach of criminal law to group delinquency and the signs of withdrawal of English law from the foundations of the theory of the organs as the sole ground of corporate criminal law in mens rea offences. The third reason is external to criminal theory and has to do with the changes that corporate law has undergone in the economic and social spheres: corporate compliance, corporate good citizenship, and their implications for the extension of corporate criminal liability. In conclusion, the article reflects upon the possible direction in which criminal corporate liability may be heading. I. THE EMERGING TREND T he historical dispute between the Anglo-American and continental legal systems on whether to subject legal bodies to criminal liability was concluded with the capitulation of the latter. In late 1988, the European Council recommended that member states adopt the principle of subordinating all legal entities to the criminal system, allowing them to be held criminally liable.1 The recommendation focused strictly on the principle and did not address secondary questions such as the nature of the recommended liability (criminal or administrative), its scope, or the model according to which it should be examined.2 Even among countries that * 1 2 Professor of Law (Emeritus), Buchmann Faculty of Law, Tel Aviv Uni., Israel. I wish to thank Ariel H Slama, for dedicated research assistance. His talent and thoroughness are reflected in this article. I would also like to thank Brooke Mowatt, Student Editor of the Manitoba Law Journal, for her thorough and professional editing. A lecture on this topic was delivered at the symposium on Corporate Criminal Liability at Stetson University College of Law, in February 2016 and was later published in “Corporate Criminal Liability: The Second Generation” (2016) 46:1 Stetson L Rev 71. Council of Europe, Committee of Ministers, Liability of Enterprises Having Legal Personality for Offences Committed in the Exercise of their Activities, Recommendation R (88)18, adopted by the Committee of Ministers on 20 October 1988 at the 420th meeting of the Ministers' Deputies (1988), online: <www.ius.uzh.ch/dam/jcr:566125> [perma.cc/AC95-PSQX]. For a state-by-state survey of several European countries on corporate criminal liability see Clifford Chance, Corporate Criminal Liability (2016), online (pdf): Clifford Chance <www.cliffordchance.com/content/dam/cliffordchance /briefings/2016/04/corporate-criminal-liability.pdf> [perma.cc/8KWV-7XSQ]. For an overview of ongoing debates about corporate liability, including the European “search for appropriate mechanisms for holding corporations to account”, see James Gobert & Ana-Maria Pascal, eds, European Developments in Corporate Criminal Liability, 1st ed (London & New York: Routledge, 2011) at 11–98. For a general analysis of the four basic models concerning the analysis of corporate criminal liability see Eli Corporate Criminal Liability 2.0 37 follow the Anglo-American legal system, there is no consensus on these matters. The English theory of the organs of the corporation3 differs in its basics and scope from the American doctrine of respondeat superior,4 and both are inconsistent with the Australian corporate ethos or corporate culture theory adopted in 1995.5 Yet, ending one dispute on the matter of corporate criminal liability is often a prelude to other disagreements in the area. Unsettled issues remained in dispute even between jurisdictions that adopted the same basic legal approach and perception, for example, regarding the disagreement on 3 4 5 Lederman, “Models for Imposing Corporate Criminal Liability: From Adaptation and Imitation Toward Aggregation and the Search for Self-Identity” (2000) 4:1 Buff Crim L Rev 641 at 642 [Lederman, “Corporate Criminal Liability”]. For an analysis of the theory of the organs, see Tesco Supermarkets Ltd v Nattrass, [1972] AC 153, [1971] 2 WLR 1166 (HL) (Eng)) [Tesco]; Bolton (HL) (Engineering) Co Ltd v TJ Graham & Sons Ltd, [1957] 1 QB 159 at 172, [1956] 3 WLR 804 (CA); Leonard H Leigh, “The Criminal Liability of Corporations and Other Groups: A Comparative View” (1982) 80:7 Mich L Rev 1508; UK, Law Commission, Criminal Liability of Corporations (Working Paper No 44) (London: Her Majesty’s Stationary Office, 1972); The American Law Institute, Model Penal Code: Official Draft and Explanatory Notes (Philadelphia, PA: ALI, 1985) (Chair: Norris Darrell & R Ammi Cutter) § 2.07(1)(c), online: <www.legal-tools.org/doc/08d77d/pdf> [perma.cc/GB4T-YPN8]. For an analysis of this section, see Kathleen F Brickey, “Rethinking Corporate Liability Under the Model Penal Code” (1987) 19:3 Rutgers LJ 593. For general analysis of the respondeat superior doctrine see “Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions” (1979) 92:6 Harv L Rev 1227; H Lowell Brown, “Vicarious Criminal Liability of Corporations for the Acts of Their Employees and Agents” (1995) 41:2 Loy L Rev 279; Kathleen F Brickey, “Corporate Criminal Accountability: A Brief History and an Observation” (1982) 60:2 Wash ULQ 393 [Brickey, “Corporate Criminal Accountability”]. See Criminal Code Act 1995 (Austl), 1995/12, s 12.3(6) [Criminal Code, Australia] where “corporate culture” is defined as “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place.” According to the statute, the fault element required by the offence may be established by proving that a corporate culture “directed, encouraged, tolerated or led to non-compliance with the relevant provision” or by “proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision”. See Criminal Code, Australia, supra note 5, ss 12.3(2)(c)–(d). See generally, Jonathan Clough & Carmel Mulhern, The Prosecution of Corporations (South Melbourne, Vic: Oxford University Press, 2002) at 138; Olivia Dixon, “Corporate Criminal Liability: The Influence of Corporate Culture” in Justin O’Brien & George Gilligan, eds, Integrity, Risk and Accountability in Capital Markets: Regulating Culture (London: Hart, 2013) 251; Pamela H Bucy, “Corporate Ethos: A Standard for Imposing Corporate Criminal Liability” (1991) 75:4 Minn L Rev 1095. 38 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 how criminal liability is imposed on a legal entity (according to which model). This article expands on one facet of such a disagreement, which may result in controversy regarding criminal corporate liability. For many years, one of the themes in the development of corporate criminal liability was achieving parity between the penal liability of a legal entity and that of a person, unless there was something in the subject matter or in the context that was inconsistent with such parity.6 This was the case, at times, with the definition of “person” in the laws of interpretation.7 Jurists have presented rape and bigamy as examples of such exceptions,8 although this approach is questionable.9 In the last three decades, and in particular the last one, we have been witnessing some deviation from this line of thought. Cumulatively, these divergences suggest an inclination to move away from this approach. I begin by presenting in a nutshell several situations, most of them the result of explicit legislation, others the product of creative judicial interpretation, in which the law finds it appropriate to deliberately impose broader criminal liability on corporations than can be imposed on human beings in identical circumstances. I am not referring to the relatively trivial cases of more severe levels of punishment imposed on corporations by virtue of explicit provision by the law10 or to certain offences that are entirely in the domain of corporate activity, dealing with such matters as banking11 and insurance.12 These instances may be explained relatively easily by the enormous size and business volume of some of the entities, and by the fact that they have exclusive rights to operate in these specialized areas of activity. 6 7 8 9 10 11 12 See e.g. Emily J Barnet, “Hobby Lobby and the Dictionary Act” (2014) 124 Yale LJ Forum 11 (“the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”). See e.g. Interpretation Law 1981 (Isr) ss 2, 4; Interpretation Ordinance (New Version) 1967 (Isr) s 1, as repealed by Interpretation Law 1981; Interpretation Act (UK), 1978, s 19; Interpretation Act, RSC 1985, c I-21, s 33; Interpretation Act (NZ) 1999/85 RS 1, s 29. See e.g. Brickey, “Corporate Criminal Accountability”, supra note 4 at 410, 413–14; VS Khanna, “Corporate Criminal Liability: What Purpose Does It Serve?” (1996) 109:7 Harv L Rev 1477 at 1484. Sara Sun Beale & Adam G Safwat, “What Developments in Western Europe Tell Us About American Critiques of Corporate Criminal Liability” (2004) 8:1 Buff Crim L Rev 89 at 121. See e.g. Traffic Ordinance (New Version) 1967 (Isr) s 30(c); Antitrust Law 1988 (Isr), s 47(a). Banking (Licensing) Law 1981 (Isr) s 4. Control of Financial Services (Insurance) Law 1981 (Isr) s 15(a). Corporate Criminal Liability 2.0 39 Next, I examine briefly the background factors that have made possible the expansion of the tendency of criminal law to reduce its reliance on the traditional pursuit of parity in criminal liability between corporations and humans. The question remains whether this direction of development is appropriate and desirable. This important interdisciplinary issue and its implications exceed the scope of this work and deserve a separate in-depth discussion. A. The Contribution of Case Law: Piecing Together Components In the course of the 1980s, US federal regulations on the prevention of money laundering expanded the requirements for banks to report to the authorities on transactions above a certain amount. The expanded obligation to report applied also to separate deposits and withdrawals within a certain period if the cumulative amount reached a total that required reporting. Informed (willful) infringement of the directive by the bank became a criminal offence.13 This was the case with the Bank of New England.14 Because of a malfunction at one of the branches of the Bank, the new instructions were not transferred to the tellers. As a result, the tellers did not report deposits that were made to a certain account, together with a withdrawal that was made following the deposits, because the amount of each deposit did not require reporting. The tellers did not consider all the deposits into the account, or the withdrawal that followed, as a single transaction that required reporting. When it was consequently brought to justice, the bank argued that in the circumstances of the case, the mental element required for the offence was not present because no employee of the bank knowingly failed to report the transactions: the senior officials did not know that deposits or withdrawals requiring reporting had been made and the tellers who carried out the deposits or withdrawals did not know of the reporting obligation in these cases. The argument of the bank was rejected. The District Court held the corporation criminally liable and ruled that the scope of the knowledge of the corporation includes “the totality of what all of the employees know 13 14 31 USC § 5311-11 (1982); 31 CFR § 103.22 (1986). United States v Bank of New England, 821 F (2d) 844 (Mass Ct App 1987) [BNE]. 40 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 within the scope of their employment. So, if Employee A knows one facet of... [a legal] reporting requirement, B knows another facet of it, and C a third facet of it, the [entity] knows them all... [t]he [entity] is also deemed to know it if each of several employees knew a part of that requirement and the sum of what the separate employees knew amounted to knowledge that such a requirement existed.”15 The Appellate Court adopted this line of reasoning and concluded by saying: “[s]ince the bank had the compartmentalized structure common to all large corporations, the court’s collective knowledge instruction is not only proper but necessary.”16 This is not the place to address such intriguing questions as whether it was possible to examine the formation of the mental element required in light of the willful blindness doctrine17 or what levels of the mental element can be established by combining components of the mens rea. Is it limited to offences of knowledge and recklessness, requiring only a rational or logical element of knowledge (consciousness), or does it cover also intent offences requiring, in addition, an emotional component of desire?18 Other 15 16 17 18 Ibid at 855–56 (providing the trial judge’s explanation, which the court cited and agreed with, while indicating that “[t]he…[aggregation] of those components constitutes the corporation’s knowledge of a particular operation”). On the pioneering aspects of the concept of collective knowledge, see Patricia S Abril & Ann Morales Olazábal, “The Locus of Corporate Scienter” (2006) Colum Bus L Rev 2006:1 81 at 116–20 (providing an in-depth discussion of the landmark case establishing the collective knowledge theory and discussing its use, particularly in cases where it is difficult to find a single defendant whose thoughts and behaviors embody the elements of the offence). BNE, supra note 14 at 856. See e.g. Thomas A Hagemann & Joseph Grinstein, “The Mythology of Aggregate Corporate Knowledge: A Deconstruction” (1997) 65:2 Geo Wash L Rev 210 at 226– 28; Justin C From, “Avoiding Not-So-Harmless Errors: The Appropriate Standards for Appellate Review of Willful-Blindness Jury Instructions” (2011) 97:1 Iowa L Rev 275. Cf Alexander F Sarch, “Beyond Willful Ignorance” (2017) 88:1 U Colo L Rev 97 at 140–69. This is why it is easier to accept the term “collective or aggregated knowledge” than to comprehend and accept the notions “collective intent” and even “collective recklessness”. See McGee v Sentinel Offender Servs LLC, 719 F (3d) 1236 at 1244–45 (Ga App Ct 2013); United States v LBS Bank-New York Inc, 757 F Supp 496 at 501, n 7 (Pa Dist Ct 1990); Commonwealth v Life Centers of America Inc, 926 NE (2d) 206 at 214–15 (Mass Sup Jud Ct 2010); Commonwealth v Springfield Terminal Railway Company, 80 Mass App Ct 22 at 706–07 (2011) [Springfield]; Brian Lewis & Steven Woodward, “Corporate Criminal Liability” (2014) 51:4 Am Crim L Rev 923 at 935–36; Stacey Neumann Vu, “Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent” (2004) 104:2 Colum L Rev 459 at 474–75. In American case law, however, mainly in civil cases, there was also a more far-reaching view. This view holds Corporate Criminal Liability 2.0 41 researchers and myself have addressed these questions elsewhere.19 The present discussion focuses only on the piecing together of the elements that comprise the mens rea of two or more humans to form the complete culpability of a corporate entity, which does not exist in any of these separate persons.20 There is no consensus about this doctrine of collective or aggregate knowledge at the state and federal levels in the US. Some courts have adopted the “piecing together” principle,21 others expressed dislike for it.22 The English Law Commission also explicitly opposed the idea in one of its reports23 and a similar spirit emerges from the reports of other executive 19 20 21 22 23 that collective intent can be combined in fraudulent securities offences: “To carry their burden of showing that a corporate defendant acted with scienter, plaintiffs in securities fraud cases need not prove that any one individual employee of a corporate defendant also acted with scienter. Proof of a corporation's collective knowledge and intent is sufficient…” (In re WorldCom Inc Sec Litig, 352 F Supp (2d) 472 at 497 (NY Dis Ct 2005) [WorldCom]). The combination option was sometimes noted in connection with rule 10b-5 (Employment of Manipulative and Deceptive Devices, Securities) of the Exchange Act of 1934, which requires “intent to deceive, manipulate, or defraud” (See Ernst & Ernst v Hochfelder, 425 US 185 at 193, n 12 (1976). In this context, the combination means the addition of a false statement regarding a material fact given by one representative of the legal body, without the knowledge or recklessness that it is incorrect, with the knowledge of another representative of the legal body that this information is incorrect (In re Take-Two Interactive Sec Litig, 551 F Supp (2d) 247 at 281 (NY Dis Ct 2008). Here too, however, the caution required in the act of combination is emphasized: “it is not enough to separately allege misstatements by some individuals and knowledge belonging to some others where there is no strong inference that, in fact, there was a connection between the two…” (Silvercreek Mgmt v Citigroup Inc, 248 F Supp (3d) 428 at 440 (NY Dis Ct 2017). Lederman, “Corporate Criminal Liability”, supra note 2 at 644–47; Mihailis E Diamantis, “Corporate Criminal Minds” (2016) 91:5 Notre Dame L Rev 2049 at 2070– 71. See e.g. Celia Wells, Corporations and Criminal Responsibility (Oxford: Oxford University Press, 2001) at 118; Abril & Olazábal, supra note 15 at 91–98, 114–21; VS Khanna, “Is the Notion of Corporate Fault a Faulty Notion: The Case of Corporate Mens Rea” (1999) 79:2 BUL Rev 355 at 371–75, 407–12. See e.g. Miller v Holzmann, 563 F Supp (2d) 54 at 99–101 (DC Cir 2008); United States v Philip Morris USA Inc, 449 F Supp (2d) 1 at 894 (DC Cir 2006); WorldCom, supra note 18 at 497. Chaney v Dreyfus Serv Corp, 595 F (3d) 219 at 241 (5th Cir Ct App 2010); United States v Sci Applications Int’l Corp, 626 F (3d) 1257 at 1274 (DC Cir 2010); Aetos Corp v Tyson Foods Inc (In re Tyson Foods Inc Sec Litig), 155 F Appx 53 at 57 (3rd Cir Ct App 2005); Southland Sec Corp v Inspire Ins Solutions Inc, 365 F (3d) 353 at 366 (5th Cir Ct App 2004). UK, Law Commission, A Criminal Code for England and Wales (Law Com No 177) (London: Her Majesty’s Stationary Office, 1989) at para 30(2). 42 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 authorities.24 Australia, by contrast, adopted partially the aggregation principle with regard to the mental state of negligence. According to this approach, if “no individual employee, agent or officer of the body corporate has that fault element; that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).”25 The Australian legal system assumes that “a series of minor failures by relevant officers of the company might add to a gross breach by the company of its duty of care but two innocent states of mind cannot be added together to produce a guilty state of mind. Any such doctrine could have no application in offenses requiring knowledge, intention or recklessness.”26 The idea of combining mental elements is living and breathing in the US, and to some extent in other jurisdictions. According to this approach, the formation of criminal intent by a legal entity, composed or assembled of parts that each reside in a different human consciousness, deviates in its scope and manner of design from the creation of mens rea in human beings. B. The Contribution of Legislation: The Duty to Prevent The cases in which the legislators find it appropriate to expand the criminal liability that can be imposed on corporations to a higher degree than that which can be imposed on human beings have similar backgrounds. The degree of deviation is not necessarily identical in these various laws, but the manner of such deviation is fairly comparable. One of the main reasons behind legislation that expands the liability of legal entities is the competition between them for international market shares and their willingness to bribe foreign government officials to gain business advantages.27 This phenomenon is particularly common in trade 24 25 26 27 Israel, Ministry of Justice, Penal Law Memorandum, Amendment: Criminal Liability of Corporations, Proposed s 23A(2)(b), Document 803-04-2010-000289 (Israel: Ministry of Justice, 2014), online: <www.justice.gov.il/Pubilcations/Articles/Pages/Memorandu m2910.aspx> [perma.cc/9XDX-U9YN] [Israel Ministry of Justice, Criminal Liability of Corporations]. Criminal Code, Australia, supra note 5, s 12.4(2)(b). Dixon, supra note 5 at 5 [footnotes omitted]; Eric Colvin, “Corporate Personality and Criminal Liability” (1995) 6:1 Crim LF 1 at 23; JC Smith & Brian Hogan, Criminal Law, 7th ed (London: Butterworths, 1992) at 184. See generally “Helping Countries Combat Corruption: The Role of the World Bank” (September 1997) at 8–17, 48–62, online (pdf): The World Bank <www1.worldbank.or Corporate Criminal Liability 2.0 43 with developing countries in Africa, but also in Central and Southern America, Asia, and elsewhere. The possibility of concealing, in several countries, bribes under various guises and presenting them as a recognized expense for tax purposes28 further exacerbates the problem, legitimizes these actions, and harms competition.29 The US was first to prohibit bribery of foreign government officials under the Foreign Corrupt Practices Act of 1977.30 The prohibition was enacted as a response to bribes paid by US corporations in foreign countries, which were revealed as part of the Watergate affair and the chain of investigations that followed.31 Other countries, however, whose laws 28 29 30 31 g/publicsector/anticorrupt/corruptn/corrptn.pdf> [perma.cc/FX7L-5EYY]; Alejandro Posadas, "Combating Corruption Under International Law" (2000) 10:2 Duke J Comp & Intl L 345. Daniel Patrick Ashe, “The Lengthening Anti-Bribery Lasso of the United States: The Recent Extraterritorial Application of the US Foreign Corrupt Practices Act” (2005) 73:6 Fordham L Rev 2897 at 2907, n 71; H Lowell Brown, “Extraterritorial Jurisdiction Under the 1998 Amendments to the Foreign Corrupt Practices Act: Does the Government's Reach Now Exceed its Grasp?” (2001) 26:2 NCJ Intl L & Com Reg 239 at 260, n 61; Julie B Nesbit, "Transnational Bribery of Foreign Officials: A New Threat to the Future of Democracy" (1998) 31:5 Vand J Transnat'l L 1273 at 1302. For a different approach, see CrimA 6726/05 Hydrola Ltd v Income Tax Assessor Tel Aviv 1 (2008) at paras 11(5), 22 (of Justice Rubinstein decision) [Hydrola Ltd]. Hydrola Ltd, supra note 28 at para 15(4); Ryan J Rohlfsen, “Recent Developments in Foreign and Domestic Criminal Commercial Bribery Laws” (2012) U Chicago Legal F 151 at 152; Franklin A Gevurtz, “Commercial Bribery and the Sherman Act: The Case for Per Se Illegality” (1987) 42:2 U Miami L Rev 365 at 388; Jeffery Boles, “Examining the Lax Treatment of Commercial Bribery in the United States: A Prescription for Reform” (2014) 51:1 Am Bus LJ 119 at 154. See generally Marie M Dalton, “Efficiency v Morality: The Codification of Cultural Norms in the Foreign Corrupt Practices Act” (2006) 2 NY University JL & Bus 583; H Lowell Brown, “The Extraterritorial Reach of the US Government's Campaign Against International Bribery” (1999) 22:3 Hastings Intl & Comp L Rev 407; H Lowell Brown, “Foreign Corrupt Practices Act Redux: The Anti-Bribery Provisions of the Foreign Corrupt Practices Act” (1994) 12:2 Intl Tax & Bus Lawyer 260. Posadas, supra note 27 at 348–59; Rachel Brewster, “Enforcing the FCPA: International Resonance and Domestic Strategy” (2017) 103:8 Va L Rev 1611 at 1646; Philip M Nichols, “The Neomercantilist Fallacy and the Contextual Reality of the Foreign Corrupt Practices Act” (2016) 53:1 Harv J on Legis 203 at 208–09. Some scholars argued, however, that the immorality of transnational bribery was insufficient to justify unilateral implementation of such a law. See e.g. Peter M German, “To Bribe or Not to Bribe: A Less Than Ethical Dilemma, Resolved?” (2002) 9:3 J Financial Crime 249 at 250; Leslie Holmes, “Good Guys, Bad Guys: Transnational Corporations, Rational Choice Theory and Power Crime” (2009) 51:3 Crime L & Soc Change 383 at 395–96. 44 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 prohibit such bribes, have not always enforced these laws.32 International organizations joined the fight. In 1999, the Organization for Economic Co-operation and Development (OECD), followed in 2005 by the United Nations, adopted treaties aimed at combating this type of corruption.33 The treaties, which were ratified by many countries,34 dealt explicitly with corporations, but did not discuss the details of liability that they proposed to impose.35 In 2008, for example, Israel added Section 291A to its Penal Code, concerning the prohibition of bribing a foreign public official.36 Legislatures and law enforcement agencies have been paying increasing attention to this issue, adopting administrative arrangements into the judicial system for terminating proceedings without a formal conviction (Deferred Prosecution Agreements — DPAs). These proceedings 32 33 34 35 36 Kari Lynn Diersen, “Foreign Corrupt Practices Act” (1999) 36:3 Am Crim L Rev 753 at 765–66, n 96. For example, the Corruption of Foreign Public Officials Act, SC 1998, c 34 is similar in considerable aspects to the American FCPA. But the CFPOA was largely ignored by Canadian federal officials for more than a decade (Paul Blyschak, Nancy Zagbayou & Olga Redko, “Corporate Liability for Foreign Corrupt Practices Under Canadian Law” (2014) 59:3 McGill LJ 655 at 657). This article by Blyschak, Zagbayou & Redko also discusses later Canadian decisions convicting corporations, like Niko Resources (Canada) Limited and Griffith Int'l Energy Inc, for bribery offences of foreign officials. On the implications of this situation for changes introduced into American law in those days. See Ashe, supra note 28 at 2906. OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Related Documents, Adopted by the Negotiating Conference on 21 November 1997 (1997), online: <www.oecd.org/daf/antibribery/ConvCombatBribery _ENG.pdf> [perma.cc/D4XR-J73Q]; United Nations Office on Drugs and Crime, United Nations Convention Against Corruption, GA Res 58/4, UNODCOR, 2003, 1, online: <www.unodc.org/documents/brussels/UN_Convention_Against_Corruption .pdf> [perma.cc/Q8RX-ZJ2R]. OECD, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Ratification Status as of May 2018 (2018), online: <www.oecd.org /daf/anti-bribery/WGBRatificationStatus.pdf> [perma.cc/NC5S-4264]; Office on Drugs and Crime, Signature and Ratification Status, UNODCOR, UN Doc A/58/422 (Status as of 6 February 2020), online: <www.unodc.org/unodc/en/corruption/ratific ation-status.html> [perma.cc/QS5C-PSQN]. On these and other international initiatives to combat this corruption, see also Claudia J Dumas, “Combatting Corruption in the 21st Century: Bringing the Babel of Voices into Harmony” in Sam Muller et al, eds, The Law of the Future and the Future of Law, vol 2 (The Hague: Torkel Opsahl Academic EPublisher, 2012) 99, online: <www.toaep.org/ lotfs-pdf/1-muller-zouridis-frishman-kistemaker> [perma.cc/XJ63-WVEC]. Penal Law 1977 (Isr) s 291A [Penal Law]; “Anti-Bribery and Corruption” (last visited 15 April 2019), online: ASHR’A: The Israel Foreign Trade Risks Insurance Corporation Ltd <www.ashra.gov.il/eng/?CategoryID=859> [perma.cc/8AM2-77ZT]. Corporate Criminal Liability 2.0 45 are offered more often to corporations than to individuals37 and the rulings and level of punishment in these arrangements are often quite severe. Fines imposed on defendants for bribery reached a record in the case brought by the US, Brazil, and Switzerland in December 2016 against Odebrecht, the largest construction firm in Latin America, and its petrochemical subsidiary, Braskem. The latter admitted to bribery of almost $800 million and agreed to pay a record fine of at least $3.5 billion.38 The same year, the US reached a record high, over $2.4 billion, in fines imposed on legal entities for infringing the prohibition against bribery; in many other cases, fines imposed on offenders reached hundreds of millions of dollars.39 Another means used by the enforcement authorities to prevent bribery was the appointment of a monitor who joined the internal control system of the corporation, as part of the DPA agreement of that entity with the authorities.40 Such monitors “report to and take orders from prosecutors, and attend meetings with board members regarding the company's outstanding compliance issues.”41 Other countries have also 37 38 39 40 41 See generally Mike Koehler, “Measuring the Impact of Non-Prosecution and Deferred Prosecution Agreements on Foreign Corrupt Practices Act Enforcement” (2015) 49:2 UC Davis L Rev 497; Andrea Amulic, “Humanizing the Corporation While Dehumanizing the Individual: The Misuse of Deferred-Prosecution Agreements in the United States” (2017) 116:1 Mich L Rev 123 at 124–27; “What Enforcement Tools are in the Armoury of Prosecutors in the US, UK and France?” (13 April 2018), online: Bryan, Cave, Leighton, Paisner <www.bclplaw.com/en-US/insights/what-enforcementtools-are-in-the-armoury-of-prosecutors-in-the-us-uk-and-france.html> [perma.cc/279G5SXK]. US, Department of Justice, Office of Public Affairs, Odebrecht and Braskem Plead Guilty and Agree to Pay at Least $3.5 Billion in Global Penalties to Resolve Largest Foreign Bribery Case in History (16-1515) (21 December 2016), online: <www.justice.gov/opa/pr/odebr echt-and-braskem-plead-guilty-and-agree-pay-least-35-billion-global-penalties-resolve> [pe rma.cc/96FR-5HJR]; Linda Pressly, “The Largest Foreign Bribery Case in History”, BBC News (22 April 2018), online: <www.bbc.com/news/business-43825294> [perma.cc/X6 5C-AEUM]. See “Foreign Corrupt Practices Act Clearinghouse: A Collaboration with Sullivan & Cromwell LLP” (last visited 15 April 2019), online: Stanford Law School <fcpa.stanford.edu/statistics-top-ten.html> [perma.cc/2HRC-ZF53]. US, Department of Justice, Criminal Division, Securities and Exchange Commission, Enforcement Division, A Resource Guide to the U.S. Foreign Corrupt Practices Act (14 November 2012), online: <www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf> [perm a.cc/8J8Q-QDN7]. Miriam Hechler Baer, “Governing Corporate Compliance” (2009) 50:4 Boston College L Rev 949 at 991 [footnotes omitted]. See also Vikramaditya Khanna & Timothy L Dickinson, “The Corporate Monitor: The New Corporate Czar?” (2007) 105:8 Mich L 46 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 adopted aggressive enforcement policies when bribing of foreign public officials was revealed.42 England was the first to break away from the conventional framework of the fight against bribery, with respect to corporations, by setting new boundaries and further expanding criminal liability.43 The comprehensive Bribery Act of 2010 criminalizes both active and passive bribes (the paying or promising of bribes), and embraces also commercial (private sector) bribery.44 The Act imposed a duty to prevent bribery only on corporations, 42 43 44 Rev 1713 at 1718, 1724–25; Veronica Root, “The Monitor-'Client' Relationship” (2014) 100:3 Va L Rev 523 at 531–32 [Root, “Monitor-‘Client’ Relationship”]. See generally s 3(a) of this article. In Israel, for example, there have been allegations concerning senior Teva officials bribing government officials in Eastern European countries and rumors suggesting that IAI (Israel Aircraft Industries) personnel are bribing Indian government officials. See “Suspicion of bribery: The police have launched an investigation against Teva”, Israel Today (last visited 8 February 2017), online <www.israelhayom.co.il/article/450493> [perma.cc/Q6SE-C253] (Hebrew); “This is how the Israeli bribery industry works in India”, Mako (27 October 2009), online: <www.mako.co.il/tv-ilana> [perma.cc/MQS275Q6] (Hebrew). There are also suspicions that Housing and Development (the largest construction company in Israel) is involved in bribing government officials in seven countries throughout Africa and Latin America to win infrastructure projects. See “Bribery in Housing and Development: A senior businesswomen has been interrogated”, Walla News (12 August 2018), online: <news.walla.co.il/item/3180298> [perma.cc/428T-PT7U] (Hebrew). From the opposite direction, there has been suspicion of Tysenkrup bribing senior Israeli officials in the submarines order for the Israeli navy. See “Did officers get bribed by Tysenkrup?”, Globes (30 January 2017), online: <www.globes.co.il/news/article.aspx?did=1001174452> [perma.cc/672Q-J96K] (Hebrew). See also Siemens' bribery of IEC (Israel Electric Corporation) executives: “Siemens admitted bribes of some $ 2.5 million to IEC executives”, Yedioth Ahronoth (2 May 2016), online: <www.ynet.co.il/articles/0,7340,L-4798230,00.html> [perma.cc/L 3B6-4AV9] (Hebrew). For the recent history and background of the Bribery Act 2010, see generally Peter Alldridge, “The U.K. Bribery Act: ‘The Caffeinated Younger Sibling of the FCPA’” (2012) 73:5 Ohio St LJ 1181; Roman Tomasic, “The Financial Crisis and the Haphazard Pursuit of Financial Crime” (2011) 18:1 J Financial Crime 7. See also the House of Lords decision regarding the investigation of the sales of arms by BAE Systems to Saudi Arabia, R (On the Application of Corner House Research) v Director of the Serious Fraud Office (BAE Systems plc, interested party), [2008] UKHL 60. Bribery Act (UK), 2010, ss 1–3, [Bribery Act]; Rahul Kohli, “Foreign Corrupt Practices Act” (2018) 55:4 Am Crim L Rev 1269 at 1307–08; Lee G Dunst, Michael S Diamant & Teresa R Kung, “Hot off the Press: Resetting the Global Anti-Corruption Thermostat to the UK Bribery Act’ (2011) 12:3 Bus L Intl 257. For a comparison of the anti-Bribery Legislation in the US and UK, see e.g. Sulaiman Balogun LLM, “A Comparison of the U.K. Bribery Act and the U.S. Foreign Corrupt Practices Act” (2 July 2013), online: Corporate Criminal Liability 2.0 47 by enacting an independent criminal offence for a failure to prevent it.45 In September 2017, the third part of the Criminal Finances Act was enacted in the UK. Many believe that it is at least partly the result of public pressure following the Swiss Leaks,46 the Panama Papers,47 and the expected 45 46 47 Scribd <www.scribd.com> [perma.cc/GU8F-BNX9]; Isaac A Binkovitz, “Recent Changes in U.S. and U.K. Overseas Anti-Corruption Enforcement Under the FCPA and the U.K. Bribery Law: Private Equity Compliance” (2013) 3:1 Mich Bus & Entrepreneurial L Rev 75. For an analysis of private (or commercial) and public official bribery, see generally Jeffrey R Boles, “The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative Regimes” (2014) 35:4 Mich J Intl L 673 at 673, 711–12. Bribery Act, supra note 44, s 7. Banking information was leaked from over 100,000 customers’ accounts with the HongKong Shanghai Banking Corporation (HSBC), individuals and companies from more than 200 countries. The HSBC also held about $102 billion in accounts for the Geneva branch of the Bank. The International Consortium of Investigative Journalists revealed that between 2005 and 2007, the Swiss arm of HSBC helped these customers carry out tax fraud scams amounting to about $120 billion. The Bank branch allowed its customers to regularly withdraw from their accounts cash in foreign currencies that were not used in Switzerland. It also aggressively marketed programs that enabled its customers to avoid paying taxes, collaborated with some customers to hide undeclared accounts in their countries of origin, and even provided services to international criminals, businesspersons, and other high-risk individuals. Following the leak and an arrangement with the US enforcement authorities, the Bank changed some of its global procedures. See Justin O’Brien, “HSBC: Will the Sword of Damocles Fall?” (2015) 9:1 L & Financial Markets Rev 63; “The HSBC Files: What we Know so Far” The Guardian (11 February 2015), online: <www.theguardian.com/news/2015/feb/11/the-hsbc-fileswhat-we-know-so-far> [perma.cc/GZW5-F3BX]. A collection of some 12 million documents relating to over 200,000 corporations from around the world, including nearly 40 years of activity by the Mossack Fonseca law firm, leaked in early 2016, containing information and clues about suspicious financial activities by many financiers and some politicians from around the world. The firm specialized in creating companies in countries that serve as tax havens, where laws made it possible to hide their shareholders, that is, the owners of the properties. The firm cooperated with large banks around the world. Activity was not reported in the countries where the corporations operated. It was also argued that the haven countries did not examine whether the money sources were legal or the result of tax evasion, money laundering, illicit connections (e.g. trade that violates sanctions imposed on countries), and even corruption such (e.g. bribery). The law firm stopped its activity. See Jake Bernstein, Secrecy World: Inside the Panama Papers Investigation of Illicit Money Networks and the Global Elite (New York: Henry Holt and Company, 2017). For a series of articles published by the Süddeutsche Zeitung on the Panama Papers see “Panama Papers: The Secrets of Dirty Money” (last visited 21 April 2019), online: Süddeutsche Zeitung <panamapapers.sueddeutsche.de/en/> [perma.cc/6KQ4-WZFF]. 48 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 international tax reporting agreements.48 The new law imposes criminal liability on a legal entity, as its legal predecessor, strictly on the grounds of non-prevention, for failing to prevent tax evasion facilitation.49 This is the case when a person or a corporation associated with the legal entity (e.g. its service provider) enabled or assisted the evasion of tax by a third party, consciously or by turning a blind eye, in the course of acting for or on behalf of that entity.50 In both laws, the duty to prevent refers to “a person associated with [the corporation]” which is defined as “(a) an employee… (b) an agent… or (c) any person who performs services for or on behalf of [the corporation]…”51 if such a person acted in his capacity at the time of committing the offence. This definition is quite broad. In addition to employees of the corporation, the definition encompasses independent contractors who committed the offences as agents, distributors, service providers, or suppliers of the corporation.52 The degree of control of the legal entity over such persons is not always clear, even if the person acted as a service provider for the corporation. Borderline cases may arise when the court needs to determine whether someone is associated with the corporation by taking into account the nature of the relationship, as well as all of the relevant circumstances of the conduct.53 It is also clear that the offence under consideration exceeds the limits of the criminal vicarious liability doctrine in English law for mens rea offences because it does not relate to questions of delegation, where such liability is at times recognized.54 48 49 50 51 52 53 54 Multilateral agreements between over 100 revenue authorities worldwide, creating an infrastructure and network for the automatic exchange of information regarding the offshore income and assets of their taxpayers. See OECD, Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports (last visited 22 April 2019), online: <www.oecd.org/tax/automatic-exchange/about-automatic-exchange/cbc -mcaa.pdf> [perma.cc/Z9EF-VB9L]. Peter Alldridge, Taxation and Criminal Justice (Oxford, Oxford University Press, 2017) at 25–41. Criminal Finances Act (UK), 2017, ss 44–46 [CF Act]. Ibid, ss 44(4)(a)–(c), 46(1)(a); Bribery Act, supra note 44, s 8(1). UK, Ministry of Justice, The Bribery Act 2010: Guidance About Procedures Which Relevant Commercial Organizations Can Put into Place to Prevent Persons Associated with them from Bribing (Guide) (London, UK: Ministry of Justice, 2011) at nos 37–43, online: <www.jus tice.gov.uk.pdf> [perma.cc/24AV-ATPJ] [Ministry of Justice, The Bribery Act]. See generally Karl Laird, “The Criminal Finances Act 2017: An Introduction” (2017) Crim L Rev 915 at 932–33 [Laird, “Criminal Finances Act”]. For vicarious criminal liability in general, see Francis Bowes Sayre, “Criminal Responsibility for the Acts of Another” (1930) 43:5 Harv L Rev 689 at 709–12; Leonard Corporate Criminal Liability 2.0 49 Like bribery, facilitating tax evasion can occur anywhere in the world and can refer to local or foreign tax, as long as the accused entity has a UK nexus.55 Therefore, English law formulated two complementary offences that are unique to legal entities: (a) the facilitation of internal tax evasion and (b) the facilitation of tax evasion outside the UK. The foreign offence is contingent on the fact that the evasion is a tax violation both in the location where the offence was committed and in the UK (dual criminality).56 The liability imposed on the corporation for its omissions of non-prevention is strict (i.e., there is no need to prove criminal intent on its part).57 Furthermore, it seems that the scope of corporate liability in relation to these offences is even broader than that of corporations in the US, within the limits of the respondeat superior doctrine, which is limited to the conduct of the employees of the legal entity or of its agents acting in the course of 55 56 57 H Leigh, Strict and Vicarious Liability: A Study in Administrative Criminal Law (London: Sweet & Maxwell, 1982); JLI J Edwards, “Vicarious Liability in Criminal Law” (1951) 14:3 Modern L Rev 334. For the delegation principle, see JLI J Edwards, Mens Rea in Statutory Offences (London: Macmillan, 1955) at 238–40; Glanville Williams, “4 Mens Rea and Vicarious Responsibility” (1959) 9:1 Current Leg Probs 57. CF Act, supra note 50, ss 46(2), 48(1); Bribery Act, supra note 44, s 7(3)(b). CF Act, supra note 50, ss 45–46. The London Law Commission recommended to make this offence a negligent offence. See UK, Law Commission, Reforming Bribery (Law Com No 313) (London, UK: The Stationary Office, 2008), online: <s3-eu-west-2.amazonaws.com/lawcom-prod-storage11jsxou24uy7q/uploads/2015/04/lc313.pdf> [perma.cc/J7WG-FTAT]). The recommendation was not adopted. See UK, HL, HC, Joint Committee on the Draft Bribery Bill, Draft Bribery Bill: First Report of Session 2008-09 (Cm 115-1/430-1, 2009) at 35, online: <publications.parliament.uk/pa/jt200809/jtselect/jtbribe/115/11 5i.pdf> [perma.cc/3SWC-CYWV]). The absence of a requirement from the corporation for awareness of the assistance by anyone associated with the legal body, primarily its employees, caused discontent among those who objected to the bill during the enactment process. English legislators did not change their position on this matter because they feared that the adoption of such a requirement would encourage the corporate administration to turn a blind eye to the acts of those associated with it. They also assumed that the absence of the requirement for awareness would, in any case, be mitigated by the requirement for a reasonable defence mechanism that would be available to the corporation. For reservations about the issue of awareness. See UK, HM Revenue and Customs, Tackling Offshore Tax Evasion: A New Corporate Criminal Offence of Failure to Prevent the Facilitation of Tax Evasion (Summary of Responses) (London, UK: HM Revenue and Customs, 2015), nos 3.74–3.77, online: <www.gov.uk/government/organisations/hm-revenue-customs> [perma.cc/2WTU-5E9L] [HM Revenue & Customs, Offshore Tax Evasion]. 50 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 their employment.58 The defence provided by the laws encourages corporations to correctly assess the risks of bribing or facilitating tax evasion by those associated with them59 while developing and promoting internal control mechanisms to prevent improper activities.60 The defence against bribery requires that the legal entity prove, on the balance of probabilities, that it has taken adequate or reasonable measures to prevent associated persons from carrying out the offence in question or alternatively, with respect to tax evasion, that under the circumstances, it was unreasonable to expect the corporation “to have any prevention procedures in place.”61 The terminology suggests an intention to grant discretion and leeway to the courts and the enforcement authorities in examining the facts and circumstances of the case.62 The different terminology used by the legislator to describe the precautionary measures required to exercise the defence in each of the two laws (adequate procedures in the Bribery Act and reasonable procedures in the Criminal Finances Act) raises a certain difficulty. Some consider the wording difference as merely a difference in terminology and a minor distinction.63 Others argue that an in-depth analysis is needed for the nature 58 59 60 61 62 63 For the principles of the respondeat superior theory, see the references cited in footnote 4. For an assessment of the risk of being asked for a bribe see UK, Ministry of Justice and Department for Business, Innovation & Skills, Insight into Awareness and Impact of the Bribery Act 2010 Among Small and Medium Sized Enterprises (SMEs) by IFF Research Ltd (London, UK: Ministry of Justice and Department for Business, Innovation & Skills, 2015) at 3, 5–7, 24, online: <www.gov.uk/government/uploads/system/uploads/attac hment_data/file/440661/insight-into-awareness-and-impact-of-the-bribery-act-2010.pd f> [perma.cc/D2RB-NZXP]. Cf with the encouragement and reward, by the US Department of Justice, of corporations that adopt effective compliance programs, within the framework of the New Organizational Sentencing Guidelines: Brandon L Garrett, “Structural Reform Prosecution” (2007) 93:4 Va L Rev 853 at 897, nn 145, 157; Anna P Donovan, “Systems and Controls in Anti-Bribery and Corruption” in Iris Hse-Yu Chiu & Michael McKee, eds, The Law on Corporate Governance in Banks (Cheltenham, UK: Edward Edgar, 2015) 236 at 239. CF Act, supra note 50, ss 45(2)(b), 46(3)(b). See also Bribery Act, supra note 44, s 7(2). Gideon Sanitt, “Failure to Prevent Tax Evasion: The Corporate Offence” (last visited 21 April 2019), online: MacFarlanes <www.macfarlanes.com/insights/2017/failure-toprevent-tax-evasion-the-corporate-offence/> [perma.cc/9MXU-56QB]. “Criminal Finances Act: A Guide for the Financial Services Sector” (6 November 2017), online: Allen & Overy <www.allenovery.com/en-gb/global/news-and-insights/publicati ons/the-criminal-finances-act-a-guide-for-the-financial-services-sector> [perma.cc/TP65XKCR]. Corporate Criminal Liability 2.0 51 of the measures required for the defence in each of the two laws because the changes in the text are not random and the legislator was fully aware of them. These jurists rank the levels of precaution required by the terms being used. Assuming that “reasonable” is softer and less decisive in its objective requirements than “adequate”, they conclude that the Criminal Finances Act provides a more flexible protection depending on the circumstances.64 The Ministry of Justice has issued guidelines concerning the procedures that corporations are expected to follow to secure the protection of the law from prosecution for failure to prevent these offences.65 Such procedures have a functional aspect and, as a rule, they revolve around the need of legal bodies: (a) to assess the risks of involvement by associated persons in the payment of bribes and the facilitation of tax evasion, and to prioritize such risks after proper examination, without relying exclusively on past examinations carried out by the businesses in the concerned sector;66 (b) to establish a clear and unequivocal policy on these issues; (c) to foster an atmosphere that emphasizes the commitment of employees and of management at all levels to avoid the payment of bribes or the facilitation of tax evasion; and (d) to inform those involved in labour and commercial relations with the legal body on the subject matter. These steps, together with the establishment of a permanent mechanism that supervises the routine implementation of appropriate preventive actions, meet the requirement of adequate or reasonable procedures. But even if the legal body took these steps, the court must still determine whether or not, under the circumstances of the case, these are 64 65 66 See Adam Blakemore & Joseph Moreno, “UK Criminal Finances Act 2017 Commences with New Tax Evasion Offences, Anti-Money Laundering Rules, and Asset Forfeiture Provisions” (17 October 2017), online: mondaq <www.mondaq.com/uk/Cri minal-Law/637888/UK-Criminal-Finances-Act-2017-Commences-With-New-Tax-Evasi on-Offences-Anti-Money-Laundering-Rules-And-Asset-Forfeiture-Provisions> [perma.cc /9AME-7UA8]: “Although modelled on the Bribery Act, this defence does not go as far as the 'adequate procedures' defence, requiring only that organisations have 'reasonable' procedures in place, notwithstanding that these may not prevent every instance of noncompliance by an organisation's associated persons”. Ministry of Justice, The Bribery Act, supra note 52; HM Revenue & Customs, Offshore Tax Evasion, supra note 57. HM Revenue & Customs, Offshore Tax Evasion, supra note 57 at 27 states, in this regard, that “merely applying old procedures tailored to a different type of risk… will not necessarily be an adequate response to tackle the risk”. 52 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 reasonable and adequate procedures.67 The Ministry of Justice has listed financial services, tax consultants, and accounting services among the sectors that are at the forefront of the battle to prevent the payment of bribes and the facilitation to tax evasion.68 To date, the two offences have been rarely litigated in court.69 The notion of imposing an obligation on the corporation to prevent the commission of offences by those involved in its business is gaining further traction these days. In Australia, a bill equivalent to the UK Bribery Act is on the verge of being passed. But, because the law in Australia does not address commercial bribery directly, the Australian bill is more limited in scope than its UK counterpart.70 The bill proposes to impose absolute criminal liability on a legal body for its failure to prevent its associates from bribing foreign government officials.71 At the same time, the corporation is granted protection against conviction for the offence if it can prove that it had 67 68 69 70 71 Cat Barker & Karen Elphick, Commonwealth (Austl), Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019, No 99/19-20 (28 May 2020) [Barker & Elphick, Crimes Legislation]. HM Revenue & Customs, Offshore Tax Evasion, supra note 57 at 16. In March 2018, for the first time, an interior design corporation in the UK was convicted for failing to prevent bribery under section 7 of the Act in question, not on the basis of an admission of guilt. The jury rejected the defendant's claim, according to which he is entitled to the protections specified in the law, arguing that the measures taken to prevent the bribe were not “adequate” under the provisions of the law for the exercise of the defence. See Jo Rickards & Tom Murray, “Failing to Prevent Bribery: A Legal Update for Commercial Organisations and the ‘Adequate Procedures’ Defence” (15 March 2018), online: mondaq <www.mondaq.com/uk/white-collar-crime-anticorruption-fraud/683082/failing-to-prevent-bribery-a-legal-update-for-commercial-orga nisations-and-the-39adequate-procedures39-defence> [perma.cc/8AYU-LB6B]; Omar Qureshi, Amy Wilkinson & Iskander Fernandez, “UK’s First Considerations of the Bribery Act’s Adequate Procedures Defence” (19 March 2018), online (blog): FCPA Professor <fcpaprofessor.com/> [perma.cc/DQ68-F6HH]. In the first trial of this charge in the UK, Sweett Group Plc (unpublished), the corporation, was convicted, in 2016, of failing to prevent bribery, based on its confession. See UK, Serious Fraud Office, Sweett Group PLC Sentenced and Ordered to Pay £2.25 Million after Bribery Act Conviction (New Release) (London, UK: SFO, 19 February 2016), online: <www.sfo.gov.uk/2016/02/19 /sweett-group-plc-sentenced-and-ordered-to-pay-2-3-million-after-bribery-act-conviction> [perma.cc/T6ML-2CSU]. Matt Fehon & Caroline Mackinnon, “Implications of the Proposed Amendments to Australia's Foreign Bribery Laws” (2017), online (pdf): Governance in Practice <www.mcgrathnicol.com/app/uploads/2017-06-30_Implications-of-the-proposedamendments-to-Australias-foreign-bribery-laws.pdf> [perma.cc/2LPM-T7T4]. Barker & Elphick, Crimes Legislation, supra note 67 at 22. For the definition of a foreign public official see Criminal Code, Australia, supra note 5, s 70.1. Corporate Criminal Liability 2.0 53 adequate procedures in place to prevent its commission.72 In a memorandum of the Penal Code (Amendment - Criminal Liability of Corporations), circulated at the end of 2014, the Israeli Ministry of Justice proposed to further expand the scope of the obligation that legal bodies are subject to. The memorandum proposes that, in addition to preventing bribery (which does not include commercial bribery in its language), the legal body must also prevent offences within the realm of its activity and business conduct. Explicitly included in the range are offences of money laundering, as well as securities law and antitrust offences.73 The Israeli memorandum also imposes the duty of prevention with regard to individuals associated with the legal body, as is the case in UK law, providing a defence to the legal body against the charge of omission if the legal body can prove that it took reasonable measures to carry out this duty.74 But the memorandum does not establish a separate, explicit protection clause. Instead, it creates an explicit and unique presumption of guilt, which transfers the burden of proof onto the defendant corporation, such that the corporation violated its duty unless it proves that it has taken all reasonable steps to fulfill it.75 The mere fact that the corporation was not able to prove that it used all reasonable means to prevent the offence establishes the counter-presumption that the corporation is liable, by default, for the failure in question. In the UK, the result is apparently identical, despite the lack of a legal presumption in the law: the fault of the corporation is determined, prima facie, with proof of the elements of the offence by the prosecution, unless the corporation proves, according to the balance of evidence, that it took reasonable measures to prevent it. Another law of similar nature, intended to impose criminal liability on corporations for failing to prevent economic crime, is going through the stages of UK legislation.76 The Law, which was linked to the anti-corruption program,77 was designed to deal with the phenomenon of corruption and 72 73 74 75 76 77 Barker & Elphick, Crimes Legislation, supra note 67 at 23–25. Israel Ministry of Justice, Criminal Liability of Corporations, supra note 24. Ibid. Ibid. UK, Ministry of Justice, Corporate Liability for Economic Crime (Cm 9370, 2017), online: <consult.justice.gov.uk/> [perma.cc/N5LB-MYVD] [Ministry of Justice, Corporate Liability]. UK, HM Government, UK Anti-Corruption Plan (London, UK: 2014), online: <assets.publishing.service.gov.uk/government/uploads> [perma.cc/N64U-RRFH]. 54 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 economic crimes such as money laundering, fraud,78 and other offences.79 A central argument of those who support this legislation is that a unified standard of corporate behaviour and a single measuring stick for enforcement should be created for all economic offences.80 Although there are arguments in support of such an expansion,81 those who oppose it claim that its imposition will weigh disproportionately on the business sector, when compared to the added efficiency inherent in it, by transferring to this sector the burden of evidence that it took reasonable measures to prevent such economic crimes.82 The public debate on the issue continues. The legal advisor to the Conservative government in the UK expressed his opinion that the legislative process should continue expanding corporate criminal liability, arguing that “there is a strong case for the creation of a new corporate criminal offence of ‘failing to prevent economic crime’ and that it was time to set it in statute.”83 78 79 80 81 82 83 Ministry of Justice, Corporate Liability, supra note 76. For an opinion that the suggested law should impose a duty on corporations to prevent unauthorized access to their computerized systems and their use, or the use of the data stored on them for fraud, see Mark Fenhalls, “The Development and Future for ‘Failure to Prevent’ Offences” (2018), online: Financier Worldwide <www.financierworldwide.co m/the-development-and-future-for-failure-to-prevent-offences/#.XHRdzIgzZaT> [perm a.cc/3E8V-KK8F]. “CORE Submission to the Treasury Select Committee Economic Crime Inquiry” (last visited 22 April 2019), ss 2–3, online (pdf): CORE <corporate-responsibility.org/wpcontent/uploads/2018/05/CORE-TSC-Submission-on-Economic-Crime.pdf> [perma. cc/8JUF-QCK4]. “Corporate Liability for Economic Crime: Submission from Transparency International UK” (2017), online: Transparency International UK <www.transparency.or g.uk/publications/ti-uk-submission-to-corporate-liability-for-economic-crxkia> [perma.c c/6HNM-K4DX]. “FSB Response to Corporate Liability for Economic Crime: Call for Evidence” (2017), online: FSB <yeti.fsb.org.uk/docs/default-source/fsb-org-uk/fsb-submission---corporateliability-for-economic-crime---march-2017.pdf?sfvrsn=287ebc20_0> [perma.cc/7WVR-A 6P5]; Celia Wells, “Corporate Failure to Prevent Economic Crime: A Proposal” (2017) Crim L Rev 6:1 426 at 427; Sirajo Yakubu, A Critical Appraisal of the Law and Practice Relating to Money Laundering in the USA and UK (Doctoral Thesis, School of Advanced Study, University of London, 2017) [unpublished], online: <sas-space.sas.ac.uk/6697/> [perma.cc/NE49-DUPJ]. Joe Watts, “Minister Says Time has Come for New Corporate Offence of ‘Failing to Prevent Economic Crime’”, Independent (18 March 2018), online: <www.independento .uk> [perma.cc/7V2B-WCBA]. See also David Green, Address (Speech delivered at the Pinsent Masons Regulatory Conference, 2014), London, UK: Serious Fraud Office, online: <www.sfo.gov.uk/2014/10/23/david-green-cb-qc-speech-pinsent-masons-regula tory-conference/> [perma.cc/QEC9-HX3E]. Corporate Criminal Liability 2.0 55 This proposal does not mark the end of the road. The first steps toward expanding the trend and imposing similar prevention duties on corporations, in areas that deviate from economic delinquency and are related to social spheres, are currently taking shape. These steps were reflected in the recommendation of the Joint Human Rights Committee of the British Parliament, which, in 2017, proposed to consider imposing additional legal obligations on legal entities, including parent entities.84 The goal of this proposal was to prevent violations of human rights in employment, such as child labour, in foreign countries.85 But no such extension is currently being examined by the legislative authorities.86 In light of this recommendation, in Australia, it was suggested to consider enacting an additional obligation for legal entities, regarding institutional failure, to prevent child sexual abuse.87 A certain formal similarity can be found in the structure of the duty and in the content of the defences that are available to the defendant, between the clauses of the duty of prevention discussed here and the obligations imposed in several legal systems by a group of offences in the areas of taxation, labour rights, environmental protection, etc. These clauses stipulate, in relatively similar terms, that when an offence was committed by a corporation, the senior management or the executive echelons of the management chain (manager, finance manager, other management entities) must also be charged, unless they prove that the offence was committed without their knowledge or that they took reasonable measures to prevent 84 85 86 87 UK, HL, HC, Joint Committee on Human Rights, Human Rights and Business 2017: Promoting Responsibility and Ensuring Accountability (Cm 153/443, 2017), online: <public cations.parliament.uk/pa/jt201617.pdf> [perma.cc/8TBJ-EANM]. Ibid at no 194: “The current criminal law regime makes prosecuting a company for criminal offences, especially those with operations across the world, very difficult, as the focus is on the identification of the directing mind of one individual, which is highly unlikely in many large companies. We welcome the Ministry of Justice’s current consultation on a new ‘failure to prevent’ offence for economic crimes. We regret that a range of other corporate crimes, for example use of child labour, were excluded from the consultation, and we urge the Ministry of Justice to consider a further consultation with a wider remit.” UK, HL, HC, Joint Committee on Human Rights, Human Rights and Business 2017: Promoting Responsibility and Ensuring Accountability: Government Response to the Committee’s Sixth Report of Session 2016-17 (Cm 686, 2018) at 15–16, online: <publications.parliame nt.uk/pa/jt201719/jtselect/jtrights/686/686.pdf> [perma.cc/EH68-4NGJ]. Penny Crofts, “Criminalising Institutional Failures to Prevent, Identify or React to Child Sexual Abuse” (2017) 6:3 Intl J for Crime, Justice & Soc Democracy 104 at 116. 56 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 its commission.88 Note that these offences, some of which are public welfare offences, deal primarily with the duties of the managerial staff. Such duties are not unique to corporations and are usually imposed on all employers. They correspond to the obligations imposed on individual employers, but in the case of corporations, the personal liability of the managers is added to the liability of the legal entity as yet another deterrent.89 Control of meeting these obligations is entrusted to the employer (person or corporation) who is able, with relative ease, to order and supervise it through appropriate instructions. The offence of omission, however, which imposes on corporations a duty to prevent offences by associated persons, is not limited to such malfunctions alone. The presumption is therefore that, in the areas of economic delinquency, there is a tendency by lawmakers to extend the criminal liability of corporations to cases and situations in which there is no parallel liability for human defendants. Indeed, there have been proposals to extend this duty to also include such areas as maintaining the rights of employees and their conditions of employment. The Ministry of Justice in Israel has gone farther, seeking to impose a general obligation on legal entities to prevent criminal conduct on the part of their associates in all areas of their activity. A question arises whether others may be accused, as accomplices to the offence of non-prevention of crimes that are unique to corporations, based on the laws of complicity. Theoretically, this appears possible,90 albeit problematic; in practice, this proposition loses meaning and raises some interpretive issues. First, the laws in question indicate the intention of the legislator to apply them explicitly to legal entities. The prosecution of another person for the offence derived from these laws is inconsistent with this intention. Moreover, in practice, the duty to prevent offences is 88 89 90 In Israel see e.g. Youth Labour Law 1953 (Isr) s 38; Employment of Women Law 1954 (Isr) s 15; Dangerous Drugs Ordinance (New Version) 1973 (Isr) s 34; Banking (Service to Customer) Law 1981 (Isr) s 11; Income Tax Ordinance (New Version) 1961 (Isr) s 224(a). Eli Lederman, “Criminal Liability of Corporate Organs and Senior Officers of the Corporation” (1996) 5 Plilim (Israel J Crim Justice) 101 at 137. Lim Wen Ts'ai, “Corporations and the Devil's Dictionary: The Problem of Individual Responsibility for Corporate Crimes” (1990) 12:2/3 Sydney L Rev 311 at 344–45 noted that, with regard to the responsibility of senior management for corporate crimes, “there are areas in which it is felt that, because of the harm to society which may otherwise occur, higher levels of responsibility are imposed on individuals by the law than by morality.” Laird, “Criminal Finances Act”, supra note 53 at 938–39. Corporate Criminal Liability 2.0 57 inherently intended to deal with situations in which the legal entity cannot be held liable for the offences of bribery or tax evasion under the laws of complicity. These preventive duties also serve as an additional and complementary means of combatting the said corruption offences. If, in the circumstances of the case, there is an inciter or aider and abettor who acted intentionally or recklessly,91 facilitating the commission of bribery or tax evasion offences, the need for such complementary means becomes superfluous; if, on one hand, the inciter or aider and abettor is an external person who is not part of the corporate organization, he may be directly accused of inciting or aiding and abetting in the granting of bribes or the evasion of taxes. On the other hand, if that person is an officer of the corporation, his behavior and state of mind may be attributed to the legal entity itself by virtue of the theory of the organs or by the respondeat superior theory. In this case, the legal entity itself becomes, in addition to that person, an inciter or aider and abettor of the commission of the offence of bribery or tax evasion. Even under these circumstances of direct involvement of the corporation in the offence committed by the principal offender, the means that the legal system grants by the duty to prevent the commission of the offences become equivalent to the duty prescribed by the laws of complicity and obviate the need for it. The uniqueness of these duties, imposed exclusively on corporations, is necessary in cases where a corporate officer assisted the illegal act of bribery or tax evasion without having the required mens rea. In these situations, it is impossible to resort to the law of complicity and the complementary duty to prevent these actions becomes apparent. II. JUSTIFICATIONS AND BACKGROUND FOR THE EXPANSION A. General Three environmental factors, among others, serve as the basis and background for the expansion of corporate criminal liability: (a) norms of 91 For the judicial and academic analysis of, as well as debates on the precise elements of the accomplice's mens rea see e.g. Sherif Girgis, “The Mens Rea of Accomplice Liability: Supporting Intentions” (2013) 123:2 Yale LJ 460 at 468–43; John F Decker, “The Mental State Requirement for Accomplice Liability in American Criminal Law” (2008) 60:2 SCLR 237; Grace E Mueller, “The Mens Rea of Accomplice Liability” (1988) 61:6 S Cal L Rev 2169. 58 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 group responsibility, (b) signs of retreat from the requirements of the theory of organs, and (c) the development of theories of corporate governance and compliance. These factors belong to two different domains, although they overlap and intertwine to some degree. The first two are internal to the criminal domain; the third belongs to the broader social-legal circle. These three factors join other social-economic factors that provide special and immediate reasons for the enactment of the laws under discussion. These additional factors, like the fight against economic delinquency, the protection of fair commercial competition, and the struggle against black money, are not discussed in the present article. As noted, the two factors belonging to the internal criminal domain that make possible the expansion of corporate criminal liability are (a) the very nature of penal law that provides an adequate ground for expanding group responsibility and (b) the practical difficulties of proving criminal intent based on the strict requirements of the theory of organs (which is one of the main methods of imposing liability on legal entities). To these two factors, it is possible to add a third that is not discussed in this article because it is a general phenomenon in penal law and not unique to legal bodies: the significant increase in the last decades of the category of criminal omissions,92 which has traditionally been circumscribed and narrow.93 Naturally, there has also been an increase in the active duties of corporations and together with them, the prevention obligations discussed above, which are unique to legal entities. The factor belonging to the broader socio-legal domain concerns legal policy in general, in the wake of the development of legal-social-economic ideas that tend to expand corporate duties. This trend is rooted in the notion of corporate governance and its derivative, corporate compliance. Emerging attitudes and public expectations from corporations are affecting 92 93 Among those are issues like the duty to rescue, parental responsibility for minors’ behaviour, failure to report, and other topics. See generally Melody J Stewart, “How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omissions Liability” (1998) 25:2 Am J Crim L 385; Ken Levy, “Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism” (2010) 44:3 Ga L Rev 607; Jeremy Waldron, “On the Road: Good Samaritans and Compelling Duties” (2000) 40:4 Santa Clara L Rev 1053; James Herbie DiFonzo, “Parental Responsibility for Juvenile Crime” (2001) 80:1 Or L Rev 1. See generally Graham Hughes, “Criminal Omissions” (1958) 67:4 Yale LJ 590; Otto Kirchheimer, “Criminal Omissions” (1942) 55:4 Harv L Rev 615; Andrew Ashworth, “The Scope of Criminal Liability for Omissions” (1989) 105 Law Q Rev 424; Arthur Leavens, “A Causation Approach to Criminal Omissions” (1988) 76:3 Cal L Rev 547. Corporate Criminal Liability 2.0 59 their social status and creating new norms of conduct and functioning for legal entities. B. The Internal Arena: General Criminal Law Policy 1. Norms of Group Responsibility On the theoretical level, the issue of corporate criminal liability has always been part of collective criminal liability, probably because a corporation is by nature a type of collective. The scope of liability of individual group members has consistently been exceptional and groundbreaking in the criminal sphere. For example, accomplice liability makes it possible to regard an individual as having committed a certain offence, even if he has not committed any of its actus reus elements.94 The liability imposed by penal law on all the parties to an offence, following the commission of an additional offence by one of them, also extends the scope of the original offence and such persons may be liable for the commission of the additional offence, even if they did not foresee it.95 The limits of liability under the law against organized crime in Israel are also exceptional in this regard. They include the liability of service providers to the organization, increasing the maximum punishment for the commission of offences within the framework of the organization, and involve the widescale forfeiture mechanism of the fruits of the crime.96 Similarly, the law imposes liability on any conspirator for the criminal conduct of another conspirator, even if it was carried out without knowledge of the former, as long as that conduct was committed in the course of the criminal conspiracy and for the purpose of promoting it.97 This liability was cancelled in Israeli 94 95 96 97 CrimA 2247/10 Yemini v State of Israel, 64(2) PD 666 at 697–98 (2011); CrimA 5206/98 Abud v State of Israel, 52(4) PD 185 at 189 (1998); CrimA 2796/95 Plunim v State of Israel, 51(3) PD 388 at 403 (1997). In Israel, see e.g. the analysis of s 34A to the Penal Law, its aspects, and the liability that is prescribed under it in CrimA35/89 Lugasi v The State of Israel, 46(1) PD 235 (1991); CrimA 4478/03 Portnoy v State of Israel, 59(1) PD 97 at 109–10 (2004); CrimA 4424/98 Silgado v State of Israel, 56(5) PD 529 (2002). Combating Criminal Organizations Law 2003 (Isr) ss 2–20. In Israel, see e.g. CrimA 196/75 Ben-Shoshan v State of Israel, 30(3) PD 215 (1976); CrimA 196/75 Zekzer v State of Israel, 32(1) PD 701 (1978). See also SZ Feller, “Criminal Liability Without Action, on the Basis of What?” (1974) 29 The Attorney 19 (Hebrew). 60 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 law,98 but it is still alive in Anglo-American law.99 These expansions are related to the development of crime and its ramifications today. But their roots appear to lie in the primal fear of the criminal potential of the group, compared to the more limited capabilities of individual perpetrators. In a dark, isolated alley, we would rather find ourselves facing a single large threatening individual than a group of them. The encounters of individuals with legal entities are at times associated with similar feelings of discomfort, apprehension, and a sense of being treated with disrespect. The cases discussed above dealt with the liability of members of the group, whereas this article deals with the liability of the group itself. But this is an inevitable built-in difference. The absence of a separate identity of the group, in the cases mentioned above, leaves individual members as the only possible objects of liability and punishment for the conduct. By contrast, the personification of the entity, which made it entitled to rights and obligations in the first place, makes it a direct target of the public's feelings and the systemic response of criminal law to group liability, in addition to the individuals who committed the illegal conduct. As noted, this response is consistently exceptional and groundbreaking in its scope. Feelings of uneasiness towards corporations are particularly prominent in the US.100 In most cases, a legal body is perceived as having greater power, means, interests, and sway than a single human being.101 This is apparently why the Penal Code is willing to impose excessive liability (including restrictions, duties, and restraints) on corporations as well as on individuals in groups involved in criminal activity. Since the beginning of the 21st century, these basic feelings have been reinforced by various factors, 98 99 100 101 Penal Law, supra note 36, s 499(b). Rollin M Perkins, “The Act of One Conspirator” (1974) 26:2 Hastings LJ 337; Matthew A Pauley, “The Pinkerton Doctrine and Murder” (2005) 4:1 Pierce L Rev 1; Damon Porter, “Federal Criminal Conspiracy” (2017) 54:4 Am Crim L Rev 1307 at 1327–28. See generally Bourree Lam, “Quantifying Americans' Distrust of Corporations”, The Atlantic (25 September 2014), online: <www.theatlantic.com/business/archive/> [perm a.cc/7B4N-TMDZ]; Jason E Adams, Scott Highhouse & Michael J Zickar, “Understanding General Distrust of Corporations” (2010) 13:1 Corporate Reputation Rev 38 at 38; “Incorporating the Republic: The Corporation in Antebellum Political Culture” (1989) 102:8 Harv L Rev 1883 at 1889–92; Paul J Larkin Jr, “Funding Favored Sons and Daughters: Nonprosecution Agreements and ‘Extraordinary Restitution’ in Environmental Criminal Cases” (2013) 47:1 Loy LA L Rev 1 at 5–6, n 6. Ross B Grantham, “The Legitimacy of the Company as a Source of (Private) Power” in Kit Barker et al, eds, Private Law and Power (Oxford: Hart Publishing, 2016) at 239. Corporate Criminal Liability 2.0 61 including scandals of enormous economic scale involving giant legal organizations such as Enron, Worldcom, Tyco, Healthsouth, Freddie Mac, and American International Group (AIG).102 The scandals were compounded by the financial crisis of 2008103 and by the legal response of law enforcement agencies toward large corporations, which was relatively lenient.104 Such a response often goes hand in hand with controversial insinuations that caution must be exercised when bringing criminal charges against these corporations because of possible negative effects on the American economy and perhaps the economies of other countries.105 102 103 104 105 For details of these scandals, see e.g. “The 10 Worst Corporate Accounting Scandals of All Time” (last visited 22 April 2019), online: Accounting Degree Review <www.accountin g-degree.org/scandals/> [perma.cc/4YUH-YYL7]; William W Bratton & Adam J Levitin, “A Transactional Genealogy of Scandal: From Michael Milken to Enron to Goldman Sachs” (2013) 86:4 S Cal L Rev 783; Arthur E Wilmarth Jr, “Turning a Blind Eye: Why Washington Keeps Giving in to Wall Street” (2013) 81:4 U Cin L Rev U 1283. US, United States Senate Permanent Subcommittee on Investigations, Wall Street and the Financial Crisis: Anatomy of a Financial Collapse: Majority and Minority Staff Report (Washington, DC: The Commission, 2011), online: <www.hsgac.senate.gov/imo/medi a/doc/PSI REPORT - Wall Street & the Financial Crisis-Anatomy of a Financial Collapse (FINAL 5-10-11).pdf> [perma.cc/WV82-2YBS]; Jeff Madrick, Age of Greed: The Triumph of Finance and the Decline of America, 1970 to the Present (New York: Knopf Doubleday Publishing Group, 2011); Michael Lewis, The Big Short: Inside the Doomsday Machine (New York, NY: WW Norton & Co, 2010). E.g., the use of Voluntary Deferred Prosecution Agreements (DPA) between the prosecution and the defence, which serves as an alternative to adjudication, in which the government agrees to stop criminal action in exchange for the defendant agreeing to meet certain conditions and requirements. See the references cited in nn 148–53; Candace Zierdt & Ellen S Podgor, “Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing” (2007) 96:1 Ky LJ 1. For an examination of the relations between corporations and enforcement agencies, the matter of “too big to be jailed”, and the criticism of such attitudes, see generally Sarah Childress, “Holder: Big Banks' Clout 'Has an Inhibiting Impact' on Prosecutions” (6 March 2013), online: PBS <www.pbs.org/wgbh/frontline/article/holder-big-banksclout-has-an-inhibiting-impact-on-prosecutions> [perma.cc/69BG-A597]. Cf US S 2544, Ending Too Big to Jail Act, 115th Cong, 2018, s 4 (introduced 14 March 2018 but was not passed), online: <www.govtrack.us/congress/bills/115/s2544> [perma.cc/L9UJXD82]; Brandon L Garrett, Too Big to Jail: How Prosecutors Compromise With Corporations (Cambridge, USA: Harvard University Press, 2014); Nick Werle, “Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review” (2019) 128:5 Yale LJ 1366; Nicholas Ryder, “‘Too Scared to Prosecute and Too Scared to Jail?’ A Critical and Comparative Analysis of Enforcement of Financial Crime Legislation Against Corporations in the USA and the UK” (2018) 82:3 J Crim L 245. 62 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 From a somewhat different perspective, the expansion of group criminal liability, including corporate liability, may be considered not as an outcome of the concerns and apprehensions of society, but as a result of the full absorption of the corporations into the social fabric. The imposition of increased liability, in this respect, stems from the shattering of the imaginary barrier in the attitude of policy makers and of the public towards legal entities. Nowadays, we come across corporations in every area and aspect of our lives, and they have become embedded in our everyday experience. They no longer appear as entities that must be separated by legal boundaries and the liability that can be imposed on human beings no longer sets a ceiling for the liability that can be imposed on corporations. Because society recognizes the enormous strength and capabilities of corporations in the economic and social spheres, demands and expectations of them have also risen. Certain social institutions in the criminal sphere, such as the probation service, have adapted to the nature and character of corporations.106 With the development of the notion of corporate social responsibility (CSR),107 the expectations and demands of corporations in the area of criminal liability have come to occasionally exceed that which is required of human beings. In this sense, societal expectations and demands can be regarded as a desire on the part of society to harness corporations to the array of structures that contribute to maintaining the public security and welfare: that is, to turn corporations into assistants of law enforcement agencies.108 2. Retreat from the Strict Requirements of the Theory of Organs Another factor operating at the internal criminal level, which advocates for expanding the basis of corporate liability, concerns the apparent retreat from the traditional basis for the theory of organs. This theory is the foundation for imposing corporate criminal liability in the English legal 106 107 108 See generally Christopher A Wray, “Corporate Probation Under the New Organizational Sentencing Guidelines” (1992) 101:8 Yale LJ 2017; Marjorie H Levin, “Corporate Probation Conditions: Judicial Creativity or Abuse of Discretion?” (1984) 52:4 Fordham L Rev 637; David Bergman, “Corporate Sanctions and Corporate Probation” (1992) 142 New LJ 1312. See generally Gerlinde Berger-Walliser & Inara Scott, “Redefining Corporate Social Responsibility in an Era of Globalization and Regulatory Hardening” (2018) 55:1 Am Bus LJ 167; Eric C Chaffee, “The Origins of Corporate Social Responsibility” (2017) 85:2 U Cin L Rev 347. See the closing paragraph of this work. Corporate Criminal Liability 2.0 63 system and other systems that have adopted it. The theory of organs stipulates the imposition of criminal liability on corporations for mens rea offences by proving the awareness of one of its senior executive officers, who is responsible for formulating policy, of the possibility of committing the offence.109 Because of their status, these executives are considered to be the directing mind and will of the corporation, and are regarded as its organs or alter ego. By a process of identification or attribution, their mens rea is examined as the mental state of the corporation itself.110 The theory faces a clear built-in hurdle: “it is impossible to find a company guilty unless its alter ego is identified.”111 This difficulty increases as the corporation becomes larger and management gets more complex or decentralized.112 Legislation regarding the imposition of special obligations on corporations, to prevent the commission of offences by others (discussed above), as well as additional laws and rulings on the subject matter of corporate liability (mentioned below), may be the result of an inclination to allow a deviation and retreat from the theory of organs and the identification principle as the basis for imposing criminal liability on legal entities in mens rea offences. This approach holds that “[t]he identification principle is an inadequate model for attribution to a corporate of criminal liability. It is unfair in its application, unhelpful in its impact and it underpins a law of corporate liability that is unprincipled in scope.”113 The 109 110 111 112 113 Brent Fisse & John Braithwaite, Corporations, Crime, and Accountability (Cambridge, UK: Cambridge University Press, 1993) at 47 et seq; Amanda Pinto & Martin Evans, Corporate Criminal Liability, 3rd ed (London, UK: Sweet & Maxwell, 2013) 35–61. For the basis of the theory in the UK, see generally Lennard’s Carrying Co Ltd v Asiatic Petroleum Ltd, [1915] AC 705 at 713, 113 LT 195 (HL (Eng)); Tesco, supra note 3 at 170– 71, 187–88, 190–91, 200–01; R v Andrews Weatherfoil Ltd, [1972] 1 WLR 118, [1972] 1 All ER 65 (CA CrimD). For acceptance of the basic characteristics of the theory by the Canadian Supreme Court, with certain expansions of the term “directing mind” of a corporation, see e.g. R v Canadian Dredge & Dock Co, [1985] 1 SCR 662 at 693, 19 DLR (4th) 314 [Dredge]. See also Rhône v Peter AB Widener, [1993] 1 SCR 497 at 520–26, 101 DLR (4th) 188 [Rhône]. Attorney General’s Reference (No 2 of 1999), [2000] 3 All ER 182 at 190, [2000] 3 WLR 195 (CA CrimD) [Attorney General’s Reference]. Robert Buckland, Address (Speech delivered at the 35th Cambridge Symposium on Economic Crime, 2017), Cambridge, UK: Attorney General’s Office, online: <www.gov.uk/government/speeches/solicitor-generals-speech-at-cambridge-symposium -on-economic-crime> [perma.cc/V337-VR5S]. Alun Milford, “Control Liability: Is It a Good Idea and Does It Work in Practice?” (Speech delivered at the Cambridge Symposium on Economic Crime, 2016), London, 64 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 connection between the retreat from the requirements and the widening of the scope of liability is quite clear, but the will to expand the liability is the cause of the retreat from the strict demands of the theory of organs, not the result of it. This is contrary to the situation previously discussed regarding criminal law policy, in which the general criminal perception of group liability enabled and caused the expansion of corporate liability. In the last two decades, it is possible to find support, in both legislation and case law, for a line of reasoning that justifies imposing criminal liability on corporations on a wider basis than the theory of organs does. The new approach advocates the softening of the definitions that undergird the traditional theory, by expanding the group of characters whose behavior and state of mind may be identified as that of the legal body. The Corporate Manslaughter and Corporate Homicide Act of 2007114 imposes criminal liability on a corporation if the way in which its activities are organized result in the death of a person and amount to a gross breach of a duty of care owed by the legal entity to the deceased. Not limiting the imposition of liability on the legal body to cases related to an act or omission of a directing mind and will is not coincidental.115 Expanding the base of liability is one of the purposes of the law: “The new offense allows an organization's liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organisation.”116 A somewhat similar basic 114 115 116 UK: Serious Fraud Office, online: <www.sfo.gov.uk/2016/09/06/control-liabilitygood-idea-work-practice/> [perma.cc/5WKM-EWZD]. For a similar approach see also Camilla de Silva, “Corporate Criminal Liability, AI and DPAs” (Speech delivered at the Hebert Smith Freehills Corporate Crime Conference, 2018), London, UK: Serious Fraud Office, online: <www.sfo.gov.uk/2018/06/21/corporate-criminal-liability-ai-anddpas/> [perma.cc/KZT4-3TXK]; Jenny Barker, “Casting the Net Wider: The Ongoing Expansion of Corporate Criminal Liability Carries New Risks for Legal Advisors”, The Law Society Gazette (6 March 2017), online: <www.lawgazette.co.uk/practice-points/ca sting-the-net-wider/5060050.article.> [perma.cc/MTB4-8KZJ]. Paul Almond, Corporate Manslaughter and Regulatory Reform (London, UK: Palgrave Macmillan, 2013) at 30. Yet, the Law stipulates that an organization is guilty of an offence under this section only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach of the relevant duty of care owed by the organization to the deceased. See Corporate Manslaughter and Corporate Homicide Act (UK), 2007, s 1(3). UK, Ministry of Justice, A Guide to the Corporate Manslaughter and Corporate Homicide Act 2007 (London, UK: Ministry of Justice, 2007) at 3, online: <www.gkstill.com/Support/ Corporate Criminal Liability 2.0 65 attitude follows from section 21 of the Criminal Justice and Courts Act 2015, which imposes criminal liability on a care provider (a body corporate or unincorporated association that provides or arranges healthcare for adults or children, or social care for adults) if a person is illtreated or willfully neglected while under the care of another “by virtue of being part of the care provider’s arrangements”, and if “the care provider’s activities are managed or organized in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated.”117 This approach shifts the focus away from individualistic aspects, in the process of attributing corporate liability through a focused identification process, toward a more comprehensive and holistic examination that emphasizes the general mechanisms of supervision and control over the actions of the legal body. The Criminal Justice and Courts Act goes even further. Unlike the corporate manslaughter offence, the Criminal Justice and Courts Act does not require “senior management” to be directly involved in managing or organizing the care provider’s activities in a way that amounts to a gross breach of a duty of care owed by the care provider to the ill-treated individual.118 The requirements of the corporate manslaughter offence are higher and more restrictive that those of the Criminal Justice and Courts Act from another perspective as well. Under the former, in the case of death (manslaughter), the legal entity is charged with the result of the defect in supervision rather than with a separate and independent offence of a fault in the control mechanism, as in cases of ill-treatment or willful neglect under the latter. The former requires proof of a causal link between the negligent or reckless corporate act or omission and the fatal outcome. The second does not ask for such a “but for” causation and it is content with proof of some causal connection between the corporate breach of duty and the ill-treatment or willful neglect of the person in their care. In the wording of the law, it must be proven that “in the absence of the breach, the illtreatment or willful neglect would not have occurred or would have been 117 118 Links/Documents/2007-justice.pdf> [perma.cc/CKS9-M36S]. For a general analysis of the law see Almond, supra note 114. Criminal Justice and Courts Act (UK) 2015, s 21(1)(a)–(b) [Criminal Justice]. Andrew Smith, “The Changing Face of Corporate Criminal Liability” (14 December 2015), online (blog): Corkerbinning <www.corkerbinning.com/the-changing-face-ofcorporate-criminal-liability/> [perma.cc/U5WN-8FQ2]. 66 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 less likely to occur.”119 The waiver of the demand for involvement of senior management in the misconduct and the lowering of the demands regarding the causation linkage expand even more than the scope of corporate criminal liability under the Criminal Justice and Courts Act. In case law as well, there is mention of a broad approach that does not adhere to the fundamental elements of the theory of organs in its traditional scope and interpretation. In a civil case, the Privy Council (the highest Court of Appeal for several British independent Commonwealth nations, the Crown Dependencies, and the British Overseas Territories) addressed the liability of an investment management company for breaches of the New Zealand Securities Amendment Act of 1988, following a failure of two of its investment officers to disclose to the Securities Commission that the entity has become a “substantial security holder” of another corporation.120 In its decision, the Privy Council took a similar expansive approach to that of the court of appeal which relaxed the strict demand for the identification doctrine, in addition to the established assumption that “different persons may for different purposes satisfy the requirements of being the company's directing mind and will.”121 Therefore, Lord Hoffmann, who heard both cases, emphasized in the Privy Council's decision that in cases “in which the court considers that the law was intended to apply to companies and that… insistence on the primary rules of attribution would in practice defeat that intention… the court must fashion a special rule of attribution for the particular substantive rule.”122 Thus, the court must hold that the thoughts and actions of relatively low-level employees are capable of being attributed to the entity.123 This process of attribution, which stretches the identification doctrine to include a wider range of corporate officers, is conducted “by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and 119 120 121 122 123 Criminal Justice, supra note 117, s 21(1)(c). See also Karl Laird, “Filling a Lacuna: The Care Worker and Care Provider Offences in the Criminal Justice and Courts Act 2015” (2016) 37:1 Stat L Rev 1. Meridian Global Funds Management Asia Ltd v Securities Commission, [1995] 2 AC 500, [1995] 3 All ER 918 (PC) [Meridian]. El Ajou v Dollar Land Holding Plc (1993), [1994] 2 All ER 685 at 706, [1994] 1 BLLC 464 (Ct App CivD). Meridian, supra note 120 at 924. Jock Gardiner, “Arendt and Corporate Culture: Instilling Thoughtfulness into the Commonwealth Criminal Code” (2018) Austl J Corp L (Lexis) 3 at 7. Corporate Criminal Liability 2.0 67 policy.”124 The policy-based approach should be handled with caution and each case should be examined on its merits. Lord Hoffmann added a clear warning to the decision, stating “their Lordships would wish to guard themselves against being understood to mean that whenever a servant of a company has authority to do an act on its behalf, knowledge of that act will for all purposes be attributed to the company.”125 In the Meridian case, the starting point of the Court was that, if a law permits the imposition of liability on a legal entity but the primary rules on the subject do not allow this in the circumstances of the case, there is room for action to achieve the purpose of the enactment.126 The judicial tool for achieving this goal is an expansive interpretation and addition to the existing rules. The ruling of the court, however, did not receive much support in subsequent judicial decisions.127 This later ruling reiterates that the structure proposed in the Meridian case bears a residual and complementary character, restricted to special cases in which the usual principles cannot be applied. In other words, it is not possible to identify the factors that are the directing mind and will of the entity, and attribute their conduct and state of mind to the legal entity.128 This issue is discussed in the legal literature,129 at times in a critical way, because its implementation implies a possibly significant expansion of corporate criminal liability.130 Note, however, that the Meridian case, like the Corporate Manslaughter Act, deflects the examination from an analytical-pragmatic analysis, in which the minds that direct the corporation are examined as its alter ego, with a view toward a more flexible and context-specific analysis of the attribution process.131 124 125 126 127 128 129 130 131 Meridian, supra note 120 at 924. Ibid at 928. See Duygu Damar, “Breaking the Liability Limits in Multimodal Transport” (2012) 36:2 Tul Mar LJ 659 at 682. Meridian, supra note 120 at 924, 927. See, however, in this context, Bilta (UK) Ltd (in liq) v Nazir, [2015] UKSC 23. Attorney General’s Reference, supra note 111 at 192. See also R v St Regis Paper Co Ltd, [2011] EWCA Crim 2527. Gardiner, supra note 123 at 21–22. Eilis Ferran, “Corporate Attribution and Directing Mind and Will” (2011) 127:1 Law Q Rev 239 at 245. Jennifer Hill, “Corporate Criminal Liability in Australia: An Evolving Corporate Governance Technique?” (2003) Vanderbilt University Law School: Law and Economics Working Paper No 03-10 at 13; Jennifer Payne, “Corporate Attribution and the Lessons of Meridian” in Paul S Davies & Justine Pila, eds, The Jurisprudence of Lord 68 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 A similar trajectory, and in some respects, an even sharper and more decisive one, has been followed by Canadian law in recent decades. As noted, the Supreme Court of Canada adopted the main tenets of the identification theory, while exercising and expanding the corporate organ group.132 This was merely the first step in the process, however. In 2004, the legislature redefined the concept of senior officers, whose behavior is identified as that of a legal body.133 The first part of the definition addresses the traditional organs of the legal body: “a representative who plays an important role in the establishment of an organization's policies.” The second part extends the scope of the definition to include also a ranking in the body hierarchy, which “is responsible for managing an important aspect of the organization's activities.”134 This lower threshold, which does not stipulate any affiliation with the corporate organ group in establishing corporate policy, greatly increases the group135 and allows embedding an intermediate level in the corporate hierarchy as well.136 Contrary to the emerging approach in the UK, the Canadian provision is not limited to special events and exceptional circumstances that require its activation. Instead, it is general legislation that applies in all situations. Expanding the limits of corporate criminal liability according to the Canadian statutory approach, beyond that which takes shape in the UK, brings it significantly closer to the approach of the respondeat superior doctrine of American law, which derives from the vicarious liability theory. The Supreme Court of Canada and scholars regard this approach as a fair 132 133 134 135 136 Hoffmann: A Festschrift in Honour of Lord Leonard Hoffmann (Oxford: Hart Publishing, 2015) at 357. See Dredge, supra note 110; Rhône, supra note 110. See Criminal Code, RSC 1985, c C-46, s 2 [Criminal Code, Canada]: “senior officer means a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities.” Ibid. Todd Archibald, Kenneth Jull & Kent Roach, “The Changed Face of Corporate Criminal Liability” (2004) 48:3 Crim LQ 367 at 371. Darcy L. MacPherson, “Reforming the Doctrine of Attribution: A Canadian Solution to British Concerns?” in Stephen Tully, ed, Research Handbook on Corporate Legal Responsibility (Cheltenham, UK: Edward Elgar, 2005) 194 at 202; Darcy L. MacPherson, “The Civil and Criminal Applications of the Identification Doctrine: Arguments for Harmonization” (2015) 45:1 Alta L Rev 171 at 191; Todd Archibald, Ken Jull & Ken Roach, “Corporate Criminal Liability: Myriad Complexity in the Scope of Senior Officer” (2014) 60:3 Crim LQ 386 at 391, 403 [Archibald, Jull & Roach, “Myriad Complexity”]. Corporate Criminal Liability 2.0 69 and efficient model, which is a middle ground between 'directing mind' and vicarious liability.137 From this perspective, the approach also includes a movement towards the theory that imposes an obligation on the legal body to prevent the commission of offences by its associates and even takes it a step closer to a comprehensive perspective that imposes a general duty of action on a legal entity, within the limits of its inclusive activities and potential capabilities. One might underestimate the root of the change resulting from both the expansion of the imposition of a duty on the legal entity to prevent the commission of offences and the approach that reduces the need for the theory of organs in its strict, traditional form: by indicating that the core of the prohibitions (bribery, tax evasion, money laundering, etc.) has not altered because of these changes (assuming that the spirit of the Meridian ruling will be adopted by case law). The prohibitions remained as they had been before and it is only the list of those who are bound by it that has grown.138 This argument, however, minimizes the implications of the change, especially in the public context. The identification of those who are obligated and the nature of the obligation have a significant influence on corporate conduct and the formulation of business culture, bearing considerable weight in determining the status and image of corporations in society. C. The External Arena: Corporate Compliance, Corporate Social Responsibility, and their Implications for Corporate Criminal Liability 1. Corporate Compliance and Corporate Social Responsibility The second basis for the expansion of corporate criminal liability lies outside the criminal system, in the spirit and growing influence that corporate compliance and CSR are exerting on the corporate world. Corporate compliance is an internal mechanism of policies, rules, practices, and processes that corporations design to monitor the level of compliance 137 138 Dredge, supra note 110 at 701: Archibald, Jull & Roach, “Myriad Complexity”, supra note 136 at 388. Anna Gaudoin, “Failure to Prevent: The Future of Corporate Criminal Liability” (29 January 2018), online: WilmerHale <www.wilmerhale.com/en/insights/blogs> [perma.c c/86PL-VJ9B]. 70 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 with the law in real time.139 There is no complete agreement among researchers about the primary causes for the development of corporate compliance programs since the second half of the 20th century. Many have traced it back to the prosecution of a group of heavy electric equipment companies for antitrust violations at the beginning of the 1960s140 and the requirement, in the late 1970s, of the Foreign Corrupt Practices Act that corporations develop internal controls to prevent corruption.141 “The contemporary compliance function serves a core governance function”142 that includes all the rules and constraints applying to corporate decision making,143 namely, the cultural-organizational infrastructure upon which corporate conduct is based. Corporate compliance is also a vehicle for the development of the unique obligation of corporate criminal liability. The demand to promptly report misconduct and violations of the law to appropriate enforcement authorities, not merely to prevent and detect such events, has resulted in the revision of corporate compliance programs. The great contribution of compliance programs to law enforcement, both 139 140 141 142 143 Baer, supra note 41 at 958. See also Memorandum from Larry D Thompson, Deputy Attorney General to United States Attorneys, Heads of Department Component (20 January 2003) Principles of Federal Prosecution of Business Organizations, online: <www.americanbar.org> [perma.cc/5STT-GB8G]; Andrew Weissmann, “A New Approach to Corporate Criminal Liability” (2007) 44:4 Am Crim L Rev1319 at 1338– 39. Cristie Ford & David Hess, “Can Corporate Monitorships Improve Corporate Compliance?” (2009) 34:3 J Corp L 679 at 689; Charles J Walsh & Alissa Pyrich, “Corporate Compliance Programs as a Defense to Criminal Liability: Can a Corporation Save Its Soul?” (1995) 47:2 Rutgers L Rev 605 at 650; Harvey L Pitt & Karl A Groskaufmanis, “Minimizing Corporate Civil and Criminal Liability: A Second Look at Corporate Codes of Conduct” (1990) 78:5 Geo LJ 1559 at 1578; Joan TA Gabel, Nancy R Mansfield & Susan M Houghton, “Letter vs Spirit: The Evolution of Compliance into Ethics” (2009) 46:3 Am Bus LJ 453 at 457–58. 15 USC § 78m(b)(2)(A) (1988); Pitt & Groskaufmanis, supra note 140 at 1580–82; Baer, supra note 41 at 962; Walsh & Pyrich, supra note 140 at 653. For another approach as to the origins of corporate compliance see Ashoke S Talukdar, “The Voice of Reason: The Corporate Compliance Officer and the Regulated Corporate Environment” (2005) 6:3 UC Davis Bus LJ 45 at 47–49. Sean J Griffith, “Corporate Governance in an Era of Compliance” (2016) 57:6 Wm & Mary L Rev 2075 at 2078. Harwell Wells, “The Birth of Corporate Governance” (2010) 33:4 Seattle UL Rev 1247 at 1252; Tom Baker & Sean J Griffith, “Predicting Corporate Governance Risk: Evidence from the Directors’ and Officers’ Liability Insurance Market” (2007) 74:2 U Chicago L Rev 487 at 516. Corporate Criminal Liability 2.0 71 preventively and, if necessary, investigatively,144 explains the sweeping support of enforcement agencies for the adoption of effective compliance mechanisms. Government authorities are not satisfied, however, to leave the matter of compliance at the discretion of the legal entities, but exert pressure on them to create such programs, at least in some areas.145 At times, in certain areas, corporate compliance becomes a legal obligation. In Israel, for example, since 2011, the law has required trust fund and investment portfolio management corporations to establish corporate compliance programs and imposes financial sanctions for avoiding adoption or confirmation of the provision by the directorate, within a certain time limit.146 In other instances, the pressure is more moderate. In the US, following the practices of the Department of Defense, the authorities demanded government contractors to have a business and ethical code as a condition for establishing commercial relations with them.147 Government agencies exert pressure on corporations to adopt effective compliance programs by offering them special incentives. In the US, the law allows reducing the penalty on a convicted corporation if it can prove that it has established an effective corporate compliance program, in an effort to reduce criminal activity.148 In Israel, the existence of an effective corporate 144 145 146 147 148 Richard S Gruner, “Preventive Fault and Corporate Criminal Liability: Transforming Corporate Organizations into Private Policing Entities” in Henry N Pontell & Gilbert Geis, eds, International Handbook of White-Collar and Corporate Crime (New York, NY: Springer, 2007) 279 at 279. See e.g. Christopher S Decker, “Corporate Environmentalism and Environmental Statutory Permitting” (2003) 46:1 JL & Econ 103 at 113–14, 126; Ethan H Jessup, “Environmental Crimes and Corporate Liability: The Evolution of the Prosecution of ‘Green’ Crimes by Corporate Entities” (1999) 33:3 New Eng L Rev 721 at 729–30. The Minister of Finance is authorized to determine regulations for ensuring the proper and efficient operation of this legal internal machinery. See “Israel: Detailed Assessment of IOSCO Objectives and Principles of Securities Regulation” (2012) at 133, online (pdf): <www.elibrary.imf.org/doc/IMF002/12747-9781475503180/12747-978147550 3180/Other_formats/Source_PDF.pdf> [perma.cc/R2KW-E9S5]. Larry D Thompson, “In-Sourcing Corporate Responsibility for Enforcement of the Foreign Corrupt Practices Act” (2014) 51:1 Am Crim L Rev 199 at 220–21; 48 CFR §§ 3.1003, 52.203–213 (2018). US, United States Sentencing Commission: Guidelines Manual 2016 (§ 3E1.1) (Washington, DC: USSC, 2016), § 8C2.5(f), online: <www.ussc.gov/sites/default/files /pdf/> [perma.cc/YKT2-L56X]; Blake Weiner et al, “Corporate Criminal Liability” (2018) 55:4 Am Crim L Rev 961 at 966; Claire A Hill, “Caremark as Soft Law” (2018) 90:4 Temp L Rev 681 at 687. 72 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 compliance program and a culture of cooperation with the enforcement authority can serve as a consideration in the recommendations, of the securities authority, to the prosecution of whether to initiate administrative or criminal proceedings for certain corporate securities violations.149 The most concrete expression of pressure from the authorities is the application of tools and concepts from the plea-bargaining world to compliance programs. Entities that have failed to uphold the law and have been prosecuted, or those under suspicion and investigation, are highly vulnerable. The authorities often take advantage of this situation to increase the pressure on corporations and demand improved internal control and supervision mechanisms. Pretrial Diversion Agreements (PDAs) are compromises that soften or nullify, in full or in part, the measures the authorities take against such corporations in exchange for, among others, the establishment or consolidation of an effective compliance mechanism. In the UK, a law enacted in 2013 allows certain enforcement authorities to sign PDAs concerning charges of bribery and fraud.150 The public has an interest in the formation of such agreements and in their substantive terms, and they are subject to judicial approval. PDAs can postpone the hearing in the indictment of a corporate entity in exchange for its agreement to several terms; primarily accepting a financial penalty, paying compensation, and committing to full cooperation with the authorities. Such cooperation includes the maintenance of an internal compliance mechanism designed to prevent, locate, and report to the enforcement agency any legal violations in the activities of the corporation.151 If the corporate entity meets its obligations during the period of postponement and pays the fines and compensations, if any have been imposed, the charges are not brought before the court. American law has gone even further in its incentives and actions.152 149 150 151 152 Zvi Gaggbay, Administrative Enforcement in Israeli Securities Laws (Tel Aviv, Israel: Borsi, 2012) at 512. See, in this connection, Securities Law 1968 (Isr), s 52(65). Crime and Courts Act (UK), 2013, s 45. UK, Serious Fraud Office, Deferred Prosecution Agreements (Guide) (London, UK: SFO, last visited 14 April 2019), online: <www.sfo.gov.uk> [perma.cc/UJ9J-TTT7]. Regarding the level of cooperation expected from an entity in a DPA agreement, see de Silva, supra note 113. For an empirical analytical review of the American approach to pretrial agreements, see generally Cindy R Alexander & Mark A Cohen, “The Evolution of Corporate Criminal Settlements: An Empirical Perspective on Non-Prosecution, Deferred Prosecution, and Plea Agreements” (2015) 52:3 Am Crim L Rev 537. Corporate Criminal Liability 2.0 73 First, under appropriate circumstances, it also makes use of NonProsecution Agreements (NPAs), refraining from filing charges if the legal entity admits to the wrongdoing, waives a limitation claim against such charges, pays a fine or compensation, and obligates itself to comply with the program and cooperate with the authority. NPAs are similar to DPAs, but they are not reviewed by a court because of the early stage in which they are agreed upon. If the corporate entity breaches the agreement, the prosecutors can restart the case and use the admissions that are part of the NPA in the proceedings.153 In the US, the use of non-prosecutions and deferred prosecutions has increasingly resulted in the appointment of corporate monitors, at the expense of the corporation. Monitors are individuals of public stature, with knowledge and experience in the field in which the corporation is active, appointed for a defined period, and agreed upon by the investigating authority and the corporation involved in the improper conduct.154 The corporate monitor plays a dual role: (a) ensures, supervises, and reports to the enforcement authority on the degree of compliance and fulfillment of the terms and obligations assumed by the corporation as part of the nonprosecution or deferred prosecution,155 and (b) serves as a supervisor, responsible for initiating changes and improvements in the internal control system of the legal entity, to prevent conflicts with the law during his tenure.156 Recently, Canada has also adopted the main aspects of the US approach.157 In the words of Justice Rakoff, the corporate monitor plays the 153 154 155 156 157 Jennifer Arlen & Marcel Kahan, “Corporate Governance Regulation Through NonProsecution” (2017) 84 U Chicago L Rev 323 at 336, n 42. For the admission by the corporation to wrongdoing, see e.g. Brandon L Garrett, “Corporate Confessions” (2008) 30:3 Cardozo L Rev 917 at 922. See generally, Khanna & Dickinson, supra note 41. Thomas F O’Neil III & Brendan T Kennedy, “Answering to A Higher Authority: Sovereign-Mandated Oversight in the Board Room and the C-Suite” (2012) 17 Fordham J Corp & Fin L 299 at 310; Ford & Hess, supra note 140 at 683, 692. SEC v WorldCom Inc, 273 F Supp (2d) 431 at 432 (NY Dist Ct 2003) [SEC]; Khanna & Dickinson, supra note 41 at 1720; Peter Spivack & Sujit Raman, “Regulating the ‘New Regulators’: Current Trends in Deferred Prosecution Agreements” (2008) 45:2 Am Crim L Rev 159. The Canadian version of these agreements, referred to in the Criminal Code as a “Remediation Agreement Regime”, came into force in 2018. See Canada, Department of Justice, Remediation Agreements and Orders to Address Corporate Crime (Backgrounder) (last modified 11 September 2018), online: <www.canada.ca/en/department-justice/ne ws/2018/03/remediation-agreements-to-address-corporate-crime.html> [perma.cc/GZ 74 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 2P-8AAT]. The purpose of the agreements is, among others, to create “incentives for corporations to self-report and encourage stronger corporate compliance”. See Public Services and Procurement Canada, Canada to Enhance its Toolkit to Address Corporate Wrongdoing (News Release) (27 March 2018), online: <www.canada.ca/en/publicservices-procurement/news> [perma.cc/5JPT-NAF8]. See Criminal Code, Canada, supra note 133, s 715.34(3)(c) (the Canadian regime may also include the nomination of an independent monitor, whose duty is “to verify and report to the prosecutor on the organization's compliance with the obligation referred to in paragraph (a), or any other obligation in the agreement identified by the prosecutor…”). See also Glen Jennings & Matthew Doak, “Canada Moves Forward with a Remediation Agreement Regime” (21 September 2018), online: mondaq <www.mondaq.com/canada/whitecollar-crime-anti-corruption-fraud/738578/canada-moves-forward-with-a-remediation-a greement-regime> [perma.cc/VV2N-X7LW]. Indeed, the use of DPAs conceals certain deficiencies and the potential to exert inappropriate pressure, political by nature, interfering with prosecutorial independence in the matter. A prime example is the unfolding scandal concerning the Canadian Prime Minister, Justin Trudeau.(i) It has been argued that Trudeau attempted to entice former Attorney General, Jody WilsonRaybould, to enter into a DPA with the construction and engineering giant, SNCLavalin,(ii) and even forgo the prosecution of that corporation, which is based in an area considered to be his political stronghold.(iii) The Federal Ethics Commissioner of Canada, Mario Dion, found that, with respect to the Prime Minister’s conduct, partisan political interests were improperly put to the Attorney General for consideration in the matter,” and thus amounted to an infringement under section 9 of the Conflict of Interest act.(iv) (i) For a detailed description of the affair see e.g. Mark Gollom, “What you Need to Know About the SNC-Lavalin Affair”, CBC News (13 February 2019), online: <www.cbc.ca/news> [perma.cc/WCR3-Q66W]. (ii) Sukanya Pillay, “SNC-Lavalin: Deferred Prosecution Deals Aren’t Get-Outof-Jail Free Cards”, The Conversation (18 March 2019), online: <theconversati on.com/snc-lavalin-deferred-prosecution-deals-arent-get-out-of-jail-free-cards113095> [perma.cc/9NJH-NN5W]. (iii) Adrian Wyld, “PMO Pressed Wilson-Raybould to Abandon Prosecution of SNC-Lavalin; Trudeau Denies His Office ‘Directed’ Her” The Globe and Mail (7 February 2019), online: <www.theglobeandmail.com/politics/article-pmopressed-justice-minister-to-abandon-prosecution-of-snc-lavalin/> [perma.cc/9 N9E-2JM8] (last visited 22 November 2019). For a transcript of the opening remarks by former Attorney General, Jody Wilson-Raybould, before the House of Commons Justice Committee see “Jody Wilson-Raybould’s Testimony: Read the Full Transcript of Her Opening Remarks”, Global News (28 February 2019), online: <globalnews.ca/news/5006450/jody-wilsonraybould-testimony-transcript/> [perma.cc/U82Z-74E2]. (iv) Canada, Office of the Conflict of Interest and Ethics Commissioner, Trudeau II Report (last modified 13 August 2019), online: <ciecccie.parl.gc.ca/en/inves tigations-enquetes/Pages/TrudeauIIReport-RapportTrudeauII.aspx [perma.c c/AF9J-YJUX]. Corporate Criminal Liability 2.0 75 role of a watchdog,158 watching, supervising, and reporting to the enforcement authority as its representative, despite being paid by the corporation.159 From a different perspective, the appointment represents the outsourcing or delegation of a supervisory function from the enforcement authorities to an entity that, strictly speaking, is not part of the internal corporate hierarchy, to assist in achieving the objectives of correction, enforcement, and compliance with the law on the part of the corporation. Even if the corporate monitor is not directly involved in determining corporate policy, as the representative of the enforcing authority, he has an influence, however slight and indirect, over the manner in which the corporation operates. The presence of the monitor imposes more conservative conduct in the way the corporation manages its chain of supervision and execution. It results in more cautious management, with wider margins of security and fewer risks. The ensuing prudent management has some weaknesses, together with its advantages. To some extent, it deters the legal entity from a more assertive and imaginative mode of operation, which could lead to greater innovation. Such similar considerations, coupled with the pro-business atmosphere currently prevailing in the US administration and economic considerations relating to the high cost of monitors, may have led the authorities to reconsider their strong support for the corporate monitoring institution.160 Although the enforcement authorities have not yet announced a change in their approach, they have recently shown greater willingness to forgo the demand to nominate corporate monitors in non-prosecution or deferred prosecution agreements, in favour of self-evaluation and reporting requirements. This is evident from an analysis of the cases processed in the past year.161 The Gibson Dunn 2018 Mid-Year Update on Corporate NonProsecution Agreements and Deferred Prosecution Agreements report 158 159 160 161 SEC, supra note 156 at 432. On the active role of the corporate monitors’ activity, see e.g. Root, “Monitor-‘Client’ Relationship”, supra note 41 at 526–27, 540: “A portion of a monitor's role is as a partner to the corporation in its efforts to ensure long-term compliance”. For additional doubts on the functioning of corporate monitors, see e.g. Lawrence A Cunningham, “Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform” (2014) 66:1 Fla L Rev 1 at 68–69. “2018 Mid-Year Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements” (10 July 2018), online (pdf): Gibson Dunn <gibsondunn.com /wp-content/uploads/2018/07/2018-mid-year-npa-dpa-update.pdf> [perma.cc/HYA7C6W5]. 76 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 suggested that “these agreements support a view that the stronger and more robust an existing compliance program, and the swifter and more dramatic a company's remediation of identified compliance gaps and misconduct, the more likely DOJ will look favorably upon self-reporting, rather than a corporate monitor.”162 Concurrently with the tendency to curtail direct involvement in the regulation and supervision of the activity of the corporation in points where it meets the law, the long-standing incentives given to corporations are being increased to strengthen their cooperation with the enforcement authorities on their own initiative. The goal of achieving compliance with the law and cooperation with its enforcers remains the same. The way to achieve it, however, does not necessarily require the direct involvement of a representative within the corporate hierarchy, but rather relies on preserving control over compliance with the law at the executive levels and providing management with the right incentives for doing so. More than two decades ago, discussing the alleviations granted by the Sentencing Guidelines for Organizations in calculating the penalties imposed on corporations that establish an effective compliance program,163 Chancellor Allen noted that the guidelines constitute “powerful incentives for corporations… to have in place compliance programs to detect violations of law, promptly to report violations to appropriate public officials when discovered, and to make prompt, voluntary remedial efforts.”164 A similar spirit of encouragement to formulate effective corporate compliance programs, with familiar incentives to facilitate the stages of investigation, prosecution, and punishment, is also evident in statements by senior law enforcement officials who propose that corporations adopt such programs as a condition for future negotiations and plea bargaining.165 As part of these incentives, scholars have also suggested granting some form of 162 163 164 165 Ibid at 10. Kevin B Huff, “The Role of Corporate Compliance Programs in Determining Corporate Criminal Liability: A Suggested Approach” (1996) 96:5 Colum L Rev 1252. Re Caremark Int’l, 698 A (2d) 959 at 969 (Del Ct Ch 1996). In the US, see US, Department of Justice, Criminal Division, The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance (20530) (Washington, DC: DOJ, 2016), online: <www.justice.gov.com//> [perma.cc/GS28-BHR6]; Veronica Root, “Coordinating Compliance Incentives” (2017) 102:4 Cornell L Rev 1003 at 1014; Geoffrey P Miller, “The Compliance Function: An Overview” (2014) New York University School of Law Research Paper No 14-36, online: <papers.ssrn.com/sol3/pap ers.cfm?abstract_id=2527621> [perma.cc/TE9H-6YDA]. In the UK see de Silva, supra note 113. Corporate Criminal Liability 2.0 77 protection, in whole or in part, to prosecuted corporations that adopt such programs.166 Compliance mechanisms will not eradicate the phenomenon of delinquency by corporations,167 but it is reasonable to assume that these mechanisms can reduce, to some degree, the scope of illegal activity by these entities.168 Corporate compliance, initially conceived as part of the corporate governance environment, is now firmly attached to “the concurrent intensification of organizational criminal liability.”169 As such, corporate compliance serves, at times, as the basis for enforcing wider obligations on legal entities than those that can be imposed on individuals under similar circumstances and can be regarded as a form of probation, so that both mechanisms can be used against corporations.170 The goals of corporate compliance and probation are similar, as both are applied mostly ex ante to prevent future misconduct and their focus on past misconduct is much reduced. Corporate compliance seeks to achieve its objectives by using two basic and partially overlapping actions: (a) internally supervising and self-policing the activities of the entity and its constituents and (b) reporting illegal findings to the enforcement authorities.171 The aims, and the means to achieve them, are identical with those of probation, but the intensity of the efforts invested in achieving these aims is not. As part of corporate structure, the corporate compliance mechanism is more integrated with the corporate management and operation and involved in functions such as internal control and audits. Consequently, its inspection is continuous, tighter, and more extensive than that of probation. Since the enactment of the Sarbanes166 167 168 169 170 171 See generally Ellen S Podgor, “A New Corporate World Mandates a ‘Good Faith’ Affirmative Defense” (2007) 44:4 Am Crim L Rev 1537; Peter J Henning, “Be Careful What You Wish For: Thoughts on a Compliance Defense Under the Foreign Corrupt Practices Act” (2012) 73:5 Ohio St LJ 883; Andrew Weissman & David Newman, “Rethinking Corporate Criminal Liability” (2007) 82 Ind LJ 411 at 450–51. Cf Walsh & Pyrich, supra note 140 at 661–62. Lauren Verseman, “Corporate Social Responsibility: Are Franchises off the Hook, or Can a Treaty Catch Them?” (2017) 16:1 Wash U Global Study L Rev 221 at 235, n 83. Walsh & Pyrich, supra note 140 at 661. Cunningham, supra note 160 at 14. See the sources cited, n 106. On court-ordered corporate probation see also, Root, “Monitor-‘Client’ Relationship”, supra note 41 at 538–41. See US, Securities and Exchange Commission, Division of Enforcement, Enforcement Manual (Washington DC: Securities and Exchange Commission, 2017), online: <www.sec.gov/divisions/enforce/enforcementmanual.pdf> [perma.cc/92UE-8S2D]. 78 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Oxley Act in 2002, corporate compliance has intensified.172 Probation is initiated only following legal proceedings, whereas corporate compliance can be voluntarily activated, which enforcement authorities strongly encourage. There are also indications that the efficiency of corporate compliance is much appreciated by law enforcement agencies. Senior law enforcement agents expressed the view that they may renounce the demand, in legal proceedings, to impose probation on legal entities “that can demonstrate [that] they have adopted or strengthened existing compliance programs.”173 The importance of corporate compliance is also apparent in the shift of emphasis from external to internal supervision and control. This is especially significant “[g]iven the complex, far-reaching, and often decentralized nature of the modern publicly held firm[s],”174 on one hand, and the difficulties revealed in the capacities of the enforcement authorities to supervise them, on the other. Under these circumstances, the assistance of the legal entities themselves is vital for achieving compliance.175 Such assistance is provided by insiders who have close knowledge and contact with the supervised area. The necessity for such assistance intensifies in investigations of fraud and other white-collar crimes, typical of corporate 172 173 174 175 On the impact, significance, and analysis of this Act, see generally, Wilma H Fletcher & Theodore N Plette, The Sarbanes-Oxley Act, Implementation, Significance and Impact (New York, NY: Nova Publishers, 2008); Edward F Greene, Leslie N Silverman & David M Becker, The Sarbanes-Oxley Act: Analysis and Practice (New York, NY: Aspen Publishers, 2003). Brent Snyder, Compliance is a Culture, Not Just a Policy (Remarks as Prepared for the International Chamber of Commerce/United States Council of International Business Joint Antitrust Workshop, 9 September 2014), Washington, DC: US Department of Justice, online: <www.justice.gov/atr/file/517796/download> [perma.cc/7LT6-2BVE]. See also Mark L Krotoski, “DOJ Warning About Corporate Compliance Programs, Probation, and External Compliance Monitors” (7 November 2014), online: JD Supra <www.jdsupra.com/legalnews/doj-warning-about-corporate-compliance-p-66501/> [pe rma.cc/5G26-YK5B]. Jennifer Arlen, “Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms” in Anthony S Barkow & Rachel E Barkow, eds, Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct (New York & London: New York University Press, 2011) 62 at 70. Ibid at 70–71. See also “Summary: Developments in White Collar Criminal Law and the Culture of Waiver” (2009) 14 Berkeley J Crim L 199 at 201 [“White Collar Criminal Law”]. Corporate Criminal Liability 2.0 79 crime, which often pose severe tracing problems.176 The social-legal movement of CSR or good corporate citizenship has been evolving in parallel with the emerging structures of corporate compliance.177 Some define CSR generally as “the responsibility of enterprises for their impacts on society.”178 Others prefer to regard it as the “continuing commitment by business to behave ethically and contribute to economic development while improving the quality of life of the workforce and their families as well as of the local community and society at large.”179 Some regard CSR and good corporate citizenship as alternative terms for the same subject matter,180 whereas others distinguish between the two, emphasizing that corporate citizenship is having “more connotations of privileges… rather than duties, as connoted by the term ‘corporate social responsibility’”.181 Both terms refer to activities within the corporate “inner community” and for it (e.g. on behalf of the workforce), as well as activities exceeding that range. Each term also may apply to mandatory activities or include also voluntary contributions. For the purpose of this article, it is sufficient to determine that, according to a common view, voluntary activity of the 176 177 178 179 180 181 See “White Collar Criminal Law”, supra note 175; Samuel W Buell, “Criminal Procedure Within the Firm” (2007) 59:6 Stan L Rev 1613 at 1627. Firuza S Madrakhimova, “Evolution of the Concept and Definition of Corporate Social Responsibility” (2013) 8:2 Global Conference on Bus & Fin Proceedings 113 at 113– 14, online: <www.academia.edu/5366859/Evolution_of_The_Concept_and_Definiti on_of_Corporate_Social_Responsibility> [perma.cc/5QL8-M5LQ]. EC, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A Renewed EU Strategy 2011-14 for Corporate Social Responsibility, [2011] OJ, Com 681/1 at 6, online: <www.europarl.europa.eu/meetdocs/2009_2014/documents/com/com_com(2011)0 681_/com_com(2011)0681_en.pdf> [perma.cc/5669-8K53]. Richard Holme & Philip Watts, Corporate Social Responsibility: Making Good Business Sense (Conches-Geneva, Switzerland: World Business Council for Sustainable Development, 2000) at 8, online: <www.ceads.org.ar/downloads/Making%20good%2 0business%20sense.pdf> [perma.cc/4DFB-XM3T]. William L Thomas, “Rio's Unfinished Business: American Enterprise and the Journey Toward Environmentally Sustainable Globalization” (2002) 32:8 Environmental L Reporter 10873 at 10879. See also Stacy L Hawkins, “A Deliberative Defense of Diversity: Moving Beyond the Affirmative Action Debate to Embrace a 21st Century View of Equality” (2012) 2:1 Columbia J Race & L 75 at 79; Catherine Lee & John D Skrentny, “Race Categorization and the Regulation of Business and Science” (2010) 44:3/4 Law & Soc'y Rev 617 at 622. See e.g. Cynthia A Williams, “A Tale of Two Trajectories” (2006) 75:3 Fordham L Rev 1629 at 1633, n 18. 80 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 corporate entity, especially for society at large, is a key area common to both concepts.182 The social concerns for corporate business operations and interactions are, at times, referred to as “beyond compliance.”183 Often, these actions focus on the relations of the corporation with the community, its ethical behavior, and its philanthropic contribution to society, in consideration for the permission to operate within it.184 The idea of promoting social goals through commercial corporations is also an answer to the purely capitalist approach, focused on maximizing profit. Assigning commercial legal entities an additional task in the social arena means giving a supplementary dimension of social sensitivity to their essence and redefining their purpose.185 Their goal may be defined as achieving financial profit, in addition to advancing social ends. At times, these objectives can be integrated.186 It is evident that the development of the CSR doctrine, like that of corporate governance, is pointing to a growing intensification of the social presence of corporate bodies in modern life and it grows out of the same legal-social ground that produces the inclination to impose expanded criminal liability on them, exceeding human responsibility. 182 183 184 185 186 Including the mandatory element part of the description of the terms blurs the boundary between them and corporate compliance. For the inclusion of the element of duty in the traditional approach of corporate social responsibility, see Berger-Walliser & Scott, supra note 107 at 202–06; Dirk Matten & Andrew Crane, “Corporate Citizenship: Toward an Extended Theoretical Conceptualization” (2005) 30:1 Academy Management Rev 166 at 167. For the use of this and similar terms in this sense, see e.g. Paul R Portney, “The (Not So) New Corporate Social Responsibility: An Empirical Perspective” (2008) 2:2 Rev Environmental Economics & Policy 261 at 261–65, 273, online: <academic.oup.com> [perma.cc/V7CS-4FUH]; Cynthia Estlund, “Just the Facts: The Case for Workplace Transparency” (2011) 63:2 Stan L Rev 351 at 360; Larry E Ribstein, “Delawyering the Corporation” 2012:2 Wis L Rev 305 at 326–27. For possible utilitarian reasons for such activities, see Portney, supra note 183 at 273; Carol Liao, “A Canadian Model of Corporate Governance” (2014) 37:2 Dalhousie LJ 559 at 575. See on this topic Michael E Porter & Mark R Kramer, “Creating Shared Value: How to Reinvent Capitalism and Unleash a Wave of Innovation and Growth” (2011) 89:1/2 Harvard Bus Rev 62. Porter & Kramer believed that “the concept of shared value — which focuses on the connections between societal and economic progress — has the power to unleash the next wave of global growth”. For example, in such areas as professional training or the employment of disabled people. Corporate Criminal Liability 2.0 81 2. Implications for Corporate Criminal Liability Together, corporate compliance and CSR (or good corporate citizenship) form a continuum of corporate commitments, partly mandatory and partly voluntary. This structure may support the approach that imagines corporations, especially the most powerful among them, as personalities that, in some respects, act as private governments.187 The description of some aspects of globalization as a process in which large corporations accumulate significant strength at the expense of the state perhaps reaches too far.188 But there seems to be no doubt that the enforcement authorities are gradually transferring certain policing powers to corporations. The transfer process and the continuum of commitments are closely intertwined, and, at times, it is unclear which one is the cause of the other. The two apparently nurture one another. The process involves three gradually evolving stages and serves as the background that enables and, to some extent, encourages the extension of criminal corporate liability. The three stages are corporate compliance, administrative orders, and criminal liability. i. Corporate Compliance At first, the delegation of powers from the enforcement authorities was similar to a focused process, limited and narrow in scope, which could be described as a continuation of the development of corporate compliance. The enforcement authorities recognize that the complex enforcement work often requires assistance from agents, ordinarily not engaged in enforcement, including collaborators and assistants. Such assistance is especially effective where agents enjoy the advantage of familiarity and contact with the supervised area and, where possible, the ability to influence its operation. This is the reason why enforcement authorities encourage the establishment of corporate compliance monitoring mechanisms, while providing incentives and benefits to legal entities that do so.189 ii. Administrative Orders In time, the enforcement authorities started to coerce corporations, to 187 188 189 Roman Tomasic, “Corporations as Private Governments in the Shadow of the State: The Boundaries of Autonomy” (2014) 29:3 Austl J Corp L 275. See also Arthur Selwyn Miller, The Modern Corporate State: Private Governments and the American Constitution (Connecticut, US: Greenwood Press, 1976) at 127. For an analysis of such a theory, see generally Tomasic, supra note 187. See the references cited in nn 156–64, 167–71. 82 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 some degree, to cooperate in monitoring their own compliance. The duty imposed in Israel on firms operating in the capital market, by means of administrative orders, to assist the authorities in preventing money laundering and financing terrorism is an example of this stage of administrative enforcement, which is semi-criminal in nature. This financial regulation requires those authorized to engage in the capital market to verify the identity of their customers and examine the sources of the funds in transactions.190 Almost all actors in the financial industry (banks, financial services, insurers, provident funds, stock exchange members) are licensed businesses and most of them are legal entities.191 In addition to these obligations, these entities also bear a special obligation to report to the competent enforcement authority on any deposit, receipt, withdrawal, payment, conversion, or transfer of funds above a certain amount and any action that deviates from customary patterns.192 The sanction for violations of the orders is administrative: the imposition of financial sanctions by a committee whose decisions can be appealed to the courts.193 iii. Criminal Liability In a further expansion of the policing duties imposed on corporations, ordinary criminal liability was imposed on legal entities to prevent the offences discussed above.194 Liability for omission has been called indirect liability.195 The “lack of directness” is expressed not only in the distance of active involvement from the activity, which is characteristic of all omissions, but also in the low level of guilt required to impose liability on corporations 190 191 192 193 194 195 For some aspects of the Know Your Customer (KYC) rules see e.g. JC Sharman, The Money Laundry: Regulating Criminal Finance in The Global Economy (Ithaca, US: Cornell University Press, 2011) at 11–12, 17–28, 70–71, 176–77; Dan Ryan, “FinCEN: Know Your Customer Requirements” (7 February 2016), online: Harvard Law School Forum on Corporate Governance <corpgov.law.harvard.edu> [perma.cc/D4CQ-LWQZ]. See the references cited in nn 11–12; Control of Financial Services (Regulated Financial Services) Law 2016 (Isr) ss 16, 25(b); Control of Financial Services (Provident Funds) Law 2005 (Isr) s 4. See e.g. Prohibition on Money Laundering Law 2000 (Isr) s 7(b); Prohibition on Money Laundering (The Banking Corporations’ Requirement Regarding Identification, Reporting, and Record-Keeping for the Prevention of Money Laundering and the Financing of Terrorism) Order 2001 (Isr) ss 10(b)–13. Prohibition on Money Laundering Law 2000 (Isr) ss 12–20; Prohibition on Money Laundering (Financial Sanction) 2001 (Isr). See s A of this article. Liz Campbell, “Corporate Liability and the Criminalisation of Failure” (2018) 12:2 L & Financial Markets Rev 57. Corporate Criminal Liability 2.0 83 for the said omissions.196 Thus, the expansion of corporate compliance, which is becoming the favourite tool of law enforcement agencies, complements the good corporate citizenship idea and establishes a trend that views corporations as an effective tool for enforcing the law. The contributions that corporations make to law-enforcement agencies are the cause for the tendency to extend this range of assistance to additional areas. III. THINKING ALOUD There is apparently no single, general cause for expanding the criminal liability of legal entities beyond the personal responsibility of human beings. This phenomenon is apparently the result of several background factors discussed in this paper and a series of individual factors that are outside of our scope. Their cumulative influence contributed to the creation of an appropriate legal-social environment that enabled its development. It is possible to examine the process that motivates the expansion of criminal liability of legal entities beyond that of human liability from two different angles. One way to approach this examination is to view the expansion as an additional, gradual burden imposed by governments on corporations, by coercing them through threats and incentives, to assist the authorities in enforcing the law. This is the stick and carrot concept197 that results in cooperation through criminalization.198 This line of reasoning preserves the former, independent and separate status of the enforcement authorities and legal entities. Taking this reasoning to the extreme, an 196 197 198 See the references cited in nn 57–58 and accompanying text. US, United States Sentencing Commission, Corporate Crime in America: Strengthening the ‘Good Citizen’ Corporation: Proceedings of the Second Symposium on Crime and Punishment (Washington, DC: USSC, 1995), online: <www.ussc.gov/sites/default/files/pdf/traini ng/organizational-guidelinesspecial-reports> [perma.cc/65YY-AQ4Q]; Michelle M Harner, “Corporate Control and the Need for Meaningful Board Accountability” (2010) 94:3 Minn L Rev 541 at 545, 598. See also “The Federal Sentencing Guidelines for Organizations at Twenty Years: A Call to Action for More Effective Promotion and Recognition of Effective Compliance and Ethics Programs” (2012), online (pdf): Ethics Resource Center <www.theagc.org/docs/f12.10.pdf> [perma.cc/589N-388Y]. Campbell, supra note 195 at 39, n 151. Campbell cites Garry Gray, “The Regulation of Corporate Violations: Punishment, Compliance, and the Blurring of Responsibility” (2006) 46 Br J Crim 875 for a similar trend in the area of workplace health and safety, where the regulation of corporate violations has moved to “regulation through individual responsibility”. 84 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 inspector, on behalf of the enforcement authority, is integrated in the corporate hierarchy, with the function to promote compliance with the law, within the framework of self-policing by the legal entity, and report violations to the enforcement authorities. This strategy, taken to the extreme, has given the enforcement authorities a permanent and active representation in the management of the corporation (corporate monitor).199 Another angle of observation reflects a different line of reasoning and strategy. From this point of view as well, the objective remains to increase criminal enforcement among legal entities. But, in contrast with the previous reasoning, this approach seeks to bring the corporations closer to the government and enforcement agencies, slightly blurring the lines of separation between them. According to this approach, which presupposes the caring or responsible attitude of legal entities (“responsibilization” strategy)200 and the goodwill that underlies the ideas of CSR or good corporate citizenship,201 the government authority grants (or delegates) enforcement powers, in certain areas, also to corporations,202 without forfeiting the possibility of exercising them itself, and requires corporations to carry out this task by means of a criminal threat. Thus, the volunteering aspect is losing ground in favor of a more compulsory approach, perhaps because of the fear that the scope of voluntary assistance is not sufficient. Under the threat of prosecution, the corporation, in certain areas, turns into a messenger or agent and, to some extent, into an executive arm of the government enforcement authority. 199 200 201 202 On the issues of corporate monitoring and self-evaluation and reporting, see the references cited in nn 154–64 accompanying text. See e.g. David Garland, “The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society” (1996) 36:4 Brit J Crim 445 at 452, 454 (discussing the emergence of a new mechanism of crime control with the assistance of various non-state agencies. The “primary concern [of this strategy] is to devolve responsibility for crime prevention on to agencies, organizations and individuals which are quite outside the state and to persuade them to act appropriately.” This strategy makes the law enforcement agencies more powerful, “with an extended capacity for action and influence.” See the references cited in nn 177–86 and accompanying text. See Kenneth A Bamberger, “Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State” (2006) 56:2 Duke LJ 377 at 381. The Dangers of a Punitive Approach to Victim Participation in Sentencing: Victim Impact Statements after the Victims Bill of Rights Act E L I Z A B E T H J A N Z E N * ABSTRACT This paper examines the Canadian regime governing the participation of victims in sentencing through the use of victim impact statements, with a focus on the regime following the 2015 amendments implemented through the Victims Bill of Rights Act. It argues that an approach to victim impact statements that focuses on their expressive and communicative uses best aligns with both Canadian sentencing principles and respect for victims. The current regime, in prioritizing the use of victim impact statements as a means to compile evidence of harm, sends a dangerous message by equating respect for victims with harsher sentences. An analysis of case law demonstrates that the current legislative regime for victim impact statements has the potential not only to cause further harm to victims, but also to unnecessarily increase the severity of sentences at a time in which courts are struggling to resist an increasingly punitive sentencing regime. Keywords: sentencing; victims; victim impact statements * JD (2019), UBC. Thank you to Mark Iyengar, the anonymous peer reviewers, and the editors of the Manitoba Law Journal for their thoughtful feedback, critiques, and revisions. I would like to give particular thanks to Professor Isabel Grant for supervising this research while I was a JD student, providing invaluable feedback on multiple drafts, and supporting me throughout the publication process. 86 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 I. INTRODUCTION T he participation of victims in the sentencing process recently received significant media attention with the high-profile sentencing of Jaskirat Singh Sidhu, the driver of the semi-tractor unit that collided with the bus carrying the Humboldt Broncos hockey team.1 Mr. Sidhu pleaded guilty to 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily harm.2 Ninety victim impact statements were filed at his sentencing.3 The sentencing judge had the unenviable task of crafting a sentence that reflected the harm caused by the loss of so many lives, but that also reflected the many mitigating factors in Mr. Sidhu’s case, such as his early acceptance of responsibility and his sincere remorse.4 Although few cases receive the media scrutiny that surrounded Mr. Sidhu’s sentencing, the difficult task faced by the sentencing judge involved an issue that judges must grapple with on a regular basis: how should victim impact statements be used in the formulation of a fit sentence? The proper use of victim impact statements in sentencing is not a new issue, despite the recent surge in media attention. Commentators have generally fallen on one of two sides of the debate: those who see victim impact statements as providing a source of evidence about the harm caused by the offence that should properly be used to impact the sentence imposed (the “instrumental” approach), and those who see victim impact statements as a means of promoting victim expression and providing a chance for victims to communicate with other actors in the sentencing process (the “expressive” or “communicative” approach).5 Although Parliament made some reforms to the victim impact statement regime in the early years 1 2 3 4 5 R v Sidhu, 2019 SKPC 19 [Sidhu]. Another high-profile sentencing in which victim participation was widely reported on was that of serial killer Bruce McArthur. See R v McArthur, 2019 ONSC 963 at paras 70–76, for the sentencing judge’s consideration of the victim impact statements in that decision. Sidhu, supra note 1 at para 2. Ibid at para 24. Further discussion of this case can be found in Part D, below. Julian V Roberts & Edna Erez, “Communication at Sentencing: The Expressive Function of Victim Impact Statements” in Anthony Bottoms & Julian V Roberts, eds, Hearing the Victim: Adversarial Justice, Crime Victims and the State (Portland: Willan Publishing, 2010) 232 at 233–34. Victim Impact Statements after the Victims Bill of Rights 87 following its introduction to the Criminal Code6 in 1989,7 it provided its most substantial contribution to the debate when it introduced significant reforms to the victim impact statement regime in 2015 through the Victims Bill of Rights Act (VBRA).8 While some commentators see these reforms as a positive step towards promoting greater respect for victims in the criminal justice system,9 others argue that they fail to provide any real clarity on the use of victim impact statements in sentencing10 and that their claim to promote victims’ rights is misguided and even harmful for victims.11 This paper considers the use of victim impact statements in sentencing, particularly in the context of the Canadian regime as it stands after the VBRA amendments. While the legislation makes some surface-level attempts to improve communication and victim expression, its focus is on emphasizing the use of victim impact statements as a means to compile evidence of harm, which is used to increase the severity of sentences. This approach sends a dangerous message to Canadians by equating respect for victims with harsher sentences, and it fails to truly respect victims because it uses their participation as a means to the end goal of implementing a more punitive sentencing regime. I argue that the use of victim impact statements that best aligns with both Canadian sentencing principles and respect for victims is one that focuses on expressive and communicative uses, rather than one that sees victim impact statements as a tool for gathering evidence of harm. An analysis of recent case law demonstrates that the critiques raised by opponents to the instrumental use of victim impact statements are significant and that the current regime has the potential not only to cause further harm to victims, but also to unnecessarily increase the severity of sentences at a time in which courts are already having difficulty applying a restrained approach to sentencing.12 6 7 8 9 10 11 12 Criminal Code, RSC 1985, c C-46 [Criminal Code]. An Act to amend the Criminal Code (victims of crime), SC 1988, c 30, consolidated in RSC 1985, c 23 (4th supp) [The 1988 Act]. Victims Bill of Rights Act, SC 2015, c 13 [VBRA]. Benjamin Perrin, Victim Law: The Law of Victims of Crime in Canada (Toronto: Thomson Reuters Canada, 2017) at 37–38, 141–66. Marie Manikis, “Victim Impact Statements at Sentencing: Towards a Clearer Understanding of their Aims” (2015) 65:2 UTLJ 85 at 116–19. Teagan Markin, “Victim Rights in Sentencing: An Examination of Victim Impact Statements” (2017) 22:1 Can Crim L Rev 95 at 109–19. See Marie-Andree Denis-Boileau & Marie-Eve Sylvestre, “Ipeelee and the Duty to Resist” (2018) 51:2 UBC L Rev 548 for an examination of how courts have failed to apply the 88 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 II. VICTIM IMPACT STATEMENTS AND THE PURPOSES AND PRINCIPLES OF SENTENCING In order to evaluate the appropriate use of victim impact statements in sentencing, it is first necessary to consider the outcomes the criminal justice system aims to achieve by sentencing individuals who commit crimes, and the principles that judges are directed to follow in doing so. This section outlines the sentencing principles and purposes found in the Criminal Code, including the amendments introduced by the VBRA, and considers the extent to which victim impact statements may be relevant to achieving them. The fundamental principle of sentencing requires that a sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender.13 This principle reflects a retributive model of sentencing in which punishment should be measured in proportion to an offender’s “just deserts.”14 Victim impact statements may be relevant to assessing a proportionate sentence by providing evidence of the harm caused by the offence.15 Where the harm caused by an offence is greater, the offence itself is more serious, which means that — all other factors being equal — a more severe sentence is required.16 The retributive model is also reflected in the subordinate sentencing principle found in s. 718.2(a), which requires a sentencing judge to increase or reduce a sentence to account for aggravating or mitigating circumstances relating to the offence or the offender. In particular, s. 718.2(a)(iii.1) provides that evidence that an “offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,” is an aggravating circumstance, and 13 14 15 16 principle of restraint for Indigenous offenders as mandated in the Criminal Code, supra note 6, s 718.2(e). Criminal Code, supra note 6, s 718.1. R v M(CA), [1996] 1 SCR 500 at 554–58, [1996] SCJ No 28; Susan Ann Cornille, “Retribution’s Harm Component and the Victim Impact Statement: Finding a Workable Model” (1993) 18:2 U Dayton L Rev 389 at 398; Julian V Roberts, “Victim Impact Statements and the Sentencing Process: Recent Developments and Research Findings” (2003) 47:3 Crim LQ 365 at 374. Julian V Roberts & Marie Manikis, “Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm” (2010) 15:1 Can Crim L Rev 1 at 1; Perrin, supra note 9 at 148–49. Cornille, supra note 14 at 416; Roberts, supra note 14 at 374; Perrin, supra note 9 at 150. Victim Impact Statements after the Victims Bill of Rights 89 that sentence severity must be increased in order to account for it.17 Under the current sentencing regime, victim impact statements may be used as a source of evidence to prove the existence of such circumstances.18 In addition to providing evidence of harm, victim impact statements may assist in achieving the objective of promoting responsibility in offenders and acknowledgement of the harm inflicted, codified in s. 718(f), by introducing communication between the victim and the offender rather than having this information described by the prosecutor.19 Unlike when they are used to provide evidence of harm, using victim impact statements to introduce communication between the parties achieves sentencing objectives without impacting the offender’s liberty interest, which allows for more relaxed rules of evidence to apply with respect to the admissibility of the statement’s contents. In addition to revising the victim impact statement regime, the VBRA modified several sentencing principles to emphasize the role of victims. For example, the denunciation provision in s. 718(a) was amended so that the objective is not only to denounce unlawful conduct itself, but also “the harm done to victims or to the community that is caused by the unlawful conduct.”20 This suggests that the harm to victims caused by the offence — 17 18 19 20 I note that the definition of “victim” in s. 2 of the Criminal Code is different for the purpose of submitting victim impact statements than it is for other Criminal Code provisions, including the engagement of the mandatory aggravating factor of significant victim impact in s. 718.2(a)(iii.1). “Victim” is generally defined as a person against whom an offence has been committed who has suffered physical or emotional harm, property damage, or economic loss as a result of the offence. For the purpose of submitting a victim impact statement, however, “victim” is defined as “a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person” (Criminal Code, supra note 6, s 2 [emphasis added]). Thus, the definition of those who qualify as a “victim” for the purpose of submitting a statement is very broad and includes not only a person against whom a crime was committed directly, but also anyone who experienced harm or loss indirectly as the result of crimes committed against any other person, without requiring sufficient proximity to the direct victim of the offence or the commission of the offence itself. Although the harm suffered by these indirect victims does not come within the scope of the mandatory aggravating factor in s. 718.2(a)(iii.1), as it does for direct victims, this does not limit a sentencing judge’s discretion to consider significant evidence of harm experienced by indirect victims to also be an aggravating circumstance for sentencing purposes. See Part D, below, for further discussion on the use of victim impact statements to provide evidence of harm as an aggravating circumstance. Roberts, supra note 14 at 374–75. See also R v Fisher, 2019 BCCA 33 at para 70 [Fisher]. VBRA, supra note 8, s 23(1) [emphasis added]. 90 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the very same material Parliament has directed should be contained in victim impact statements21 — should lead sentencing judges to place a greater emphasis on denunciation in sentencing, an objective which tends to align with a more punitive approach and with harsher sentences. The VBRA also amended the principle of restraint in s. 718.2(e) to state that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”22 This re-emphasis on harm is unnecessary because the provision already required the sanction to be “reasonable in the circumstances,” which includes a consideration of harm to victims required by the sentencing principles discussed above.23 Reemphasizing harm directs sentencing judges to consider punitive factors in a provision that was enacted to emphasize restraint in sentencing as a response to the problem of over-incarceration, particularly of Indigenous people, in Canada.24 This is especially troublesome considering the difficulties that courts have already demonstrated in giving meaning to s. 718.2(e),25 and the fact that the over-incarceration of Indigenous people in Canada has only been worsening in recent years.26 21 22 23 24 25 26 Criminal Code, supra note 6, s 722(1). I also note that the VBRA introduced “community impact statements” in s. 722.2 of the Code, which contain information describing the harm and loss suffered by the community as a result of the offence. The reference in s. 718(a) to the harm done to the community is likely a call to the information contained in these statements. VBRA, supra note 8, s 24 [emphasis added]. See R v Proulx, 2000 SCC 5 at para 96, confirming that “a determination of when less restrictive sanctions are ‘appropriate’ and alternatives to incarceration are ‘reasonable’ in the circumstances requires a consideration of the other principles of sentencing set out in ss 718 to 718.2.” R v Gladue, [1999] 1 SCR 688 at paras 50–51, 57, 1999 CanLII 679. Denis-Boileau & Sylvestre, supra note 12. The Office of the Correctional Investigator reports that in the ten-year period from March 2009 to March 2018, the population of Indigenous inmates in federal institutions increased by 42.8%, compared to a less than 1% overall growth of the inmate population during the same period. The situation is even worse for Indigenous women, whose population increased 60% during the same period such that by March 2018, Indigenous women made up 40% of incarcerated women in Canada. See Canada, Office of the Correctional Investigator Annual Report 2017-2018, by Ivan Zinger (Ottawa: Office of the Correctional Investigator, 29 June 2018), online: <www.ocibec.gc.ca/cnt/rpt/annrpt/annrpt20172018-eng.aspx> [perma.cc/Z5TE-8LX7]. Victim Impact Statements after the Victims Bill of Rights 91 III. APPROACHES TO THE USE OF VICTIM IMPACT STATEMENTS IN SENTENCING In this section, I examine the various models proposed for the use of victim impact statements in sentencing. I conclude that a model that prioritizes the use of victim impact statements as a method of introducing communication between the victim and the offender, rather than as a means of introducing evidence of harm, is both in line with sentencing objectives and demonstrates respect for victims without pitting their rights against those of offenders. Three general models for the use of victim impact statements have been suggested in the literature. The two primary models were labelled by Roberts and Erez as the “instrumental model” and the “expressive model”.27 The instrumental model sees the dominant use of victim impact statements as providing evidence to assist courts in formulating an appropriate sentence. The expressive model (also sometimes referred to as the communicative model) sees the primary purpose as the promotion of victim expression and the introduction of communication between the victim and different actors in the sentencing process. A third model has also been suggested, incorporating a mix of these two approaches.28 Under the instrumental model, victim impact statements provide information to sentencing judges about the harm resulting from an offence.29 Among other sentencing goals, as discussed above, harm is considered an aggravating factor having a direct impact on the seriousness of the sentence imposed.30 This conception of victim impact statements is often associated with what Roach terms a “punitive model” of victims’ rights, which tends to pit the rights of victims against those of offenders and may increase the severity of sentences.31 Roberts and Manikis argue that victim impact statements should also be used to prove ancillary harm, or harm beyond that caused to the individual victim, as an aggravating factor in sentencing.32 Because greater 27 28 29 30 31 32 Roberts & Erez, supra note 5 at 233–34. Manikis, supra note 10 at 109–16. Roberts & Manikis, supra note 15 at 1; Perrin, supra note 9 at 148–49. Cornille, supra note 14 at 420–21; Perrin, supra note 9 at 148–50. Kent Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto: University of Toronto Press, 1999) at 29–31, 292; Roberts & Erez, supra note 5 at 233–34. Roberts & Manikis, supra note 15 at 8. 92 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 harm is inflicted overall, the offence itself is more serious and the offender is more blameworthy. Therefore, they argue, failing to put forward evidence of ancillary harm means that the court is denied important evidence of aggravation.33 The use of victim impact statements as evidence of harm in sentencing has been criticized as generally being unnecessary to the evaluation of harm on a model of retribution-based sentencing because the nature and circumstances of the crime itself are sufficient to assess the seriousness and likely effect on the victim.34 Further, so long as victim participation in sentencing remains optional, the use of ancillary harm as an aggravating factor may undermine sentence parity, as the amount of ancillary harm evidence that is introduced in a given proceeding will depend on the preferences of the indirect victims.35 As the contemporary criminal justice system imposes punishment for offences committed against the state in the public interest, of which victims are only one part, the state should aim for consistency and fairness among defendants and proportionality with regard to the seriousness of the offence rather than the circumstances of the individual victim.36 Where victim impact statements are used as evidence of harm, certain procedural requirements must be introduced in order to preserve the rights of the offender. Because aggravating factors in sentencing must be proven beyond a reasonable doubt where disputed,37 a right to cross-examine the victim must be available in order to assess the reliability of the content.38 In addition, defence counsel must seek disclosure of the statement and assess it to ensure it does not include prejudicial evidence that lacks probative 33 34 35 36 37 38 Ibid at 12–14. Roberts and Manikis suggest limiting the consideration of ancillary harm to that which is objectively foreseeable and to accord less weight to ancillary harm as the relationship between the ancillary and direct victim becomes more remote in order to avoid escalating the sentence to an excessive degree. Sam Garkawe, “Victim Impact Statements and Sentencing” (2007) 33:1 Monash UL Rev 90 at 93–94. Tim Quigley, “Comment: The Dangers of Victim Impact Statements: A Brief Reply to Roberts and Manikis” (2010) 15:1 Can Crim L Rev 39 at 41. Andrew Ashworth, “Victim Impact Statements and Sentencing” (1993) Crim L Rev 498 at 503. Criminal Code, supra note 6, s 724(3); R v Gardiner, [1982] 2 SCR 368 at 415, 140 DLR (3d) 612. Roberts & Manikis, supra note 15 at 15–19; Perrin, supra note 9 at 154, 160–61; Manikis, supra note 10 at 113–16; R v W(V), 2008 ONCA 55 at para 27. Victim Impact Statements after the Victims Bill of Rights 93 value and that the account of the harm is not exaggerated.39 Opponents suggest that the instrumental use of victim impact statements may lead to secondary victimization because of these necessary procedural requirements, and because they may raise the expectations of the victim as to the severity of the sentence.40 The expressive or communicative approach, by contrast, promotes the use of victim impact statements as a way for victims to communicate with the judge and the offender. This is associated with a restorative model of sentencing41 and with achieving the sentencing objective in s. 718(f). It may also assist the judge in contextualizing the crime and its effects without requiring the judge to evaluate the harm experienced or compare it to that which would be appropriate for a “typical” victim.42 Some commentators who support an expressive model point to the potential therapeutic effects for victims.43 Others argue that it may help to dispel stereotypes about both offenders and victims,44 and may assist judges in coming to a more balanced notion of what a “normal” victim experience is like. Erez explains that a victim’s statement may help judges to understand that what they may have thought to be an exaggerated or unbelievable experience is in fact a common one.45 Despite these potential benefits, Ruparelia argues that the consideration of victim impact statements — particularly in cases involving sexual offences — could exacerbate the problem of judges reasoning using myths and stereotypes about the “ideal victim.”46 This ideal victim is seen as being blameless and pure, especially in comparison to the offender.47 Thus, the experiences of victims who do not fit these unrealistic understandings of victimhood risk being discredited.48 39 40 41 42 43 44 45 46 47 48 Roberts & Manikis, supra note 15 at 3. Ashworth, supra note 36 at 505–07; Markin, supra note 11 at 104, 107. Roberts & Erez, supra note 5 at 233–34, 240–42. Markin, supra note 11 at 108–09. Edna Erez, “Who’s Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice” (1999) Crim L Rev 545 at 555. Roberts & Erez, supra note 5 at 236. Erez, supra note 43 at 553–55. Rakhi Ruparelia, “All that Glitters is Not Gold: The False Promise of Victim Impact Statements” in Elizabeth A Sheehy, ed, Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (Ottawa: University of Ottawa Press, 2012) at 665. Ibid at 671–72. Ibid at 667, 671–74. 94 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Ruparelia notes that the problem is particularly evident for racialized victims and offenders. Citing studies from the United States (where more empirical research has been done on the impact of race in criminal law), she demonstrates that racialized victims are less likely to be seen as fitting the image of the ideal victim and are more likely to have their experiences devalued, while racialized offenders are more likely to be seen to fit stereotypes about violence and dangerousness and, therefore, to receive harsher punishment.49 Further, Ruparelia argues that the therapeutic effects of victim impact statements are only available to a limited number of victims, as the idea that public description of one’s harm is healing is tied to a specific cultural conception that may be seen as improper, stigmatizing, and even dangerous to some women.50 Exposing one’s vulnerability publicly involves a level of trust in the justice system that many people who have had negative experiences with the system likely do not enjoy, leading to even greater fear of re-victimization during the “healing” process.51 These victims could choose not to participate. However, if it is true that the goal of victim participation in sentencing is to promote victims’ rights (as the title of the VBRA would suggest), it should be a cause for concern that the method selected for doing so is not only possibly unhelpful to many victims, but also has the potential to cause them further harm and thereby perpetuate distrust with the criminal justice system. Finally, some commentators have suggested a mixed approach to the use of victim impact statements in sentencing, highlighting the importance of both the expressive and the instrumental models. Manikis argues that prominence should be given to the instrumental function, as facilitating a more accurate and informed assessment of harm and the gravity of the offence best serves the sentencing objectives of retribution, denunciation, 49 50 51 Ibid at 678–87. Ibid at 688. Ibid at 689–91. See e.g. “Chapter 8: Confronting Oppression: Right to Justice” in Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol 1a (2019) 621 at 621–34, 648–54, 693–700 [MMIWG Report], providing many examples of the ways in which Indigenous victims and their families experienced mistrust, stereotyping, victim blaming, and numerous other systemic failures when attempting to engage with the criminal justice system, and the impact of these failures on their confidence in the system. As the authors note, “Indigenous Peoples have had little reason to be confident that the justice system is working for them”. Victim Impact Statements after the Victims Bill of Rights 95 and reparation.52 Expressive content that is not directly relevant would not be filtered by prosecutors, but it would be made clear to the victim that only actual harm suffered would be taken into account by the judge in crafting the sentence.53 It would be up to the judge to discard irrelevant aspects.54 Options as to the method of delivering the statement would be given, and the victim would be informed of possible cross-examination on the statement in order to assess the reliability of the content.55 Erez also argues that victim impact statements are properly used both for their therapeutic functions for victims and for determining an appropriate sentence.56 She argues that the impact of the offence on a victim as articulated in a victim impact statement assists the judge in crafting a more proportionate sentence rather than a more severe one. To support this claim, she notes that where the harm suffered by victims is in fact less than would usually be expected, it could actually make the sentence less severe.57 Although initially appealing, the mixed approach ultimately incorporates the negative aspects of both models. It is impossible to include an instrumental purpose of victim impact statements that allows their content to be used as evidence of aggravating circumstances without subjecting victims to potential exposure to cross-examination and having aspects of their statement deemed irrelevant by a sentencing judge. Even in a system in which victims are permitted to compose their statement without editing and are warned of the fact that only certain portions will be considered by the judge, a message is still sent to the victim that judges are only concerned with hearing what they have to say to the extent that it helps to craft a fit sentence, rather than recognizing that having their story heard has value in itself. Even if it is correct that victim impact statements could, in certain circumstances, make the sentence less severe where the harm experienced is less than that experienced by the average victim, it would be undesirable for a victim to be told by a judge that their loss was, relatively speaking, not so severe as the typical case. Inviting judges to measure the relative loss experienced by different victims is especially problematic due to the above52 53 54 55 56 57 Manikis, supra note 10 at 109–11. Ibid at 112. Ibid at 113. Ibid at 113–16. Erez, supra note 43. Ibid at 548. 96 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 mentioned concerns about reasoning that engages with harmful stereotypes, particularly for a process that is purportedly designed to promote respect. A potential critique of a model in which victim impact statements are permitted for communicative purposes but are not used to increase sentence severity is that it sends a message to victims that their harm or loss is being trivialized or not taken seriously. However, such a critique relies on an assumption that victims will perceive the justice system as better representing their needs by imposing more severe sentences on offenders, measured in terms of how long or harsh the sentence is. This is a problematic assumption about the needs of victims and it promotes a dangerous vision of the criminal justice system as a “zero-sum game” between the interests of victims and offenders.58 It also takes an overly narrow approach to understanding sentencing outcomes by focusing only on the term of imprisonment as a measure of “success”59 and ignoring other sentencing objectives, such as those promoted in a restorative justice model. Restorative justice may in fact have a greater ability to assist in rehabilitation and reduce recidivism rates60 — perhaps the ultimate way to achieve the fundamental sentencing purpose of contributing to a just, peaceful, and safe society.61 In advocating for an expressive use of victim impact statements, I am not arguing that harm is not relevant to sentencing or that the experience of victims will never influence a sentencing judge’s decision as to the appropriate sanction. As discussed in Part B, Parliament has made it clear that the impact on victims must be considered by sentencing judges in crafting a proportionate sentence, and a discussion of the merits of this approach is beyond the scope of this paper. What this paper does argue is that when the Crown wishes to rely on evidence of victim harm as an aggravating factor, it undesirable for both the victim and the accused to use victim impact statements as proof of this fact. If the Crown wishes to rely on evidence from a victim to prove an aggravating circumstance at sentencing, it should be a part of their role, which encompasses a duty to 58 59 60 61 Markin, supra note 11 at 106. For a critique of the tendency in both sentencing and punishment theory to focus on the length of incarceration without considering qualitative factors such as prison conditions and administration, see Lisa Kerr, “How the Prison is a Black Box in Punishment Theory” (2019) 69:1 UTLJ 85. Jeff Latimer, Craig Dowden & Danielle Muise, “The Effectiveness of Restorative Justice Practices: A Meta-Analysis” (2005) 85:2 Prison J 127. Criminal Code, supra note 6, s 718. Victim Impact Statements after the Victims Bill of Rights 97 act in the public interest, to make this decision after having weighed the costs and benefits of doing so, rather than having such evidence introduced furtively under the guise of a participatory right for victims. In the following section, I begin by providing an overview of the postVBRA victim impact statement provisions. Then, by examining recent cases, including the sentencing of Mr. Sidhu, I demonstrate why, by focusing on an instrumental use of victim impact statements, the current regime has the potential to cause harm to both victims and offenders. IV. THE CURRENT REGIME: RISKS OF AN INSTRUMENTAL USE OF VICTIM IMPACT STATEMENTS A. Overview of the VBRA Amendments to the Victim Impact Statement Regime When first codified, the victim impact statement regime was significantly narrower than that found in the Criminal Code today. The original provision was discretionary, providing that a court “may” consider a statement describing the harm or loss arising from the offence for the purpose of determining the sentence to be imposed.62 This was modified in 1996 to make the consideration of victim impact statements mandatory.63 The amendments introduced by the VBRA continue the mandatory consideration of victim impact statements in sentencing, but provide a more specific description of the content the statements are permitted to contain and how judges should deal with content that does not comply with these requirements.64 The Criminal Code now specifies under s. 722(1) that when determining the sentence, the court must consider a victim impact statement describing the “physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.” The VBRA also introduced a new subsection in s. 722(8), which specifies that when the court considers a victim impact statement, it “shall take into account the portions of the statement that it considers relevant to the determination referred to in [s. 722(1)] and disregard any other portion.” This addition suggests that even where a 62 63 64 The 1988 Act, supra note 7, s 7(1). Bill C-10, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, 1st Sess, 38th Parl, 2004-2005 (assented to 19 May 2005), SC 1995, c 22. VBRA, supra note 8, s 25. 98 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 victim impact statement includes impermissible content, the court may still accept it as evidence and simply disregard irrelevant portions rather than excluding it completely or requiring it be redacted or rewritten.65 However, it still sends the message that only “relevant” content, defined as evidence of harm or loss — i.e., information which would tend to increase the severity of the sentence — is of use to the sentencing decision. As the following analysis demonstrates, the critiques of the instrumental use of victim impact statements canvassed in Part C — in particular, those concerning the potential for secondary victimization and for evidence of harm to overwhelm the sentencing analysis — are not just speculative but can have real impact in sentencing proceedings. B. Cross-Examination of Victims A recent decision from the BC Court of Appeal demonstrates the potential danger of prioritizing the use of victim impact statements to provide evidence of harm. In R v Fisher,66 the offender was a former police officer who had worked with individuals leaving the sex trade. He pleaded guilty to sexual exploitation of a young person and breach of trust against two girls, referred to as “A” and “B” (aged 17 and 16, respectively). The sentencing judge considered the impact on the victims to be a significant aggravating factor based on the impact statements they submitted to the court.67 In B’s victim impact statement, she explained that after the offence, she relapsed into substance abuse and twice attempted suicide.68 The sentencing judge rejected the defence argument that her statement should be read with a critical view because a judge in a previous trial had made adverse credibility findings about her. On appeal, the defence argued that the sentencing judge erred in accepting B’s statement without properly scrutinizing it, and also suggested that B had a financial motive to exaggerate the offence in order to claim restitution or sue the police department.69 The BC Court of Appeal held that it was not an error to accept B’s evidence absent cross-examination. If the offender wished to remove the victim impact statement from the 65 66 67 68 69 Perrin, supra note 9 at 158. Supra note 19. Ibid at para 45. Ibid. Ibid at para 65. Victim Impact Statements after the Victims Bill of Rights 99 sentencing judge’s consideration, he should have challenged its admissibility or cross-examined B at the sentencing hearing.70 Although the defence in this case chose not to cross-examine the victim at sentencing, a lesson that can be taken from this case for future defence counsel who have concerns that a victim’s statement could significantly impact their client’s sentence — a concern that is very real given the mandatory aggravating factor in s. 718.2(a)(iii.1) — is that they should do so. This leaves the dilemma of choosing between forcing sexual assault victims to face cross-examination on their statements and sacrificing the defence interest in putting the Crown to its burden of proof. Both of these are undesirable options that could be avoided if statements were not used to directly influence the sentence.71 C. Vetting Statements Another potential for secondary victimization arises where statements are scrutinized for inappropriate content. Perrin suggests that the addition of s. 722(8) should have the effect of changing the practice of having victim impact statements vetted by Crown counsel.72 Now that judges can simply disregard any irrelevant content, Crown counsel and the courts do not need to act in a gatekeeper role and risk the perception by victims that they are being censored or silenced.73 However, since this subsection was introduced, courts have continued to be concerned with vetting statements for improper content in post-VBRA cases. In R v BP,74 the Court considered the impact of the VBRA on the victim impact statement regime even though it had not yet come into force at the 70 71 72 73 74 Ibid at para 73. In sentencing proceedings in which a communicative approach to victim impact statements is used, there will still be circumstances requiring a victim to testify, and possibly be cross-examined, at sentencing — for example, where the accused has entered a guilty plea and no findings of fact have been made at trial. However, the crossexamination in these circumstances arises from the court’s fact-finding process rather than as a consequence of the participatory right granted to victims through the use of victim impact statements. If victim impact statements are included in sentencing to provide a channel for victim expression and communication, their use should not give rise to cross-examination, even if it is possible that a victim could face cross-examination through other means. Perrin, supra note 9 at 158. See R v Berner, 2013 BCCA 188 at para 27 [Berner], discussing the Crown’s responsibility to vet statements. Perrin, supra note 9 at 158. 2015 NSPC 34. 100 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 time of the decision.75 Judge Derrick, as she then was, held that the VBRA did not change the foundational legal principles governing victim impact statements, which require inappropriate content to be redacted or the statement to be redrafted.76 Similarly, in R v CC, the Court held that the VBRA amendments were, for the most part, a mere codification of current principles, and that even though judges are presumed to be able to disabuse themselves of inadmissible parts of a victim impact statement, statements may still be subject to judicial scrutiny.77 The Court in CC continued to be concerned that the Crown be vigilant in vetting statements for inappropriate content prior to their use in court.78 Justice Green indicated she would disregard aspects of the statements that included any reference to facts not in the written ruling, statements about the appropriate sanction, or “what the victims think of [the offender] or his crimes.”79 Although s. 722(8) may have been aimed at improving victim expression, it fails to successfully do so while embedded in an instrumentally driven framework. The decision to prioritize “relevant” information for sentencing means that a judge will need to scrutinize the statement to sift out the information that is “irrelevant.” This amendment merely shifts the moment in which the statement is scrutinized from the initial submission to the prosecutor to the moment the judge delivers a decision stating that the aspects of the statement that do not enumerate elements of harm or loss are irrelevant and will not be considered.80 The decisions in BP and CC also demonstrate that courts are still concerned with vetting victim impact statements at each stage of the process despite the direction in s. 722(8). While scrutinizing victim impact statements for content that is merely irrelevant (i.e., any content that is not harm or loss as described in s. 722(1)) should be avoided, judges and prosecutors may still play a role in vetting statements for inappropriate content. In an expressive or communicative 75 76 77 78 79 80 Ibid at para 29. Ibid. 2018 ONCJ 542 at para 22 [CC]. Ibid at para 27. See also R v Browne, 2017 ONSC 5064 at para 10, where the Court accepted victim impact statements that had already been prepared containing inadmissible content pursuant to s. 722(8) but advised that Crown counsel should continue to vet statements in advance of the hearing. CC, supra note 77 at para 28. See R v Adamko, 2019 SKPC 27 at para 35, in which Judge Stang expressed concern that disregarding certain content contained in victim impact statements pursuant to s. 722(8) would contribute to the loss of confidence in the criminal justice system expressed by several victims in their statements. Victim Impact Statements after the Victims Bill of Rights 101 framework, the need for the judge to evaluate the statement for “relevance” will not arise because the purpose of the statement is not to impact the sentence. However, in certain cases, the content may be sufficiently inappropriate that the prosecutor or judge would need to vet the statement; for example, if the statement included comments that invoke stereotypes about offenders or racist sentiments. Victims should be notified that inappropriate material should not be included before they are given the opportunity to write the statement, and that any such material contained in the statement will be redacted or disregarded. While this does limit victim expression to a certain extent and thereby may pose a risk of secondary victimization, this limit is reasonable and necessary to preserve fairness to the offender and the integrity of the criminal justice system. D. Victim Comparison and the Ideal Victim The concern about secondary victimization arising from judges evaluating victim impact statements is also relevant to the critique that using harm described in victim impact statements as an aggravating factor invites judges to compare the relative harm experienced by victims. This is particularly problematic because it has the potential to invite reasoning that engages with stereotypes about the “ideal victim” and about how victims experience and demonstrate harm. This issue arose in R v PES.81 In that case, the accused appealed his threeand-a-half-year sentence for sexual exploitation of a young person. The sentencing judge had used information contained in a statement submitted by the victim’s mother to find that the victim experienced serious emotional and psychological harm. On appeal, the defence argued that the harm experienced by the young person in this case was not as bad as it had been in another sexual exploitation case where the victim had engaged in selfharm after the offence. The Manitoba Court of Appeal, quite rightly, ruled that, “[i]t is impossible to compare in minutiae the harm occasioned to child victims of sexual abuse nor is it desirable to do so.”82 The Court of Appeal came to the correct decision in refusing to engage in such a comparative exercise in this case. Nonetheless, it is concerning that judges are being invited to compare the relative harm experienced by victims of sexual abuse, especially when such an invitation relies on assumptions about how victims who have experienced “worse” harm will 81 82 2018 MBCA 124. Ibid at para 32. 102 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 react. Sentencing is an inherently comparative exercise in certain respects, but this comparison should not be extended to how victims demonstrate having experienced harm. The invitation to use the information contained in victim impact statements to do so must continue to be rejected. Problematic aspects of victim comparison are also raised in the sentencing of Mr. Sidhu, the man who drove a truck through a stop sign and collided with the bus carrying the Humboldt Broncos hockey team, introduced earlier in this paper. His sentencing demonstrates concerns about idealizing certain victims and about creating a victim hierarchy. In Mr. Sidhu’s case, the direct victims of the offence — those who were killed and injured as a result of the collision — appeared to be primarily young, white athletes who had strong family support and community connections.83 In part because of their status in society, the Court heard from dozens of individuals relating that the victims’ bright future plans would never be realized and describing how the many friends and families of the victims suffered because of the incident. Days of court time and national media attention were devoted to the reading of the victim impact statements.84 The fact that the Court in Mr. Sidhu’s sentencing likely heard more evidence of harm and loss because of who the victims were is concerning not only because it contributes to the idea of a victim hierarchy in the criminal justice system where more value is attributed to certain lives than others,85 but also because it may impact the formulation of a fit and proportionate sentence, which I consider in the next section. 83 84 85 See also the sentencing hearing for Nicholas Bell-Wright, who pleaded guilty to second degree murder in the shooting of 17-year-old Cooper Nemeth. Justice Joyal ruled that all 96 victim impact statements submitted were admissible, but that only 16 of those statements, submitted by family members and close friends, would be permitted to be read aloud in court: The Canadian Press, “96 victim impact statements entered in in sentencing of Winnipeg man convicted of killing teen”, The Toronto Star (22 Jan 2018), online: <www.thestar.com/news/canada/2018/01/22/96-victim-impact-statements-en tered-in-sentencing-of-winnipeg-man-convicted-of-killing-teen.html> [perma.cc/DDT3W4QP]. This stands in stark contrast to the experience of many Indigenous families documented in the MMIWG Report, supra note 51 at 621–717, who described being ignored, disbelieved, and subject to mistrust and stereotyping by actors in the criminal justice system (although not necessarily in the sentencing context). See Berner, supra note 72 at para 25: “[t]he personal characteristics of the victim should play no part in crafting a fit sentence, however tragic the circumstances. It is in the public interest to deter and denounce all unlawful deaths.” Victim Impact Statements after the Victims Bill of Rights 103 E. Overwhelming Evidence of Harm Another critique of using victim impact statements to impact sentences is that it risks evidence of harm overwhelming the sentencing analysis, leading to a disproportionate or unfit sentence. At Mr. Sidhu’s sentencing hearing, 90 victim impact statements were filed and a majority of these were read aloud in court.86 In her discussion of the aggravating factors, the sentencing judge considered most significant to be the fact that Mr. Sidhu’s actions caused the death of 16 people and injured 13 people, and also cited the impact of the offence on the survivors and their friends and families.87 Mr. Sidhu ultimately received a global sentence of eight years’ incarceration.88 The judge acknowledged that this sentence was “clearly outside” the range “for these offences in Saskatchewan or Canada,” but justified it on the basis that the case cited by counsel with the longest period of incarceration (of six years) had only caused four deaths and nine injuries. She found that in Mr. Sidhu’s case, “more than six years is mandated due to the horrific consequences of his actions.”89 Although the consequences of Mr. Sidhu’s actions were unquestionably tragic, his sentence exemplifies problems both with the instrumental use of victim impact statements to compile evidence of harm, and with the direction provided to sentencing judges through the VBRA amendments to the principles and purposes of sentencing that align consideration of victims with punitive sentencing principles. In this case, the overwhelming evidence of harm presented to the sentencing judge may have caused her to overemphasize this consideration at the expense of significant mitigating factors, leading to an excessively harsh sentence. Mr. Sidhu is a young man who made a tragic error that caused devastating harm to many families. However, he also conducted himself in the ideal manner in the eyes of the criminal justice system by accepting full responsibility, pleading guilty at the earliest opportunity, and demonstrating real remorse. He had no criminal or driving record, and as a permanent resident of Canada, he will face a removal order as a result of his 86 87 88 89 Sidhu, supra note 1 at para 24. Ibid at para 69. Ibid at paras 105–09. He also received a ten-year driving prohibition, an order for DNA analysis, and a ten-year firearms prohibition. The Crown had asked for a sentence of ten years’ imprisonment. Ibid at para 103. 104 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 convictions.90 While the amount of harm evidence in this case was apparently unprecedented,91 Mr. Sidhu was also an ideal candidate for a sentence prioritizing rehabilitation, as almost every other aspect of his case pointed towards a more lenient sentence.92 Sentencing Mr. Sidhu to a harsh sentence of incarceration in these circumstances was not necessary to fulfill the fundamental sentencing purpose of protecting society and contributing to respect for the law. Instead, our criminal law would do better to recognize that having heard directly from victims about how his conduct impacted their lives in itself helps to achieve the purposes of denouncing his conduct, promoting responsibility for his offence, and acknowledging the harm he caused. By using information contained in victim impact statements as evidence of harm and mandating that such harm increase the sentence, the current victim impact statement regime promotes a punitive approach and a narrow understanding of sentencing outcomes that puts both victims and offenders in unnecessary harmful circumstances. V. CONCLUSION This paper has examined the Canadian victim impact statement regime and argued that the legislation currently promotes a punitive approach by using victim impact statements to compile evidence of harm. Recent case law demonstrates the misgivings of this model. It subjects victims to potential secondary victimization through cross-examination and by raising 90 91 92 Ibid at para 76. Ibid at para 41. While there is nothing to suggest that his race played a role in influencing the content of the victim impact statements or the sentence imposed, it should also be recognized that Mr. Sidhu, as a racialized man, is more likely to be characterized as fitting the “dangerous offender” stereotype recognized by Ruparelia, especially in contrast with the victims in this case. Implicit prejudice based on stereotypes about race is rarely motivated by outright prejudice or hostility, and is instead usually “unwitting, unintentional, and uncontrollable” (Emma Cunliffe, “Judging, Fast and Slow: Using Decision-making Theory to Explore Judicial Fact Determination” (2014) 18:2 Intl J Evidence & Proof 139 at 152–53, citing CD Hardin and MR Banaji, “The Nature of Implicit Prejudice: Implications for Personal and Public Policy” in E Shafir, ed, Policy Implications of Behavioural Research (Princeton, NJ: Princeton University Press, 2012) 1 at 2–3). For this reason, it is especially important to be aware of the potential for implicit prejudice to influence decision-making in any sentencing decision involving offenders who are racialized. Victim Impact Statements after the Victims Bill of Rights 105 their expectations as to the sentencing outcome, sends a message that victims’ stories are only useful to the extent that they provide relevant information to the crafting of a proportionate sentence, and promotes a hierarchy of victims based on their personal attributes. It invites judges to measure the relative harm experienced by victims, and it risks evidence of harm overwhelming the sentencing analysis at the expense of the principles of restraint and rehabilitation. The Canadian regime should be modified to promote an expressive approach to victim participation in sentencing. In one possible version of such a model, victims would be informed before submitting their (optional) statement that the purpose of the statement is to provide an opportunity for them to express themselves about their experience and to inform the offender about the full consequences of the offence, with the goal of promoting responsibility and acknowledgement of the harm done. Victims would be told that inappropriate content, such as content that criticizes personal characteristics of the offender or engages with stereotypes, is not permitted and will be redacted if included. It would be made clear both to victims and judges that the information contained in the statement would not be used to influence the sentence imposed. In this way, there would not be a need for judges to sift out “irrelevant” information, to evaluate the harm, or to compare it to other cases. It would also eliminate the need for the defence to cross-examine victims on their statements. An instrumental approach is problematic because it tends to use victims as a means to a specific end — increasing sentence severity — which promotes an unfortunate and dangerous “victim versus offender” conception of demonstrating respect for victims. A model prioritizing victim expression avoids these problems while still furthering the purpose of sentencing in s. 718(f) of promoting a sense of responsibility in offenders and acknowledging the harm done to victims and the community, even if it does not do so by impacting the actual sentence imposed. At the same time, it is important under any model of victim impact statements to recognize that the inclusion of victims in sentencing is not an ultimate solution to the problems faced by victims in the criminal justice system. As Ruparelia warns: [T]his approach carries with it the danger that the state, believing its duty to victims discharged, will fail to pursue more meaningful action to remedy the systemic problems that persist.93 93 Ruparelia, supra note 46 at 699. 106 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 As I have argued in this paper, it is necessary to be critical of the methods of being inclusive to victims that are already being implemented. It is equally important going forward to pay attention to what victims themselves are calling for in order to make the criminal justice system more responsive to their needs — not only in sentencing proceedings, but at every stage of the administration of criminal justice.94 94 For one place to start, see the findings with respect to the justice system in the MMIWG Report, supra note 51 at 717–19, which the Commissioners made after hearing from families and survivors of violence against Indigenous women and girls (among other community members, expert witnesses, elders and knowledge keepers, front-line workers, and officials). See also the Calls for Justice in Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol 1b (2019) at 183–86 (in particular, those dealing with the justice system). To What Types of Offences Should the Criminal Code Rules on Organizational Criminal Liability Apply?: A Comment on 9147-0732 Québec Inc c Directeur Des Poursuites Criminelles et Pénales D A R C Y L . M A C P H E R S O N * n 9147-0732 Québec inc c Directeur des poursuites criminelles et pénales1 the majority of the Québec Court of Appeal2 held that the provisions of the Criminal Code3 relating to the attribution of mental states to organizational offenders4 applied to a prosecution under Québec's Building Act.5 Even more problematically, none of the members of the Court discussed this conclusion in any detail, nor do they provide any statutory or common-law basis for this conclusion. In this contribution, I will discuss why this conclusion (seemingly assumed by the majority of the Court of Appeal) is worrisome, at least without significant justification by the Court. This is particularly so where recent jurisprudence from the Supreme Court I * 1 2 3 4 5 Professor, Faculty of Law, University of Manitoba, Winnipeg, Manitoba, Canada; Research Associate, Marcel A. Desautels Centre for Private Enterprise and the Law Faculty of Law, University of Manitoba, Winnipeg, Manitoba, Canada. 2019 QCCA 373 [9147]. To be clear, the dissenting judge (Justice Chamberland) considers solely whether a juristic person (in this case, a corporation) can access section 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], either directly (because a juristic person is protected by the Charter against cruel and unusual punishment) or through the indirect protection offered by the application of R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 18 DLR (4th) 321 [Big M]. On both alternatives, Justice Chamberland answers in the negative. In other words, Justice Chamberland finds no constitutional violation. He does not consider the broader issue of the source of criminal liability for the appellant. Criminal Code, RSC 1985, c C-46 [Criminal Code]. Ibid, ss 22.1, 22.2. La Loi sur le bâtiment, RLRQ, c B-1.1 [Building Act]. 108 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 of Canada would seem to suggest that the adoption of the Criminal Code standard should not be permitted in the civil-law context.6 In 9147, at trial, a statutory minimum fine of $30,843 was imposed upon the defendant corporation for a violation of section 197.1 of Québec's Building Act. The defendant claimed that the statutory minimum fine provided for under the section was cruel and unusual punishment.7 Based at least in part on the Criminal Code,8 the majority held that juristic persons could seek the protection of section 12 of the Charter. It is not entirely clear from the judgment whether, on the facts of the case, the fine would cause the particular defendant to go bankrupt or not. However, it is clear that the argument was that the bankruptcy of an organization would be a cruel and unusual result of a criminal fine, thereby (according to the majority, at least) potentially engaging section 12 of the Charter. Section 197.1 of the Building Act reads as follows: 197.1 Any person who contravenes section 46 or 48 by not holding a licence of the appropriate class or subclass is liable to a fine of $5,141 to $25,703 in the case of an individual and $15,422 to $77,108 in the case of a legal person, and any person who contravenes either of those sections by not holding a licence is liable to a fine of $10,281 to $77,108 in the case of an individual and $30,843 to $154,215 in the case of a legal person. To be clear, in this contribution, I will not be tackling the other issues that confronted the Court of Appeal. The first of these is whether or not section 12 of the Canadian Charter of Rights and Freedoms9 can apply to organizations.10 The second of these is, assuming that section 12 applies, whether or not the application of a statutory mandatory minimum fine 6 7 8 9 10 The Court gives both English and French versions of all statutory and constitutional language used by it. When it does so, I will use the English version. I recognize that the French version is actually the authoritative version of Québec statutes and that both English and French versions of federal legislation (including the Criminal Code, supra note 3) are equally authoritative. Nonetheless, it is worth noting that nowhere in the judgment of the Court of Appeal was there any suggestion that any linguistic difference between the French and English versions of any case cited or any statute referred to would make even the slightest difference to the outcome of the case. See 9147, supra note 1 at para 9, per Justice Chamberland, dissenting, but not on this point. Supra note 3. Charter, supra note 2. 9147, supra note 1 at paras 44–82 (per Justice Chamberland, dissenting). See also 9147, supra note 1 at paras 104–28 (per Justice Bélanger, for the majority). A Comment on 9147 109 could constitute "cruel and unusual punishment" within the meaning of section 12, particularly where the fine could or will cause an insolvency of the organization.11 My sole concern in this first contribution is whether or not the statutory rules with respect to the criminal liability of organizations provided for under sections 22.1 and 22.2 of the Criminal Code12 should automatically apply to quasi-criminal offences created under provincial statutes. In my view, the assumption that Criminal Code standards will and should apply to provincial offences is highly questionable. Admittedly, I have argued elsewhere that the harmonization of common-law standards with their statutory counterparts would have its advantages.13 Developments in the law subsequent to my earlier writing make it unlikely that harmonization is still possible. Part I below lays out some of the important differences between the common law on this subject, on the one hand, and the statute on the other. Given that the province validly created the offence, the federal government cannot dictate the rules that apply to how the offence is to be proven against an organizational offender, as a matter of the division of legislative powers (Part II.A.). The provincial legislatures could incorporate the federal standards by reference. However, the wording of the provincial statute that would apply in 9147 does not incorporate this part of the Criminal Code (Part II.B.). Nonetheless, subsequent jurisprudence from the Supreme Court of would seem to be a significant barrier to the way that the Québec Court of Appeal implicitly treats the statutory standards in 9147 (Part II.C.). The judgment of the Québec Court of Appeal has been appealed to the Supreme Court of Canada. Unfortunately, there is little direct reference to this issue in the written advocacy before the court of last resort in this country (Part II.D.). This lack of attention could create serious problems for judges who may be asked in the future to apply the Criminal Code provisions to offences outside of the Criminal Code context. 11 12 13 Ibid at paras 129–34 (per Justice Bélanger, for the majority). As mentioned above, since Justice Chamberland, dissenting, found no constitutional violation, there was no reason to discuss the effect of insolvency. Supra note 3, ss 22.1 and 22.2. Darcy L. MacPherson, “The Civil and Criminal Applications of the Identification Doctrine: Arguments for Harmonization” (2007) 45 Alta L Rev 171 [MacPherson, “The Civil and Criminal Applications of the Identification Doctrine”]. 110 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 I. THE DIFFERENCES BETWEEN THE COMMON-LAW STANDARDS AND THE STATUTORY STANDARDS A. Introduction Any time that one is dealing with a provision which purports to hold a person liable for activity that government wishes to discourage, there is always a question as to whether or not organizational actors (corporations, partnerships, and others) can be held liable for this same activity. Corporations and other organizational actors have no "hands" with which to commit the actual activity (the actus reus), nor anything genuinely equivalent to a human "mind" with which to form the intent or other guilty state of mind that often is required to accompany the prohibited act (the mens rea). Therefore, the question often comes down to how the law will "attribute" to the organizational actor these basic characteristics so that the offence can at least potentially be applied to the organizational actor, often in addition to the human being who performed the actus reus with the requisite mens rea. Prior to 2003, the attribution of mental states to corporations and other organizational actors was determined by the common law. These commonlaw standards were expounded upon in a number of cases including, but not limited to, R v Canadian Dredge & Dock Co. Ltd.14 and others.15 In 2003, Parliament amended the Criminal Code16 to alter the rules by which attribution was to occur. The changes were accomplished by either amendment and/or the addition of specific provisions to the Criminal Code.17 As should become obvious below, in my view, given that this is an amendment to the Criminal Code, for a number of reasons, these rules 14 15 16 17 [1985] 1 SCR 662, 19 DLR (4th) 314 [Canadian Dredge]. R v Church of Scientology of Toronto (1997), 33 OR (3d) 65, 99 OAC 321, (CA), per Justice Rosenberg, for the Court. An application for extension of time granted and application for leave to appeal to the Supreme Court of Canada was dismissed on April 9, 1998 (Chief Justice Lamer and Justices McLachlin, as she then was, and Iacobucci). See also R v CIP Inc, [1992] 1 SCR 843 [CIP Inc], per Justice Stevenson, for the Court. The Court applied the common-law rules to a prosecution of a mens rea offence under the auspices of the Occupational Health and Safety Act, RSO 1980, c 321. Supra note 3. See An Act to Amend the Criminal Code (criminal liability of organizations), SC 2003, c 21 [Bill C-45]. A Comment on 9147 111 should only apply with respect to offences requiring mens rea18 which are found in the Criminal Code itself. B. The Common Law Originally, this question of "corporate criminal liability" was left for the courts to decide. While there certainly were some earlier cases in the lower courts,19 the Supreme Court of Canada gave the first judgment in which it focused on this issue of the attribution of criminal behaviour to a corporation in only 1985.20 The Court, writing through Justice Estey, held that it was possible for a corporation to be criminally liable for a mens rea offence under the Criminal Code.21 Drawing on earlier English jurisprudence22 from the civil context,23 Justice Estey held that the concept of a "directing mind" would be used to describe a person whose actus reus and mens rea could be attributed to the corporation. In essence, a directing mind was a high-ranking official of the corporation who had the capacity to set policy for the corporation. This was to be distinguished from those individuals whose rights and obligations were to carry out the policy set by others.24 The latter group of corporate agents may render the corporation 18 19 20 21 22 23 24 For the purposes of this contribution, I intend for the term "mens rea" to cover both subjective (intention, knowledge, recklessness, and willful blindness) and objective (criminal negligence) elements of mental fault. I nonetheless recognize that technically, criminal negligence is often considered separate from mens rea (a guilty mind). However, since it is quite clear that the amendments to the Criminal Code, supra note 3 are concerned with offences where the prosecution must prove either subjective or objective elements of mental fault, I am using the term "mens rea" as a shorthand to cover both of these. See e.g. R v Fane Robinson Ltd, [1941] 3 DLR 409, 2 WWR 235, per Justice Ford, for the majority; R v JJ Beamish Construction Co Ltd, [1966] 2 OR 867, 59 DLR (2d) 6, per Justice Jessup, as he then was; R v St Lawrence Corp, [1969] 2 OR 305, 5 DLR (3d) 263, per Justice Schroeder, for the Court; R v Parker Car Wash Systems Ltd (1977), 35 CCC (2d) 37, per Justice Hughes; R v PG Marketplace Ltd (1979), 51 CCC (2d) 185, per Chief Justice Nemetz, for the majority. Canadian Dredge, supra note 14. Supra note 3. See e.g. Lennard's Carrying Co v Asiatic Petroleum Co, [1915] AC 705 at 713, [1915] 3 WLUK 17 aff'g [1914] 1 KB 419, [1913] 7 WLUK 126; Tesco Supermarkets Ltd v Nattrass, [1972] AC 153, [1971] 2 WLR 1166, per Lord Reid. When I refer to the "civil context", I am referring to non-criminal pecuniary liability (such as contractual, delictual, or tortious liability) not "civil law" from the continent of Europe, nor the Civil Code of Québec, as distinguished from the common law. In one case, Lord Justice Denning, as he then was, famously referred to the former group as the “brain” of the corporation and the latter group as its “hands”. See Bolton 112 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 liable in contract or tort (where vicarious liability is available)25 but under the common-law standards, would not render the corporation criminally liable for the mens rea offences committed by them, even where the offence occurs within the person's role as an agent of the corporation. As a general rule, the “directing mind” of the organization that commits the actus reus with the requisite mens rea will still be liable for the underlying criminal act or acts.26 Other jurisprudence also makes it clear that, in general, the designation of a person as a "directing mind" is dependent upon the sphere of corporate activity in which the action is taken.27 Put another way, the designation of a person as a "directing mind" of a corporation is activity-specific in the sense that, in some activities, a person will be a "directing mind"; when carrying out other activities, the person may not be. Only in carrying out those activities where the person has policy-setting authority will the person be a “directing mind”. In addition, Justice Estey recognized that there are certain situations where, even though a person may have the requisite degree of policy-setting authority to be a “directing mind” of a corporation, it would nonetheless be inappropriate to attribute the actions of that person to the corporation for the purposes of the criminal law. He defined three such situations. These are: (i) where the directing mind is operating outside of the sphere of duties assigned to him or her;28 (ii) where the actions of the directing mind are in fraud of the corporation;29 and (iii) where the actions of the directing mind were neither by design nor by result at least partly for the benefit of the corporation.30 Though these are described as “defences”,31 the prosecution needs to prove that none of these “defences” apply on the facts.32 25 26 27 28 29 30 31 32 (HL) (Engineering) Co Ltd v TJ Graham & Sons Ltd, [1957] 1 QB 159 at 172, [1956] 3 WLR 804 (CA). See Rhône (The) v Peter A.B. Widener (The), [1993] 1 SCR 497, 101 DLR (4th) 188 [Rhône]. Canadian Dredge, supra note 14 at 685–86. Rhône, supra note 25 at 521, per Justice Iacobucci, for the majority. Canadian Dredge, supra note 14 at 684. Ibid at 712–14. Ibid at 708–09. Ibid at 714. Ibid at 714–15. A Comment on 9147 113 C. The Statutory Rules The 2003 amendments33 to the Criminal Code (insofar as they are immediately relevant to the arguments offered here), provide as follows: 2 In this Act, … organization means (a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or (b) an association of persons that (i) is created for a common purpose, (ii) has an operational structure, and (iii) holds itself out to the public as an association of persons; … representative, in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization; senior officer means a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer; … 22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if (a) acting within the scope of their authority (i) one of its representatives is a party to the offence, or (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence. 33 Bill C-45, supra note 17. 114 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers (a) acting within the scope of their authority, is a party to the offence; (b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or (c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence. As I have argued in another publication,34 there are five major distinctions between the relevant statutory rules, on the one hand, and their common-law predecessors, on the other. The first of these is that the term "organization" clearly covers more non-human actors than does the term "corporation".35 While there was some jurisprudence to suggest that noncorporate collective actors such as trade unions would be amenable to the criminal law,36 the common-law rules were typically only applied to corporate actors. The statutory rules are quite explicit that partnerships and other forms of non-human actors are now specifically intended to be included.37 Furthermore, paragraph (b) of the definition of "organization" makes it quite clear that any form of collectivity that would meet the elements set out therein would also qualify as an "organization" for the purposes of the statutory rules. Secondly, the definition of "senior officer" (again, reproduced above) is significantly broader than the common-law definition of the term "directing mind".38 The first part of the definition of "senior officer" ("a representative who plays an important role in the establishment of an organization’s 34 35 36 37 38 See Darcy L. MacPherson, “Extending Corporate Criminal Liability?: Some Thoughts on Bill C-45” (2004) 30:3 Man LJ 253 [MacPherson, “Extending Corporate Criminal Liability?”]. Ibid at 255–58. See the judgment of Justice McLachlin (as she then was), writing for the majority, in UNA v Alberta (Attorney-General), [1992] 1 SCR 901, 89 DLR (4th) 609, “may be” (Justice McLachlin’s words) a society under the Criminal Code. Justice Cory (with Chief Justice Lamer concurring) also found that the unincorporated trade union was subject to criminal contempt. See also Maritime Employer’s Assn v ILA Local 273, [1979] 1 SCR 120 at 137, 89 DLR (3d) 289. See paragraph (a) of the definition of "organization" provided above. See MacPherson, “Extending Corporate Criminal Liability?”, supra note 34 at 258–59. A Comment on 9147 115 policies") seems to replicate much of what is found in the common-law definition of a "directing mind". This is to say that the first part of the definition makes it clear that any person who sets policy for an organization is a "senior officer" of that organization. However, the second part of the definition of "senior officer" ("is responsible for managing an important aspect of the organization’s activities") seems to extend the concept to people whose actions and mental states may be attributed to the organization for the purposes of the criminal law much lower in the organization than did the previous common-law rules. In other words, a person lower in the corporate or other organizational hierarchy need not be as high up in that hierarchy to hold the corporation or other organization criminally liable. Third, the “activity-specific” nature of a “directing mind” designation under the common law no longer applies to a “senior officer” designation under the statute, at least insofar as paragraph 22.2(c) is concerned.39 This is clear from the wording of section 22.2 generally. With respect to paragraphs 22.2(a) and (b), there is clear statutory language (“acting within the scope of their authority”) to limit the scope of each of the paragraphs to only his or her authority within the corporation (and most probably, his or her authority as a senior officer).40 This language is conspicuously absent from paragraph 22.2(c). Given its repetition in both paragraphs 22.2(a) and 39 40 Ibid at 262–66. Neither paragraph 22.2(a) nor paragraph 22.2(b) is particularly clear as to what "authority" is being referred to in either or both of them. Does "authority" refer to their authority as senior officers? Alternatively, does it refer to their authority as mere representatives of the organization? Both are possible, since all senior officers are also, by definition, representatives of the organization of which they are senior officers. In my view, given that each paragraph refers to a senior officer, it is the authority given to that senior officer (the authority to set policy, or the authority to manage an important aspect of the organization's activities, or both) that is relevant in the two paragraphs. There are at least two reasons for this. First, with respect to paragraph 22.2(a), there is no reference at all to a "representative" nor is the involvement of a separate, more junior representative required to trigger the application of the paragraph. It is the senior officer's actions and mental state alone that is necessary for the application of the paragraph. Second, with respect to paragraph 22.2(b), it seems very unlikely that a person who could direct another employee or other representative of the organization to carry out functions that would result in criminal activity would not have some sort of managerial authority. If this is true, this would mean that, in most cases at least, the person giving direction is most likely a senior officer in any event, utilizing his or her managerial authority. Thus, in falling under paragraph 22.2(b), the authority utilized by the senior officer would virtually by definition be authority granted to him or her as a senior officer. 116 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 22.2(b), I have a great deal of trouble believing that its absence is an oversight by the legislative drafters. Thus, in my view, it is clear that the legislature does not care about how the senior officer learned of the wrongdoing of the non-senior officer representative. Regardless of how the information came to the senior officer, he or she is under an obligation to take all reasonable steps to prevent the wrongdoing of the non-senior officer representative. Therefore, it follows that the designation of "senior officer" is not activity specific. If one is a senior officer of the organization, one need not be aware of the wrongdoing in one's capacity as a senior officer in order to be under an obligation to prevent that wrongdoing. The knowledge of the wrongdoing may arise, for example, due to a personal friendship between the senior officer, on the one hand, and the non-senior officer representative, on the other. Despite the fact that the senior officer did not learn of the wrongdoing in his role as a senior officer of the organization, in my view, the senior officer is still required to take all reasonable steps to prevent the wrongdoing. Fourth, in my view, paragraph 22.2(c) reverses the prior common-law rule that indicates that a “directing mind” of an organization will generally be liable for the underlying offence.41 Where a senior officer learns of the wrongdoing of a junior employee or other representative of the organization, the senior officer is under an obligation to take all reasonable steps to prevent the continuation of the offence. If the senior officer fails to take all reasonable steps to prevent the wrongdoing, the organization is at least potentially liable. In my view, three elements are required for paragraph 22.2(c) to come in to play. The first of these is criminal wrongdoing on the part of a representative of an organization, where that representative is not a senior officer of the organization. The second element is that a senior officer of the organization must become aware of an offence before it is completed (including before it is begun). Where the offence is part of an ongoing scheme, as long as the scheme continues, it is not "completed" for these purposes. Thirdly, the senior officer does not take all reasonable steps to prevent the offence from commencing or continuing. If all three of these elements are present, then (subject to my comments about defences, below), in general, the organization is liable for the offence of the representative, even though the representative is not a senior officer of the organization. In this scenario, the senior officer's liability is not determined under the auspices of paragraph 22.2(c). This paragraph relates 41 See MacPherson, “Extending Corporate Criminal Liability?”, supra note 34 at 263. A Comment on 9147 117 only to organizational liability. The personal liability of the senior officer is determined by the law applicable to individuals. In general, knowledge of, or presence during, the wrongdoing of another (in this case, the representative of the organization who is not a senior officer) is not sufficient to ground liability for an individual (in this case, the senior officer of the organization) 42. Thus, it is now possible to hold the representative who is not a senior officer liable for their personal wrongdoing.43 It is also possible to hold the organization liable on the basis of paragraph 22.2(c), provided that any senior officer of the organization knows of the wrongdoing of the representative. But it is not necessarily possible to hold the senior officer of the organization (who is nonetheless the conduit to organizational liability) liable for the crime committed by the representative who is not a senior officer of the organization for which the organization may be held liable. Finally, some of the opening words of section 22.2 (“with the intent at least in part to benefit the organization”) suggest a change to the previous defences at common law as well.44 While there is as of yet no meaningful discussion of these words in the jurisprudence, it seems as though the first 42 43 44 On this point, see e.g. Dunlop and Sylvester v The Queen, [1979] 2 SCR 881 at 898, 99 DLR (3d) 301, per Justice Dickson, as he then was, for four members of the Court. An additional two members of the Court agreed in the result but on narrower grounds. Three justices dissented. It is worth noting that, in general, a representative of an organization will be an individual. After all, directors are, by definition, individuals. See the Canada Business Corporations Act, RSC 1985, c C-44 at para 105(c) [CBCA]. Similarly, all employees must be individuals. See Dynamic Industries Ltd v Canada, 2005 FCA 211 at paras 43– 44, per Justice Sharlow, for the Court, holding that corporations carry on businesses. While partners, agents, and contractors could each be individuals or corporations, it is important to remember the reason for this designation. First, all senior officers are representatives. A corporation cannot in any meaningful sense set policy for an organization. Nor can a corporation truly “manage” an important aspect of another organization. Human beings would de facto have to do the management. Second, under paragraph 22.2(b), a representative must carry out the act requested by a senior officer. As mentioned earlier, an organization has no hands with which to commit the act requested. Under paragraph 22.2(c), the representative must be a party to the offence. Thus, to find an organization to be a “representative” of a different organization would require the application of these rules to find that the act of a human being is the act of an organization that is the representative of a second organization. That would be unusual. However, notwithstanding my skepticism, there may be situations where this would be necessary. In unforeseeable circumstances, a broader approach may be required. But, nonetheless, as a general rule, representatives will be individuals. See MacPherson, “Extending Corporate Criminal Liability?”, supra note 34 at 268–69. 118 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 two defences at common law are left relatively unchanged. After all, it would be hard to suggest that a person would be acting outside of the scope of duties assigned to him or her, yet have the intent to benefit the organization.45 It would be impossible to have fraud on the corporation where it is nonetheless intended to benefit the organization.46 But, where there is no fraud on the corporation, and the third defence is all that remains, at common law the prosecution needed only prove either: (i) an intention to benefit the organization, whether realized or not; or (ii) an actual benefit to the organization, whether intended or not. Under the statute, on the other hand, an actual but unintended benefit accruing to the corporation through the otherwise criminal activity of a senior officer will not attract attribution for the purposes of the criminal law. II. ANALYSIS A. The Constitutional Issue The first approach that one could take to these issues is to suggest that there is at least a small argument, on the basis of federalism, that the Criminal Code47 should control the situation, regardless of which level of government passed the underlying offence. Such an argument might run something like as follows. Paragraph 91(27) of the Constitution Act, 186748 reads as follows: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and 45 46 47 48 For a case exemplifying the application of this “defence” in the context of non-criminal civil law, see e.g. Eastern Chrysler Plymouth Inc v Manitoba Public Insurance Corp, 2000 MBQB 66, per Justice Morse. With respect to the “fraud on the corporation” “defence”, Justice Estey in Canadian Dredge, supra note 14, writes as follows (at 713): “Where the directing mind conceives and designs a plan and then executes it whereby the corporation is intentionally defrauded, and when this is the substantial part of the regular activities of the directing mind in his office, then it is unrealistic in the extreme to consider that the manager is the directing mind of the corporation. His entire energies are, in such a case, directed to the destruction of the undertaking of the corporation. When he crosses that line, he ceases to be the directing mind and the doctrine of identification ceases to operate.” Supra note 3. (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, no 5 [Constitution Act, 1867]. A Comment on 9147 119 for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, ... 27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. It is clear that offences created by the provincial legislatures are generally not part of the criminal law, because to define them as such would be to render these offences ultra vires the legislative bodies that had enacted them. For the purposes of the enactment of the offence, therefore, these provisions fall within paragraph 92(13) of the Constitution Act, 1867,49 which reads as follows: In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, ... 13. Property and Civil Rights in the Province. Such an approach to offences created by provincial legislation was acknowledged by Chief Justice Dickson, writing for the majority of Court, in R. v. Big M Drug Mart Ltd.50 He writes:51 From the time of Confederation until the Privy Council decision in 1903 in Hamilton Street Railway, supra, it was the widely-held view that Sunday observance legislation fell within provincial purview under the Constitution Act, 1867 as being a matter falling under either s. 92(13), property and civil rights within the province, or s. 92(16), a matter of merely local or private nature in the Province. Several of the provinces passed laws prohibiting Sunday activities. Chief Justice Dickson continues, pointing out that the Lord’s Day Act52 serves a religious purpose53 and therefore, is inherently tied to public morals and is thus valid criminal law within the legislative jurisdiction of the federal Parliament.54 However, in the same judgment, Chief Justice Dickson also writes:55 49 50 51 52 53 54 55 Ibid. Big M, supra note 2. Ibid at 319. Lord’s Day Act, RSC 1970, c L-13. Big M, supra note 2. at 318–19. Ibid at 354. Ibid at 322. 120 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 In dictum [in Ouimet v. Bazin56], Mr. Justice Duff used language which I would wish to adopt, at pp. 525-26: It is perhaps needless to say that it does not follow from this that the whole subject of the regulation of the conduct of people on the first day of the week is exclusively committed to the Dominion Parliament. It is not at all necessary in this case to express any opinion upon the question, and I wish to reserve the question in the fullest degree of how far regulations enacted by a provincial legislature affecting the conduct of people on Sunday, but enacted solely with a view to promote some object having no relation to the religious character of the day would constitute an invasion of the jurisdiction reserved to the Dominion Parliament. But it may be noted that since the decision of the Judicial Committe [sic] in Hodge v. The Queen [(1883), 9 App. Cas. 117], it has never been doubted that the Sunday-closing provisions in force in most of the provinces affecting what is commonly called the "liquor trade" were entirely within the competence of the provinces to enact; and it is, of course, undisputed that for the purpose of making such enactments effective when within their competence the legislatures may exercise all the powers conferred by sub-section 15 of section 92 of the "British North America Act." [emphasis added]. Put another way, it is clear that provincial offences are not per se "criminal law" within the meaning of paragraph 91(27).57 But, the cases do not answer whether in fact cases involving the prosecution of these offences are nonetheless "criminal matters", as the term is used in the closing words of paragraph 91(27). If it were possible to draw such a distinction, that is, that provincial quasi-criminal offences do not invoke the criminal law but are nonetheless “criminal matters”, then it is possible that the procedural elements of criminal offences could fall to be determined by the federal Parliament. To be clear, I am not advocating the argument made above. In my view, there are several factors which suggest to me that this argument should not be accepted. First, I take "criminal law" to be quite broad. Most of the provincial and territorial courts are concerned exclusively, or almost exclusively, with this subject-matter. To treat “criminal law” as one head of federal power and then effectively treat “procedure in criminal matters” as something more than “procedure in criminal law” would seem to expand the federal government power beyond reasonable limits. This conclusion is reinforced by the fact that the two are found within the same head of power.58 If the Fathers of Confederation had intended for the term 56 57 58 (1912), 46 SCR 502 at 525–26, 3 DLR 593. Constitution Act, 1867, supra note 48. The courts have sometimes refused to follow this logic in statutory interpretation. For example, see Peoples Department Stores Inc v Wise, 2004 SCC 68, [2004] 3 SCR 461, per A Comment on 9147 121 “criminal matters” to be assessed separate and apart from the term “criminal law”, they could have done so with a separate head of power. In my view, this decision was most likely a deliberate one. Criminal law is very broad and might be thought to include the ability to establish courts to consider criminal matters. Yet, this was not the intention of the Canadian constitutional framework. The provinces create the courts even though they are administering a federal statute. Similarly, courts generally control their own procedure, but in the case of criminal proceedings, procedure is controlled by the federal statute. Finally, I return to Chief Justice Dickson, this time writing for the majority of the Court in R v Edwards Books and Art Ltd.59 He writes as follows: Applying the above principles to the appeals at bar, it is, in my opinion, open to a provincial legislature to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion. All that is achieved by s. 3(4) of the Retail Business Holidays Act is the subtraction of a duty imposed elsewhere in the Act. Section 3(4) cannot be divorced from its context in valid provincial legislation in relation to property and civil rights: an exemption must be read in light of the affirmative provision to which it relates. I might add that it would be a peculiar result indeed if the federal Parliament and not the provincial legislature were the competent body to create exemptions from provincial legislation, whether motivated by religious or other concerns. Consequently, neither the Act nor the exemption is, in my opinion, ultra vires the province. [Emphasis added] Admittedly, the facts of 914760 do not revolve around an exception to a prohibition. Rather, they revolve around how the penalty for the breach of a provincial statute is to be assessed. Nonetheless, in my view, Chief Justice Dickson's words are apposite. The analogy is that, just as the Constitution requires that the level of government that validly creates the offence should also be able to dictate the exceptions to the offence (as in Edwards Books61), a provincial legislature that validly passes a quasi-criminal offence is also entitled to determine the method by which elements of the offence are to be attributed to non-human actors that are arguably implicated in the offence. 59 60 61 Justices Major and DesChamps, speaking for the Court. In the case, it was held that the statutory fiduciary duty of directors (CBCA, supra note 43 at para 122(1)(a)) is owed solely to the corporation, while the duty of care, skill and diligence (CBCA, at para 122(1)(b)) is owed to a broader group, including creditors. Notwithstanding certain aberrations, however, in my view, the general principle is nonetheless sound. [1986] 2 SCR 713, 35 DLR (4th) 1 [Edwards Books]. Supra note 1. Supra note 59. 122 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 If this argument is sound, it then follows that it is for the National Assembly of Québec to decide the attribution rules that will apply with respect to offences committed by corporations and other juristic persons under the Building Act.62 If this is so, then there is no need to reference the Criminal Code63 at all. Yet, the majority refers to it at length.64 B. Incorporation by Reference The argument made above can only directly impact the right of Parliament to mandate the means by which a mental state is attributed to a corporation or other organizational actor when dealing with provincial offences that involve a mens rea component.65 Put another way, even if, as alleged above, Parliament does not, through its criminal law power, have the right to dictate to a provincial legislature how attribution should occur, this does not mean that the provincial legislatures cannot choose to have rules that are similar to those in the Criminal Code.66 The legislature of any province would clearly have the ability to incorporate by reference the 62 63 64 65 66 Supra note 5. Supra note 3. 9147, supra note 1 at paras 95–99. It is important to remember that the rules regarding attribution (whether common-law or statutory) are designed to apply only to offences where the prosecution needs to prove an element of mental fault (whether intention, knowledge, willful blindness, or criminal negligence). On this point, see e.g. Criminal Code, supra note 3, s 22.2 (with respect to intention, knowledge or willful blindness). See also Criminal Code, s 22.1 (with respect to criminal negligence); see also Canadian Dredge, supra note 14 at 674 (with respect to the common law). However, these are cases where the common-law rules from Canadian Dredge have been applied to strict liability offences (as defined in R v Sault Ste Marie (City), [1978] 2 SCR 1299, 85 DLR (3d) 161, per Justice Dickson, as he then was, writing for the Court). On this point, see e.g. R v Fitzpatrick's Fuel Ltd, [2000] NJ No 149, 2000 CarswellNfld 273 (Prov Ct), per Judge Handrigan. In my view, this is an error, because Justice Estey, in Canadian Dredge, specifically eschewed such an approach (see Canadian Dredge, supra note 14 at 674). However, since 9147 does not involve an offence of strict liability, a discussion of this issue is outside the scope of this contribution and will have to wait for another day. Supra note 3. See also CIP Inc, supra note 15. CIP Inc makes it clear that provincial offences (there is specific reference to the Provincial Offences Act, RSO 1980, c 400, s 99, as providing the framework for appeals) are governed by provincial statutes. This reference suggests that the default position is that offences at the provincial level are properly dealt with by procedural legislation at the provincial level as well. Admittedly, there was no federal legislation on the issue of attribution at the time, but there was only one tangential reference to the Criminal Code in the case. A Comment on 9147 123 federal statutory standards on attribution. My contention in this part of the contribution is to suggest that the National Assembly has not done so. To justify this view, it is necessary to set out provisions of the Québec Code of Penal Procedure.67 These provide as follows:68 1. This Code applies with respect to proceedings in view of imposing a penal sanction for an offence under any Act, except proceedings brought before a disciplinary body. 2. In this Code, unless the context indicates otherwise, “Act” means any law or regulation. 2.1. The provisions of this Code that apply to legal persons also apply to partnerships, with the necessary modifications. … 8.1. Except in the case of a statement of offence for the contravention of a municipal by-law, a contribution of the following amounts shall be added to the total amount of the fine and costs imposed on the issue of a statement of offence for an offence under the laws of Québec: (1) $20, if the total amount of the fine does not exceed $100; (2) $40, if the total amount of the fine exceeds $100 without exceeding $500; and (3) 25% of the total amount of the fine, if it exceeds $500.69 The contribution becomes payable as a fine as soon as a defendant enters a plea of guilty or is convicted or deemed convicted of an offence, whether or not the contribution is mentioned in the judgment. Except as regards imprisonment, the rules provided in this Code for the recovery of a fine, including those relating to costs of execution, apply to the recovery of the contribution and the contribution is deemed, for such purposes, to form part of the fine. However, in the case of partial payment of a fine, the contribution is deemed paid last. From each contribution collected, the first $10 shall be credited to the Crime Victims Assistance Fund established under the Act respecting assistance for victims of crime (chapter A-13.2), and the following $8 shall be credited to the Access to 67 68 69 CQLR, c C-25.1. This English translation is drawn from the Canadian Legal Information Institute, supported by Canadian Federation of Law Societies. This is available at: Code of Penal Procedure, CQLR, c C-25.1, online: <www.canlii.org/en/qc/laws/stat/> [perma.cc/QG 7D-7KBV]. Interestingly, the Québec Court of Appeal did not consider the application of Article 8.1 in 9147, supra note 1. However, as discussed below, on the appeal from the decision of the Quebec Court of Appeal to the Supreme Court of Canada, the respondent specifically raised the cost of the fine as including the surcharge imposed by Article 8.1 of the Code of Penal Procedure. 124 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Justice Fund established under the Act respecting the Ministère de la Justice (chapter M-19). 8.2. In search- and seizure-related matters, subsections 1 and 3 to 10 of section 488.01 and section 488.02 of the Criminal Code (R.S.C. 1985, c. C-46) apply, with the necessary modifications and despite any inconsistent provision of any Act, to an application for and the execution of a warrant, telewarrant, order or other judicial authorization, for the purposes of a penal investigation, that allows the use of an investigative technique or method or the performance of any act mentioned in the warrant, telewarrant, order or authorization, where the application or execution concerns a journalist’s communications or a thing, document or data relating to or in the possession of a journalist. A judge having jurisdiction to issue a warrant, telewarrant, order or other judicial authorization referred to in the first paragraph has jurisdiction to exercise the powers necessary for the application of subsections 9 and 10 of section 488.01 of the Criminal Code. … 61. The rules of evidence in criminal matters, including the Canada Evidence Act (Revised Statutes of Canada, 1985, chapter C-5), apply to penal matters, adapted as required and subject to the rules provided in this Code or in any other Act in respect of offences thereunder and subject to article 283 of the Code of Civil Procedure (chapter C-25.01) and the Act to establish a legal framework for information technology (chapter C-1.1). The provisions of the Criminal Code (Revised Statutes of Canada, 1985, chapter C46) relating to video and audio evidence apply, having regard to the resources put at the disposal of the court, to the trial of proceedings instituted in accordance with this Code. Articles 1 and 2 collectively make clear that the Code of Penal Procedure is intended to apply to provincial offences not prosecuted before specific disciplinary tribunals. Article 2.1 makes clear that the Code of Penal Procedure is intended to apply to juristic persons, as well as partnerships. Of course, both corporations and partnerships are specifically included as "organizations" under the federal Criminal Code.70 But, it is equally clear, from the definition of "organization" added to the Criminal Code by Bill C4571, that "organization" is broader than simply corporations and partnerships. The words of article 2.1 would suggest that partnerships would not otherwise qualify as “legal persons” under the law of Québec. Given this, it seems unlikely that all of the “associations of persons” will be caught under paragraph (b) of the definition. 70 71 Supra note 3. Supra note 17. A Comment on 9147 125 Next, article 8.1 is included because the article was amended in 2015.72 Similarly, article 8.2 was added in 2018.73 Thus, it is difficult to assert that the intent of the National Assembly was not attempting to deal with the changes to the Criminal Code by incorporating those changes that it felt were appropriate for use in this particular provincial statute. The specific references to sections 488.01 and 488.02 of the Criminal Code74 (in article 8.2 of the Code of Penal Procedure75) would seem to quite clearly be a narrow incorporation by reference to certain provisions of the Criminal Code. If the National Assembly had intended provisions of the Criminal Code to apply to fill any actual or perceived gaps in the Code of Penal Procedure, it certainly had the opportunity to legislate accordingly and did not do so. Similarly, article 61 contains a reference to the Criminal Code as well, but again, it is a narrow reference to evidentiary matters. To be clear, articles 8.2 and 61 contain the only references to the Criminal Code within the Code of Penal Procedure. Thus, to give effect to the suggestion by the Québec Court of Appeal in 914776, that the federal statutory standards as part of a case concerned with the violation of a provincial quasi-criminal regulatory statute, is highly questionable. This is especially true when the National Assembly has defined in the statute dealing with provincial offences (the Code of Penal Procedure77) when and how the federal statute (the Criminal Code78) may apply to these offences, and the use made by the Court of Appeal does not fall within the circumstances contemplated by the legislature.79 72 73 74 75 76 77 78 79 An Act mainly to implement certain provisions of the Budget Speech of 4 June 2014 and return to a balanced budget in 2015-2016, SQ 2015, c 8, s 345. An Act to Protect the Confidentiality of Journalistic Sources, SQ 2018, c 26, s 9. Supra note 3. Supra note 67. Supra note 1. Supra note 67. Supra note 3. In an earlier case decided by the Superior Court of Québec (R c Pétroles Global inc, 2013 QCCS 4262 [Pétroles Global inc]), the Court (Justice Tôth) clearly applied the amendments to the Criminal Code made by Bill C-45, supra note 17 to a case involving the criminal provisions of the Competition Act, RSC 1985, c C-34 [Competition Act]. Similar to the main case under consideration in this contribution, provisions of the Competition Act make specific reference to specific provisions of the Criminal Code which apply in prosecutions under the Competition Act. Subsection 2(1) of the Competition Act reads, the relevant part as follows: “computer system has the same meaning as in subsection 342.1(2) of the Criminal Code”. Section 14.1 of the Competition Act makes specific reference to sections 487.012, 487.013, 487.015, 487.016 and 126 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 487.018 of the Criminal Code. Subsection 23(2) of the Competition Act makes the federal attorney-general, as opposed to her or her provincial counterparts, the proper prosecutor under the Competition Act. Under subsection 30.18(3) of the Competition Act, the Criminal Code is used to deal with the logistical elements of detaining or releasing suspects arrested pursuant to a warrant under the Competition Act. Section 30.24 uses the definition of “court of appeal” under section 2 of the Criminal Code to define certain appeal rights under the Competition Act. Similarly, under subsection 33(8) of the Competition Act, the definition of “superior court of criminal jurisdiction” under the Criminal Code is used to define the meaning of “court” (in part) under the Competition Act. Under subsection 34(5) of the Competition Act, Part XXI of the Criminal Code provides the statutory backbone for the conduct of appeals from judicial decisions under the Competition Act. Under section 34 of the Competition Act, the term “superior court of criminal jurisdiction” is used; subsection 34(8) of the Competition Act incorporates, by reference, the definition of the same term under the Criminal Code. Paragraph 52.02(1)(a) of the Competition Act provides that the Director of Competition may use investigatory powers provided under either the Competition Act or the Criminal Code to assist other states in investigations. Subsection 67(2) of the Competition Act allows for the election of trial by jury (or not) for indictable offences under the Competition Act. Subsection 67(3) of the Competition Act defines certain offences under the Competition Act that must be tried in a “superior court of criminal jurisdiction”, as defined under the Criminal Code. Subsection 67(4) of the Competition Act removes any right of a corporate offender to a jury trial. Section 68 of the Competition Act says that the venue of a trial can be determined by either the Competition Act or the Criminal Code. Subsection 73(1) of the Competition Act makes the Federal Court of Canada the “superior court of criminal jurisdiction”, in accordance with both the Competition Act and the Criminal Code. Under subsection 73(3) of the Competition Act, Part XXI of the Criminal Code provides the statutory backbone for the conduct of appeals from judicial decisions under the Competition Act, for appeals from the decisions of the Federal Court of Canada. There are several reasons why I am not dealing with the Pétroles Global inc decision in the main text of this contribution. First, the Québec Court of Appeal in 9147 did not address Pétroles Global inc at all. The purpose of this contribution is to deal directly with the holdings in 9147. Also, as a matter of stare decisis, the decision in 9147 is not bound by Pétroles Global inc. If the latter case had come after 9147 temporally, in fact, the reverse would have been true. Further, since Pétroles Global inc was considering the Competition Act (a federal statute), there would be no reason for Justice Tôth to wrestle with the constitutional issue raised herein, since there was no provincial statute to be considered. However, Pétroles Global inc shows that the decision in 9147 is not alone in failing to deal with the issue of the proper scope of the new statutory rules. Pétroles Global inc does not consider whether, in fact, the provisions of the Competition Act could have intended for the application of sections 22.1 and 22.2 of the Criminal Code, which the Superior Court purported to apply in its decision. In my view, each reference to the Criminal Code within the Competition Act is relatively narrow and does not make room for the application of the statutory rules. In order to make this argument, it was necessary to reproduce a summary of each reference to the Criminal Code within the A Comment on 9147 127 C. The Supreme Court of Canada has Made Statements That Suggest the Common Law Should Apply A careful reader might suggest that simply because the Criminal Code provisions do not apply directly, this does not prevent judges from modifying the common law so that the common law rules would match the statutory provisions later passed by Parliament. In fact, as I mentioned earlier,80 I was previously of this view as well. However, recent jurisprudence of the Supreme Court of Canada would seem to suggest that this opportunity (for harmonization of the common-law standards to their statutory counterparts by judicial edict) is no longer available. The entire oral judgment of the Supreme Court of Canada in Christine DeJong Medicine Professional Corp v DBDC Spadina Ltd81 reads as follows: BROWN J. — We agree with Justice van Rensburg, dissenting, at the Court of Appeal that the respondents’ claim for knowing assistance must fail, and we adopt her reasons as our own. In view of the statement of the majority at the Court of Appeal that this Court’s decision in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, invited a “flexible” application of the criteria stated in Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662 for attributing individual wrongdoing to a corporation, we respectfully add this. What the Court directed in Livent, at para. 104, was that even where those criteria are satisfied, “courts retain the discretion to refrain from applying [corporate attribution] where, in the circumstances of the case, it would not be in the public interest to do so” (emphasis added). In other words, while the presence of public interest concerns may heighten the burden on the party seeking to have the actions of a directing mind attributed to a corporation, Canadian Dredge states minimal criteria that must always be met. The appeal is allowed, with costs throughout. The facts of the case in DeJong are quite complicated and generally do not serve the point being made here. The issue was one where a rogue (Walton)82 had defrauded two different sets of investors, each of whom had 80 81 82 Competition Act. However, beyond this, a detailed discussion of Pétroles Global inc is beyond the scope of this contribution and will have to wait for another day. MacPherson, “The Civil and Criminal Applications of the Identification Doctrine”, supra note 13. 2019 SCC 30 [DeJong], rev’g DBDC Spadina Ltd v Walton, 2018 ONCA 60 [Walton]. Walton, supra note 81 at para 1. It is worth noting that all of the references used with respect to the Walton case at the Court of Appeal level are taken from the judgment of Justice Blair, for the majority. As should be obvious from the judgment reproduced above, this judgment was later overturned by the Supreme Court of Canada in DeJong, supra note 81. 128 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 invested in Walton's scheme through a different set of corporate vehicles.83 When the scheme was discovered, one set of investors sued the other set of investors, claiming that, since Walton was the directing mind of the second set of corporate vehicles, that set of corporate vehicles was to have Walton's intent to defraud the first set of investors attributed to the corporations.84 Therefore, the second set of corporate vehicles were alleged to be liable to the first set of investors on the theory that the second set of corporate vehicles provided knowing assistance in Walton's breach of fiduciary duty to the first set of corporate vehicles (that is, the corporate vehicles through which the first set of investors had made their investments).85 In other words, this was a civil case where the common-law rules described above were sought to be used to attribute a rogue's fraudulent intent to a corporate vehicle. Though there was certainly some criminal wrongdoing underlying the facts, this was not a criminal case. The judgment of Justice Brown, speaking on behalf of the Supreme Court of Canada,86 is important here because the judgment makes it clear that, in the civil context at least, it is not possible for the courts to “water down” the requirements for attribution provided for the judgment in Canadian Dredge.87 It is virtually beyond debate that the intention of Parliament in passing Bill C-4588 was to make it easier to pursue organizations for criminal wrongdoing involving mens rea offences. In the Backgrounder89 that accompanied the introduction of Bill C-45, the government of the day wrote as follows: Expanded Conditions for Liability The Government's proposals also update the law on corporate criminal liability by ensuring it reflects the current structures of modern organizations. The proposed measures would make corporations criminally liable: • 83 84 85 86 87 88 89 as a result of the actions of those who oversee day-to-day operations but who may not be directors or executives; Walton, supra note 81 at paras 3–5. Ibid at para 51. Ibid at paras 68–96. DeJong, supra note 81. Supra note 14. Supra note 17. Canada, Department of Justice, Backgrounder: Criminal code Amendments Affecting the Liability of Corporations (Ottawa: Department of Justice, 2003) (on file with the author). A Comment on 9147 129 • • • when officers with executive or operational authority intentionally commit, or direct employees to commit, crimes to benefit the organization; when officers with executive or operational authority become aware of offences being committed by other employees but do not take action to stop them; and when the actions of those with authority and other employees, taken as a whole, demonstrate a lack of care that constitutes criminal negligence.90 The effect of the first four changes made by Bill C-45 (and described above in the excerpt) put this intention to expand into effect. Even with the change to the defences described above (which clearly makes it easier for an organizational offender to use defences), it is clear that the overall impact of Bill C-45 is to lessen the prosecution's burden in pursuing non-human offenders. As such, in my view, for the judiciary to unilaterally decide to apply Bill C-45 to provincial offences which require proof of mens rea would run directly counter to the assertion by Justice Brown, on behalf of the unanimous Supreme Court of Canada, that there should be no lowering of the rules for attribution of mental states at common law. Therefore, it would appear that the only remaining option is to treat the common-law rules, as defined under Canadian Dredge91 and its progeny,92 as being applicable to provincial offences outside of the context of the Criminal Code.93 A careful reader may point out that this interpretation may lead to certain incongruities in the law. The most notable of these is that it will be easier to convict a corporation or other organization of a mens rea offence under the Criminal Code than it would be to convict the same organization 90 91 92 93 In AG’s Reference (No 2 of 1999), [2000] 3 All ER 182 (CA) at 191, Lord Justice Rose, for the Court, held that, in order for an offence of criminal negligence to be made out against a corporate defendant, the act or omission that would constitute criminal negligence must be laid at the feet of a single individual. In some cases, this is not a hard requirement to satisfy. However, in other cases, prosecutions under the commonlaw rules have been stymied by this rule because there were a variety of errors and omissions by a number of individuals. See e.g. Canada, Labour and Advanced Education, The Westray Story: A Predictable Path to Disaster: Report of the Westray Mine Public Inquiry (Report), by K. Peter Richard, Commissioner (Halifax, Nova Scotia: Queen’s Printer for the Province of Nova Scotia, 1997), online: <novascotia.ca/lae/pu bs/westray/execsumm.asp> [perma.cc/FG4X-FU76]. Supra note 14. See e.g. the cases listed supra note 15. Supra note 3. 130 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 under quasi-criminal statutes under provincial jurisdiction. However, as mentioned above, it is always open to the provincial legislation (or the federal Parliament, as the case may be) to expressly adopt similar or identical standards to those provided under Bill C-45, either by reproducing the statutory language of the Criminal Code in the appropriate provincial statute or by incorporating that language by reference. However, until the provincial legislation does so, in my view, it is inappropriate for the courts to simply ignore the issue. D. The Case Has Been Appealed to the Supreme Court of Canada, But Scant Attention Has Been Paid to This Issue The Supreme Court of Canada granted leave to hear the government's appeal in 9147.94 The appeal was heard on January 22, 2020. What is interesting about this particular issue is that neither of the direct parties (neither the Attorney-General of Québec,95 nor the corporate respondent96), nor many of the interveners (The Attorney-General of Ontario,97 The Canadian Civil Liberties Association,98 The British Columbia Civil 94 95 96 97 98 See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Docket), online: <www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=38613> [perma.cc/9 CX7-D9S5]. See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Factum of the Appellants), online (pdf): <www.scc-csc.ca/WebDocuments-DocumentsWeb/38 613/FM010_Appelants_Procureure-générale-du-Québec-et-al.pdf> [perma.cc/3A3J-TH MB] [9147 Appellant’s Factum]. See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Factum of the Respondents), online (pdf): <www.scc-csc.ca/WebDocuments-DocumentsWeb/ 38613/FM020_Intimée_9147-0732-Québec-Inc..pdf> [perma.cc/RPN5-K5EC] [9147 Respondent’s Factum]. See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Factum of the Intervener, The Attorney General of Ontario), online (pdf): <www.scc-csc.ca/W ebDocuments-DocumentsWeb/38613/FM060_Intervener_Attorney-General-of-Ontar io.pdf> [perma.cc/9XC7-Y75U] [9147 AG Factum]. See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Memorandum of the Intervener, Canadian Civil Liberties Association), online (pdf): <www.scc-csc.ca/WebDocuments-DocumentsWeb/38613/FM050_Intervener_Canad ian-Civil-Liberties-Association.pdf> [perma.cc/JCF5-QATZ]. This factum makes no reference to any provision of either the federal Criminal Code, supra note 3 nor the Québec Code of Penal Procedure, supra note 67. A Comment on 9147 131 Liberties Association,99 The Canadian Constitution Foundation100 and the Director of Penal Prosecutions of Quebec101) seem to have addressed headon the issue of what law applies. There is an important point to be made here. While it is important to lay out the arguments of each of the parties that address the Criminal Code and respond in some way to those arguments, this is not, for example, meant to be a full response with respect to the application of section 12. Rather, the goal here is to show only that reliance on the Criminal Code on these facts is, at best, questionable, and at worst, may be entirely misplaced. A fuller argument about the potential application of section 12 of the Charter 99 100 101 See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Factum of the Intervener, British Columbia Civil Liberties Association), online (pdf): <www.scccsc.ca/WebDocuments-DocumentsWeb/38613/FM040_Intervener_BritishColumbia -Civil-Liberties-Association.pdf> [perma.cc/SV6C-ZYKT]. This factum focuses entirely on international human-rights law, and its impact on section 12 (as well as the consideration of section 12 jurisprudence in the arena of international law). See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Factum of the Intervener, Canadian Constitution Foundation), online (pdf): <www.scccsc.ca/WebDocuments-DocumentsWeb/38613/FM070_Intervener_Canadian-Consti tution-Foundation.pdf> [perma.cc/N2TA-9FD4]. Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Mémoire Directrice Des Poursuites Pénales, Intervenante), online (pdf): <www.scc-csc.ca/WebDo cuments-DocumentsWeb/38613/FM080_Intervenante_Directrice-des-poursuites-pén ales.pdf> [perma.cc/7FUV-WZF7]. This factum focuses largely on human-rights law in various jurisdictions, as well as a brief discussion of the ambit of section 12. There is but one reference to the federal Criminal Code in a footnote to the following sentence: “Finally, legal persons certainly have a separate legal personality which ensures that their criminal liability can be incurred.” The original French wording was as follows: “Enfin, les personnes morales bénéficient certes d’une personnalité juridique distincte qui fait en sorte que leur responsabilité criminelle peut être engagée.” While the footnote in the factum (para 65, n 84) cites sections 22.1 and 22.2 of the federal Criminal Code, this is inappropriate for at least two reasons. First, while these sections do cover corporations, which clearly do have a separate legal personality apart from those that oversee or run its day-to-day operations (directors and officers) and those who provide capital (shareholders), the sections also cover organizations that do not have a separate legal personality (partnerships are an example). For a discussion of the application of these rules to partnerships, see e.g. Darcy L. MacPherson, “Criminal Liability of Partnerships: Constitutional and Practical Impediments” (2009) 33:2 Man LJ 329. Second, of course, the common law had already recognized corporate criminal liability even without the statutory rules. Therefore, reference to the statutory rules is not necessary to the point being made by the intervener. The reference therefore only serves to "muddy the waters" rather than provide a clear argument to the Court. 132 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 (though some aspects of such an argument might appear here) is, in my view, better left to another day.102 There is one area where the appellant mentioned the Criminal Code103 in its factum.104 Paragraphs 107 through 109 read as follows (footnotes omitted):105 107. Among other things, they [the judges of the majority] point out that section 718.21 of the Criminal Code makes it possible to consider various factors when imposing a sentence on an organization, including the effect that the sentence would have on the economic viability of the organization, its structure and retention of its employees. 108. In this regard, the Attorney General of Quebec is of the view that the inclusion of such a factor in the Criminal Code in a sentencing provision cannot in any way serve to confer protection constitutional to purely economic rights. 109. The protections conferred by the Canadian Charter constitute a minimum and the legislator can adopt measures relating to aspects which are not protected by the [C]onstitution. The enunciation in the Criminal Code of a factor relating to the economic viability of an organization cannot therefore be assimilated, for that reason alone, to a consideration which must be taken 102 103 104 105 A case where an organizational offender is charged with either a Criminal Code offence or where the statute containing the offence provision specifically incorporates the same language, by reference to the provisions of the Criminal Code with respect to organizational offenders, would decidedly raise issues regarding the effect of the Criminal Code on the potential application of section 12 of the Charter, without any of the other complicating factors that are examined here. Supra note 3. 9147 Appellant’s Factum, supra note 95. In the original French, the factum, in the relevant portion, reads as follows (footnotes omitted): 107. Entre autres, ils soulignent que l’article 718.21 du Code criminel permet de considerer divers facteurs lors de l’imposition de la peine à l’endroit d’une organisation, notamment l’effet qu’aurait la peine sur la viabilité économique de l’organisation et le maintien en poste de ses employés. 108. À cet égard, la Procureure générale du Québec est d’avis que l’énoncé d’un tel facteur au Code criminel dans une disposition relative à la détermination de la peine ne peut servir à conférer, d’aucune façon, une protection constitutionnelle aux droits purement économiques. 109. Les protections conférées par la Charte canadienne constituent un minimum et le législateur peut adopter des mesures relatives à des aspects qui ne sont pas protégés constitutionnellement. L’énonciation dans le Code criminel d’un facteur concernant la viabilité économique d’une organisation ne peut donc pas être assimilée, de ce seul fait, à une considération devant être prise en compte afin de déterminer si les personnes morales peuvent bénéficier ou non de l’article 12 de la Charte canadienne. A Comment on 9147 133 into account in determining whether or not legal persons can benefit section 12 of the Canadian Charter. It is worth noting that the appellant is responding to the argument of the majority of the Court of Appeal that section 718.21 of the Criminal Code should in any way influence the proper interpretation of section 12 of the Charter. In my view, this is not the same as agreeing that the rules provided for under section 22.2 of the Code (or any other provision of Bill C-45,106 for that matter) should apply to provincial offences.107 Similarly, the respondent seems to have assumed that the Court of Appeal was correct in its assertion that section 718.21 of the Criminal Code108 should be applied here.109 106 107 108 109 Supra note 17. The Attorney-General of Ontario, in its intervention, makes a similar argument in its factum, where the following is written: “Contrary to the majority’s view, Parliament’s decision to require a judge sentencing an organization to consider, under s. 718.21 of the Criminal Code, the impact of the sentence on the economic viability of the organization and the continued employment of its employees does not change the scope of s. 12. To hold otherwise would give Parliament’s sentencing guidelines constitutional status – which this Court has repeatedly refused to do. See: [R v] Lloyd [[2016] 1 SCR 130], supra note 28 at paras 41–47.” (See 9147 AG Factum, supra note 97 at 10–11, n 40). Section 718.21 of the Criminal Code, supra note 3 reads as follows: “A court that imposes a sentence on an organization shall also take into consideration the following factors: (a) any advantage realized by the organization as a result of the offence; (b) the degree of planning involved in carrying out the offence and the duration and complexity of the offence; (c) whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution; (d) the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees; (e) the cost to public authorities of the investigation and prosecution of the offence; (f) any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence; (g) whether the organization was — or any of its representatives who were involved in the commission of the offence were — convicted of a similar offence or sanctioned by a regulatory body for similar conduct; (h) any penalty imposed by the organization on a representative for their role in the commission of the offence; (i) any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and (j) any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.” In 9147, the relevant portion of section 718.21 on which the Court of Appeal relies is paragraph (d), reproduced ibid. The argument runs, briefly and roughly, as follows: on the facts, the application of the statutory minimum fine may result in the insolvency of the corporation. The intention of paragraph 718.21(d) is to protect employees from losing their jobs as a result of criminal wrongdoing over which the employee had no 134 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Based on the test in R v Nur,110 the respondent argues as follows:111 [24] The first part of the test is to determine the just and proportionate sentence. The Court teaches that a court must refer to the sentencing objectives set out in section 718 of the Criminal Code.[112] Also, it must assess the aggravating and mitigating circumstances. In addition, it must take into account the fundamental principle of sentencing under section 718.1 of the 110 111 means of control nor any responsibility. The insolvency of the corporation will result in the loss of jobs. Therefore, the penalty is unduly harsh to innocent parties (the employees not involved in the wrongdoing). It could then follow that the penalty is grossly disproportionate to the evil sought to be punished. As mentioned above, issues dealing with either (i) the potential scope of section 12 of the Charter or (ii) assuming that section 12 were potentially activated on these facts, whether the insolvency of the defendant is “punishment” are not the subject-matter of this contribution and will each have to wait for another day. 2015 SCC 15, [2015] 1 SCR 773. In the original French, the factum, in the relevant portion, reads as follows: [24] La première partie du test consiste à déterminer la peine juste et proportionnée. La Cour enseigne qu’un tribunal doit se référer aux objectifs de détermination de la peine énoncés à l’article 718 du Code criminel. Également, il doit évaluer les circonstances aggravantes et atténuantes. De plus, il doit tenir compte du principe fondamental de la détermination de la peine suivant l’article 718.1 du Code criminel qui veut que la peine soit proportionnelle à la gravité de l’infraction et au degré de responsabilité du délinquant. Pour la seconde partie du test, la Cour enseigne que le tribunal doit comparer la peine juste et proportionnée avec la peine minimale obligatoire prévue par la loi. Si cette dernière le contraint à rendre une peine exagérément disproportionnée, la peine est alors incompatible avec l’article 12. Par ailleurs, mentionnons que les facteurs établis par la Cour pour déterminer si une peine est exagérément disproportionnée sont toujours d’actualité. [25] À maintes reprises, les tribunaux ont appliqué le principe de proportionnalité de la peine à l’égard des personnes morales pour imposer une peine juste et proportionnée. Les articles 718 à 718.21 du Code Criminel ont été considérés par les tribunaux. Par ailleurs, ceux-ci ont utilisé les termes suivants: peine appropriée, peine juste, amende juste et appropriée, amende adéquate, determining a fit sentence, fit fine, appropriate fine, just and appropriate sentence, just and proper penalty, just sanction, proper quantum of the fine, fair and effective sentence. 112 Section 718 of the Criminal Code, supra note 3 reads as follows: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.” A Comment on 9147 135 Criminal Code [113], which requires that the sentence be commensurate with the gravity of the offense and the degree of responsibility of the offender. For the second part of the test, the Court teaches that the court must compare the fair and proportionate sentence with the mandatory minimum sentence provided by law. If the latter compels him to make an excessively disproportionate sentence, then the sentence is incompatible with s. 12. Furthermore, it should be noted that the factors established by the Court to determine whether a sentence is excessively disproportionate are still valid. [25] Time and again, the courts have applied the principle of proportionality of sentence to legal persons in order to impose a fair and proportionate sentence. Sections 718 to 718.21114 of the Criminal Code have been 113 114 Section 718.1 of the Criminal Code, supra note 3, reads as follows: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Sections 718 and 718.21 are reproduced above (nn 112 and 108 respectively). Section 718.1 is also reproduced above (n 112). Sections 718.01 (offences against children), 718.02 (offences against peace officers and other justice system participants), 718.03 (offences against certain animals), 718.04 (offences against vulnerable persons), and 718.201 (intimate partner violence) provide additional sentencing considerations with respect to specific offences, types of offences, or the circumstances of the commission of the offence. However, while these are important principles of sentencing, these are not relevant to the facts of 9147, nor are these provisions particularly relevant to the broader point being made here. Section 718.2 reads as follows: “A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be 136 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 considered by the courts. They also used the following terms: appropriate sentence, fair sentence, fair and appropriate fine, adequate fine, determining a fit sentence, fit fine, appropriate fine, just and appropriate sentence, just and proper penalty, just sanction, proper quantum of the fine, fair and effective sentence. To be fair, the statutory wording with respect to sentencing does not generally displace a judge’s discretion115 to impose a fit sentence.116 In other words, though the respondent specifically references section 718.21, a fit sentence is always the goal. Remember that the goal of the respondent is to justify the claim that the punishment of the statutory minimum fine is so disproportionate as be cruel and unusual. Interestingly, however, the respondent also specifically refers to the Code of Penal Procedure to justify its position. The respondent writes as follows in its factum:117 115 116 117 unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” See Allan Manson, Essentials of Canadian Law: The Law of Sentencing (Toronto: Irwin Law, 2001) at 81. For a discussion of the exceptions to the general rule, see ibid at 78–80. 9147 Respondent’s Factum, supra note 96 [footnotes omitted]. In the original French, the factum, in the relevant portion reads as follows: [59] Une personne qui agit comme un entrepreneur au sens de la Loi sur le bâtiment (art. 7 et 46) et qui ne possède pas de licence s’expose à une amende. Des amendes minimales obligatoires sont prévues par cette loi pour la personne physique et la personne morale. Pour la personne physique, l’amende est actuellement de 11 461$ (art. 197.1). Toutefois, en ajoutant le montant de la contribution (2 865$) qui correspond à 25% du montant de l’amende minimale et les frais du constat (2 511$), l’amende totale s’élève à 16 837$. Cela signifie qu’une personne physique qui exécute sans licence des travaux de renovation d’une salle de bain en la peinturant (art. 7, 9, 41, 46) pour le bénéfice de son propriétaire au montant de 250$ avec taxes, s’expose à une amende de 16 837$. Il en est de même pour la personne qui offre, sans licence (art.7 et 46), d’exécuter des travaux de peinture d’un bâtiment dans une annonce publicitaire. En effet, il suffit de donner lieu de croire que l’on est un entrepreneur en construction pour commettre une infraction. Il n’est pas nécessaire de réaliser les travaux pour s’exposer à une amende de 16 837$. Par ailleurs, une personne qui offre sans licence de réaliser des travaux de peinture en lien avec un bâtiment dans une annonce publicitaire et qui exécute ensuite sans licence des travaux de rénovation d’une salle de bain en la peinturant pour un montant de 250$ avec taxes et ce, pour le bénéfice du propriétaire, s’expose à une amende totale de 33 674$. [60] Pour la personne morale, l’amende minimale obligatoire pour ne pas détenir une licence est de 34 378$. Cependant, en ajoutant le montant de la contribution (8 594$) qui correspond à 25% du montant de l’amende minimale et les frais du constat (2 A Comment on 9147 137 [59] A person who acts as a contractor within the meaning of the Building Act (ss. 7 and 46) and who does not hold a license is liable to a fine. Mandatory minimum fines are provided for by this law for individuals and legal persons. For the individual, the fine is currently $11,461 (s. 197.1). However, by adding the amount of the contribution ($2,865) which corresponds to 25% of the amount of the minimum fine and the costs of the finding ($2,511), the total fine amounts to $16,837. This means that a natural person who performs renovations of a bathroom without a license by painting it (ss. 7, 9, 41, and 46) for the benefit of its owner in the amount of $250 with taxes, is exposed to a fine of $ 16,837. The same applies to a person who offers, without a license (ss. 7 and 46), to carry out painting work on a building in an advertisement. Indeed, it suffices to give reason to believe that one is a construction contractor to commit an offense. It is not necessary to carry out the work to be liable to a fine of $ 16,837. In addition, a person who offers an unlicensed offer to carry out painting work related to a building in an advertisement and who then performs unlicensed renovations of a bathroom by painting it for an amount of $ 250 with taxes, for the benefit of the owner, is liable to a total fine of $ 33,674. [60] For a legal person, the minimum mandatory fine for not holding a license is $ 34,378. However, adding the amount of the contribution ($8,594) which corresponds to 25% of the amount of the minimum fine and the costs of the finding ($2,743), the total fine is $45,715.82. If we take the example cited above for unlicensed renovation of a bathroom, for a contract of $500 with taxes, and we apply it to a legal person, that person is exposed to a $45,715 fine. It is the same for the legal person who offers, without a license, (art.7 and 46) to carry out painting works of a building in an advertisement without however carrying them out. In addition, a legal person, through its administrator, who offers, without having a license, to carry out painting work in connection with a building in an advertisement and who then performs, without a license, renovation work on a bathroom by painting it for an amount of $500 with taxes and this, for the benefit of the owner, is liable to a total fine of $91,430. The problem with the argument put forward by the respondent is not that it is incorrect to rely upon the provincial statute. On the contrary, I 743$), l’amende totale est de 45 715$. Si nous reprenons l’exemple invoqué précédemment visant les travaux de rénovation sans licence d’une salle de bain, pour un contrat de 500$ avec taxes, et que nous l’appliquons à une personne morale, celleci s’expose à une amende de 45 715$. Il en est de même pour la personne morale qui offre, sans licence, (art.7 et 46) d’exécuter des travaux de peinture d’un bâtiment dans une annonce publicitaire sans toutefois les réaliser. Par ailleurs, une personne morale, par le biais de son administrateur, qui offre, sans posséder de licence, de réaliser des travaux de peinture en lien avec un bâtiment dans une annonce publicitaire et qui exécute ensuite sans licence des travaux de rénovation d’une salle de bain en la peinturant pour un montant de 500$ avec taxes et ce, pour le bénéfice du propriétaire, s’expose à une amende totale de 91 430$. 138 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 believe that this is the correct approach. Rather, the issue is that both the Court of Appeal and the respondent for the Supreme Court of Canada seems to be treating the criminal law in a scattered way. They want to take some references for their argument from Column A (in this case, the provincial Code of Penal Procedure) while taking other references for their argument from Column B (in this case, the federal Criminal Code). In my view, such an approach cannot be justified. This is particularly so where the provincial statute specifically dictates a different set of organizational offenders who are subject to its provisions then does the federal legislation. Another controversial approach is that presented in the factum118 of the Association of Defence Lawyers of Montreal119 as an intervener. The Association writes as follows: 120 118 119 120 See Attorney General of Quebec, et al v 9147-0732 Québec inc, 2019 QCCA 373 (Mémoire De L’Association Des Avocats De La Défense De Montréal), online (pdf): </www.scccsc.ca/WebDocuments-DocumentsWeb/38613/FM030_Intervenante_Associationdes-avocats-de-la-défense-de-Montréal.pdf> [perma.cc/9QSL-L8UV] [9147 Mémoire De L’Association Des Avocats De La Défense De Montréal]. The name of the Association in French is “L’Association Des Avocats De La Défense De Montréal” In the original French, the paragraph reads as follows: 22. 24. 27. La définition englobante d’« organisation » à l’article 2 du Code criminel est un reflet législatif de cette réalité. En modifiant le Code criminel, LRC (1985), c C-46 [Code criminel] en 2004, le Parlement a facilité l’application du droit criminel aux personnes morales, augmentant ainsi leur exposition à des « peines ». Deuxièmement, selon le principe d’interprétation évolutive de la Charte, l’interprétation de l’Article 12 doit aussi tenir compte des changements nombreux et constants apportés aux législations régissant les activités des personnes morales. L’éventail actuel limité des peines et traitements applicables aux personnes morales n’est pas exclusivement dû au fait qu’elles ne peuvent pas être emprisonnées. Il résulte surtout d’un choix législatif appelé à évoluer, comme l’illustre l’adoption récente de la partie XXII.1 du Code criminel sur les accords de réparation. Or, « [l]a Charte vise à établir une norme en fonction de laquelle les lois actuelles et futures seront appréciées » [note 24: R c Big M Drug Mart Ltd., [1985] 1 RCS 295, opinion majoritaire, à la page 343], (nous soulignons). Pour déterminer si une peine est exagérément disproportionnée dans le cadre des deuxième et troisième catégories, les considérations retenues par cette Cour incluent (a) la nécessité de la peine pour l’atteinte d’un objectif pénal régulier, (b) les effets de la peine sur le contrevenant en cause ou sur un autre contrevenant (dans une application raisonnablement prévisible de la disposition contestée) et (c) la conformité de la peine aux principes reconnus en matière de détermination de la peine. En ce qui concerne cette dernière considération, l’article 718.21 du Code criminel prévoit expressément des facteurs à prendre en compte dans la détermination de la peine d’une organisation incluant, à l’alinéa d), « l’effet qu’aurait la peine sur la viabilité économique de l’organisation et le maintien en poste de ses employés » [Most footnotes omitted]. A Comment on 9147 139 121 22. The comprehensive definition of "organization" in section 2 of the Criminal Code is a legislative reflection of this reality. By amending the Criminal Code, RSC, 1985, c C-46 [Criminal Code] in 2004, Parliament facilitated the application of the criminal law to legal persons, thereby increasing their exposure to "punishment." 24. Second, according to the principle of progressive interpretation of the Charter, the interpretation of s. 12 must also take account of the numerous and constant changes made to the laws governing the activities of legal persons. The current limited range of penalties and treatment for legal persons is not exclusively due to the fact that they cannot be imprisoned. It is primarily the result of a legislative choice that is set to evolve, as illustrated by the recent adoption of Part XXII.1 of the Criminal Code on remediation agreements. However, "[t]he Charter seeks to establish a standard by which current and future laws will be assessed" [note 24: R v Big M Drug Mart Ltd., [1985] 1 SCR 295, at 343, per the majority], (emphasis added). 27. In determining whether a sentence is grossly disproportionate in the second and third categories,[121] the considerations adopted by this Court include (a) the need for the sentence for the achievement of a regular penal objective, (b) the effects sentencing of the offender or another offender (within a reasonably foreseeable application of the impugned provision) and (c) compliance of the sentence with accepted principles of sentencing. With respect to the latter consideration, section 718.21 of the Criminal Code expressly provides for factors to be taken into account in the sentencing of In the previous paragraph (paragraph 26 of the Association’s factum), the following is written [footnotes omitted]: The approach of this Court can be distilled into an analytical framework regrouping three distinct and alternative categories: (a) First category: Although its existence is rarely recalled in contemporary times, there is a range of penalties and treatments which are inherently cruel and unusual, regardless of the circumstances, such as corporal punishment; (b) Category Two: Punishment or treatment will be cruel and unusual because it is grossly disproportionate to the punishment or treatment appropriate to the person claiming protection under s. 12; (c) Category Three: Punishment or treatment will be cruel and unusual because it is grossly disproportionate to other reasonably foreseeable applications of the penalty or treatment (excluding that of the person claiming protection under Article 12). In the original French: L’approche de cette Cour peut être distillée en un cadre analytique regroupant trois catégories distinctes et alternatives : (a) Première catégorie : Bien que son existence soit rarement rappelée à l’époque contemporaine, il existe un éventail de peines et de traitements qui sont intrinsèquement cruels et inusités, sans égard aux circonstances, tels que les châtiments corporels. (b) Deuxième catégorie : Une peine ou un traitement sera cruel et inusité parce qu’exagérément disproportionné par rapport à la peine ou au traitement approprié pour la personne qui invoque la protection de l’Article 12. (c) Troisième catégorie : Une peine ou un traitement sera cruel et inusité parce qu’exagérément disproportionné par rapport à d’autres applications raisonnablement prévisibles de la peine ou du traitement (excluant celui de la personne qui invoque la protection de l’Article 12). 140 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 an organization, including, in paragraph (d), "the effect that the penalty on the economic viability of the organization and the continued employment of its employees.” Each of these paragraphs has indications that the Association believes that the Criminal Code applies in the case. Paragraph 22 begins by citing the comprehensive definition of "organization" provided for in section 2 of the Criminal Code.122 Despite the fact of the Association represents Québec lawyers, the factum makes no reference at all to the Québec Code of Penal Procedure.123 Interestingly, the same paragraph seems to draw a parallel between increased amenability to the criminal law, on the one hand, and increased penalties, on the other. This seems to assume that increased penalties under the Criminal Code apply on these facts. However, I would agree with the Association that the source of the wrongdoing (in this case, the provincial legislation that created the offence, that is, the Building Act124) and the penalties for it should generally emanate from the same level of government (the Code of Penal Procedure). Despite this, the factum of the Association makes no reference whatsoever to any provincial legislation. Frankly, this is why this issue is so important. If the lawyers appearing before the Supreme Court of Canada do not even recognize that there is an issue as to what statute applies, how can a proper foundation for a constitutional argument even be laid? Even more importantly perhaps, given that this will be the first case before our country's highest court where the amendments introduced by Bill C-45125 could be considered, any discussion of the breadth of the application of those amendments will be essentially unchallenged because there will be no earlier cases (from the Supreme Court of Canada or otherwise) that future courts will be able to consider. Thus, it is exceptionally critical that the Supreme Court of Canada take its time to properly consider what law applies. In paragraph 24, the Association makes reference to Part XXII.1 of the Criminal Code. However, in my view, this is very problematic, for a number of reasons. The first of these is that the facts of 9147126 preceded the passage of Part XXII.1.127 Therefore, how can a constitutional question based on the 122 123 124 125 126 127 Supra note 3. 9147 Mémoire De L’Association Des Avocats De La Défense De Montréal, supra note 118; Code of Penal Procedure, supra note 67. Supra note 5. Supra note 17. Supra note 1. See Criminal Code, supra note 3, ss 715.3–715.43. A Comment on 9147 141 facts of 9147 be resolved on the basis of, or even influenced by, the legislative choices made by Parliament after those facts arose? Perhaps even more importantly, in my view, paragraph 24 of the factum misinterprets the effect of Part XXII.1 of the Criminal Code. A remediation agreement is not punishment. If a remediation agreement is entered into between the prosecutor and the alleged organizational offender, any charges against the alleged organizational offender are stayed128 and once the terms of the remediation agreement are fulfilled by the alleged organizational offender, the charges cannot be reinstituted.129 In other words, where the remediation agreement is fulfilled, the organizational offender is never convicted of an offence with respect to the facts underlying the remediation agreement.130 In fact, the provisions go further and deem that no proceedings have even been commenced with respect to those offences to which a remediation agreement applies.131 If the performance of a remediation agreement were "punishment", this would defeat the purpose of the remediation agreement. Therefore, to consider this in the context of an argument about the application of section 12 of the Charter132 seems counterintuitive.133 Furthermore, the legislation introducing the concept of 128 129 130 131 132 133 Ibid, s 715.3(1) sv “remediation agreement”. Ibid, s 715.4(2). Ibid. Ibid. Supra note 2. Admittedly, section 12 refers to both "punishment" and "treatment". One could make the argument that, even if a remediation agreement is not "punishment", it is nonetheless "treatment" within the meaning of section 12 of the Charter. In my view, however, this does not attract section 12 protection as "treatment". The reason for this is simple. A remediation agreement is exactly that: an agreement. The organizational offenders must agree to the terms of the remediation agreement. If the treatment provided for by the remediation agreement is grossly disproportionate to the wrong committed, why would the organizational offender agree to those terms? It is important to remember that constitutional protections are generally driven by the protection the subject of the law (usually referred to as "an individual", but for current purposes, I am willing to concede that it also includes organizations for some purposes) from the coercive power of the state. Where a remediation agreement is negotiated, virtually by definition, the coercive power of the state is minimized, because the subject of the law wishes to negotiate to avoid criminal prosecution. It would seem very difficult to argue that negotiations (at least in most cases) would be genuinely coercive. After all, the defendant need only walk away from the negotiations to force them to end. Now, a careful reader might suggest that any time that one has the looming specter of the criminal prosecution lying in the background of the negotiation, the possibility of coercion exists. While that is certainly possible, a remediation agreement does avoid 142 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 a remediation agreement into the Criminal Code is quite clear that a remediation agreement is not even available for all offences under the Criminal Code.134 The list does not refer to types of offences for which a remediation agreement is possible. It lists specific sections of the Criminal Code.135 If a remediation agreement is not even permitted for all the offences under its home statute, it strains credulity to suggest that somehow, in interpreting the punishment under a different statute, created by a different legislative body (the National Assembly of Quebec), the remediation agreement provisions are relevant. 134 135 the possibility of a criminal conviction for the underlying wrongdoing. For many business enterprises (which would all generally be considered "organizations" pursuant to the provisions of Bill C-45), the avoidance of the stigma of criminal conviction could certainly be worth any reasonable level of pecuniary loss necessary to secure the agreement of the prosecutor. Given this, it seems very unusual to raise the scope of Part XXII.1 of the Criminal Code to support an argument under section 12 of the Charter. In order for a remediation agreement to even be possible, the offence allegedly committed by the organizational offender must be found in a specific schedule to the Criminal Code, supra note 3. See “Bill C-74, An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures”, 3rd reading, House of Commons, 42-1, No 1 (6 June 2018), s 404, online: <www.parl.ca/Doc umentViewer/en/42-1/bill/C-74/> [perma.cc/5LF7-VRH3] [Bill C-74] (adding, among other provisions, subsection 715.3(1) to the Criminal Code, sv “offence”). The listed offences are: “An offence under any of the following provisions of this Act: (a) section 119 or 120 (bribery of officers); (b) section 121 (frauds on the government); (c) section 123 (municipal corruption); (d) section 124 (selling or purchasing office); (e) section 125 (influencing or negotiating appointments or dealing in offices); (f) subsection 139(3) (obstructing justice); (g) section 322 (theft); (h) section 330 (theft by person required to account); (i) section 332 (misappropriation of money held under direction); (j) section 340 (destroying documents of title); (k) section 341 (fraudulent concealment); (l) section 354 (property obtained by crime); (m) section 362 (false pretence or false statement); (n) section 363 (obtaining execution of valuable security by fraud); (o) section 366 (forgery); (p) section 368 (use, trafficking or possession of forged document); (q) section 375 (obtaining by instrument based on forged document); (r) section 378 (offences in relation to registers); (s) section 380 (fraud); (t) section 382 (fraudulent manipulation of stock exchange transactions); (u) section 382.1 (prohibited insider trading); (v) section 383 (gaming in stocks or merchandise); (w) section 389 (fraudulent disposal of goods on which money advanced); (x) section 390 (fraudulent receipts under [the] Bank Act); (y) section 392 (disposal of property to defraud creditors); (z) section 397 (books and documents); (z.1) section 400 (false prospectus); (z.2) section 418 (selling defective stores to Her Majesty); and (z.3) section 426 (secret commissions).” See Bill C-74, supra note 134, Schedule 6, s 1. Inchoate and other offences (conspiracy or attempt to commit, accessory after the fact, and counselling) related to these offences are also included. See Bill C-74, supra note 134, Schedule 6, s 3. A Comment on 9147 143 Put another way, in my view, there is not even any plausible argument that a remediation agreement could ever apply to any provincial statute. Yet, the respondent in a case before the Supreme Court of Canada is nonetheless relying upon these provisions as part of its analysis of the punishments imposed by a provincial statute. To me, this can only lead to a lack of clarity as to what rules should apply when dealing with offences outside of the Criminal Code, whether those be the substantive attribution rules (whether sections 22.1 and 22.2 of the Criminal Code, on the one hand, or the common-law rules exemplified by the DeJong case,136 on the other). It is this lack of clarity that will be remedied by a strong statement by the Supreme Court of Canada that the Criminal Code has no application to provincial offences. III. CONCLUSION In the end, the object of this paper is to make an argument about the scope of Bill C-45.137 Essentially, multiple factors suggest that the courts ought to confine the application of the statutory attribution and sentencing rules regarding organizational criminal liability contained in the Criminal Code138 to only those offences charged under the Criminal Code. With respect to quasi-criminal offences provided under provincial statutes, such as the one at issue in 9147,139 the first of these are constitutional issues arising largely out of the division of legislative power under the Constitution Act, 1867.140 Notably, where an offence is under valid provincial legislative jurisdiction, it would seem incongruous in the extreme to suggest that the rules of a federal statute (the Criminal Code) should govern the elements of the otherwise-valid exercise of provincial power. Of course, a provincial statute may incorporate the language of a federal statute by reference. There was a degree of incorporation of certain elements of the federal Criminal Code in the provincial Code of Penal Procedure.141 But where that incorporation is limited (as it is in the Quebec Code of Penal Procedure), we ought not read more of the incorporated federal statute into the provincial 136 137 138 139 140 141 Supra note 81. Supra note 17. Supra note 3. Supra note 1. Supra note 48. Supra note 67. 144 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 enactment than that provided for in the wording chosen by the provincial legislature. Finally, recent jurisprudence from the Supreme Court of Canada itself142 suggests that if the federal rules are easier to apply (in that they would create attribution in more cases than would their common-law counterparts), the common law rules should not be relaxed. In other words, on this view of the case law, harmonization between the Criminal Code provisions, on the one hand, and the judicially-created rules, on the other, should be accomplished by relaxing the latter. Obviously, judges cannot overrule Parliament with respect to the Criminal Code provisions. Thus, unless the Criminal Code provisions apply directly, it follows that we must apply the common-law rules with respect to all statutes other than the Criminal Code. Hopefully, the Supreme Court of Canada, when it decides the appeal of the decision of the Quebec Court of Appeal in 9147, will provide clarity on this issue for all Canadian courts going forward. 142 DeJong, supra note 81. Criminal Law During (and After) COVID-19 T E R R Y S K O L N I K * ABSTRACT In response to the COVID-19 pandemic, governments across the globe are implementing drastic physical distancing measures with wide-ranging implications. Courts are increasingly confronted with novel pandemicrelated issues that are significantly altering the criminal justice system. This article explores the current and potential impacts of COVID-19 on three specific areas of the criminal law: the scope of certain crimes, bail, and punishment. It advances three core arguments. First, the pandemic creates a risk that courts will expand the breadth of crimes such as assault and aggravated assault for conduct such as coughing. It provides compelling reasons why courts must limit the scope of these criminal offences and why judges should not extend the legal framework that applies to HIV non-disclosure to COVID-19 transmissions. Second, the pandemic is changing the bail process. Due to COVID-19 outbreaks in detention centres, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. More than ever, judges consider the interests of defendants and detainees when interpreting the concept of “public confidence” — a positive change that limits recourse to pre-trial custody. Third, the pandemic is impacting sentencing as judges move away from custodial punishments. COVID-19 highlights why incarceration and financial penalties disparately impact defendants, which raises concerns regarding proportionality and retributive justifications for punishment both during and beyond the pandemic. Ultimately, this article shows why judges, policy makers, and justice system actors should seize on this unique opportunity to generate lasting positive changes to the criminal justice system that are taking place during the pandemic. 146 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 I. INTRODUCTION he pandemic is changing everything, including criminal law. In order to prevent the transmission of COVID-19, governments are employing various coercive measures that aim to limit the virus’ spread.1 Police officers are enforcing Criminal Code provisions, provincial health laws, and by-laws for conduct such as coughing on others and disobeying physical distancing guidelines.2 These measures generate profound civil rights concerns and raise crucial questions about the criminal law’s breadth, its expansion during emergencies, and the future of Canada’s criminal justice system. This article explores the impact of COVID-19 on three areas of Canadian criminal law: the scope of certain crimes, bail, and sentencing. It argues that legal responses to the pandemic expose the severity of problems such as overcriminalization, pre-trial detention, and disproportionate punishments that have plagued the criminal justice system for decades. However, COVID-19 has also resulted in certain positive changes to the criminal law that can catalyze a shift away from overly punitive criminal justice policy and practice. Justice system actors are developing innovative ways to address the above-mentioned problems and decrease overreliance on the criminal law. This article explores these changes and shows why they should persist beyond the pandemic. It advances three main arguments. T * 1 2 Assistant Professor, University of Ottawa, Faculty of Law, Civil Law Section. I thank Anna Maria Konewka, Carissima Mathen, Don Stuart, Edward Bechard-Torres, Jennifer Quaid, Kyle Kirkup, Marie-Ève Sylvestre, Michelle Biddulph, Nayla El-Zir, Quoc-Huy Trinh, Will Colish, and the two anonymous reviewers for comments on prior versions of this draft. I also thank Marie-Hélène Brousseau Bellemare for her excellent research assistance. All mistakes are my own. Alexander McClelland & Alex Luscombe, “Policing the Pandemic: Tracking the Policing of Covid-19 across Canada” (2020), online (pdf): <static1.squarespace.com/sta tic/5e8396f40824381145ff603a/t/5e8f788edecf77629b70587a/1586460816391/Pol icing_the_Pandemic_White_Paper_April_9_2020.pdf> [perma.cc/D4LP-56QF]; Eric S Brock et al, “COVID-19: Can They do That? Part VII: Québec’s Public Health Act and Civil Protection Act” (21 March 2020), online: McCarthy Tetrault <www.mccarthy.c a/en/insights/articles/covid-19-can-they-do-part-vii-quebecs-public-health-act-and-civilprotection-act> [perma.cc/GC8N-4JKQ]. Alex Luscombe & Alexander McClelland, “Policing the Pandemic: Enforcement Report: April 14 2020-May 1 2020” (2020) at 1–6, online (pdf): <static1.squarespace.co m> [perma.cc/2ZQU-Q9RD] [Luscombe & McClelland, “Enforcement Report”]. Note that this article employs the term “physical distancing” rather than “social distancing”. Criminal Law During (and After) COVID-19 147 First, the pandemic creates a serious risk of overcriminalization because courts may expand the breadth of crimes such as assault, aggravated assault, and inchoate offences. In line with other scholars’ suggestions, this article demonstrates why it is objectionable for judges to transpose the legal framework applicable to the criminalization of communicable disease transmission into the context of COVID-19.3 Second, the emergence of COVID-19 is forcing courts to rethink bail and recourse to pre-trial detention. The pandemic has altered how judges conceptualize the tertiary ground that justifies remand in custody, which assesses whether the defendant’s detention is necessary to maintain public confidence in the criminal justice system.4 Courts must now accord greater importance to the defendant’s interests in interpreting the concept of “public confidence” and must truly examine all of the alternatives to pre-trial detention.5 Third, COVID-19 requires justice system actors to reconsider the harms associated with various punishments. The pandemic illustrates the shortfalls of retributivism and sheds new light on why disproportionate financial penalties are objectionable. This article is structured as follows. Section II provides an overview of COVID-19 and Canada’s response to the pandemic. Section III explores the dangers of expanding the breadth of various crimes. Against the historical backdrop of over-criminalizing HIV non-disclosure, it sets out the problems associated with extending that framework to COVID-19.6 Section IV shows how COVID-19 has forced courts to recommit to the presumption of innocence and increasingly mandate pre-trial release. After providing an overview of recent case law developments, it explains how COVID-19 has led courts to reinterpret the tertiary ground in bail decisions and revisit the 3 4 5 6 See e.g. Lee Seshagiri, “Criminalizing COVID-19 Transmission via Sexual Assault Law? No. And that Means No” (28 April 2020), online: The Lawyer’s Daily <www.thelawyers daily.ca/articles/18817> [perma.cc/39GL-TAF4]; Scott Skinner-Thompson, “Don’t Criminalize COVID-19” (27 March 2020), online: Slate <slate.com/news-and-politics/2 020/03/criminalize-coronavirus-hiv-stigma.html> [perma.cc/DLF9-BTSY]. Criminal Code, RSC 1985, c C-46, s 515(10)(c). Jenny Carroll, “Pre-Trial Detention in the Time of COVID-19” (2020) 115 Nw UL Rev 57 at 78–80. Skinner-Thompson, supra note 3; “Flatten Inequality: Human Rights in the Age of COVID-19” (3 April 2020) at 1, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/site/flatten-inequality-human-rights-in-the-age-of-covid-19/?lang=en> [perma.cc/XH8G-J2GM]; Alexander McClelland, “We Can’t Police our Way out of a Pandemic” (30 March 2020), online: NOW <nowtoronto.com/news/coronavirus-wecant-police-our-way-out-of-pandemic/> [perma.cc/5U3K-C7JT]. 148 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 notion of “public confidence”.7 Section V concludes the article by examining how COVID-19 is shifting the criminal justice system away from imprisonment and why the State should not impose disproportionate financial penalties on defendants, both during and after the pandemic. In line with emerging case law, it proposes a range of schemes that accommodate the realities of COVID-19 into custodial sentencing and shows why day fines (or graduated economic sanctions) are preferable to traditional fines.8 Although COVID-19 risks imperiling civil liberties and expanding police officers’ powers, it has also forced courts to embrace a greater commitment to the presumption of innocence, pre-trial liberty, and noncustodial punishments — developments that can persist once the pandemic subsides. This article demonstrates why justice system actors are in the midst of a unique historical opportunity to implement lasting positive changes to the Canadian criminal justice system and ultimately, take meaningful steps towards alleviating many of its worst problems. II. AN OVERVIEW OF COVID-19 AND LEGAL RESPONSES TO THE PANDEMIC In December 2019, China reported the emergence of a novel coronavirus (SARS CoV-2) that originated in the city of Wuhan.9 The virus causes the COVID-19 disease that produces a range of symptoms that vary significantly across a spectrum.10 While some individuals infected with COVID-19 are asymptomatic, others experience mild, upper respiratory illness, high fever, pneumonia, other symptoms, and respiratory failure that leads to death.11 The virus quickly spread across the globe and the World Health Organization (WHO) declared a pandemic on March 11, 2020.12 7 8 9 10 11 12 Carroll, supra note 5 at 78–80. See e.g. Sally T Hillsman, “Fines and Day Fines” (1990) 12 Crime & Justice 49. Michael Holshue et al, “First Case of 2019 Novel Coronavirus in the United States” (2020) 382:10 New Eng J Med 929 at 929, DOI: <10.1056/NEJMoa2001191>. Fei Zhou et al, “Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China: A Retrospective Cohort Study” (2020) 395:10229 Lancet 1054 at 1054, DOI: <10.1016/S0140-6736(20)30566-3>. Ibid. Juliet Bedford et al, “COVID-19: Towards Controlling of a Pandemic” (2020) 395:10229 Lancet 1015 at 1015, DOI: <10.1016/S0140-6736(20)30673-5>. Criminal Law During (and After) COVID-19 149 Before exploring certain facets of COVID-19, two caveats are necessary. For one, insight into COVID-19 is in a state of constant flux and new information about SARS CoV-2 emerges daily. Although this article was completed in June 2020, some of the following information may not be current in a matter of days, weeks, or months. The other caveat is that much about the virus remains unknown. As discussed more below, seemingly basic knowledge — such as exactly how the virus transmits, its mortality rate, and its basic reproductive rate — is unclear and contested. With this being said, the virus has several general characteristics that make it particularly dangerous, leading countries to adopt drastic measures to curve the disease’s spread. First, compared to seasonal influenza, COVID-19 appears to have a significantly higher mortality rate.13 Elderly persons, immunocompromised individuals, and those with pre-existing medical conditions (such as diabetes, cardiovascular disease, or pulmonary disease) are at an especially heightened risk of complications and death.14 Moreover, COVID-19 results in a significant number of hospitalizations and admissions to the ICU that have overwhelmed some countries’ health care systems.15 Due to the possibility of asymptomatic spread and limited testing capabilities, it is difficult to ascertain the actual number of infected persons within the population. Second, COVID-19 is easily transmissible.16 At the time of drafting this article, the Centers for Disease Control and Prevention observe that it is not entirely certain how COVID-19 spreads.17 They note that it is believed 13 14 15 16 17 Roy M Anderson et al, “How Will Country-Based Mitigation Measures Influence the Course of the COVID-19 Epidemic?” (2020) 395:10228 Lancet 931 at 931, DOI: <10.1016/S0140-6736(20)30567-5>. Zonyou Wu & Jennifer M. McGoogan, “Characteristics of and Important Lessons from the Coronavirus Disease 2019 (COVID-19) Outbreak in China: Summary of a Report of 72314 Cases from the Chinese Center for Disease Control and Prevention” (7 April 2020), online: JAMA <jamanetwork.com/journals/jama/fullarticle/2762130> [perma. cc/S339-J7B8]. “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19): United States, February 12–March 16, 2020” (27 March 2020) at 343–45, online: Centers for Disease Control and Prevention <www.cdc.gov/mmwr/volumes/69/wr/mm69 12e2.htm> [perma.cc/7CF3-MYAT]. “Coronavirus Disease 2010 (COVID-19): How COVID-19 Spreads” (last modified 2 June 2020), online: Centers for Disease Control and Prevention <www.cdc.gov/coronavirus /2019-ncov/faq.html#How-COVID-19-Spreads> [perma.cc/363X-6R3M]. Ibid. 150 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 to transmit through person-to-person spread via respiratory droplets, for example, by sneezing or coughing.18 There may be other forms of transmission, although it is unclear.19 For instance, a study published in the New England Journal of Medicine notes that the virus can be found on certain types of surfaces for a period of hours to days, depending on the surface.20 Although estimates vary, COVID-19’s basic reproduction rate (or R-0 factor, pronounced “R naught”) is considered to be somewhere between two to three, and even higher according to some.21 This means that without effective physical distancing measures, each person with COVID-19 would transmit the virus to an average of two to three other persons, resulting in an exponential growth rate of infections.22 Furthermore, evidence suggests that asymptomatic individuals can spread the virus, although it is unclear to what extent asymptomatic spread occurs.23 Some countries, such as South Korea, have developed intensive testing, case follow-up, contact tracing, and 18 19 20 21 22 23 Ibid. Ibid. See also Jianyun Lu et al, “COVID-19 Outbreak Associated with Air Conditioning in Restaurant, Guangzhou, China, 2020” (2020), online: Centers for Disease Control and Prevention <wwwnc.cdc.gov/eid/article/26/7/20-0764_article#suggestedcitation> [per ma.cc/5L2Q-HQX6]; Yuan Liu et al, “Aerodynamic Analysis of SARS-CoV-2 in Two Wuhan Hospitals” (27 April 2020), online: Nature <www.nature.com/articles/s41586020-2271-3> [perma.cc/6ECU-YLWJ]. Neeltje van Doremalen et al, “Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1” (2020) 382:16 New Eng J Med 1564, DOI: <10.1056/NEJMc2004973>. Alessia Lai et al, “Early Phylogenetic Estimate of the Effective Reproduction Number of SARS-CoV-2” (25 February 2020) at 4, online: Pub Med: National Library of Medicine <pubmed.ncbi.nlm.nih.gov/32096566/> [perma.cc/M3M7-BS44]; Shi Zhao et al, “Preliminary Estimation of the Basic Reproduction Number of Novel Coronavirus (2019-nCoV) in China, from 2019 to 2020: A Data-Driven Analysis in the Early Phase of the Outbreak” (2020) 92 Intl J Infectious Disease 214 at 216; Anthony Fauci, Clifford Lane & Robert R. Redfield, “Covid-19: Navigating the Uncharted” (2020) 382 New Eng J Med 1268 at 1268–69, DOI: <10.1056/NEJMe2002387> (estimating the R0 to be roughly 2.2). On the R-0 rate, see Roger Webber, Communicable Disease Epidemiology and Control: A Global Perspective, 2nd ed (Oxford, UK: Oxford University Press, 2005) at 26–28. Melissa Arons et al, “Presymptomatic SARS-CoV-2 Infections and Transmission in a Skilled Nursing Facility” (2020) 382:22 New Eng J Med 2081 at 2081, 2087–88, DOI: <10.1056/NEJMoa2008457>; Monica Gandhi, Deborah S. Yokoe & Diane V. Havlir, “Asymptomatic Transmission, the Achilles’ Heel of Current Strategies to Control Covid-19” (2020) 328:22 New Eng J Med 2158 at 2159, DOI: <10.1056/NEJMe20097 58>. Criminal Law During (and After) COVID-19 151 isolation protocols that have limited the incidence of outbreaks.24 In other countries that lack such widespread measures, physical distancing remains the primary way to limit transmission.25 Studies and epidemiological models show that early and effective physical distancing reduces the incidence of infections, decreases mortality rates, and eases the burden on healthcare systems.26 It is also unclear when the pandemic will end, with scientists and governments bracing for the possibility of multiple waves — raising uncertainty about the duration of physical distancing measures.27 Third, there is currently no cure for COVID-19.28 No vaccine exists at this point. Vaccine development typically takes many years and involves multiple phases of clinical trials, although these phases may overlap for vaccines that are developed in response to urgent pandemic contexts.29 Many experts are skeptical about the development and mass-production of a COVID-19 vaccine within an 18-month period that some have suggested is possible.30 Clinical trials that study the effectiveness of anti-viral medication are ongoing,31 although the FDA and Health Canada have approved the use of some medications (such as remdesivir) to treat COVID19 in certain circumstances.32 24 25 26 27 28 29 30 31 32 Dale Fisher & Annelies Wilder-Smith, “The Global Community Needs to Swiftly Ramp Up the Response to Contain COVID-19” (2020) 395:10230 Lancet 1109 at 1109–10. Jon Cohen & Kai Kupferschmidt, “Countries Test Tactics in ‘War’ against COVID-19” (20 March 2020) at 1288, online: Pub Med: National Library of Medicine <pubmed.ncbi.n lm.nih.gov/32193299/> [perma.cc/U4X6-XMNC]. Sharon Kirkley, “What Is the End Game? Ontario's Stark Modelling Forecast Could Help Canadians Cope with COVID-19”, National Post (4 April 2020), online: <nationa lpost.com/news/what-is-the-end-game-ontarios-stark-modelling-forecast-could-help-cana dians-cope-with-covid-19> [perma.cc/B57E-9AXU]. Peter Baker & Eileen Sullivan, “U.S. Virus Plan Anticipates 18-Month Pandemic and Widespread Shortages”, New York Times (17 March 2020), online: <www.nytimes.com/ 2020/03/17/us/politics/trump-coronavirus-plan.html> [perma.cc/4NX3-ZC2J]. Fauci Lane & Redfield, supra note 21 at 1268–69. Nicole Lurie et al, “Developing Covid-19 Vaccines at Pandemic Speed” (2020) 381:21 New Eng J Med 1969, DOI: <10.1056/NEJMp2005630>. Laura Spinney, “When Will a Cononavirus Vaccine Be Ready?”, The Guardian (3 April 2020), online: <www.theguardian.com/world/2020/apr/06/when-will-coronavirus-vac cine-be-ready> [perma.cc/HD3B-3GR9]. Fauci, Lane & Redfield, supra note 21 at 1268–69. Tom Blackwell, “Canadian Experts don’t See Remdesivir as a COVID-19 Killer: ‘This Is Not a Silver Bullet’”, National Post (30 April 2020), online: <nationalpost.com/health /more-data-supply-needed-before-making-promising-covid-19-drug-remdesivir-a-routinepart-of-treatment-in-canada-say-experts> [perma.cc/VG4B-H54R]. 152 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 These three characteristics discussed above — high mortality and complication rates, high transmissibility, and lack of a widely available and effective vaccine or treatment — point to the need to reduce COVID-19’s impact within Canada. Given the country’s current inability to implement adequate testing and tracing mechanisms, COVID-19’s spread is, for the moment, primarily limited by effective physical distancing, the use of personal protective equipment, and proper hygiene habits. Scholars have addressed Canada’s legal response to the pandemic. Yves Le Bouthillier and Delphine Nackache observe that the Canadian federal and provincial governments have imposed a range of limitations on individual liberty, association, and movement in order to combat COVID19.33 Eric S. Brock and colleagues have analyzed the extent to which police officers and public health officials can lawfully enforce various federal and provincial penal laws in an effort to contain the pandemic.34 Alex Luscombe and Alexander McClelland highlight that there are essentially three categories of coercive penal laws that are currently being employed to enforce physical distancing measures: the Criminal Code, provincial public health laws, and municipal by-laws.35 Scholars, advocates, and civil society groups, however, are preoccupied that the State’s response to the pandemic will limit civil liberties.36 From the scope of State power to the breadth of individual liberties during emergencies, pandemics raise a crucial set of new questions and concerns that touch the foundations of substantive criminal law, criminal procedure, 33 34 35 36 Yves Le Bouthillier & Delphine Nakache, “Is it Constitutional to Screen Canadians Trying to Board Flights Home?: The Federal Government has an Obligation Under the Canadian Charter to Ensure Even Citizens with Symptoms Suggestive of COVID-19 can Return Home”, Policy Options (7 April 2020), online: <policyoptions.irpp.org/mag azines/april-2020/is-it-constitutional-to-screen-canadians-trying-to-board-flightshome/> [perma.cc/6MQC-QDLG]. The following measures are all mentioned by Le Bouthillier & Nakache. Eric S. Brock et al, “COVID-19: Can They Do That? Part IX: Enforcement of Emergency Measures” (7 April 2020), online: McCarty Tetrault <www.mccarthy.ca/en/i nsights/articles/covid-19-can-they-do-part-ix-enforcement-emergency-measures> [perma .cc/TA4H-A5SW]. McClelland & Luscombe, “Enforcement Report”, supra note 2. See e.g. Joseph Arvay & David Wu, “As Civil Liberties Erode, Canada Must Not Allow COVID-19 Outbreak to Infect the Rule of Law”, CBC News (26 March 2020), online: <www.cbc.ca/news/opinion/opinion-charter-rights-freedoms-covid> [perma.cc/AUX6QHT6]. Criminal Law During (and After) COVID-19 153 and criminal justice policy.37 The following sections examine three principal issues related to COVID-19 and the criminal law: the substantive criminal law, bail, and sentencing. III. COVID-19, ASSAULTS, AND RESULT CRIMES A. COVID-19 and Assaults First, COVID-19 raises new issues about the scope of certain crimes. The “Policing the Pandemic Database” developed by McClelland and Luscombe indicates that many individuals have been accused of assault for either spitting or coughing on complainants (namely, police officers).38 As explained more below, though intentionally coughing on others may constitute an assault in certain rare circumstances, courts must limit the criminal law’s scope during the pandemic and restrict assault convictions to clear cases that exemplify particularly reprehensible conduct. The Criminal Code defines an assault as an intentional application of direct or indirect force against a complainant without their consent.39 Even prior to the pandemic, courts have ruled that spitting on others constitutes a particularly reprehensible form of assault.40 Courts characterize spitting on a complainant as “demeaning and degrading”,41 a “distasteful and harmful form of assault”,42 and note that it “carries a social message that other forms of assault do not carry.”43 Some judges posit that such conduct may carry a veiled threat of transmitting a communicable disease to the complainant (even though some communicable diseases cannot be 37 38 39 40 41 42 43 Colleen Flood et al, “Overview of COVID-19: Old and New Vulnerabilities” in Flood et al, eds, Vulnerable: The Law, Policy, and Ethics of COVID-19 (Ottawa: University of Ottawa Press, 2020) 1 at 13–14; Terry Skolnik, “The Punitive Impact of Physical Distancing Laws on Homeless People” in Flood et al, eds, Vulnerable: The Law, Policy, and Ethics of COVID-19 (Ottawa: University of Ottawa, 2020) at 290. Alexander McClelland & Alex Luscombe, “Policing the Pandemic: Searchable Database” (2020), online (pdf): <policingthepandemic.github.io/table> [perma.cc/VG K6-NK97] [Luscombe & McClelland, “Searchable Database”]. Criminal Code, supra note 4, ss 265(1)(a), 270. R v Charlette, 2010 SKCA 78 at para 9 [Charlette]; R v Maier, 2015 ABCA 59 at para 28 [Maier]; R v Koppang, 2002 ABCA 295 at para 18; R v Hominuk, 2019 MBCA 64 at para 11; R v Solomon, [2001] OJ No 5733 at para 2; R v Joseph, [2001] OJ No 5726 at para 3; R v Francis (Sentence), 2019 CanLII 75329 at para 24. Maier, supra note 40 at para 28. Charlette, supra note 40 at para 9. R v Kakakaway, 2017 BCPC 342 at para 12 [Kakakaway]. 154 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 transmitted through saliva alone).44 Since the complainant may not know whether the defendant has a communicable disease — and if so, whether the complainant can become infected — being spit on may cause significant anxiety.45 Spitting on others may induce fear in victims in ways that other assaults may not.46 In many cases, complainants cannot anticipate or prevent being spit on.47 For these reasons, courts have concluded that intentionally spitting on others is a serious assault and an aggravating factor in sentencing, notably where the defendant has a communicable disease and intentionally spits in a police officer’s face.48 Some judges reached the same conclusion where the defendant falsely claims to have a communicable disease and intentionally spits on the complainant.49 One might argue that many of these same considerations apply to cases where a defendant intentionally coughs in another person’s face during the pandemic.50 Like spitting, coughing expels droplets that can spread COVID19 from person to person.51 In many cases, defendants are alleged to have intentionally coughed on police officers while expressing that they have COVID-19, which suggests that defendants intend to exploit the victim’s fear and uncertainty of transmission.52 Complainants may be required to self-isolate as a result of the defendant’s conduct, which can generate downstream impacts on their physical and mental health, family life, and ability to work (including as an essential frontline worker). The wide range of adverse health outcomes from infection — and lack of knowledge about 44 45 46 47 48 49 50 51 52 Charlette, supra note 40 at para 9. See Crispian Scully, Jacobo Limeres Posse & Pedro Diz Dios, Saliva Protection and Transmissible Diseases (London, UK: Elsevier, 2017) at 69. Kakakaway, supra note 43 at para 12; R v McLeod, 2009 SKPC 85 at para 4 [McLeod]. Charlette, supra note 40 at paras 1–4, 9; R v Custer, 2013 SKPC 66 at paras 4, 6 [Custer]. Charlette, supra note 40 at para 9. Ibid at paras 1–4, 9. See also Maier, supra note 40; R v Pelletier, 2011 SKQB 7 at paras 204–05. Custer, supra note 46 at para 6; R v McLeod, supra note 45 at para 19. See David G. Chow, “Prosecuting Coronavirus” (19 March 2020), online (blog): David G Chow: Criminal Defence Lawyer <calgary-law.ca/blog/prosecuting-coronavirus-the-appl ication-of-r-v-cuerrier/> [perma.cc/6PD2-72W6]. Hussin A Rothan & Siddappa N. Byrareddy, “The Epidemiology and Pathogenesis of Coronavirus Disease (COVID-19) Outbreak” (2020) 109 J Autoimmunity 1 at 3, DOI: <10.1016/j.jaut.2020.102433>. For an overview of the number of cases where defendants are alleged to have coughed or spit on police officers, see McClelland & Luscombe, “Searchable Database”, supra note 38. Criminal Law During (and After) COVID-19 155 what makes some infected persons more vulnerable to complications than others — adds to these concerns. There are, however, serious dangers associated with over-criminalizing conduct such as coughing during the pandemic. Emergency contexts raise unique concerns about the enforcement (and expansion) of the criminal law, including over-policing, racial and social profiling, and using the justice system as a tool to confront complex social problems.53 In response to an emergency, history shows that the State often limits civil liberties, overcriminalizes individuals, and alters criminal justice policy based on fear.54 As explained more in the next subsection, there is also a potential for an expanded criminal law doctrine of assault to become anchored within the criminal justice system and lead to greater disparities in coercion, criminalization, and punishment practices.55 The unique context of the pandemic gives rise to additional concerns about COVID-19-related assault convictions. Trials will be delayed far longer than normal.56 Courts may conclude that the pandemic constitutes an unforeseeable discrete event that justifies further delays in the justice system.57 Accusations may hang over defendants’ heads for many months, if not years until they are adjudicated.58 Furthermore, the stigmatization associated with having a criminal record will likely produce unprecedented consequences on individuals. Canada and the world are entering into a 53 54 55 56 57 58 Gil Gott, “The Devil We Know: Racial Subordination and National Security Law” (2005) 50 Vill L Rev 1073 at 1075–77; David Cole, “The Priority of Morality: The Emergency Constitution’s Blind Spot” (2004) 113:8 Yale LJ 1753 at 1756–57. See an overview of these arguments in Eric Posner & Adrian Vermeule, “Accommodating Emergencies” (2003) 56 Stan L Rev 605 at 609–10. Owen Gross & Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006) at 103. R v Dagher, 2020 ONSC 2592 at para 20. “COVID-19 And Criminal Practice (Part One): Delay in the Time of Coronavirus” (23 March 2020), online: Luke J. Merrimen: Barristers & Solicitors <merrimenlaw.ca/blog/20 20/3/23/covid-19-and-criminal-practice-part-one-delay> [perma.cc/V2LB-W4B9]. See also R v Jordan, 2016 SCC 27 at para 73; Bill Graveland, “COVID-19 Pandemic Means Court Delays and Stalled Justice System”, National Observer (18 March 2020), online: <www.nationalobserver.com/2020/03/18/news/covid-19-pandemic-means-court-delay s-and-stalled-justice-system> [perma.cc/NQN7-36LW]. Aidan Macnab, “How Does the COVID-19 Criminal Trials Shutdown Affect Charter Rights of Those Awaiting Trial?” (27 March 2020), online Canadian Lawyer <www.cana dianlawyermag.com/news/general/how-does-the-covid-19-criminal-trials-shutdown-affe ct-charter-rights-of-those-awaiting-trial/328048> [perma.cc/TA8F-AX6H]. 156 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 period of profound economic uncertainty and social dislocation.59 Unemployment rates are climbing and many industries — notably the service industry, travel, hospitality, and retail — are disproportionately affected.60 Since criminal records characteristically decrease employment prospects and there may be ongoing limits on interprovincial travel (and out-of-province job opportunities), it may be even harder for ex-offenders to find jobs.61 As discussed more below, if defendants are denied bail, they also face the risk of being exposed to a COVID-19 outbreak in a detention center.62 This explains why accusations and convictions for assault should be limited to exceptional cases where defendants demonstrate a clear intent to spit or cough on others, which excludes reflexive or accidental coughs, sneezes, and so on. In addition to being based on clear intent, convictions will generally be more legitimate when a defendant expresses that they have COVID-19 when coughing on the complainant, attempts to induce fear in the complainant, or ambushes a defenceless victim. Such conduct not only exemplifies a particularly reprehensible act and a culpable state of mind; it also undermines the complainant’s fundamental interests in physical integrity and mental wellbeing — interests that crimes against the person typically impact and that the criminal law can legitimately protect.63 B. Case Law Approaches: Distinguishing Result Crimes from Attempts Second, COVID-19 raises important questions about the applicability and scope of certain result crimes, such as aggravated assault. A result crime implies a criminal offence “that is in part defined by certain consequences” that follow, such as bodily harm, gross bodily harm, or death.64 Homicide, 59 60 61 62 63 64 Jason Kirby, “Coronavirus Plunges Canada’s Economy into the Abyss”, Maclean’s (6 April 2020), online: <www.macleans.ca/economy/economicanalysis/coronavirus-plun ges-canadas-economy-into-the-abyss/> [perma.cc/FFF4-KLBG]. Vanessa Subramaniam, “Think Canada's Job Market Is Bad Now? You ain’t Seen Nothing Yet”, Financial Post (24 April 2020), online: <business.financialpost.com/news economythink-canadas-job-market-is-bad-you-aint-seen-nothing-yet> [perma.cc/HA3MMEXZ]. Devah Pager, “The Mark of a Criminal Record” (2003) 108:5 American J Sociology 937 at 954–60. Paul Cherry, “More than A Dozen Inmates at Bordeaux Jail Diagnosed with COVID19”, Montreal Gazette (30 April 2020), online: <montrealgazette.com/news/more-thana-dozen-inmates-at-bordeaux-jail-diagnosed-with-covid-19> [perma.cc/JW48-K37E]. R v Malmo-Levine; R v Caine, 2003 SCC 74 at para 74. Don Stuart, Canadian Criminal Law: A Treatise, 7th ed (Toronto: Carswell, 2014) at 142. Criminal Law During (and After) COVID-19 157 criminal negligence causing death, and dangerous driving causing bodily harm are all examples of result crimes. All other things being equal, the criminal law construes result crimes that cause bodily harm or death as more culpable than offences that cause no such consequences.65 Prior to the emergence of COVID-19, courts have analyzed whether a defendant who has a communicable disease can be convicted of aggravated assault when they intentionally spit on the complainant.66 In particular, they examine whether defendants satisfy the actus reus of aggravated assault by endangering the complainant’s life.67 In making that assessment, courts apply the legal framework that governs the criminalization of HIV transmission described in the Supreme Court of Canada decisions R v Cuerrier, R v Williams, and R v Mabior.68 The Manitoba Court of Appeal, for instance, applied the framework from these decisions in R v Bear.69 In that case, the Court examined whether an accused who was HIV positive could be convicted of aggravated assault for intentionally spitting in a police officer’s eye.70 Evidence suggested that the accused had a small open wound on his lip, yet it was unclear whether the accused’s spit contained blood.71 The trial judge examined expert evidence that HIV cannot be transmitted through saliva alone and concluded that the Crown failed to prove that there was blood in the accused’s saliva that could transmit the virus.72 The trial judge thus acquitted the accused of aggravated assault but convicted him of simple assault.73 The Manitoba Court of Appeal, however, overturned the trial judge’s decision and concluded that the accused was guilty of attempted aggravated assault.74 After interpreting the provision’s scope, the unanimous Court 65 66 67 68 69 70 71 72 73 74 A.P. Simester & Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart, 2011) at 43–46, 51. R v Bear (CW), 2013 MBCA 96 [Bear (CW)]. Ibid. R v Cuerrier, [1998] 2 SCR 371, 162 DLR (4th) 513 [Cuerrier]; R v Williams, 2003 SCC 4 [Williams]; R v Mabior, 2012 SCC 47 [Mabior]. Bear (CW), supra note 66 at para 6. See also Lisa Silver, “Criminal Law in the Time of COVID-19: Part One” (12 April 2020), online (blog): IdeaBlawg <www.ideablawg.cabl og/2020/4/12/> [perma.cc/932H-DLVW]. Bear (CW), supra note 66 at paras 3–6. Ibid at paras 55–59. Ibid at paras 51, 57–59. Ibid at para 6. Ibid at para 96. 158 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 concluded that aggravated assault is comprised of conduct that endangered the victim’s life even if it did not, in fact, cause bodily harm.75 Citing the Supreme Court of Canada decision R v Mabior, the Manitoba Court of Appeal held that a defendant endangers the victim’s life within the meaning of section 268 when the defendant engages in conduct that creates a significant risk of serious bodily harm to the victim.76 The Court observed that there is a “significant risk of serious bodily harm” when there is a realistic possibility of transmitting the virus.77 In acquitting the accused of aggravated assault, the Court of Appeal deferred to the trial judge’s findings of fact that there was no realistic possibility of HIV transmission in the circumstances.78 The Court found the accused guilty of attempted aggravated assault. They observed that the Crown had proven the accused’s mens rea beyond a reasonable doubt and that the accused had taken more than preparatory steps to completing the actus reus of the offence by spitting on the victim.79 C. Aggravated Assault and the Perils of the R v Mabior Framework The pandemic creates a risk that courts will expand the scope of result crimes such as aggravated assault. As scholars such as Alex McClelland and Scott Skinner-Thompson explain, judges risk extending the legal framework that applies to the criminalization of HIV to COVID-19 transmissions, despite the significant shortfalls and injustices inherent to that approach.80 By applying this framework, the criminal justice system may unduly stigmatize, coerce, and punish individuals based on similar errors that resulted in the over-criminalization of persons with HIV.81 75 76 77 78 79 80 81 Ibid at para 33. See also Dubourg c R, 2018 QCCA 1999 at para 46. Bear (CW), supra note 66 at para 44, citing Mabior, supra note 68 at para 92 (per McLachlin CJ). Bear (CW), supra note 66 at para 49 [emphasis added]. See also R v Thompson, 2018 NSCA 13 at para 19; Matthew Cornett, “Criminalization of the Intended Transmission or Knowing Non-Disclosure of HIV in Canada” (2011) 5:1 McGill J L & Health 61 at 94–96. Bear (CW), supra note 66 at paras 59–63. Ibid at paras 69–72, citing United States of America v Dynar, [1997] 2 SCR 462 at paras 72–74. Canadian HIV/AIDS Legal Network, supra note 6 at 1; McClelland, supra note 6; Skinner-Thompson, supra note 3. Ibid. On the over-criminalization of HIV in Canada, see Isabel Grant, “The OverCriminalization of Persons with HIV” (2013) 63:3 UTLJ 475; Richard Elliot, Ryan Peck Criminal Law During (and After) COVID-19 159 As explained above, the Supreme Court of Canada decided in Mabior that a defendant endangers the complainant’s life by creating a significant risk of causing serious bodily harm, such that there is a realistic possibility that the defendant transmits HIV to the complainant.82 The Court reasoned that there is a realistic possibility of transmission when defendants who knowingly have HIV do not satisfy two cumulative conditions: they must wear a condom and they must have a low viral load.83 Furthermore, as noted in Cuerrier and Williams, defendants must know that they have HIV in order to risk conviction for aggravated assault.84 Many scholars have criticized the Mabior decision on the grounds that it applied an overbroad understanding of “life endangerment” in light of the actual scientific risks of HIV transmission.85 Isabel Grant, Martha Shaffer, and Allison Symington observe that individuals who had a sufficiently low viral load could not transmit the virus.86 Yet, defendants still risked convictions for failing to wear a condom even if the sexual activity could not endanger the victim’s life.87 Davinder Singh & Karen Busby note that the Court’s legal test did not properly analyze medical science pertaining to HIV transmission.88 The decision disproportionately impacted marginalized communities.89 It also increased the stigma associated with HIV and disincentivized some individuals from seeking testing.90 82 83 84 85 86 87 88 89 90 & Léa Pelletier-Marcotte, “Prosecuting COVID-19 Non-Disclosure Misguided” (29 April 2020), online: The Lawyer’s Daily <www.thelawyersdaily.ca/articles/18816> [perm a.cc/T484-4TEV]. Mabior, supra note 68 at paras 91–92. Ibid at paras 94–95. Cuerrier, supra note 68 at paras 125–28; Williams, supra note 68 at paras 27–28. For a summary of these criticisms, see Kyle Kirkup, “Releasing Stigma: Police, Journalists, and Crimes of HIV Non-Disclosure” (2015) 46:1 Ottawa L Rev 127 at 138– 39, citing Grant, supra note 81 at 480; Martha Shaffer, “Sex, Lies, and HIV: Mabior and the Concept of Sexual Fraud” (2013) 63:3 UTLJ 466 at 471–74. See also Davinder Singh & Karen Busby, “Criminalizing HIV Non-Disclosure: Using Public Health to Inform Criminal Law” (2019) 42:3 Man LJ 89 at 100–04. Grant, supra note 81 at 480; Shaffer, supra note 85 at 473; Alison Symington, “Injustice Amplified by HIV Non-Disclosure Ruling” (2013) 63:3 UTLJ 485 at 488–90. Ibid. Singh & Busby, supra note 85 at 99–103. Elaine Craig, “Personal Stare Decisis, HIV Non-Disclosure, and the Decision in Mabior” (2015) 53:1 Alta L Rev 207 at 223. Maya A Kesler et al, “Prosecution of Non-Disclosure of HIV Status: Potential Impact on HIV Testing and Transmission Among HIV-Negative Men Who Have Sex with Men” (2018) 13:3 PLoS One 1 at 14, DOI: <10.1371/journal.pone.0193269>. 160 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 D. The Dangers of Applying the R v Mabior Framework to COVID-19 The post-Mabior context is a sobering reminder about the dangers of adopting broad interpretations of concepts such as causation and life endangerment in the context of COVID-19. Due to the lack of scientific knowledge about the precise modes of transmission and the risks of transmission in different contexts, courts should interpret these legal concepts particularly restrictively. There are also many pragmatic considerations that militate against wide interpretations of notions such as “realistic probability of transmission” and “significant risk of serious bodily harm.” First, due to Canada’s initial lack of testing capabilities, the country’s current low testing rates, and the unavailability of widespread antibodies testing, it may be unclear whether a complainant unknowingly contracted COVID-19 in the past.91 This is further complicated by the lack of scientific consensus about whether a complainant who has already been infected with the virus can become re-infected.92 For these reasons, when a defendant intentionally coughs on a victim, there may be no realistic possibility of transmitting the virus in certain circumstances and, therefore, no significant risk of serious bodily harm. Second, in cases where defendants have not tested positive for the disease, there may be a reasonable doubt as to the defendant’s infected status and, therefore, their ability to transmit the disease and endanger the victim’s life. The inability to force defendants to undergo COVID-19 testing in certain provinces further complicates the ability to prove that the accused placed the defendant’s life at risk. Some provincial laws require defendants to provide a blood sample to health authorities in cases where the defendant exposed a victim to a bodily substance and the victim requests such an 91 92 Katelyn Thomas, “Half of Canadians who think they had COVID-19 didn’t consider testing: survey”, CTV News (8 June 2020), online: <montreal.ctvnews.ca/half-ofcanadians-who-think-they-had-covid-19-didn-t-consider-testing-survey> [perma.cc/2QW W-XFNU]. See “‘Immunity Passports’ in the Context of COVID-19” (24 April 2020), online: World Health Organization <www.who.int/news-room/commentaries/detail/immunity-passpo rts-in-the-context-of-covid-19> [perma.cc/8PKQ-RN4B]; Robert D Kirkcaldy, Brian A King & John T Brooks, “COVID-19 and Postinfection Immunity: Limited Evidence, Many Remaining Questions” (2020) 323:22 JAMA 2245 at 2245–46. Criminal Law During (and After) COVID-19 161 analysis.93 Though these provincial acts can order defendants to submit blood samples to test for viruses such as HIV and different strands of hepatitis, they do not currently authorize compelled testing for COVID19.94 Third, and interrelatedly, the current context surrounding COVID-19 makes proof of causation elusive.95 Even when complainants or defendants test positive for the virus, it may be difficult to ascertain from whom the complainant acquired the virus.96 Since the median incubation period for COVID-19 is about five days, it may be unclear if the victim acquired the disease before coming into contact with the defendant’s bodily substances.97 The uncertainties regarding transmissibility, infectious status, and immunity may even lead to bizarre results in some situations. Suppose a defendant who does not have COVID-19 but believes they have the disease intentionally coughs on a police officer who has COVID-19 but is asymptomatic. During an ensuing physical altercation, the officer subdues the defendant and unintentionally transmits the virus to them. The defendant refuses testing and the officer is tested several days later, at which point the officer discovers that they have COVID-19. This type of situation highlights the difficulties in establishing that the defendant transmitted the virus to the complainant at a specific point in time. One might argue that if courts apply the Manitoba Court of Appeal’s reasoning in Bear to contexts where a defendant who is knowingly infected with COVID-19 intentionally coughs or spits on the complainant, it should lead to a conviction for attempted aggravated assault. According to that view, the defendant still risks conviction to the extent that they have the full 93 94 95 96 97 Mandatory Blood Testing Act, SO 2006, c 26, s 2, 5(2); Mandatory Testing and Disclosure Act, RSA 2006, c M-3.5, s 2, 4; Mandatory Testing and Disclosure Regulation, Alta Reg 190/2007. Ibid. Seshagiri, supra note 3. For similar concerns in the context of HIV transmission, see Isabel Grant, “The Boundaries of the Criminal Law: The Criminalization of the Non-Disclosure of HIV” (2008) 31 Dal LJ 123 at 132; Matthew Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission (London: Routledge, 2007) at 97. Stephen A Lauer et al, “The Incubation Period of Coronavirus Disease 2019 (COVID19) From Publicly Reported Confirmed Cases: Estimation and Application” (2020) 172:9 Annals Intl Medicine (Online) 1 at 4–5. The term incubation period implies the period of time between the initial infection and the appearance of symptoms. See Miquel Porta, ed, A Dictionary of Epidemiology, 6th ed (Oxford: Oxford University Press, 2014) at 145. 162 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 mens rea (knowledge that they have COVID-19 and the intention to apply direct or indirect force without consent) but only part of the defendant’s actus reus (an attempt to endanger the victim’s life).98 Though there may be some plausible basis for conviction in such circumstances, the history of over-criminalizing HIV non-disclosure is instructive about the risks of heavy criminal sanctions and criminalizing public health issues. For one, expanding the scope of criminalization for attempted aggravated assault has the potential to seep back into HIV nondisclosure law and expand the likelihood of criminalization in that context. Furthermore, like in cases surrounding the criminalization of HIV nondisclosure there are also concerns that attempted aggravated assault convictions will lead to disparate policing practices that overwhelmingly impact marginalized groups.99 Finally, since COVID-19 has caused widespread economic dislocation, individuals who are already in a precarious financial situation may be unable to afford legal counsel and may plead guilty to these offences. Like in the areas of remand in custody and sentencing, the pandemic emphasizes the need to limit the criminal law’s coercive force more than ever. IV. COVID-19 AND BAIL A. The Current State of Bail in Canada The COVID-19 pandemic has impacted two principal areas of the bail process: initial decisions to grant bail under s. 515 of the Criminal Code and bail review decisions under s. 520 of the Criminal Code.100 In principle, when a defendant is accused of a crime, they should be released without conditions while awaiting their trial.101 The Crown must demonstrate (or, show cause) why the defendant’s detention is justified.102 The three grounds that justify the accused’s detention are to ensure attendance at trial (the primary ground), protect public safety, (the secondary ground), or maintain 98 99 100 101 102 United States of America v Dynar, [1997] 2 SCR 462 at paras 72–74, 147 DLR (4th) 399. Skinner-Thompson, supra note 3. Jordan Gold, “Bail, COVID-19, and the Release of Inmates Detained on the ‘Tertiary Ground’” (2 April 2020), online: Robichaud’s Criminal Defence Litigation <robichaudlaw .ca/bail-coronavirus-covid/> [perma.cc/9ESN-WHCA]. R v Antic, 2017 SCC 27 at para 21 [Antic]; Criminal Code, supra note 4, s 515(1). Criminal Code, supra note 4, s 515(10). Criminal Law During (and After) COVID-19 163 public confidence in the administration of justice (the tertiary ground).103 Rather than constituting a residual justification for remand in custody, the tertiary ground is a “separate and distinct” ground for pre-trial detention.104 As discussed next, the impact of COVID-19 has primarily been analyzed under the tertiary ground: maintaining public confidence in the justice system.105 Courts also consider its application to the secondary ground of public safety.106 Many courts consider how the pandemic constitutes a change in material circumstances that justifies bail review, which also requires courts to explore such changes in light of the tertiary ground.107 Leading Supreme Court of Canada decisions such as R v Antic and R v Myers explain that bail is intimately connected to the presumption of innocence and that pretrial detention should be used sparingly.108 However, empirical studies demonstrate that courts frequently remand defendants into custody.109 Nicole Marie Myers observes that recourse to remand in custody has tripled within the past 30 years.110 Many of these restrictions disproportionately impact marginalized individuals and groups.111 Holly Pelvin notes that roughly 38% of individuals who were remanded into 103 104 105 106 107 108 109 110 111 Ibid. See also Carolyn Yule & Rachel Schumann, “Negotiating Release? Analysing Decision Making in Bail Court” (2019) 61:3 Can J Corr 45 at 46–48. R v St-Cloud, 2015 SCC 27 at para 34 [St-Cloud]. See e.g. R v JR, 2020 ONSC 1938 at paras 20–52 [JR]; R v Rajan, 2020 ONSC 2118 at para 2 [Rajan]; R v Budlakoti, [2020] OJ No 1352 (ONSC) at para 13 [Budlakoti]; R v JA, 2020 ONSC 2312 at para 16 [JA]; R v TK, 2020 ONSC 1935 at para 60 [TK]; R v Arsenault-Lewis, 2020 ONCJ 181 at para 58, citing R v TL, 2020 ONSC 1885 at paras 34–36. See also Paul L Moreau, “COVID-19 and the Tertiary Ground: The Global Pandemic and the Public Interest” (6 April 2020), online: CanLII (Commentary) <www.canlii.org/en/commentary/> [perma.cc/D9E5-APW2]. See e.g. R v Yaman, 2020 BCPC 56 at paras 16–22; R v Jeyakanthan, 2020 ONSC 1984 at para 8; R v A, 2020 ONSC 2077. These decisions are all cited in: R v CKT, 2020 ABQB 261. R v Phuntsok, 2020 ONSC 2158 at para 41 [Phuntsok]; Budlakoti, supra note 105. Antic, supra note 101 at para 1; R v Myers, 2019 SCC 18 at para 22 [Myers]. See an overview of these studies in Marie-Ève Sylvestre, Celine Bellot & Nicholas Blomley, “Une peine avant jugement? La mise en liberté provisoire et la réforme du droit pénal canadien” in Marie-Ève Sylvestre, Margarida Garcia & Julie Desrosiers, eds, Criminal Law Reform in Canada: Challenges and Possibilities (Cowansville: Yvon Blais, 2017) 189 at 203–05. Nicole Marie Myers, “Eroding the Presumption of Innocence: Pre-trial Detention and the Use of Conditional Release on Bail” (2017) 57:3 Brit J Crim 664 at 666–67. Keara Lundrigan, “R v Jordan: A Ticking Time Bomb” (2018) 41:4 Man LJ 113 at 142; Jillian Rogin, “Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada” (2017) 95:2 Can Bar Rev 325 at 341. 164 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 custody in Ontario courts in 2015 were found not guilty of an offence.112 For many decades, scholars and civil society groups issued dire warnings about the imperilled state of Canada’s bail system.113 Despite those warnings, many of these problems have since worsened.114 The increased resort to remand in custody has devastating consequences. Crystal Yang points out that pre-trial detention incentivizes individuals to plead guilty in order to avoid harsh conditions in detention centres — a concern that may be magnified during the pandemic.115 Compared to defendants who are granted bail, individuals who are remanded into custody are more likely to be convicted at trial.116 They are also subjected to overcrowding and lack access to rehabilitative and educational programs.117 They risk losing their jobs, access to housing, and abilities to support their families.118 They can also experience significant anxiety while their case winds its way through the justice system.119 Due to the profound consequences of remand in custody, scholars suggest that it constitutes a form of pre-trial punishment that flouts the presumption of innocence.120 112 113 114 115 116 117 118 119 120 Holly Pelvin, “Remand as a Cross-Institutional System: Examining the Process of Punishment before Conviction” (2018) 61:2 Can J Corr 66 at 67. Martin L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (Toronto: University of Toronto Press, 1965); Roger Ouimet, Toward Unity: Criminal Justice and Corrections: Report of the Canadian Committee on Corrections (Ottawa: Queen’s Printer, 1969). These books are cited in Antic, supra note 101. Benjamin L Berger & James Stribopoulos, “Risk and The Role of The Judge: Lessons from Bail” in Benjamin L. Berger, Emma Cunliffe & James Stribopoulos, eds, To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (Toronto: Thomson Reuters Canada, 2017) 305 at 309–14. Crystal S. Yang, “Towards an Optimal Bail System” (2017) 92:5 NYUL Rev 1399 at 1406. Shima Baradaran Baughman, The Bail Book: A Comprehensive Look at Bail in America's Criminal Justice System (Cambridge: Cambridge University Press, 2017) at 83. Pelvin, supra note 112 at 69; R v Hall, 2002 SCC 64 at para 118. Alfred Allan et al, “An Observational Study of Bail Decision-Making” (2005) 12:2 Psychiatry, Psychology & L 319 at 320. Michael Weinrath, “Inmate Perspectives on the Remand Crisis in Canada” (2009) 51:3 Can J Corr 355 at 361. Marie-Eve Sylvestre, Nicholas Blomley & Céline Bellot, Red Zones: Criminal Law and the Territorial Governance of Marginalized People (Cambridge: Cambridge University Press, 2020) at 125–27 [Sylvestre, Blomley & Bellot, Red Zones]. Criminal Law During (and After) COVID-19 165 B. The Risks Associated with COVID-19 in Detention Centres COVID-19 compounds many of these problems. Currently, detention centres are adopting even more stringent physical distancing measures to isolate inmates and combat the virus’ spread.121 Detainees report a greater number of lockdowns that bar access to showers, outdoor areas, and other shared spaces.122 Detainees complain that they are receiving less food than usual and that its quality has declined.123 New detainees are quarantined for a period of two weeks.124 Furthermore, many inmates lack personal protective equipment, cannot implement effective hygiene practices (such as handwashing), and cannot practice physical distancing while incarcerated.125 These measures, combined with inmates’ knowledge that they are confined to a location that is particularly susceptible to outbreaks, generate additional adverse impacts on detainees’ mental and physical wellbeing.126 Due to the heightened threat of contracting COVID-19 in detention centers and inmates’ particular health vulnerabilities, many scholars are preoccupied that subjecting defendants to such risks corrodes public confidence in the justice system.127 These risks should not be understated. An epidemiological model developed by the American Civil Liberties Union (ACLU) in conjunction with various researchers concluded that increased resort to incarceration — including pre-trial detention — will likely result in a significantly higher number of inmate deaths and health 121 122 123 124 125 126 127 Richard Warnica, “The Hidden Pandemic: Social Distancing is Nearly Impossible in Care Homes, Prisons and Shelters”, National Post (25 April 2020), online: <nationalpos t.com/news/canada/the-hidden-pandemic-social-distancing-is-nearly-impossible-in-carehomes-prisons-and-shelters> [perma.cc/PHY5-755Z]. John Ivison, “John Ivison: Prisoners are Sitting Ducks as Ottawa Lets COVID-19 Sweep through Canadian Jails”, National Post (21 April 2020), online: <nationalpost.com/opin ion/john-ivison-prisoners-are-sitting-ducks-as-ottawa-lets-covid-sweep-through-canadianj ails> [perma.cc/D3AV-QXRE]. Ibid. JA, supra note 105 at para 89. Terri Theodore, “Doctors Urge Governments to Release as Many Inmates as Possible amid COVID”, The Globe and Mail (7 April 2020), online: <www.theglobeandmail.com /canada/> [perma.cc/3DDH-FT7W]. Warnica, supra note 121. See e.g. JR, supra note 105 at paras 20–21; R v Nelson, 2020 ONSC 1728 at paras 40– 42 [Nelson]; TK, supra note 105 at para 73; R v JS, 2020 ONSC 1710 at paras 10, 17, 20 [JS]. 166 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 complications.128 In a similar vein, the New York Times has reported that jails continue to be some of the predominant sources of COVID-19 outbreaks in the United States.129 Empirical evidence shows that in U.S. prisons, a major proportion of inmates that are tested for COVID-19 have the virus and many are asymptomatic.130 These risks are exemplified by the inherent difficulty of ensuring physical distancing guidelines within prisons.131 In terms of health status and outcomes, inmates constitute a particularly vulnerable population. Their overall health tends to be worse than the general population.132 There is a higher prevalence of tuberculosis infections in federal prisons compared to in the general population.133 Inmates are also more likely to have certain communicable diseases, such as Hepatitis C and HIV.134 Furthermore, inmates also lack access to adequate healthcare, which is a frequent complaint of detainees.135 Inmates also have a considerably higher incidence of mental illness and are more likely to commit suicide compared to the general population.136 All of these factors elucidate the mental and physical toll that pre-trial detention can have on detainees during the pandemic. C. The Impact of COVID-19 on Bail Decisions These considerations shape how judges and justices assess the impact of 128 129 130 131 132 133 134 135 136 “COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails” (2020) at 1–3, online (pdf): <www.aclu.org/sites/default/f iles/field_document/aclu_covid19-jail-report_2020-8_1.pdf> [perma.cc/JN6P-94QG]. Timothy Williams & Danielle Ivory, “Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars”, The New York Times (8 April 2020), online: <www.nytimes.com/2 020/04/08/us/coronavirus-cook-county-jail-chicago.html> [perma.cc/698X-DUUJ]. Linda So & Grant Smith, “In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus: 96% Without Symptoms” (25 April 2020), online: Reuters <www.reuters.com> [perma.cc/9ZMU-Q5WF]. “Coronavirus in the U.S.: Latest Map and Case Count” (last modified 17 June 2020), online: The New York Times <www.nytimes.com/interactive/2020/us/coronavirus-uscases.html> [perma.cc/E6N3-WRMD]. Fiona Kouyoumdjian et al, “Health Status of Prisoners in Canada: Narrative Review” (2016) 62:3 Can Family Physician 215 at 219. Ibid at 217. Ibid, citing Liviana Calzavara et al, “Prevalence of HIV and Hepatitis C Virus Infections among Inmates of Ontario Remand Facilities” (2007) 177:3 CMAJ 257 at 260–61. Adam Miller, “Prison Health Care Inequality” (2013) 185:6 CMAJ 249 at 249–50. Kouyoumdjian et al, supra note 132 at 217. Criminal Law During (and After) COVID-19 167 COVID-19 in deciding whether to grant bail.137 S. 515(10)(c) of the Criminal Code provides that a defendant can be remanded into custody on the ground that it is necessary to maintain public confidence in the justice system.138 In R v St-Cloud, the Supreme Court of Canada affirmed that the “public” implies “reasonable members of the community who are properly informed about ‘the philosophy of the legislative provisions, Charter values and the actual circumstances of the case’”.139 In assessing the public confidence ground, courts examine a list of non-exhaustive factors mentioned in s. 515(10)(c) of the Criminal Code, such as “the apparent strength of the prosecution’s case”, “the gravity of the offence”, “the circumstances surrounding the commission of the offence, including whether a firearm was used”, and, the potential length of imprisonment.140 Since this list of factors in s. 515(10)(c) of the Criminal Code is non-exhaustive, COVID-19 constitutes a novel factor that judges examine in deciding whether the public confidence ground is met. Courts have recognized that there are three principal reasons why granting defendants bail during COVID-19 maintains public confidence in the Canadian criminal justice system. First, it is objectionable to remand defendants into custody and expose them to COVID-19 given the high rate of infections in detention centers.141 Second, newly incarcerated defendants may import the disease into jails and endanger others, such as detainees, corrections officers, and prison staff.142 Third, the revolving door between remand in custody and re-entry into the community creates a risk that infection within detention centers will seep into the community, placing the 137 138 139 140 141 142 Betsy Powell, “COVID-19 is Revealing a ‘Momentous Divide’ among Ontario Judges on whether to Release more Accused People on Bail”, The Star (9 April 2020), online: <www.thestar.com/news/gta/2020/04/09/covid-19-is-revealing-a-momentous-divide-a mong-ontario-judges-on-whether-to-release-more-accused-people-on-bail.html> [perma.c c/F7VT-RR2B]. Criminal Code, supra note 4, s 515(10)(c). St-Cloud, supra note 104 at para 74, quoting R v Nguyen (1997), 119 CCC (3d) 269 at para 18, 1997 CanLII 10835 (BCCA). St-Cloud, supra note 104 at paras 12, 31, 35, 56. “Protecting the Forgotten During Canada’s Response to Coronavirus: The Jailed” (19 March 2020), online: Canadian Civil Liberties Association <ccla.org/coronavirus-updatethe-jailed/> [perma.cc/8HJC-B9SR]; TK, supra note 105 at para 60. Carroll, supra note 5 at 78–80; Rajan, supra note 105 at paras 69–70; R v Fraser, 2020 ONSC 2045 at para 16. 168 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 broader population’s health in peril.143 Courts have struggled with how best to maintain public confidence in the justice system in the face of COVID-19’s impact on the bail process. Many courts take judicial notice of the pandemic and recognize that defendants are exposed to greater risks of contracting the virus in detention centers.144 They factor that consideration into the public confidence analysis and recognize that the pandemic’s incidence militates towards bail. Other courts disagree with that approach and contend that some judges have unduly broadened judicial notice by presuming a generalized risk within detention centers without proper evidence that would make such assessments reliable.145 Such evidence includes correctional service policies, conditions within detention centers, statistics regarding the prevalence of COVID-19 in a prison, and the defendant’s medical condition.146 According to this view, a court’s ability to maintain public confidence in the justice system can only be weighed accurately if courts have access to such information. D. Concerns Regarding Current Approaches to Bail During COVID-19 In response to these concerns, the Superior Court of Ontario decision R v Baidwan provides guidance on how judges can assess COVID-19 risks — a framework that can apply to initial bail decisions as well as to bail review.147 The Court explained that judges who assess COVID-19 related risks should “rely on the most recent reliable data regarding infection rates and deaths… [that] come from reliable sources from government and private institutions which have a legal/moral duty to collect and report this data.”148 143 144 145 146 147 148 Anna Flagg & Joseph Neff, “Why Jails Are So Important in the Fight Against Coronavirus”, The New York Times (2 April 2020), online: <www.nytimes.com/2020/03 /31/upshot/coronavirus-jails-prisons.html> [perma.cc/VX5E-ASK4]. See also R v Kazman, 2020 ONCA 251 at para 18. See e.g. JS, supra note 127 at paras 18–19; R v Leppington, 2020 BCSC 546 at para 29; JR, supra note 105 at para 44; R v Cain, 2020 ONSC 2018 at paras 6–8; Rajan, supra note 105 at para 56; Nelson, supra note 127 at para 34; R v Dawson, 2020 ONSC 2481 at para 53. R v GTB, 2020 ABQB 228 at para 46 [GTB]; R c Kadoura, 2020 QCCQ 1455 at para 84 [Kadoura]. GTD, supra note 145; Kadoura, supra note 145. See also R v Myles, 2020 BCCA 105 at para 40. R v Baidwan, 2020 ONSC 2349. Ibid at para 60. Criminal Law During (and After) COVID-19 169 To paraphrase the Court’s framework in Baidwan, judges should also consider (1) the general risk of infection in the population (federally, provincially, and locally), (2) specific risks to the defendant in light of their age or medical history, (3) the prevalence of COVID-19 in a given detention centre, (4) medical evidence proffered by the defendant, (5) the defendant’s past compliance with court orders in contexts where public safety is at issue, and (6) “any other circumstances deemed relevant.”149 Although this framework provides valuable guidance on the types of factors that courts can assess in evaluating the “public confidence” ground for detention, there are also important drawbacks to it. First, some courts expressly require a defendant to adduce medical evidence that they are at greater risk of contracting the virus and experiencing complications.150 This creates significant obstacles for indigent and self-representing defendants who may lack the resources or know-how to acquire such reports, especially during a time of scarce access to medical personnel.151 Furthermore, since individuals without known medical conditions may experience severe complications from the virus, a defendant’s prior health may be a poor proxy for assessing adverse health outcomes.152 Second, since detention centres are not currently undergoing widespread testing, the true extent of COVID-19 infections in incarceration settings is ambiguous. Some detention centres in Ontario have declared COVID-19 outbreaks.153 Furthermore, as certain courts observe, it is easier to prevent outbreaks through proper physical distancing than it is to react to them, which further militates in favor of bail.154 The U.S. experience with 149 150 151 152 153 154 Ibid at para 61. Nelson, supra note 127 at para 41; Phuntsok, supra note 107 at para 41; Budlakoti, supra note 105 at para 14; R v Brown, [2020] OJ No 1432 at para 59; R v Bear, 2020 SKCA 47 at para 16. Budlakoti, supra note 105 at para 7. See e.g. Ariana Eunjung Cha, “Young and Middle-Aged People, Barely Sick with Covid19, Are Dying of Strokes”, The Washington Post (25 April 2020), online: <www.washingto npost.com/health/2020/04/24/strokes-coronavirus-young-patients/> [perma.cc/WB9 L-QM8N]. R v Ali, 2020 ONSC 2374 at paras 92–98; “COVID-19 Outbreak Leads to Ontario Jail Being Closed after 60 Inmates, Eight Staff Test Positive”, National Post (20 April 2020), online: <nationalpost.com/news/ontario-jail-closing-after-60-inmates-8-staff-test-positiv e-for-covid-19> [perma.cc/3V27-QX6D]. R v McArthur, 2020 ONSC 2276 at paras 61–62. 170 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 COVID-19 should serve as an important reminder that detention centres serve as major vectors for transmitting the virus.155 Third, in assessing the impact of COVID-19 on the secondary ground, there is a risk that judges focus primarily on the existence of past breaches without examining their surrounding context. As a general proposition, pretrial detention will be more justifiable where the defendant represents a tangible risk to public safety and has a long history of prior breaches, especially those that resulted in concrete harms or endangerment. Not all prior breaches are equal. As the Canadian Civil Liberties Association notes, many defendants are imposed pre-trial conditions that set them up for failure and result in breaches that neither injure or jeopardize the wellbeing of others.156 For instance, defendants who struggle with alcohol or drug addictions are imposed bail conditions that require them to abstain from consuming alcohol or drugs.157 In other cases, defendants who are experiencing homelessness are prohibited from entering a certain perimeter within a city’s downtown core, despite the fact that many services available to homeless people are located in such areas.158 In Manitoba, defendants who violated their bail conditions in relatively minor ways — such as missing an appointment with a bail supervisor — were still charged and convicted for a breach.159 Others are found guilty of breaches even though the original charge giving rise to the conditions was subsequently withdrawn.160 Given the vast array of circumstances that result in breached bail conditions, judges must carefully examine the circumstances surrounding prior breaches, especially the incidence of violence in the underlying offence or breached bail conditions. E. Rethinking “Public Confidence” in Bail Decisions The pandemic is bringing about fundamental changes to the bail system and the interpretation of the tertiary ground in remand decisions. Namely, COVID-19 has forced courts to place greater emphasis on defendants’ and 155 156 157 158 159 160 So & Smith, supra note 130. “Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention” (2014) at 2–5, online (pdf): Canadian Civil Liberties Association <ccla.org/cclanewsite/wp-content/uplo ads/2015/02/Set-up-to-fail-FINAL.pdf> [perma.cc/F69T-8V63] [CCLA, “Set Up to Fail”]. Ibid at 55–57. Sylvestre, Blomley & Bellot, Red Zones, supra note 120 at 170. CCLA, “Set up to Fail”, supra note 156 at 69–70. Ibid at 2, 81. Criminal Law During (and After) COVID-19 171 inmates’ fundamental interests when interpreting the notion of “public confidence.” As explained next, this signals a shift towards a more “liberal and enlightened system of pre-trial release” that the Bail Reform Act of 1972 was supposed to achieve.161 Justice Gary Trotter observes that when the tertiary ground was debated in the legislative assembly in the early 1970s, the House of Commons Standing Committee interpreted the term “public interest” narrowly to imply public safety and preventing pre-trial misconduct.162 In subsequent years, courts interpreted the provision more expansively.163 Some judges conceptualized the public interest factor (or public confidence factor) as a normative constraint that aims to prevent courts from too easily caving into public pressure and remanding defendants into custody as a result of the community’s visceral reactions to a crime.164 As Frederick Schumann and Caroline Davidson observe, this constraint analogizes the “reasonable person” who forms the basis of the public confidence factor to a judge, in that both are required to view the situation dispassionately, impartially, and reasonably.165 As explained earlier in this article, the Supreme Court of Canada adopted this approach in R v St-Cloud and described the public confidence factor in terms of a reasonable person who is informed of Charter values, the legislative philosophy surrounding bail, and the facts of the case.166 Though the public confidence assessment is supposed to consider the interests of the public at large from a normative standpoint, it largely fails to consider the defendant’s own interests that are impacted by remand in custody. None of the factors listed in s. 515(10)(c) of the Criminal Code — the strength of the prosecution’s case, the seriousness of the offence, the use of a firearm, and the potential length of imprisonment — consider the plight 161 162 163 164 165 166 Myers, supra note 108 at paras 21–22. Gary T. Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Thompson Reuters, 2016), s 3.4(b). Ibid. Frederick Schumann, “The Appearance of Justice: Public Justification in the Legal Relations” (2008) 66 UT Fac L Rev 189 at 200. See e.g. R c Lamothe, [1990] RJQ 973 at 541, 58 CCC (3d) 530, cited in Trotter, supra note 162; R v Collins, [1987] 1 SCR 265 at para 33, 38 DLR (4th) 508, cited in Schumann. Schumann, supra note 164 at 200–01; Caroline Davidson, “May It Please the Crowd? The Role of Public Confidence, Public Order, and Public Opinion in Bail for International Criminal Defendants” (2012) 43:2 Colum HRLR 349 at 358. St-Cloud, supra note 104 at para 74. 172 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 of defendants who are detained pre-trial.167 Many scholars have argued that the public confidence factor has worsened pre-trial detention across Canada. Archibald Kaiser notes that the focus on public confidence allows the judiciary to justify remand decisions based on public fear where the prosecution fails to satisfy the secondary ground.168 Don Stuart points out that judges have broad subjective discretion to determine which crimes are sufficiently “serious” to merit pretrial detention.169 David MacAllister suggests that the notion of public confidence is inherently vague and affords judges too much discretion to remand defendants into custody.170 Micah Rankin, for his part, points out that the low evidentiary threshold required for bail hearings — credible or trustworthy evidence — exacerbates the risk of pre-trial detention.171 The failure to incorporate the defendant’s interests into the public confidence analysis is surprising given the serious consequences that defendants experience during pre-trial custody. Defendants who are remanded into custody face risks of violence, overcrowding, lack of resources, financial ruin, and homelessness upon release.172 Jenna Carroll points out that since defendants are also members of the public, their interests should be factored into the tertiary ground.173 It is particularly important to consider the defendant’s interests in evaluating the tertiary ground because it is the only one of the three grounds listed in s. 515(10) Criminal Code that can plausibly incorporate their interests into the bail decision calculus. Furthermore, courts would be demonstrating respect for the newly codified principle of restraint in pre-trial detention, as well as the requirement that justices who are making bail decision consider whether the defendant is part of a vulnerable population that is over-represented in the justice system.174 Pre-trial custody rates could decline if courts accorded more importance 167 168 169 170 171 172 173 174 Criminal Code, supra note 4, s 515(10)(c). H. Archibald Kaiser, “R. v. Hall: Erosion of Basic Principles in Bail and Beyond” (2002) 4 Crim Reports (6th) 241 (WL Can). Don Stuart, “St-Cloud: Widening the Public Confidence Ground to Deny Bail Will Worsen Deplorable Detention Realities” (2015) 19 Crim Reports (7th) 337 (WL Can). Davis MacAlister, “St-Cloud: Expanding Tertiary Grounds for Denying Judicial Interim Release” (2015) 19 Crim Reports (7th) 344 (WL Can). Micah B Rankin, “R. v. St. Cloud: Searching for a Silver Lining” (2015) 19 Crim Reports (7th) 359 (WL Can). CCLA, supra note 156 at 9–10. Carroll, supra note 5 at 78–81, 83. Criminal Code, supra note 4, s 493.1–493.2. Criminal Law During (and After) COVID-19 173 to defendants’ interests in the public confidence analysis and ensured that pre-trial custody was truly a last resort. As Kent Roach observes, the tertiary ground did not exist between the years 1992-1997, since the Court had struck down the former “public interest” ground as unconstitutional in R v Morales and Parliament enacted replacement legislation roughly five years later.175 However, during that time, remand in custody rates increased.176 If judges applied the principle of restraint vigorously and considered the consequences of pre-trial detention within the tertiary ground, it may lead to a meaningful reduction in remand in custody. The COVID-19 pandemic illustrates that it is possible to decrease the incidence of pre-trial detention in Canada. Indeed, the pandemic is forcing judges to increasingly consider how measures such as electronic monitoring, sureties, and house arrest — measures that still must be used sparingly and respect the ladder principle — can fulfil traditional law enforcement objectives while limiting pre-trial detention.177 Similar to how courts recognize the specific risks associated with COVID-19 and remand in custody, they should more broadly acknowledge how pre-trial detention impacts the interests of defendants, detainees, and the broader community. Like other members of the public, defendants are also presumed innocent until proven guilty. A more inclusive interpretation of the tertiary ground allows judges to demonstrate a greater commitment to that hallowed principle. V. COVID-19, PUNISHMENT, AND SENTENCING Lastly, COVID-19 is impacting sentencing, imprisonment, and other forms of non-custodial punishment. As Justice Applegate observed in the Ontario Court of Justice decision R v Deakin, courts have devised various ways to shorten or avoid prison sentences due to the risks of COVID-19 in 175 176 177 Kent Roach, “A Charter Reality Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System?” (2008) 40 SCLR (2d) 717 at 725. Ibid. See also Myers, supra note 110 at 667, fig 1. Stephanie Francis Ward, “Where and How Are Criminal Defense Lawyers Making Headway on COVID-19 Bail Motions?” (6 April 2020), online: ABA Journal <www.abajournal.com/web/article/where-and-how-are-criminal-defense-lawyers-makin g-headway-on-covid-19-bail-motions> [perma.cc/NHL5-3MWJ]. 174 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 detention centres.178 Some courts have granted a “COVID credit”, meaning enhanced credit for pre-trial custody due to harsher than normal detention conditions and risks of harm from the virus.179 For example, in the Ontario Court of Justice decision R v OK, Justice Pringle granted an extra 0.5 days of enhanced credit per day that the defendant spent in pre-trial custody during the pandemic.180 Some judges impose a shorter prison sentence that takes into account time served and combines it with a longer period of probation.181 Instead of imposing imprisonment, some courts release defendants from custody for time-served.182 In some cases, judges have deferred intermittent sentences to avoid the heightened dangers of incarceration and observed that imprisonment should only be imposed when absolutely necessary.183 Like in the bail context, judges take judicial notice of the risks of COVID-19 in prisons and do not require the accused to proffer medical evidence.184 These decisions illustrate that the emergence of COVID-19 both militates towards non-custodial punishments and mitigates the severity of custodial sentences. More generally, though, the impact of COVID-19 on prisons shows why courts should rethink how prison conditions fit within retributive theory and affect the proportionality of punishment.185 Retribution is a backwardslooking theory of punishment that holds that individuals should be punished because they made a morally blameworthy choice to break the law.186 As the Supreme Court of Canada recognized in R v M (CA), retribution is a valid justification for punishment and a bedrock criminal 178 179 180 181 182 183 184 185 186 For a summary of the approaches adopted by courts in reducing prison sentences during the pandemic, see R v Dakin, 2020 ONCJ 202 at para 27. Many of the cases in footnotes 210-16, infra are cited in Dakin. R v OK, 2020 ONCJ 189 [OK], citing R v Abdella, ONCJ 245 [Abdella]. OK, supra note 179 at paras 32–44. R v Wilson, 2020 ONCJ 176 at paras 39, 47; R v McConnell, 2020 ONCJ 177 at para 40; R v Hearns, 2020 ONSC 2365 at para 2 [Hearns]. R v Kandhai, 2020 ONSC 1611 at paras 7–8 [Kandhai]. R v Savvateikin, 2020 ONSC 2257 at paras 44–45. Abdella, supra note 179; Kandhai, supra note 182 at para 7; Hearns, supra note 181 at para 14. On the disconnection between prison conditions and proportionality in punishment theory, see Lisa Kerr, “How the Prison Is A Black Box in Punishment Theory” (2018) 69:1 UTLJ 85 at 91–92, 95–96, 105. David Dolinko, “Punishment” in David Dolinko & John Deigh, eds, The Oxford Handbook of Philosophy of the Criminal Law (Oxford: Oxford University Press, 2011) 403 at 406. Criminal Law During (and After) COVID-19 175 law principle.187 Proportionality plays a fundamental role in retributive theory by ensuring that defendants are not punished more harshly than they deserve.188 As scholars such as Lisa Kerr and John Castiglione point out, punishment theory generally focuses on the length of imprisonment when assessing the proportionality of a defendant’s punishment (quantitative proportionality), while ignoring the harshness of prison conditions to which the defendant is subject (qualitative proportionality).189 Two defendants who commit a similar crime with comparable culpability may receive equally long prison sentences from a quantitative standpoint. Yet, the defendants may be sent to separate prisons with drastically different incarceration conditions, such that they experience disparate levels of hard treatment from a qualitative standpoint.190 The defendant who is subject to far harsher prison conditions, however, is arguably punished more than they deserve.191 The emergence of COVID-19 has forced courts to increasingly consider qualitative proportionality when justifying punishments in terms of retribution.192 Custodial sentences during the pandemic are harsher than normal because inmates are exposed to extra health risks and psychological harms while in jail. When courts assess a sentence’s severity while ignoring the pandemic’s impact on inmates’ wellbeing, defendants can receive disproportionate punishments that are inconsistent with the basic principles of retributivism.193 The impact of COVID-19 in prisons elucidates why courts should accord greater consideration to prison conditions and the consequences of 187 188 189 190 191 192 193 R v M (CA), [1996] 1 SCR 500 at paras 79–80, 46 CR (4th) 269; Clayton C. Ruby, et al, Sentencing, 9th ed (Toronto: LexisNexis Canada, 2017), s 2.2. Palma Paciocco, “Proportionality, Discretion, and the Roles of Judges and Prosecutors at Sentencing” (2014) 81:3 CCLR 241 at 251. Kerr, supra note 185 at 88, 91–93, 95–96, 105; Lisa Kerr, “Sentencing Ashley Smith: How Prison Conditions Relate to the Aims of Punishment” (2017) 32:3 CJLS 187 at 200; John D. Castiglione, “Qualitative and Quantitative Proportionality: A Specific Critique of Retributivism” (2010) 71:1 Ohio St LJ 71 at 78–79, 88–89. Castiglione, supra note 189 at 78–79, 88–89. Richard L. Lippke, “Retribution and Incarceration” (2003) 17:1 Public Affairs Q 29 at 44–45. See also Jesper Ryberg, The Ethics of Proportionate Punishments: A Critical Investigation (Dordracht: Kluwer Academic Publishers, 2004) at 113; Adam J. Kolber, “Unintentional Punishment” (2012) 18 Leg Theory 1 at 2. See the sources cited in nn 178–83. Ibid; Adam J Kolber, “The Subjective Experience of Punishment” (2009) 109:1 Colum L Rev 182 at 186. 176 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 incarceration when assessing the proportionality of custodial sentences more generally. As discussed above, inmates are frequently subject to violence and overcrowding, and they lack of access to adequate medical care — realities they experience as part of their punishments.194 Studies show that incarceration produces a host of adverse effects that persist after imprisonment: poverty, decreased employment opportunities, worse physical and mental health, strain on families, a greater likelihood of homelessness upon release, and so on.195 Like the risks associated with COVID-19 in prisons, these consequences also affect the harshness of prison conditions and the severity of one’s punishment. These considerations militate against recourse to incarceration and emphasize the need for courts to reconsider the role of qualitative proportionality in sentencing. Law enforcement’s response to the pandemic also magnifies many traditional concerns regarding economic sanctions. In many cities, police officers are enforcing provincial public health laws that carry significant financial penalties.196 In Quebec, for instance, those who contravene physical distancing measures can receive a fine of approximately $1,500.197 Lawyers and civil society groups raise concerns about the arbitrary enforcement of public health legislation and municipal by-laws during the pandemic.198 As some point out, this risk is exacerbated because some law 194 195 196 197 198 For a discussion on violence in prisons, see Canada, Office of the Correctional Investigator, 2018-2019 Annual Report (Ottawa: Correctional Investigator Canada, 25 June 2019) at 38–39, online: <www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/annrpt2018201 9-eng.pdf> [perma.cc/E8QD-PYZ3]; Rose Ricciardelli, Surviving Incarceration Inside Canadian Prisons (Waterloo, ON: Wilfred Laurier University Press, 2014) at 79, 86–89. For a discussion on over-crowding and the healthcare challenges in prisons, see Adelina Iftene & Allan Manson, “Recent Crime Legislation and the Challenge for Prison Health Care” (2013) 185:10 CMAJ 886 at 887–88. See e.g. Craig Haney, “Prison Effects of in the Age of Mass Incarceration” (2012) 20 Prison J 1 at 3–7; Margot B Kushel et al, “Revolving Doors: Imprisonment Among the Homeless and Marginally Housed Population” (2005) 95:10 American J Public Health 1747 at 1750–51. McClelland & Luscombe, “Enforcement Report”, supra note 2 at 1; Sharon Lindores, “COVID-19 and the Rising Costs of Social Distancing: ‘We’ve Seen A Real Escalation’”, National Post (22 April 2020), online: <nationalpost.com/news/canada/co vid-19-rising-costs-of-social-distancing> [perma.cc/5ADV-NQXY]. Public Health Act, CQLR c S-2.2, r 1, s 139. Individuals can receive a fine of between $1,000–$6,000 for violating the Act’s provisions. “Policing Pandemic Remedies: Too Many COVID Charges, Too Many Tickets, Too Many Fines” (21 April 2020), online: Canadian Civil Liberties Association <ccla.org/coron Criminal Law During (and After) COVID-19 177 enforcement agencies encourage individuals to denounce others who violate these rules.199 Advocates also highlight the risks that marginalized groups will be disproportionately coerced and fined during the pandemic.200 In many cases, expensive fines have been issued to homeless people.201 MarieEve Sylvestre’s research demonstrates that even prior to the pandemic, homeless people were disproportionately issued fines for laws that regulate public property.202 These fines can entrench individuals in the criminal justice system and result in significant long-term consequences. 203 Criminal justice debt can worsen a person’s credit rating, which decreases their ability to secure access to housing, receive a loan, and obtain utilities.204 The quantum of these debts can increase dramatically as defendants accumulate additional administrative fees.205 As the Supreme Court of Canada observed in R v Boudreault, such financial penalties can amount to the equivalent of an indeterminate sentence for impecunious defendants who cannot afford to pay them.206 Despite the Supreme Court of Canada’s clear admonition in R 199 200 201 202 203 204 205 206 avirus-update-too-many-fines/> [perma.cc/7W3Q-XBDU]; Giuseppe Valiante, “Harsh Fines and Policing Don’t Protect People from COVID-19, Criminologists Say”, Global News (last modified 16 April 2020), online: <globalnews.ca/news/6825280/coronaviru s-harsh-policing-fines/> [perma.cc/97UR-LBEV]. Jen Gerson, “Don't Let Coronavirus Turn Us into a Nation of Snitches”, Maclean’s (20 April 2020), online: <www.macleans.ca/opinion/dont-let-coronavirus-turn-us-into-anation-of-snitches/> [perma.cc/M6VJ-SRCH]. See e.g. Marie-Eve Sylvestre et al, “Ontario's Safe Streets Act Will Cost Lives Amid the Coronavirus Pandemic”, The Conversation (23 April 2020), online: <theconversation.c om/ontarios-safe-streets-act-will-cost-lives-amid-the-coronavirus-pandemic-135665> [per ma.cc/DHL6-S4WE]; Skolnik, supra note 37 at 291, 295–96. Angela MacKenzie & Adam Kovac, “Multiple Homeless Montrealers Given Tickets for Physical Distancing Infractions”, CTV News (12 April 2020), online: <montreal.ctvnews .ca/multiple-homeless-montrealers-given-tickets-for-physical-distancing-infractions-1.48 93128> [perma.cc/J9TC-DNFL]. Marie-Eve Sylvestre & Céline Bellot, “Challenging Discriminatory and Punitive Responses to Homelessness in Canada” in Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Toronto: Irwin Law, 2014) 155 at 172. Catherine T Chesnay, Céline Bellot & Marie-Eve Sylvestre, “Taming Disorderly People One Ticket at a Time: The Penalization of Homelessness in Ontario and British Columbia” (2013) 55:2 Can J Corr 161 at 178–79. Ibid; Terry Skolnik, “Rethinking Homeless People’s Punishments” (2019) 22:1 New Crim L Rev 73 at 80. Beth A Colgan, “The Excessive Fines Clause: Challenging the Modern Debtors' Prison” (2018) 65:2 UCLA L Rev 2 at 32–41. R v Boudreault, 2018 SCC 58 at para 3. 178 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 v Wu that “[g]enuine inability to pay a fine is not a proper basis for imprisonment”, homeless people in Quebec are incarcerated for unpaid fines.207 Staunch enforcement of public health laws undermines the very access to housing that makes physical distancing possible and worsens homeless people’s plight. The disproportionate toll of economic sanctions on marginalized groups highlights the need for more proportionate financial penalties. Many scholars argue that U.S. and Canadian cities should adopt the Scandinavian model of day fines (or graduated economic sanctions), where individuals are sanctioned proportionally to their daily adjusted income.208 The amount of a day fine is generally calculated by multiplying the number of days (which represents the severity of the offence and varies between offences) by a percentage of the defendant’s daily income (50% in some jurisdictions), after taxes and deductions.209 To ensure that more affluent individuals do not pay astronomical fines for relatively minor infractions, the state can set a ceiling on the maximum amount of a fine.210 Scholars have shown that there are numerous advantages to day fines compared to traditional economic sanctions that extend beyond a more just sanction for impoverished defendants, such as the possibility of “improved revenue generation… [and a] decrease of expenditures related to collections, supervision, and incarceration.”211 Day fines are more fair for defendants and can be more efficient and effective for the state.212 As the prospect of economic decline looms large, all levels of government should avoid disproportionate economic sanctions that entrench individuals into poverty and increase their contact with the criminal justice system. 207 208 209 210 211 212 R v Wu, 2003 SCC 73 at para 3; Marc Allard, “Encore la Prison pour des Amendes Impayées” (last modified 16 January 2020), online: Le Soleil <www.lesoleil.com/actualite /encore-la-prison-pour-des-amendes-impayees> [perma.cc/2Z9B-QA3F]. See e.g. Beth A. Colgan, “Graduating Economic Sanctions According to Ability to Pay” (2017) 103:53 Iowa L Rev 53 at 61 [Colgan, “Graduating Economic Sanctions”]; Terry Skolnik, “Beyond Boudreault: Challenging Choice, Culpability, and Punishment” (2019) 50 Crim Reports (7th) 283 at 292–93 (WL Can). Elena Kantorowicz-Reznichenko, “Day-Fines: Should the Rich Pay More?” (2015) 11:3 Rev L & Economics 481 at 484. Colgan, “Graduating Economic Sanctions”, supra note 208 at 96–101. Beth A. Colgan, “Fines, Fees, and Forfeitures” (2017) 18:3 Criminology, Crim Justice, L & Society 22 at 31 [footnotes omitted]. Ibid. Criminal Law During (and After) COVID-19 179 VI. CONCLUSION This article argued that COVID-19 is impacting three major areas of the criminal law: the scope of certain criminal offences, bail, and sentencing. It demonstrated why the unique context of the pandemic has highlighted some of the most problematic aspects of the Canadian criminal justice system. The emergence of COVID-19 provides novel insight into why courts must restrict the breadth of certain crimes, grant reasonable bail, and limit recourse to custodial sentences. In some respects, the pandemic has forced various justice system actors to demonstrate a renewed commitment to bedrock criminal law principles, such as the presumption of innocence, pretrial liberty, and proportionality in sentencing — hallmarks of a more liberal and enlightened criminal justice system. Ultimately, COVID-19 provides compelling new justifications for why the state and criminal justice system actors must rely less heavily on the criminal law. Much remains to be seen about how the pandemic will evolve and how the criminal justice system will respond. Although courts must carefully safeguard our most precious civil and political liberties during this crisis, it should not miss this unapparelled chance to permanently implement positive changes to the criminal justice system and address some of its most egregious aspects. Judicial responses to the pandemic not only illustrate the possibility of embracing a less punitive criminal justice system both during and after COVID-19, but also show how we can take meaningful steps in that direction. 180 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 If You Do Not Have Anything Nice to Say: Charter Issues with the Offence of Defamatory Libel (Section 301) D Y L A N J . W I L L I A M S * ABSTRACT The Criminal Code continues to include serious criminal offences for defaming other people. These provisions exist separately from ordinary civil defamation actions and can potentially criminalize true statements. They remain controversial, yet under-studied. While the narrower offence found in section 300 has been upheld at the Supreme Court of Canada, its more expansive sister provision in section 301 has never been evaluated by an appellate court. Accordingly, it remains a live option for prosecutions and continues to be charged in Canadian courts. This paper outlines the existing debate and the Charter issues raised by section 301. It traces all relevant lower court decisions, each of which has ultimately struck this offence down. It argues that section 301 is unconstitutional because it infringes the freedom of expression found in section 2(b) of the Charter. This offence is likely to fail at both the minimum impairment and proportionality stages. I. INTRODUCTION t is widely known in Canada that one can be sued in civil court for damaging another’s reputation. It is less known that one can go to prison. In Canada, it remains a criminal offence for one person to make public remarks about another person that are defamatory. I * Articling student in British Columbia. An early version of this paper was prepared during a course on Civil Liberties, taught by Josh Patterson and Jason Gratl, at the Peter A. Allard School of Law at the University of British Columbia. 182 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Criminal defamation provisions are controversial around the world. Such laws remain in effect in many countries.1 They are known to be used as tools of the politically powerful in countries with weak rule of law.2 Where they exist in developed nations with greater expressive and press freedom, criminal defamation laws still attract strong criticism. For instance, the American Civil Liberties Union has declared: “Criminal defamation laws have no place in a democracy.”3 Yet, in Canada, there is little discussion around criminal defamation. The offences attract occasional criticism from legal practitioners but almost no academic study.4 Though one criminal defamation offence has been to the Supreme Court of Canada (SCC) and survived scrutiny, its far more expansive counterpart has never been constitutionally reviewed by an appellate court. This paper explores the legal history and debate surrounding Canada’s defamatory libel offences. It then analyzes the constitutional validity of 1 2 3 4 For detailed breakdowns of these provisions across a number of developing and developed states, see Debevoise & Plimpton LLP, Committee to Protect Journalists & Thomson Reuters Foundation, “Critics Are Not Criminals: Comparative Study of Criminal Defamation Laws in the Americas” (10 March 2016), online (pdf): Thomson Reuters Foundation <cpj.org/x/675b> [perma.cc/8ZU2-MJYM]; Scott Griffen, “Out of Balance: Defamation Law in the European Union: A Comparative Overview for Journalists, Civil Society and Policymakers” (2015), online (pdf): International Press Institute <ipi.media/wp-content/uploads/2016/08/IPI-OutofBalance-Final-Jan2015.pd f> [perma.cc/C3U8-T3T3]. See “How Powerful People Use Criminal-Defamation Laws to Silence Their Critics” (13 July 2017), online: The Economist <www.economist.com> [perma.cc/79BF-9H4R]. “Map of States with Criminal Laws Against Defamation” (2019), online: American Civil Liberties Union <www.aclu.org/issues/free-speech/map-states-criminal-laws-against-defa mation> [perma.cc/G6FB-NJUX]; In American constitutional law, criminal defamation laws have been sharply limited by case law: Garrison v State of Louisiana, 379 US 64 (1964). In this research, only one Canadian academic journal article that focused on these offences was located: see Lisa Taylor & David Pritchard, “The Process is the Punishment: Criminal Libel and Political Speech in Canada” (2018) 23:3 Communication Law and Policy 243. It provided useful coverage of their real-world impact but was not a constitutional law analysis. For existing legal commentary, see e.g. Jamie Cameron, “Repeal Criminal Libel” (5 July 2018), online: Centre for Free Expression <cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel>[perma.cc/HQ7D-9H86]; Peter Bowal & Kelsey Horvat, “Three Forgotten Reasons to Mind Your Manners in Canada” (2011), online: LawNow <www.lawnow.org/vol-36-2-novdec-2012/> [perma.cc/TKA284V3]; Arshy Mann, “The Trouble with Criminal Speech” (29 September 2014), online: Canadian Lawyer <www.canadianlawyermag.com/author/arshy-mann/thetrouble-with-criminal-speech-2627/> [perma.cc/W46G-FR8Q]. Defamatory Libel (Section 301) 183 section 301 of the Criminal Code. Ultimately, it argues that section 301 is a decidedly unconstitutional violation of the freedom of expression under section 2(b) of the Charter of Rights and Freedoms.5 Several lower court decisions in different provinces have reached this conclusion and struck it down. This paper describes and elaborates on their reasoning. Specifically, while section 301 may survive scrutiny at the early stages of the Oakes test, it is highly likely to be struck down because it is not minimally impairing and its effects are not proportional. Core to this problem is that the offence allows for valuable speech - including even true speech and criticism of public officials - to be chilled by the threat of criminal action. Ultimately, this analysis challenges whether such a crime as currently designed has any place in a modern liberal society. II. THE DEFAMATORY LIBEL OFFENCES The Criminal Code of Canada sets out defamatory libel as follows: Definition 298 (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published. Mode of expression (2) A defamatory libel may be expressed directly or by insinuation or irony (a) in words legibly marked on any substance; or (b) by any object signifying a defamatory libel otherwise than by words. Publishing 299 A person publishes a libel when he (a) exhibits it in public; (b) causes it to be read or seen; or (c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any person other than the person whom it defames. Punishment of libel known to be false 5 Canadian Charter of Rights and Freedoms, s 2(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, [Charter]. 184 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 300 Every one who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Punishment for defamatory libel 301 Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.6 The basic defamatory libel offence in section 301, then, has the following elements on its face: For the actus reus, one must (a) publish a matter, which is (b) likely to injure reputation or designed to insult, and (c) engages no lawful justification or excuse. Under the third element, the accused may rely on any of a complicated series of statutory defences, including coverage of court proceedings, response to inquiries, fair comment, and so on.7 Most importantly, there is a defence of truth under section 311. It requires the accused to establish that “the publication of the defamatory matter in the manner in which it was published was for the public benefit” in addition to being factually true.8 For the mens rea, the statement must have been intentionally published. The limited case law, discussed below, expands on and clarifies some of these elements. For the aggravated defamatory libel offence in section 300, there are two additional and closely intertwined elements. As the text sets out, the accused must know that what they publish is false. The corollary is that the statement must actually be false. These offences originated from the English Lord Campbell’s Act and were included in the original Canadian Criminal Code in 1892.9 Recently, in a housekeeping bill for the Criminal Code, Parliament removed another speech offence: blasphemous libel.10 However, it left defamatory libel almost entirely intact and slightly amended the publication element.11 This suggests 6 7 8 9 10 11 Criminal Code, RSC 1985, c C-46, ss 298–301 [Criminal Code] [emphasis added]. Ibid, ss 303–15. Ibid, s 311 [emphasis added]. Lord Campbell’s Act (UK), 1843, 6 & 7 Vict, c 96; R v Prior, 2008 NLTD 80 at paras 19– 20 [Prior]. Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, 1st Sess, 42nd Parl, 2017, cl 31. In the Lucas case discussed later (R v Lucas, [1998] 1 SCR 439 at para 10, 157 DLR (4th) 423 [Lucas SCC] [emphasis added]), the Supreme Court had noted that the text of paragraph 299(c) meant that “publishing” could occur even where an accused only shared the libel with the person it concerned (at that time, it read that one publishes a libel when he: “…shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person”). Defamatory Libel (Section 301) 185 that Parliament has turned some attention to these particular offences and made a decision to keep them. A. Significance of the Offences Today The constitutional basis for defamatory libel today is mixed. The section 300 offence appears to be constitutional, though questions can be raised about whether changes in Charter and civil defamation law over the last 20 years cast doubt on the finding in R v Lucas.12 The section 301 offence, however, is in a murkier position. While it has been treated negatively, it remains live for several reasons. First, no appeal court has decided on its constitutionality. None of the cases striking it down were appealed, so higher courts have not confirmed or denied that conclusion. Second, many provinces have not yet seen such a lower court decision. This means that while section 301 is questionable, it has not been taken off the table by binding authority in any jurisdiction. Accordingly, individual Crown prosecutors are free to lay charges if they believe the offence’s probability of surviving Charter scrutiny meets the relevant charge approval threshold. As well, in most provinces, police officers rather than prosecutors are responsible for initial charge approval.13 It is unlikely that most officers would be familiar with the obscure lower court history, and so people living in those provinces may be particularly exposed to section 301 charges. This is borne out by the most detailed evidence available. In a qualitative and quantitative study of defamatory libel cases, Taylor and Pritchard found that the offences are still very much in use, often in troubling ways.14 They respond to a common perception in the legal community that criminal defamation offences are so archaic and rarely charged as to be harmless. Taylor and Pritchard find that around 20 defamatory libel charges were laid per year in 2006–2010. That steeply climbed to 40 per year by 2011–2015.15 Analyzing the publicly available 12 13 14 15 The Court read in that one must share the libel with a third party in order to publish it, for the reason that A cannot defame B simply by saying an insult to B alone. Bill C51 changed the text of paragraph 299(c) to reflect this 20-year-old interpretation of the law. Cameron, supra note 5. Chris Williams, “Crowns or Cops? An Examination of Criminal Charging Powers in Canada” (2017), online: Toronto Police Accountability Coalition <tpac.ca/show_issue s.cfm?id=209> [perma.cc/E6MP-X9YZ]. Taylor & Pritchard, supra note 5. Ibid at 251. 186 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 information on criminal defamation cases, they find that two main patterns of prosecution emerge.16 One line of cases prosecuted men who slut-shamed former and potential romantic partners as part of various efforts to embarrass and harass them. The other, interestingly, involved statements by members of the public who had alleged inappropriate behaviour on the part of state employees such as police and judges. Taylor and Pritchard detail a range of fact situations over the past few decades in which people called public officials things like criminal, “crooked”, or “lying thieving utterly corrupt”, in connection to some grievance or another, and prosecution under section 300 or 301 followed.17 It is not always possible to determine which provision was used, but several of the cases in their sample are identified as being section 301 charges. All of this establishes that the threat of defamatory libel charges remains very real, and that it has tangible consequences for what can be said in public - for better or worse. Given the legal limbo and the increasing number of charges, the constitutional validity of defamatory libel is an important issue for the criminal law to engage with. III. THE POLICY AND LEGAL DEBATE Defamatory libel offences have long been controversial, particularly since the adoption of the Charter. Most notably, the Law Reform Commission of Canada strongly criticized the provisions and called for their repeal in a 1984 working paper.18 Comparing these offences to civil defamation law, it found many inconsistencies as well as ways in which criminal defamation is, oddly, further reaching than its civil counterpart. For instance, the Commission noted that truth alone is a defence in civil cases, whereas one needs truth and public benefit for the criminal defence. It raised numerous concerns about the drafting, which maintained arbitrary distinctions about libels that had long since been removed in the common law. The offence at that time also seemed to leave out various important elements. Writing shortly after the Charter’s adoption, the Commission further noted that the offences were vulnerable to challenge under sections 2(b) and 11(d). 16 17 18 Ibid at 252–59. Ibid at 254–55. Law Reform Commission of Canada, Defamatory Libel, Working Paper No 35(1984) [Law Reform Commission, Defamatory Libel]. Defamatory Libel (Section 301) 187 Taking up the question of whether to reform or abolish, the Commission noted that internationally, countries like the UK and New Zealand were moving away from criminal defamation. They also wrote that with a civil option readily available, charges being very rare, and sentences being light regardless, little would be lost if defamation was no longer criminally punishable. The one type of behaviour the Commission saw as potentially warranting criminal penalties was character assassination, where a person deliberately spreads lies about someone else to harm them. In examining this, however, the Commission took the position that a character assassination offence would need to be very complex and narrow to properly target the right behavior. Therefore, the preferred option was simply to abolish these offences altogether. A. Jurisprudence on Section 300 Though rarely litigated, the defamatory libel offences received significant judicial scrutiny in the 1990s. The aggravated section 300 offence had the benefit of two major appellate cases. 1. R v Stevens 19 First, the Manitoba Court of Appeal considered a section 2(b) challenge to section 300. There, the accused had publicized unpleasant false messages about a former romantic partner, including through posters describing her as suicidal, desperate, having had an abortion, and being a sex offender.20 In three sets of concurring reasons, the Court explored the history and nature of the offence before finding it was justified under the Charter. Justice Twaddle wrote the most extensive analysis on reasonable limits. Discussing the objective of the law, he addressed the complicated historical question of whether the offence was intended to merely prevent breaches of the peace, which are caused by defamatory statements, or whether the concept of protecting reputation was actually part of lawmakers’ intent when drafting it. This recurs in many defamatory libel cases. Some decisions (discussed later in this paper) conclude that there is no pressing and substantial objective in the modern day, because the original offence was designed to prevent duels from resulting when honorable men exchanged fighting words. Justice Twaddle found that because the law was simply pasted into 19 20 (1995), 100 Man R (2d) 81, [1995] 4 WWR 153 (Man CA) [Stevens]. For a review of the Oakes framework relevant to this Charter analysis, see Section IV of this paper. Stevens, supra note 20 at para 6. 188 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the Canadian Criminal Code without much independent reasoning, one had to look to the English legislative intent. That intent did seem to include some concern for reputation at the time, which would be a valid objective today for Charter purposes. Later, on whether this offence is minimally impairing of free expression, Justice Twaddle found that the value of the speech lies close to the bottom. As well, he interpreted a number of limits on the section 300 offence that made it less impairing, including that the accused must intend to defame. This excludes situations where the libel was published for other reasons, such as factual reporting. It also excludes cases where the accused did not see the message as defamatory according to their own values (i.e. an ideological fascist refers to someone else as being a fascist also). Justice Twaddle additionally found that opinions are not included because the Crown cannot prove the falsity of an opinion, and that the knowledge of falsity element shields mistakes and hyperbole that fall short of deliberate lies. Ultimately, Justice Twaddle upheld the offence. Justice Scott, joined by Justice Helper, reasoned on similar lines and also considered the issue that intention to defame may be too easy to prove because people infer, almost automatically, that when someone makes a false claim, they mean to defame. He clarifies that with the mens rea interpreted strictly, the offence “can only apply to the most egregious and deliberate of character assassination.”21 On the other hand, Justices Huband and Philp found that the offence did not even engage section 2(b). They ruled that such speech contains no value, ideas, or truth of any kind and, therefore, it falls completely outside of the purposes of free expression. In their view, one surely has to exclude some meanings from the Charter guarantee or risk watering it down. They attempted to reconcile this view with the broad scope of freedom of speech in R v Keegstra.22 The Justices found that speech like this does constitute violence of a psychological kind, because it is designed to cause pain. Among the defamatory libel jurisprudence, this appears to be the only instance where a court has declined to find even a prima facie breach of section 2(b). 2. R v Lucas23 Shortly afterward, this offence reached the SCC. The broader story of 21 22 23 Ibid at para 86. Ibid at para 97; R v Keegstra, [1990] 3 SCR 697, 77 Alta LR (2d) 193 [Keegstra]. Lucas SCC, supra note 12. Defamatory Libel (Section 301) 189 the Lucas case is complex and spawned several legal proceedings. There is not space to fully explore it in this paper, though it is elaborated well by Taylor and Pritchard.24 Essentially, a boy and his sisters made rather outlandish allegations of sexual abuse against their past foster parents. However, there was also reason to believe that the boy himself had been sexually abusing his sisters. The police officer who became involved chose to lay numerous charges against the past parents and their extended families, which were later largely stayed or withdrawn. Yet, he did not act on the concerns about the boy and did not try to separate him from his sisters. John and Joanna Lucas were prisoners’ rights activists who became involved with the foster parents. They believed that the officer had allowed the boy to keep abusing his sisters. They made several unsuccessful complaints. Then, together with the foster parents, they held two public protests in front of the Provincial Court. The Lucases carried signs which read: "Did [the police officer] just allow or help with the rape/sodomy of an 8 year old?" and "If you admit it [officer] then you might get help with your touching problem."25 They were charged under sections 300 and 301. The Lucases challenged their section 300 convictions at the SCC, leading to the reasons discussed below. Years later, the foster parents successfully brought in a malicious prosecution lawsuit against the officer. The officer was found liable for malicious prosecution, and his inaction regarding the boy abusing his sisters was described by the Court as “reprehensible….”26 Ironically, the grievance underlying the Lucases inflammatory protest was ultimately a valid criticism of police conduct. The SCC decision upheld the section 300 conviction. Justice Cory, writing for the majority, found a breach of section 2(b), but upheld the offence under section 1. Regarding the objective, he found that reputation protection was indeed part of the purpose. On minimal impairment, he agreed with the Stevens Court that subjective intent to defame is required. Justice Cory rejected the idea that the existence of a civil option negates the 24 25 26 Taylor and Pritchard, supra note 5 at 259–62. Lucas SCC, supra note 12 at paras 7–8. Kvello v Miazga, 2003 SKQB 559 at paras 16, 328 (later appealed by other defendants, but not by the relevant police officer, Sgt. Dueck). For a discussion of the story around this malicious prosecution case, see Peter Bowal and Aleksandar Gvozdenovic, “Whatever Happened to… Scandalous Criminal Allegations: The Miazga Case” (3 February 2016), online: LawNow <www.lawnow.org/whatever-happened-to-scandalouscriminal-allegations-the-miazga-case/> [perma.cc/D78S-S7ZD]. 190 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 criminal offence because civil suits are inaccessible for some and may not deter defendants who have no assets to pay damages. It posed no issue that the offence did not require any proof of harm because criminal law can validly regulate a risk of harm. At the proportionality stage, Justice Cory found that the speech captured falls far from the core of free expression and deserves “scant protection.”27 It was easily outweighed by the reputational objective, in his view. Though also upholding the offence, Chief Justice McLachlin dissented in part. She cautioned that the perceived low value of the speech should not be taken into account at the first three stages of the Oakes test and may only be considered for proportionality. Altogether, the section 300 offence has been upheld by the courts. B. Jurisprudence on Section 301 The story is very different for the section 301 offence. In the post-Charter era, courts in Alberta, Saskatchewan, Ontario, New Brunswick, and Newfoundland have evaluated its constitutionality. Altogether, there are 5 known lower court decisions on section 301, and each of them has concluded that it fails Charter scrutiny.28 1. R v Finnegan29 In the first ruling on Section 301’s constitutionality, the Court heard submissions from Crown and then rendered its decision without calling upon the self-represented accused. It is not clear from the decision what underlying allegations had brought Mr. Finnegan to court, but he was promptly discharged. In its ruling, the Court entirely adopted the Law Reform Commission report discussed earlier in this paper. The Court found an infringement of section 2(b). It held that the objective behind section 301 appeared to be preserving the peace, which did not suffice. Alternatively, if the purpose was protection of reputation, that could “possibly be accepted,” but “a criminal sanction is not required to meet that concern.”30 The Court concluded that because the avenue of civil defamation is already available, section 301 is not proportional. Interestingly, the Court distinguished Keegstra, which had held that the 27 28 29 30 Lucas SCC, supra note 12 at para 94. Unreported oral decision of McIntyre J. in R v Osborne (2004), New Brunswick S/CR/08/02 (NB QB), cited in Taylor and Pritchard, supra note 5 at 247. [1992] AJ No 1208 (Alta QB). Ibid at para 25. Defamatory Libel (Section 301) 191 existence of a civil alternative (in that case, the suggestion of using a human rights tribunal) does not render the use of criminal law invalid. The difference is that for hate speech, civil defamation was not an option, whereas for individual libels, it was. 2. R v Lucas (Sask QB) 31 In the Lucas case described earlier in this paper, the two accused originally faced charges under both sections 300 and 301 for their protest signs that named a police officer. At the trial level, they constitutionally challenged both offences. The Crown did not appeal the section 301 finding, so it remains good law despite the case advancing to the Supreme Court.32 After devoting most of the reasons to a reasonable limits analysis that ultimately upholds section 300, the Court then struck down section 301. The Court explained that the latter crime is different because it captures opinions that an accused honestly believes are true and ones that actually are true. The Court stated that section 301 limits free expression in a way which fails both the minimal impairment and proportionality stages. 3. R v Gill 33 In this case, the two accused wrote up “wanted” posters about six prison guards, claiming that the guards were involved in a murder, were suspected to be in a gang, and had a history of “sadistic violence” and “socio-pathic tendencies.”34 They were charged under section 301 for criminally defaming the guards. The accused brought a challenge under section 2(b) in which the Canadian Civil Liberties Association intervened. After considering these submissions, the Court concluded in brief reasons that section 301 does not minimally impair free expression.35 The Court adopted Justice Twaddle’s comments in Stevens that limiting the publication of true facts is very difficult to justify. Accordingly, the Court declared the offence to be of no force and effect. 4. R v Prior 36 This decision provides the most recent and most thorough analysis of 31 32 33 34 35 36 R v Lucas, [1995] 129 Sask R 53, 31 CRR (2d) 92 (Sask QB) [Lucas QB]. See R v Lucas (1996), 137 Sask R 312, 104 CCC (3d) 550 (Sask CA). (1996), 29 OR (3d) 250, 35 CRR (2d) 369 (Ont Ct J (Gen Div)) [Gill]. Ibid at para 1. Ibid at paras 22–24. Prior, supra note 10. 192 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 section 301 found in the cases. The accused put out flyers accusing a “public justice figure” of raping his sister decades earlier and making her pregnant.37 When police interviewed her, she denied even knowing that person. Yet, there was also no evidence that Mr. Prior knew his claims were false. The Court analyzed the legislative history in the UK and found that the objective of section 301 is different from 300. It departed from the Supreme Court’s conclusion that the purpose of criminal defamation is to protect reputation by saying that that is only true of section 300. Instead, the objective for the purposes of Charter analysis is to prevent breaches of the peace. The Court mapped the idea of a true-but-defamatory statement onto existing notions of defamation: As well, it seems to me that if the objective of a law is to protect reputation, knowledge of the libel’s falsity must be an essential element of an offence which criminalizes the publication of the libel. For if a libel be true, the reputation at stake is not a reputation at all. I think it is fair to assume that it is presumed in the phrase “protection of reputation” that the reputation is good, at least to the point that it would suffer some damage from a libel. To my mind a reputation rests on truth. It should not be isolated from the truth and does not deserve protection from the truth…. To my mind, it would be wrong to suppress truth to protect sensibilities or an unmerited reputation. To do so would be inimical to the values our society holds dear.38 Having made that finding, the Court took the rare step of invalidating the offence at the first stage of the Oakes analysis. The Court noted that “looking at somebody the wrong way could provoke a breach of the peace” and that the criminal law can respond to an altercation itself rather than the comments that cause it.39 That further lead the Court to find no rational connection between keeping the peace and criminalizing libels. Alternatively, the Court found that the objective would be “protecting reputation from any attack regardless of truth,” which is also not pressing and substantial.40 The Court goes on to consider minimal impairment: To my mind, subjecting people to criminal charges for publishing the truth does much more than minimally impair their Charter right to freedom of expression. The notion that a citizen could be convicted of a criminal offence for publishing 37 38 39 40 Ibid at para 4. Ibid at para 33. Ibid at para 34. Ibid at para 35. Defamatory Libel (Section 301) 193 the truth, or for mistakenly publishing a falsehood, or for publishing a falsehood while believing it to be true, flies in the face of the Supreme Court of Canada.41 Relying on R v Zundel42 and Keegstra,43 which are discussed later in this paper, the Court found that the offence clashes with a core value - the search for the truth. Ultimately, the Court stated that the reason that the other lower courts have struck down section 301 is that it is “offensive to modern day notions of justice.”44 Prior is interesting in that it offers the most developed treatment of section 301 and also the harshest. The Court firmly concludes that the offence fails every single stage of the Oakes test. While it shares the proportionality and minimal impairment concerns of the other decisions, it is the only one to reject that there is a pressing and substantial objective. As this paper discusses later, that historical analysis may or may not be correct, but it raises an additional wrinkle in defending the section from a Charter challenge. IV. SECTION 301 IS INVALID ON FREE EXPRESSION GROUNDS This paper now turns to a detailed analysis of the constitutional validity of section 301. It outlines the analysis that an appellate court would need to undertake if a person accused of publishing a defamatory libel were to challenge the offence itself as violating their freedom of expression. To briefly contextualize, the steps under a Charter analysis are as follows:45 at the outset, the individual must show that the law violates a right found in the Charter, based on the particular nature of that right. If that person succeeds, then the state would have the opportunity to save the law by showing that it is a reasonable limit on the right under section 1 of the Charter. Following the framework in R v Oakes,46 this analysis would proceed in four steps. First, the state would need to show that the law seeks to achieve an objective which is pressing and substantial. Second, it must establish that there is a rational connection between that objective and the 41 42 43 44 45 46 Ibid at para 38. [1992] 2 SCR 731, 95 DLR (4th) 202 [Zundel]. Supra note 23. Prior, supra note 10 at para 41. See R v Oakes, [1986] 1 SCR 103 at 346–49, 26 DLR (4th) 200. Ibid. 194 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 measures the law uses. Third, the state must show that the right is restricted no more than necessary to fulfill its purpose. Finally, it would have to prove that the beneficial effects of the law (in terms of that objective) outweigh the harmful effects (in terms of the Charter right). Only if the prosecution were to satisfy the court on all four steps would the challenged law be allowed to stand. A. Engaging Freedom of Expression The first step to establish a Charter violation would be to show that section 301 engages the right to freedom of expression. This would not be at all difficult. First, one must show that the targeted activity conveys or attempts to convey meaning. As explained in Keegstra and Irwin Toy v Quebec (Attorney General), that very broad test can include almost anything aside from physical violence itself.47 Statements which make a claim of some kind about an individual are clearly expressive activity. Next, we ask if the expressive activity is limited by the state, either purposefully or in effect. The defamatory statements captured in section 301 are restricted intentionally by the state through the threat of criminal prosecution. The state is targeting certain expressions because of their content — in the words of Irwin Toy, the “mischief consist[s] in the meaning.”48 This accords with the jurisprudence, as the more narrowly tailored section 300 has been found to engage section 2(b) by the Lucas Court and a majority of the Stevens Court.49 The contrary reasoning of Justices Huband and Philp in Stevens, that defamatory statements fall outside of free expression altogether, was questionable as a departure from the Supreme Court’s reasoning in Keegstra. The Supreme Court of Canada has been clear that the content does not matter for prima facie protection.50 As well, their view that the speech is of no value whatsoever surely does not extend to the broader section 301 offence. It captures more speech. The lesser defamatory libel offence, then, clearly breaches the right and the main contention would be whether or not that can be justified as a reasonable limit. 47 48 49 50 Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 969–70, 58 DLR (4th) 577 [Irwin Toy]; Keegstra, supra note 23 at 732. Ibid at 976. Lucas SCC, supra note 12 at para 28; Stevens, supra note 20 at paras 37, 161 (“abundantly clear that the section offends the guarantee…”). See Justice Twaddle’s strong criticism of that approach in Stevens, supra note 20 at paras 147–61. Defamatory Libel (Section 301) 195 B. Pressing and Substantial Objective In justifying a reasonable limit on a Charter right, the state must first show that it is a limit prescribed by law. While speech offences are sometimes challenged for being too vague to qualify as such a limit, the state must only offer “an intelligible standard according to which the judiciary must do its work.”51Given that section 300 passed this step using substantially the same test, this hurdle is easily cleared.52 Next, the state must articulate a pressing and substantial objective. While a challenged law rarely fails at this stage, it provides useful framing to the broader analysis because the state must commit to a yardstick against which the infringement can be measured. This stage poses two issues for section 301. For one, the debate about breaches of the peace versus protection of reputation would need to be settled. If the sole objective were preventing breaches of the peace arising from defamatory statements, the law would be very unlikely to survive. The archaic goal of stopping duels between honourable men seems to have little relevance in a 21st century society. It does not appear to be a sufficiently pressing social problem today to justify limiting constitutional rights, if it ever was. As well, that would create serious issues further in the analysis, because Parliament never tailored the offence to only those situations that are likely to cause breaches of the peace. It makes no real distinction between fighting words and otherwise embarrassing insults. A court would be very skeptical that society must criminalize statements which might lead to violence, rather than violence itself. The state would, therefore, rather argue, as in other defamatory libel cases, that reputation was always part of the objective. It would particularly wish to follow Stevens in arguing that that goal had been there from the beginning, so as to avoid accusations that it is shifting the purpose. While courts permit some change of emphasis in a law, they do not allow the state to invent a new legislative purpose that did not arise when the law was passed.53 This issue draws on a historical debate about the intention of English lawmakers in the mid-1800s, which played out in the section 300 case law. Lucas54 and Stevens55 established that section 300 includes 51 52 53 54 55 Irwin Toy, supra note 48 at 983. Lucas SCC, supra note 12 at paras 35–39. R v Butler, [1992] 1 SCR 452 at 494–96, 89 DLR (4th) 449. Lucas SCC, supra note 12. Supra note 20. 196 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 reputational protection, and it stands to reason that their historical analysis extends to the variation of that offence found in section 301. The provisions are part of the same scheme in the Criminal Code, directly adjacent to one another, and have similar origins in England. However, this is debatable — the Court in Prior considered that reasoning explicitly and found that the purposes of sections 300 and 301 are not the same.56 Given limited space, this paper cannot fully explore that controversy, except to say that this historical debate poses some risk to the offence’s constitutionality at the outset and would be a live issue. Assuming for the sake of argument that the objective is reputational protection, the other difficulty at the objective phase is how one characterizes that aim. Because falsity is not required, one could adopt the harsh framing from Prior, that the objective is “protecting reputation from any attack regardless of its truth.”57 That puts the state in a difficult position. The objective then would look more like preventing people from saying negative things about one another, which makes it seem broad and difficult to sustain. However, it seems that this issue can be more cleanly dealt with at the minimum impairment stage of the analysis. The inclusion of true statements seems to reflect more on a certain subset of situations that the offence captures than it does the overall legislative objective. The fairer framing is that the objective is “protecting individuals from public statements which seriously harm their reputation,” and that the offence, as drafted, captures some true statements that relate to that purpose. That objective is likely defensible, given that reputation is recognized by the law as a significant personal interest worthy of protection. Courts clearly appreciate reputation that way — for instance describing it as “highly sought after, prized and cherished by most.”58 The facts in many criminal defamation cases are somewhat sympathetic for the victim and include statements that we would not want someone to make about us. Further, the state may be able to argue that defamation is a particularly common and harmful thing in the social media era, making protection more necessary than ever. Given that cases rarely fail the pressing and substantial objective phase, it is likely that the offence can pass this stage of constitutional analysis. 56 57 58 Prior, supra note 10. Prior, supra note 10 at para 35. Lucas SCC, supra note 12 at para 94. Defamatory Libel (Section 301) 197 C. Rational Connection Next, the state would need to establish a rational connection between the legislative measure and the objective of Parliament. That is generally a low threshold to meet and requires simply that there be a logical reason to believe that the means chosen are connected to the aim.59 As with section 300, this step would be easy for the state to satisfy. If the aim is to protect people from a certain kind of harmful speech, then making that speech criminal obviously is a rational mechanism to do so. Criminalizing defamatory libels is the most straightforward way of trying to deter and punish speakers who forward them. D. Minimal Impairment In the third stage, courts ask whether the right is limited as little as possible to achieve the goal. The state’s chosen means need not be the absolute least impairing option conceivable, but they must “impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account.”60 The question would be whether the state could protect individuals from reputational harm in a way that is less harmful to free expression. The main counterfactuals to consider are whether the offence could instead have: (1) used alternatives to a criminal offence, or (2) excluded all speech which is true. The first potential line of attack on minimal impairment would be the choice of criminal law as a tool. One could suggest it would be less impairing to use a civil remedy. The argument goes: the state chose criminal law and imprisonment — the heaviest tool available to it — rather than relying on the civil courts to address defamation. The state could have left it as a common law matter or used something like a statutory tort if it felt that more needed to be done to protect reputations. This argument was made about section 300 in Lucas and was ineffective.61 The Court had no issue with criminal and civil options coexisting because they serve distinct purposes.62 This also parallels an unsuccessful argument from Keegstra. There, it was argued that the hate speech offences were not minimally impairing because the state 59 60 61 62 Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30 at para 40 [JTIMacDonald]. R v Sharpe, 2001 SCC 2, at paras 96–97 [emphasis in original]. Lucas SCC, supra note 12. Ibid at paras 69–76. 198 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 used criminal law instead of something less punitive, such as a human rights tribunal. While Chief Justice McLachlin’s dissent agreed, Justice Dickson’s majority decision held that the state need not use the least impairing option and that the criminal and human rights routes could be complementary.63 The state could rely on the same reasoning for defamation. It could also add that suing for defamation may be beyond the means of many victims and so criminal enforcement is needed to protect their interests. Altogether, the Crown would have little difficulty defending section 301 from this line of argument. The more fundamental issue for minimal impairment, and for section 301 as a whole, is how it handles truth and falsity. As discussed earlier, the key difference from section 300 is that falsity and the accused’s subjective knowledge of falsity are not elements of this offence. Rather, there is the defence of truth, which requires an accused to show that the statement was (a) true and (b) in the public benefit. Accordingly, it allows for a conviction with a true statement that is deemed not for the public benefit because of the content or how it was expressed. Virtually no reported case law is available showing how this defence is applied, so this analysis is largely informed by the plain meaning of the words and by commentary found in the report of the Law Reform Commission.64 This defence may engage Section 11(d) of the Charter as well, seeing as it puts the onus on the accused rather than the Crown.65 However, that is beyond the scope of this paper. This provision makes criminal defamation clearly more expansive than civil defamation. In civil cases, truth is an absolute defence, and courts have said that “[w]hat is true cannot be defamatory.”66 One cannot be successfully sued for damages if one can establish that what they said was correct. This applies regardless of how much the statement harms the plaintiff’s 63 64 65 66 Keegstra, supra note 23 at 784–85, 860–62. Law Reform Commission, Defamatory Libel, supra note 19. In Keegstra, supra note 23, the Court upheld a truth defence to hate speech despite it placing a burden on the accused to show truth on a balance of probabilities. The Court was satisfied because the mens rea for hate speech confined it to very blameworthy statements; also, it is difficult for the Crown to disprove alleged socio-political facts. However, neither of these conditions hold for criminal defamation. The mens rea of intention to defame appears less morally grave than intention to foment hate against minorities. The disputed facts will involve the life of a particular individual rather than society at large, making it easier for the Crown to disprove them. Accordingly, the truth defence appears vulnerable to challenge under Section 11(d). Courchene v Marlborough Hotel Co Ltd et al (1971), 20 DLR (3d) 109 at 112, 1971 CarswellMan 100 (Man QB). Defamatory Libel (Section 301) 199 reputation, and Canadian common law seems to have no notion of a defamatory-and-true remark. The Law Reform Commission’s view was that criminal law should never be broader than the corresponding tort law.67 That said, this is not a constitutional principle as much as it is a policy argument. By way of international comparison, this approach to truth is also more expansive than in American constitutional law. In Garrison v State of Louisiana, the Supreme Court of the United States delivered a leading decision on criminal defamation under the First Amendment.68 It held that a statement that is true, or believed to be true, cannot be criminalized even if it is made with actual malice.69 Malice is an even more blameworthy mens rea than intention to defame, involving ill will or hatred. Still, the Court recognized that even a hateful attack which the speaker honestly believes is true contributes to the search for the truth. In essence, American case law finds that true or honestly believed statements can never be criminalized, even on a stricter mental state than section 301 uses. What is important for Charter purposes is that truth adds value to expression. When a court takes into account the value of expression under section 1, it will need to consider that true statements are especially deserving of protection. As Chief Justice McLachlin explained in Keegstra, one of the three fundamental philosophies underlying section 2(b) is the search for the truth in an open marketplace of ideas.70 Notably, this is distinct from the political process rationale. The truth is not just important in politics and statecraft, but human inquiry more broadly. And free expression is not only for speakers, but also for listeners. Courts have recognized that section 2(b) protects the rights of people to become better informed through the speech of others.71 These principles apply to an individualized context as follows. It is deeply different to criminalize somebody for making up lies about their neighbour than to criminalize them for saying unkind things that are factual. The character of fellow citizens is a matter which people have great interest in and curiosity about. People are preoccupied with reputation in 67 68 69 70 71 Law Reform Commission, Defamatory Libel, supra note 19 at 40. Supra note 4. Ibid at 71–75, 78. Supra note 23 at 803–04. Edmonton Journal (The) v Alberta (Attorney General), [1989] 2 SCR 1326 at 1339–40, 64 DLR (4th) 577 [Edmonton Journal]. 200 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the first place because they want to accurately gauge how to think about other people. A good reputation carries weight because it comes from an interpretation of the best information available about an individual. A reputation, therefore, needs to include the bad as well as the good. If somebody has a sterling record but has done something which would tarnish it if others found out, then it serves the search for the truth for that fact to be known. If an esteemed banker privately belongs to a white nationalist party, our understanding of who they are and how to interact with them is deepened by learning this fact rather than having it suppressed. This is not simply some hypothetical epistemic ideal. People use reputational information to make consequential decisions constantly in their day-to-day lives. Reputation can guide who we make a loan to, hire for a job, or trust our children with. For the state to criminalize truthful statements about individuals is, in effect, to collude with those individuals in unduly polishing their images. It lends legal power to their desire to suppress negative commentary about themselves. It leaves listeners who would have preferred to know the negative information worse off. However, much society and the law may value reputation, surely this does not justify a right to a curated reputation in which the state forcefully conceals the blemishes. As the Court in Prior wrote, “[f]or if a libel be true, the reputation at stake is not a reputation at all…. a reputation rests on truth. It should not be isolated from the truth and does not deserve protection from the truth.”72 Here, an accused would have a very strong argument that a law which stops one from speaking the truth about other people has impaired free expression much more than necessary. Previous case law on truth and falsity supports this conclusion. The Lucas73 and Stevens74 decisions on section 300 rely heavily on falsity at the minimal impairment and proportionality stages. It is unlikely that their conclusions would be the same had that element not been included. Key to their findings was that the value of the speech captured was very low because it consisted of malicious lies. Once an offence expands to cover some set of true statements, the reasoning is rendered less compelling. The natural objection is that this argument treats transparency as a freefor-all. The state may legitimately reply that not every private fact needs to be public knowledge simply because it would be informative to someone 72 73 74 Prior, supra note 10 at para 33. Lucas SCC, supra note 12. Supra note 20. Defamatory Libel (Section 301) 201 else. In fact, there is a valid role for government in protecting people from stigmatizing disclosures of true-but-private information about themselves. In one of the section 301 cases, the Crown gave the example of publishing the names of women who have had abortions.75 That fact is true, but not in the public benefit to publish, and the state needs to protect her from stigma. In the Stevens decision, Justice Twaddle similarly suggested that this drafting exists to cover embarrassing disclosures like a mother who has had a child out of wedlock.76 Situations such as these, the state could argue, are why an absolute defence for truth would undermine the objectives of section 301. Yet, this abortion scenario seems more akin to a privacy interest. It concerns the idea that some information, like a medical history, should remain private and not be disclosed. These facts would be protected because they are private, not because they are reputationally negative. While a breach of privacy may lead to a worsened reputation, the two interests are not commonly understood to be one and the same. We would tend to think of a privacy interest in terms of how the information was obtained and what level of confidentiality attached to it, whereas reputation is a matter of how much damage a statement did, regardless of where it came from. Minimal impairment is measured against the objective of the law — in this case, protecting reputation. To the extent that true statements are captured for the sake of protecting confidential information, they may simply be tangential to the objective. If so, then it could not be said that the legislative purpose is lost without them. In that case, there would be no justification for not selecting the less-impairing option: an absolute defence for true statements. Altogether, this renders it likely that section 301 is not minimally impairing. The offence appears far more impairing of free expression than it needs to be because it includes true statements in a way that even civil defamation does not. Given that free expression is grounded in the search for the truth, it would be quite difficult for the state to justify this. Indeed, this point has doomed the section in past challenges such as Prior77 or Lucas.78 In terms of the remedy, there is one way that the offence could fail minimal impairment and not be invalidated. A court could read in an 75 76 77 78 Gill, supra note 34 at para 20. Stevens, supra note 20 at para 199. Supra note 10. Lucas QB, supra note 32. 202 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 absolute defence of truth by striking out the requirement that the statement be in the public benefit, as follows: 311 No person shall be deemed to publish a defamatory libel where he proves that the publication of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published and that the matter itself was true. Perhaps then, the offence could be reconciled with freedom of expression and stand as a less stringent version of section 300.79 In this scenario, the section 301 offence would cover false defamatory statements, while the aggravated version would cover knowingly false defamatory statements. Both offences would criminalize only statements that the Crown can prove to be untrue, and the difference would lie in the level of mens rea required. There would still be a place for section 301: to specifically cover false statements that the accused wrongly believes to be true or does not know the truth value of. Such a modification could cure the minimal impairment problem, but the offence would still need to pass the final stage. E. Proportionality Finally, a court would consider whether the benefits of the legislation in terms of its objective outweigh the harms to Charter rights. This does not necessarily require a precise empirical comparison, but it does ask us to weigh the various impacts of the law against one another and arrive at a net conclusion.80 It is important to weigh the particular values as they are engaged in this context, rather than in sweeping, abstract terms.81 1. Benefits of the Legislation Weighing in the legislation’s favour is the protection of individual reputation in the usual criminal law fashion. For one, the law may deter people from speaking ill of one another in harmful and public ways. On the specific deterrence level, this can serve to stop a particular individual from continuing to harass their target. For instance, in the slut-shaming cases that Taylor and Pritchard describe, the criminal law may be a powerful tool to make a jilted lover stop spreading sexist rumors about their partner.82 This 79 80 81 82 In that case, the burdens in this defence would remain open to challenge under section 11(d). See n 57. JTI-MacDonald, supra note 53 at paras 45–46. Edmonton Journal, supra note 72 at 1353–56. Taylor & Pritchard, supra note 5. Defamatory Libel (Section 301) 203 can protect those individuals from severe embarrassment, social stigma, and practical consequences like job loss. On the general deterrence level, it encourages people in society generally to avoid making seriously negative claims about one another. For true statements, the public benefit test effectively asks one who possesses harmful information about another to use it responsibly. The speaker must avoid sharing their true facts with the world in circumstances where it is gratuitous and does nothing but harm another person. Many of the statements that are criminalized because of this caveat are surely unpleasant attacks that may be better suppressed. While the criminal law does not provide damages, this offence also has the benefit of vindicating victims. People whose reputations have been damaged on purpose can see the authorities take action against the speaker. Like in civil court, this could give the victim the benefit of a court affirming publicly that the defamatory matter was untrue. However, given that it need not be false, courts may choose not to decide on the truth value of the statement, or they may indeed convict an accused while also acknowledging that their statement was true. At best, then, criminal adjudication offers an indirect way for victims to quash falsehoods. Still, there is value in publicly denouncing such conduct in either case. Like in Keegstra, it matters for proportionality that criminal law can send a signal to society that certain conduct is unacceptable.83 It signals that the community does not accept defamatory libels and that they are condemned authoritatively as being wrong. There is a salutary effect in denouncing those who would (as many accused have) resort to calling their opponents child molesters, criminals, sociopaths, and so forth. 2. Harms of the Legislation On the other side of the ledger, we must consider the value of the expression captured, the potential chilling effects, and the particular issue of criticism of public officials. First, as raised under the minimal impairment discussion earlier in this paper, the value of the expression captured under section 301 is likely much higher than in Lucas. Many of the arguments made earlier can also apply to proportionality analysis — the harms flowing from suppressing or deterring true statements are greater than for false statements. The offence deprives listeners of relevant, factual information about people that they may prefer to know. It gives them a less complete picture of their neighbours, 83 Keegstra, supra note 23 at 787. 204 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 employees, public officeholders, and so on. But further, the offence would also criminalize situations in which the accused makes a mistake about the truth or has a reasonable belief that their statement is true. Note that this problem remains even if a court were to read in a falsity element as suggested earlier, because one can say something that is untrue without knowing that it is untrue. Under current law, the accused need only intend to defame the target. In criminalizing defamatory statements, the offence creates a serious potential chilling effect. It says that when somebody makes negative remarks about another person, they could well find themselves having to defend doing so in court. Even if falsity were required, a speaker would still need to be very careful about verifying things that they say, lest they accidentally stray into falsehood and face conviction. As with hate speech, this creates an ambiguous field of illegal speech and leaves citizens guessing whether their conduct puts them on the wrong side of the line. Faced with the complexity of determining whether their remark constitutes a “grave insult” or whether it is in the “public benefit” to say it, a law-abiding person may well err on the safe side and stay silent. Further, it is important to acknowledge that even lies have value in this analysis. Chief Justice McLachlin, writing for the Court in Zundel, explains how even knowingly false statements serve a purpose: Exaggeration — even clear falsification — may arguably serve useful social purposes linked to the values underlying freedom of expression. A person fighting cruelty against animals may knowingly cite false statistics in pursuit of his or her beliefs and with the purpose of communicating a more fundamental message, e.g., ‘cruelty to animals is increasing and must be stopped’. A doctor, in order to persuade people to be inoculated against a burgeoning epidemic, may exaggerate the number or geographical location of persons potentially infected with the virus. An artist, for artistic purposes, may make a statement that a particular society considers both an assertion of fact and a manifestly deliberate lie.84 This is on display in the many criminal defamation cases that arise where someone with a legitimate grievance makes a poor choice of words in expressing it. For instance, when an individual feels mistreated by the police, they may go on to call them corrupt. The police officer may not be corrupt in the literal sense of taking bribes, but there is a kernel of socially valuable critique in the sentiment being communicated. Even recalling the facts of Lucas is instructive. The Lucases, feeling that a police officer had 84 Zundel, supra note 43 at 16. Defamatory Libel (Section 301) 205 allowed child sexual abuse to persist by not acting on information in his possession, wrote “[d]id [the police officer] help/ontake part in the rape & sodomy of an 8 year old.”85 Though on a literal reading this is a falsehood, it comes in the course of making an important underlying claim that was later vindicated: when a justice system official failed to act, he put a child at serious risk. This is exactly the kind of public debate section 2(b) exists to safeguard, and the alleged failures of the police are an important matter for listeners to hear about and consider. Every time someone withholds or seriously waters down their criticism for fear of criminal prosecution, the sum of harm caused by section 301 grows. This is doubly true when one considers Chief Justice McLachlin’s further point that statements have many meanings. They can contain metaphors and implications, and the listeners may derive a separate value from the point.86 To say, for instance, that the Prime Minister of the day “trembles in his boots when he deals with foreign leaders” is of course false, but it conveys ideas about foreign policy. Granted, Chief Justice McLachlin’s concerns are somewhat tied to the historical fact context in which she wrote. Because Zundel was about false news, her analysis may not always carry to other contexts. As she wrote, such analysis is “arguably much less daunting in defamation than under s. 181 of the Criminal Code. At issue in defamation is a statement made about a specific living individual. Direct evidence is usually available as to its truth or falsity. Complex social and historical facts are not at stake.”87 It may be, accordingly, that the constitutional value of lies is lower when they are about a living individual. Regardless, that value still exists in an individual setting and must carry some weight in the analysis. All of this takes on a particular importance where, as Taylor and Pritchard note, many criminal defamation cases involve justice system actors as complainants. While courts do not assess constitutionality on the basis of how an offence happens to be used, they may look to the kind of actual cases that are brought to the extent they highlight the kinds of speech swept up.88 The chilling effect is particularly troublesome if it is chilling criticism of police and judges — important officials who exercise public power. Free and open debate about how these officials perform their roles is especially 85 86 87 88 Lucas SCC, supra note 12 at para 105. Zundel, supra note 43 at 16–19. Ibid at 19. Ibid at 17–18; Keegstra, supra note 23 at 858–59. 206 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 valuable because holding them accountable through criticism is essential to a free society. It is a troubling development that one of the main sources of defamatory libel charges is criticizing state actors in too vulgar or hyperbolic of a manner. This is particularly so given that these actors are the insiders of the justice system and seem to be well poised to punish their critics using the very laws which they administer. Police, for instance, can and do charge citizens as a direct reaction to hostile insults they receive.89 Used in that fashion, the offence has the ability not only to silence a specific critic of official conduct, but also to deprive listeners in the larger public the chance to hear their allegation. In legal terms, none of this is to say that courts would strike down the offence simply because it is sometimes applied in concerning ways. Still, the proportionality analysis would have to consider the fact that potentially valuable criticism of the state falls into the category of speech which is chilled. Altogether, section 301 is very likely to fail a proportionality analysis. Unlike section 300, the speech captured is much broader and of greater value to the search for the truth. Assuming the offence survived this far, it is difficult to see how the state could show that the protection of some reputations (deserved or not) outweighs suppressing true or good faith criticisms, particularly when a subset of those criticisms goes to the heart of public debate. V. CONCLUSION Following from this analysis, section 301 of the Criminal Code is unconstitutional on freedom of expression grounds. It faces serious issues from the objective phase to minimal impairment and proportionality. At the least, minimal impairment would suggest that it be read down to only include false statements. Even then, it would struggle greatly to pass the proportionality phase. If fully litigated, the most likely outcome is that appellate courts would follow in the footsteps of those trial decisions that have already struck it down. Crown counsel should be mindful of this when deciding whether to lay or stay such charges in future cases. From a prosecutorial perspective, the Charter vulnerabilities explored in this paper weaken the likelihood of conviction. The risk of stifling criticism of public officials also presents public interest concerns for prosecutors to consider. In situations where 89 See the case studies compiled in Taylor & Pritchard, supra note 5. Defamatory Libel (Section 301) 207 defamatory libel truly fits the facts, a prosecutor may still want to consider charging the aggravated section 300 offence instead because it sits on a sturdier constitutional foundation. Though it has stayed below the radar, the defamatory libel offence remains a lingering threat to free expression in Canada. Its existence threatens to deter important civic speech and even the sharing of truths. That it has not chilled expression in this country even further may owe simply to the fact that too few citizens know that it is on the books. The next time Parliament looks to clean up the offences in Criminal Code, it ought to forego the easy targets of dueling or witchcraft and prioritize a crime which weakens Canada’s basic commitment to free speech. It should take up the forward-looking call made by the Law Reform Commission over three decades ago - and ask itself whether besmirching someone’s honour and reputation should still be a criminal matter in a 21st century liberal democracy. At the least, Parliament should engage with the question of how to limit the criminal law’s reach to truly egregious behaviour. If one thing has become apparent in this debate, it is that this centuries-old crime does not draw those lines in the way most Canadians would choose to, if we were to start from scratch today. 208 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Hart Failure: Assessing the Mr. Big Confessions Framework Five Years Later C H R I S T O P H E R L U T E S * [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. — Chief Justice Lamer.1 With remarkable ease, the officers quickly and deeply engrained themselves in the respondent’s life. By early April, less than two full months into the operation, the respondent told [the undercover officers] that they were like brothers to him and that he loved them — a sentiment he would repeat throughout the rest of the operation. Indeed, the respondent preached that loyalty to this “family” was more important to him than money. — Justice Moldaver.2 ABSTRACT Five years ago, the Supreme Court of Canada (SCC) changed the law surrounding confessions gleaned from controversial “Mr. Big” Operations (MBOs) — undercover police investigations where the police pose as organized crime members who take an accused person under their wing, befriend them, give them employment, and eventually elicit a confession. In R v Hart,3 the SCC ruled that these confessions were presumptively * 1 2 3 Christopher Lutes is a recent graduate of the University of New Brunswick, Faculty of Law. The author would like to sincerely thank Dr. Nicole O’Byrne and Alicia Yvonne for their comments and guidance on previous drafts, as well as the editors of the Manitoba Law Journal. R v Rothman, [1981] 1 SCR 640 at 697, 121 DLR (3d) 578 [Rothman]. R v Hart, 2014 SCC 52 at para 137 [Hart]. Ibid at paras 79, 85–86. 210 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 inadmissible and subject to a two-part framework meant to safeguard against coercive police tactics and fill the “legal vacuum” where the legal protections afforded to accused persons in detention did not apply. At the first stage, the judge must weigh the prejudicial effect of the confession against its probative value on a balance of probabilities standard.4 If the confession is more probative than prejudicial, analysis moves to the second stage to determine whether an abuse of process has occurred.5 In the intervening years, it has become apparent that the new framework has not had its intended effect. This article engages in an empirical analysis of post-Hart jurisprudence and finds that the admission rate of Mr. Big confessions has actually increased since the framework was implemented. This article’s doctrinal analysis reveals that this is indicative of a deeper problem, where increased protections for accused people in detention has led to police circumventing the law and targeting the accused when they are unaware that they are under the thumb of the state. Keywords: confession; Mr. Big; policing; undercover; abuse of process; reliability; prejudicial effect; legal vacuum I. INTRODUCTION ince the early 20th century, it has been a principle of the common law that confessions to the police must be given voluntarily to be admissible as evidence.6 However, legal developments in the intervening years have resulted in that principle not applying in certain circumstances. Accused persons are given the right to speak or to remain silent, which is entrenched by section 7 of the Canadian Charter of Rights and S 4 5 6 Ibid at paras 94–110. Ibid at paras 111–18. This principle was popularized in Ibrahim v The King [1914] AC 599 at 609, [1914-15] All ER Rep [Ibrahim], which held “[i]t has long been established… that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.” There is support for the assertion that the principle is considerably older with Lord Sumner’s later assertion that “[t]he principle is as old as Lord Hale.” Lord Hale died in 1676. See Rothman, supra note 1 at 662. Hart Failure 211 Freedoms.7 However, this right does not apply when the accused is not in police detention.8 There is also the common law voluntary confession rule set out in R v Oickle,9 which is meant to ensure the voluntariness of confessions by limiting the use of inducements, oppression, and police trickery. However, this rule only applies when the confession is given to someone that the accused subjectively believes to be a person in authority.10 Both of these protections are based on the idea that when a person comes under the eye of the state, they become inherently vulnerable to its ability to command resources, potentially undermining the voluntariness of their confession by creating a fear of prejudice or hope of advantage.11 Yet, the limited scope of these rights has incentivized law enforcement to engage in undercover operations where these protections do not apply.12 This situation has been recognized as a legal vacuum — a scenario where there is no applicable law to limit state action or guide future triers of fact.13 These vacuums are dangerous because they give rise to conditions where the police are allowed to operate with unchecked authority and because they give the judiciary no lens through which to analyze this conduct.14 Perhaps the most notorious kind of undercover investigation operating in this vacuum is the “Mr. Big” Operation (MBO). These operations involve the police luring someone that they believe has committed a murder into joining a fictitious criminal organization, building their trust, and giving them money to complete work that the accused believes to be criminal in nature. After a few months, the accused will be offered full membership in the organization subject to the approval of its boss, the eponymous Mr. Big. This boss will reveal knowledge that the accused is the suspect in an unsolved murder and place pressure on the accused to confess so that the organization can help make the problem go away. The accused usually confesses. The issues with MBOs are numerous and well-documented,15 7 8 9 10 11 12 13 14 15 s 7, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. R v Hebert, [1990] 2 SCR 151 at 154, [1990] 5 WWR 1 [Hebert]. 2000 SCC 38 [Oickle]. Rothman, supra note 1 at 663. Ibrahim, supra note 6 at 609. Hart, supra note 2 at para 79. Ibid. Ibid at paras 78–80. See e.g. Timothy E Moore, Peter Copeland & Regina A Schuller “Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy” (2009) 55:3 Crim LQ 348 at 357; Elizabeth Sukkau & Joan Brockman, “Boys, You 212 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 from their high cost to the degree of coercion that often accompanies them. However, they also boast remarkably high conviction rates,16 creating an incentive for police forces to use them in the face of letting someone they believe to be guilty to walk free. The Supreme Court of Canada (SCC) weighed in on the admissibility of MBOs in Hart,17 after hundreds of these operations had been conducted. The Court recognized that a legal vacuum exists, but explicitly declined to extend the right to silence or voluntary confession rule to undercover operations.18 Instead, Justice Moldaver, writing for the majority, attempted to fill the vacuum by creating a new framework for determining the admissibility of these confessions.19 The decision held that confessions gleaned from MBOs were now presumptively inadmissible and subject to a two-part framework to determine if this presumption could be overcome.20 The first part involves the trier of fact balancing the probative value of the confession against its prejudicial effect.21 If the probative value outweighs prejudice on a balance of probabilities, the analysis moves to the second part of the framework where the onus switches to the defence to argue that there has been an abuse of process.22 The confession is excluded if either an abuse of process is found or if the prejudicial effect outweighs the probative 16 17 18 19 20 21 22 Should All Be in Hollywood: Perspectives on the Mr. Big Investigative Technique” (2015) 48:1 UBC L Rev 47; Simon Bronitt, “The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe” (2004) 33:1 Comm L World Rev 35; David Milward, “Opposing Mr. Big in Principle” (2013) 46:1 UBC L Rev 81; Adriana Poloz, “Motive to Lie? A Critical Look at the ‘Mr. Big’ Investigative Technique” (2015) 19:2 Can Crim L Rev 231; Kassin et al, “Police-Induced Confessions: Risk Factors and Recommendations” (2010) 34:1 L & Human Behavior 3; Jason MacLean & Frances E Chapman, “Au Revoir, Monsieur Big?: Confessions, Coercion, and the Courts” (2016) 23:2 Crim Reports 1; Amar Khoday, “Scrutinizing Mr. Big: Police Trickery, the Confessions Rule and the Need to Regulate Extra-Custodial Undercover Interrogations” (2013) 60:2 Crim LQ 277; Lisa Dufraimont, “Hart and Mack: New Restraints on Mr. Big and a New Approach to Unreliable Prosecution Evidence” (2015) 71 SCLR (2d) 475; Steve Coughlan, “Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big” (2015) 71 SCLR 415; Adelina Iftene, “The ‘Hart’ of the (Mr.) Big Problem” (2016) 63 Crim LQ 151. Sukkau & Brockman, supra note 15 at 49. Supra note 2 at paras 4, 62. Ibid at paras 64, 79, 166, 174–75. Ibid at paras 3, 84–90. Ibid at paras 84–89. Ibid at paras 85–89. Ibid at paras 85, 113. Hart Failure 213 value.23 While this decision appeared to give accused persons relief that was previously denied by the narrow application of the voluntary confession rule and the right to silence, there are issues with the decision’s framework and scope that have prevented it from achieving its aim of filling the legal vacuum. Justice Moldaver’s decision is unclear as to what is actually problematic about MBOs, contending in one paragraph that the framework is necessary to protect against the unique dangers that confessing to a powerful Mr. Big figure poses,24 then implying in another paragraph that there does not need to be a Mr. Big figure for the framework to apply.25 Furthermore, the decision explicitly refuses to extend the scope of the new framework to other kinds of undercover operations, holding that this would be a speculative endeavour,26 even though non-Mr. Big undercover operations have been used before and since Hart was decided. This has resulted in great uncertainty, with some subsequent courts applying the framework against the explicit direction of the Supreme Court and others refusing to apply it by differentiating the facts based on arbitrary distinctions.27 Additionally, the Hart framework did not create adequate safeguards against the problems that tend to occur in undercover policing. Undercover investigations are premised on the use of state resources to create elaborate scenarios that are meant to lure the accused into a false reality.28 The intention of these scenarios is not necessarily to determine the truth of what happened, but rather to elicit a confession from someone who is presumptively innocent.29 Psychological literature is clear that people are highly susceptible to the power of suggestion, meaning the creation of a 23 24 25 26 27 28 29 Ibid at paras 85–89. Ibid at paras 66–68. Ibid at para 85. Ibid at para 85. See footnote 5 of the decision. See e.g. R v Sharples, 2015 ONSC 4410 [Sharples] and where the Hart framework was applied in the context of a one-on-one friendship struck between an undercover officer and the accused that involved no illegal activity, and R v Amin, 2019 ONSC 3059 [Amin], where the undercover operation involved the forging of an ostensibly legitimate business venture. Conversely, see R v Nuttall, 2014 BCSC 1404 where the police recruited the defendants into a fictitious terrorist enterprise bearing many similarities a MBO. Despite these similarities being recognized by Bruce J., she did not apply the Hart framework. Supra note 2 at para 172. Ibid at paras 10, 140. 214 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 fabricated reality around the accused can give rise to the concern that a confession was not entirely given of the accused’s own volition.30 The Court recognized these facts to a certain extent in Hart but failed to adopt a standard strict enough to prevent coerced confessions. This article will argue that the Court in Hart made the mistake of focusing on the symptoms of unreliable undercover confessions rather than the underlying condition of police coercion and rights avoidance. These issues of scope and coercion have largely gone unrecognized in the academic scholarship subsequent to Hart. There has heretofore been no real analysis of whether Hart has actually changed police behaviour or made it more difficult for coerced confessions to be admitted as evidence. This article shall endeavour to rectify this gap in knowledge by determining the depth and breadth of the issues that the case has created or failed to resolve. To achieve that aim, this article engaged in an empirical analysis of the undercover confessions that have relied on Hart as precedent. This article analyzed every case that cited Hart and involved an undercover confession, resulting in a total of 42 adjudications of admissibility under the new framework. These results include decisions at the voir dire threshold admissibility stage, trial-level determinations of guilt, and appellate reviews. The empirical analysis reveals that despite Hart’s assertion that it places greater strictures on police behaviour and helps prevent the admission of unreliable confessions, the admission rate of Mr. Big confessions has actually increased in the years since the framework was implemented. Regarding other kinds of undercover operations, the analysis shows that there has been little consistency in the application of the Hart framework to non-MBO undercover confessions. Some cases applied it completely, some refused to apply it outright, and others used some, but not all, of the elements of the framework. This is indicative of a lack of foresight on the part of the SCC, who neglected to implement any sort of test to determine whether the facts of a non-MBO undercover confession warrant extending the framework’s applicability. This article will first examine why MBOs and other undercover operations are an attractive tool for law enforcement, revealing why they continue to be used and highlighting some of their inherent dangers. It will then go into detail on the framework created by Hart and engage in a 30 Steven M Smith, Veronica Stinson & Marc W Perry, “Using the ‘Mr. Big’ Technique to Elicit Confessions: Successful Innovation or Dangerous Development in the Canadian Legal System” (2009) 15:3 Psychol Pub Pol’y & L 168 at 181–82. Hart Failure 215 qualitative analysis of how the decision has affected the use of undercover operations. It will conclude that the decision fails to coherently define the framework’s scope, leading to inconsistent jurisprudence in both MBOs and non-MBO undercover operations. It will also find that the decision does not adequately account for the coercion and manipulation inherent to these operations, which has the potential to decrease the voluntariness of the confessions gleaned from them. Finally, this article will engage in a doctrinal and empirical analysis of each constituent part of the Hart framework and show that the purported ameliorative effects of the framework have been largely illusory. These findings lead to the conclusion that something more proactive is needed to adequately protect the voluntariness of confessions and curb the use of highly coercive, and sometimes violent, police practices. II. THE MOTIVE BEHIND UNDERCOVER INVESTIGATIONS AND MBOS A. What is a MBO? A MBO is a kind of undercover investigation that is used when traditional investigative methods have failed.31 MBOs are typically deployed in murder cases where police have determined that they do not have an adequate amount of evidence to find the accused guilty beyond a reasonable doubt. Law enforcement began to use these operations in the 1990s, parallel to Charter jurisprudence creating additional voluntariness and reliability safeguards that apply when an accused is in detention.32 Their use has also spread to Australia and New Zealand, but they originated in Canada.33 MBOs can begin at any time, from when the case first goes cold to multiple years after the purported crime occurred. They begin with an officer or officers befriending the accused in a meeting that is supposed to appear spontaneous to allay suspicion. This is known as “the bump”.34 This initial meeting may or may not involve an element of criminality. For 31 32 33 34 Ibid at para 1. Bronitt, supra note 15 at 36; Iftene, supra note 15 at 151. John Anderson & Brendon Murphy, “Confessions to Mr. Big: A New Rule of Evidence?” (2016) 20:1 Intl J Evidence & Proof 29 at 40–41. See e.g. R v Moir, 2016 BCSC 1720 at para 253; R v RK, 2016 BCSC 552 at para 40. 216 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 instance, in R v Shaw,35 the undercover officer posed as a detainee in a jail lockup with the accused. Other cases have a more innocuous initial meeting, like in R v Caissie36 where the accused won a fictitious contest to see an NHL game and the undercover officers posed as co-winners.37 The accused meets with the undercover officers on multiple occasions, with each occasion being referred to as a “scenario” in police parlance.38 After a certain level of trust has been established, the officer will slowly reveal that they are a member of a criminal organization. They recruit the accused into completing a series of low-level tasks for their organization, offering “a pathway to financial rewards and close friendships.”39 This charade continues for a few months as the accused gets promoted through the ranks of the fictitious organization, receives increasing cash payouts for completing work, and sometimes gets treated to a lavish lifestyle involving fine dining, trips to strip clubs, and stays in expensive hotels.40 They are also sometimes exposed to the lengths that the organization is willing to go to achieve its aims, including the use of fake kidnappings and mock executions.41 After the accused has sufficiently climbed the ladder, the undercover officer will ask them if they are interested in becoming a full-fledged member of the organization. However, induction comes with a catch. Membership is subject to the approval of the head of the organization, the eponymous “Mr. Big,” who is portrayed by another undercover officer. In the meeting with Mr. Big, the accused is told that their membership application has hit a snag — the organization has a corrupt police officer on their payroll, and they were able to discover that the police are investigating the accused for an unsolved murder. However, the organization has a solution: Mr. Big has a relative who is dying of a terminal disease and is willing to confess to the crime. All that the accused must do is provide as much detail as possible about how and why they committed the crime. An alternative method involves the accused being goaded into confessing to the crime as an 35 36 37 38 39 40 41 2017 NLTD(G) 87 at para 8 [Shaw]. 2018 SKQB 279 [Caissie]. Ibid at paras 107, 109. See e.g. Hart, supra note 2 at para 133. Ibid at para 1. See e.g. Caissie, supra note 36 at para 328; R v Ledesma, 2017 ABCA 131 at para 37 [Ledesma]. See e.g. R v M(M), 2015 ABQB 692 at paras 30–34 [M(M)]; R v Randle, 2016 BCCA 125 at para 4 [Randle]. Hart Failure 217 illustration of their criminal fortitude. This method, however, has been viewed with more scrutiny by the courts. Either way, if the accused confesses, the veil soon drops and they are arrested, tried, and likely found guilty.42 MBOs are just one subset of a wider range of undercover operations that are available for the police to use. The outline given above is quite specific and not all operations that are labelled as MBOs by the courts unfold in that way. For instance, some MBOs involve the accused confessing even before the Mr. Big character enters the operation.43 Others involve ostensibly legitimate operations — for instance, opening a hookah bar together44 — and the subject of crime is brought up through conversation. The forms that these investigative techniques can take are infinite. This will be addressed later in the paper to illustrate that the framework created by the Supreme Court in Hart is only meant to apply to one specific type of operation, creating issues when it is extended to non-MBO undercover operations with facts not contemplated by the framework. B. Why are MBOs Used? The continued use of MBOs and undercover investigations is the result of multiple intersecting factors. First, they typically occur as a sort of “Hail Mary” attempt when typical methods of investigation have been exhausted or there is not enough evidence to bring charges against the accused. Often, the accused was detained in the conventional manner and questioned by police but did not confess. In these cases, the police are faced with the option of either letting someone that they believe to be guilty to walk free or resorting to methods that fall outside of the traditional police investigation paradigm. The police usually believe that the accused is factually guilty45 and thus consider launching an MBO as the best way to ensure that justice is served. This is in part because many of the confessions elicited through MBOs are bolstered by evidence that would seemingly not be known to a person who did not commit the crime. This includes so-called “holdback evidence” — evidence that the police do not disclose to the public with the idea that a suspect who conveys knowledge of its existence must have been involved in 42 43 44 45 Hart, supra, note 2 at paras 56–62. See e.g. R v Lee, 2018 ONSC 308; R v Potter, 2019 NLSC 8 [Potter]. Amin, supra note 27 at para 7. Despite the fact that the accused is legally innocent until proven otherwise. 218 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the crime. The probative value of this kind of evidence is often overstated, as holdback evidence can be transmitted to the accused via prior interactions with the police. This can create the erroneous perception that the accused has implicated themselves by corroborating the existence of the evidence.46 There is also proof that this kind of evidence is accepted by courts, despite inconsistencies between it and the accused’s confession.47 Nevertheless, this kind of evidence has the patina of reliability and its presence in prior MBO confessions creates a justification for future MBO use, absent any judicial scrutiny. This justification is bolstered by the apparently overwhelming legal success of MBOs. In a set of self-reported statistics, the RCMP has held that MBOs have a confession rate of 75% and a conviction rate of 95%.48 Academic studies conducted prior to Hart contend that the conviction rate is lower than that, but not by much. One study of 81 MBO confessions yielded an 88% conviction rate49 and another study of 153 MBO cases found a 91.5% conviction rate.50 With these numbers, it is easy to see why these kinds of investigations are so favoured by law enforcement, especially considering the alternative of not pursuing the suspect. Finally, there is the contention that police engage in undercover operations because it allows them to circumvent established Charter rights and common law doctrine that are meant to protect people accused of a crime.51 Until Hart, undercover confessions took place in a legal vacuum where two such protections — the section 7 Charter right to silence and the voluntary confession rule — did not apply. This created a set of circumstances where the police were subject to fewer restrictions when they covertly investigated a suspect than when the suspect was in custody.52 This lack of restrictions reified the appropriateness of these techniques and created a police culture that legitimized the use of highly intrusive 46 47 48 49 50 51 52 Kent Roach, "Wrongful Convictions in Canada" (2012) 80:4 U Cin L Rev 1465 at 1507. See e.g. Caissie, supra note 36 at paras 402–03; R v Kelly, 2017 ONCA 621 at paras 41– 43 [Kelly]; R v Johnston, 2016 BCCA 3 at para 68 [Johnston]. Poloz, supra note 15 at 237. Sukkau & Brockman, supra note 15 at 49. Ibid. See e.g. Iftene, supra note 15 at 168, where the author argues that in employing MBOs “the state is virtually taking control of one’s life, takes advantage of his greed or addictions, and uses them to obtain indirectly what it is forbidden by law to obtain directly.” See also Khoday, supra note 15 at 278. Bronitt, supra note 15 at 36. Hart Failure 219 undercover operations.53 By not filling the legal vacuum, courts neglected to recognize the underlying issue with these kinds of investigations; the fact that they give the state the opportunity to take control of a person’s life and exploit their weaknesses in environments that are free from any external scrutiny.54 The inapplicability of the voluntary confession rule and the right to silence warrants further analysis in order to illuminate the arbitrary nature of their inapplicability to MBOs. The voluntary confession rule is used with the understanding that inculpatory statements made by an accused may be rendered involuntarily due to the presence of threats or inducements made to “persons in authority”.55 Pre-Hart attempts to exclude undercover confessions on these grounds are numerous, but all of them have failed. This is because Rothman56 limited the scope of who could be considered a person in authority. The case imparted a subjective test on the person in authority requirement, meaning that, for voluntariness to be an issue, the accused must have believed that the person they were speaking to was a person in authority.57 This means that undercover officers are not subject to the rule, precluding its application. This was explicitly confirmed by the Supreme Court in R v Grandinetti.58 For MBOs, the unavailability of the rule is significant because it protects accused persons from several of the factors inherent to those operations that could overbear the accused’s will. Formulated by Justice Iacobucci for the majority in Oickle, the rule holds that some kinds of threats and promises made to the accused are capable of rendering a confession involuntary.59 While the Court appears to be most concerned with the kinds of threats or promises that could be made by persons in authority and believed by the accused — for instance, the threat of increased penal punishment or the promise of a lenient sentence — the decision contemplates other kinds of inducements that would also fall afoul of this rule.60 Some of the inducements contemplated are omnipresent in MBOs and would likely have a severe negative impact on the voluntariness of the confession if the rule was extended. For example, 53 54 55 56 57 58 59 60 Poloz, supra note 15 at 236. Iftene, supra note 15 at 168. Oickle, supra note 9 at para 24. Supra note 1. Ibid at 641. 2005 SCC 5 [Grandinetti]. Oickle, supra note 9 at paras 47–57. Ibid at paras 48–57. 220 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 most Mr. Big confessions come in the wake a promise of full-fledged membership in the organization, which in turn comes with a promise of financial reward.61 This kind of quid pro quo arrangement is exactly what is warned of in Oickle62 and it would likely contravene the rule given the assertion in that case that inducements can be very subtle and nuanced, yet still render a confession involuntary.63 Even more relevant to MBOs is that the confession rule also prohibits the use of police trickery that would shock the conscience of the community.64 This prong of the rule is more focused on preserving the integrity of the justice system than voluntariness. Justice Iacobucci cites two examples of what might rise to this standard, holding that “a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin” would shock the conscience of the community.65 The former example is especially relevant in the context of MBOs where police officers assume false identities to deceive the accused for months at a time, intending to elicit a confession. While the standard for a judicial finding of community shock is incredibly high66 and the test’s origins do not offer guidance as to what would and would not shock the community,67 it is clear that the ambit of the voluntary confession rule applies to authorities disguising themselves to elicit a confession in some circumstances, but not others. This highlights the arbitrary nature of the person in authority requirement and reifies the fact that MBOs were conducted in a legal vacuum prior to Hart. 61 62 63 64 65 66 67 See e.g. Caissie, supra note 36 at para 353; R v Buckley, 2018 NSSC 1 at para 76 [Buckley]; R v Wruck, 2016 ABQB 370 at paras 31, 33 [Wruck]. Supra note 9 at para 57. Justice Iacobucci holds that “[t]he most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.” Ibid at paras 53–54. Ibid at paras 65–66. Ibid at para 66. Khoday, supra note 15 at 281. The test was formulated in Rothman, supra note 1 and refined in R v Collins, [1987] 1 SCR 265, 15 WCB (2d) 387 [Collins] before becoming situated within the voluntary confession rule. None of those cases speculate about what would shock the community’s conscience beyond Chief Justice Lamer in Rothman, supra note 1 at 697 that “generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community”. There is no elaboration regarding what qualities of imitating a chaplain or lawyer would shock the community or what part of pretending to be a drug addict would not. Hart Failure 221 The section 7 right to silence is not subject to the person in authority requirement, but it also does not apply to MBOs. The right is meant to protect the accused from self-incriminating, but it does not apply in situations where the accused is not in detention.68 The failure to extend this right to undercover investigations contravenes the underlying reason behind the right for two reasons. First, the purpose of the right is to “prevent the use of state power to subvert the right of an accused to choose whether or not to speak to authorities.”69 This concern still exists regardless of whether the accused is knowingly in the custody of the police. In fact, the concern is arguably greater when undercover officers are involved because it suggests that the officers are attempting to obtain indirectly what they could not obtain directly.70 This is supported by the emergence of the MBO in the 1990s occurring simultaneously with the bolstering of procedural rights for accused persons. The second reason is that the use of police subterfuge to trick the accused into waiving their right to silence would be legally considered a violation of their right to silence if the accused was in detention.71 The only functional difference between these kinds of cases and undercover investigations is that the accused does not subjectively believe themselves to be detained in the latter scenario, which is not supposed to be relevant to a right to silence analysis.72 III. R V HART A. The Hart Framework Despite the myriad convictions that have been attained by using MBOs, legal scholars and practitioners have raised concerns about their continued deployment. These concerns culminated in Hart,73 which was the first time that the Supreme Court ruled on the general admissibility of Mr. Big confessions. The case involved Nelson Hart, a Newfoundlander who was 68 69 70 71 72 73 Hebert, supra note 8 at 154. Bronitt, supra note 15 at 67. Iftene, supra note 15 at 195. This is especially true in the context of MBOs where the accused is often unsuccessfully questioned by the police before the operation is deployed. Hebert, supra note 8 at 154. This can occur when an officer poses as a cellmate when the accused is in custody. Ibid at 155–56, 164, 167–68. Supra note 2. 222 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 accused of drowning his two infant daughters.74 Unable to find sufficient evidence to convict him, the police formulated a MBO that drew him into a fictional world of crime where he was given everything he did not have in his actual life: financial security, social acceptance, and friendship.75 Over the span of a four-month operation, he was paid over $15,000 for his work.76 He confessed only after the Mr. Big figure repeatedly prodded him and suggested that he was lying about the claim that his daughters' deaths were an accident.77 At the Supreme Court, Justice Moldaver found that Mr. Big confessions give rise to a triad of concerns: 1) the potential that the confession will be unreliable due to the threats and inducements present in MBOs78 2) the concern that triers of fact will hold prejudice against the accused for their willingness to participate in crimes they believed to be real79 and 3) the “risk that the police will resort to unacceptable tactics in their pursuit of a confession.”80 In response, the Court held that Mr. Big confessions were now presumptively inadmissible and subject to a voir dire where a two-prong test would be applied.81 The first prong engages in a balancing of probative value against prejudicial effect.82 The presumptive inadmissibility means that the Crown bears the burden of showing that the former outweighs the latter.83 The probative value of a confession is assessed in terms of its overall reliability, which is determined by how closely its contents align with objective, ascertainable facts.84 Hart sets out a two-step process for determining the reliability of the accused’s confession, including factors such as the length of the operation, the circumstances of the confession, and the presence of threats or inducements.85 The second part of the reliability analysis looks to evidence that might confirm the veracity of the 74 75 76 77 78 79 80 81 82 83 84 85 Ibid at para 16. Ibid at paras 22–28, 68. Ibid at para 38. The operation as a whole cost $413,268. Ibid at paras 34–35. Ibid at paras 68–78. Ibid at paras 73–77. Ibid at para 78. Ibid at paras 85, 89. Ibid at para 108. Ibid at paras 89, 108. Ibid at paras 99–100. Ibid at para 102. Hart Failure 223 confession itself, like the presence of factual details not already known by the public or whether any additional evidence is discovered.86 After the probative value is analyzed, the inquiry moves to determining the degree to which the MBO has prejudiced the accused.87 Under the Hart framework, prejudice is limited to a concern for bad character evidence being admitted.88 This stems from the fact that during the operation, the accused commits acts that he or she believes to be criminal.89 Based on these acts, there is a risk that the trier of fact will engage in reasoning prejudice, which is the belief that because the accused was willing to participate in criminal acts, they are also guilty of the crime with which they are charged.90 The court is also concerned with moral prejudice, which is the risk that the trier of fact will believe that the accused should be punished for the bad acts that they committed as part of the operation, regardless of their guilt in the crime for which they have been arrested.91 Once probative value and prejudicial effect are determined, the trier of fact must weigh them against each other. If the prejudicial effect outweighs the probative value, the analysis stops there, and the confession is excluded. However, if the probative value prevails, the analysis moves to the next prong. Justice Moldaver acknowledged that comparing these factors will never be an exact science.92 To this point, he recognized that probative value and prejudicial effect are fundamentally concerned with different aspects of the law. Probative value is an evidentiary concept that concerns the degree to which something can be factually proven, whereas prejudicial effect is fundamentally concerned with the fairness of the trial.93 This has the potential to invite trial judges to place more emphasis on the factor they believe to be more important, especially when this kind of analysis is highly discretionary and typically afforded great deference by appellate courts.94 The second prong of the test involves analyzing whether there was police misconduct in the operation that led to an abuse of process.95 The 86 87 88 89 90 91 92 93 94 95 Ibid at para 105. Ibid at para 85. Ibid. Ibid at para 73. Ibid at paras 74, 106. Ibid. Ibid at para 109. Ibid. Ibid at para 110. Ibid at para 86. 224 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 burden of proof is on the accused to show that there was state conduct that society would find unacceptable and which threatens the integrity of the justice system.96 Working in the accused’s favour is the fact that Hart built off of the then-recent case of R v Babos.97 Babos fortified the residual category of the abuse of process doctrine pertaining to state conduct that risks undermining the integrity of the judicial process.98 The Court in Hart purported to recognize this more robust understanding of the doctrine,99 holding that the presence of coercion on the part of the police in obtaining the confession would likely amount to an abuse of process.100 However, Justice Moldaver, in Hart, also recognized that the doctrine has provided little protection in the context of MBOs.101 This is still the case. Since Hart was decided, only one Mr. Big confession has been excluded because of an abuse of process.102 The only cases where it seems to be relevant is when the undercover officers use actual or simulated violence during the operation.103 If the police conduct is determined to be an abuse of process, then the confession is excluded and it is up to the state to determine whether they want to proceed. Before addressing the problems inherent to the framework, it is important to note that the decision has created much uncertainty regarding undercover police investigations that do not fit the specific definition of MBOs. Hart definitively closed the door on the use of certain types of defences or grounds for excluding confessions derived from undercover stings, either by situating them within the confines of the Hart test or by explicitly ruling that they are not applicable to undercover confessions at all.104 These grounds include invoking the Charter section 7 right to silence,105 the voluntary confession rule, the abuse of process doctrine by itself, the hearsay rule, and the judicial gatekeeper discretionary analysis.106 96 97 98 99 100 101 102 103 104 105 106 Ibid at paras 89, 113. 2014 SCC 16 [Babos]. The majority decision in this case was also penned by Justice Moldaver. Ibid at para 31. Supra note 2 at para 84. Ibid at para 115. Ibid at para 114. R c Laflamme, 2015 QCCA 1517 [Laflamme]. Ibid at para 56; Supra note 2 at para 116. Supra note 2 at paras 64–65. Charter, supra note 7, s 7. Though the right to silence is not actually part of the Charter text, it has subsequently been read in as a principle of fundamental justice. Moore, Copeland & Schuller, supra note 15 at 357–76. Hart Failure 225 In the absence of any coherent guidance on what cases do and do not necessitate the application of the Hart framework, it is unclear whether these remedies are still available to non-Mr. Big undercover operations or whether they too have been subsumed by Hart. B. Categorization Problems One notable impact that Hart has had on the general admissibility of undercover confessions was that it unintentionally created a morass of categorization and application problems. These problems are apparent in the Hart decision itself, which boasts numerous internal contradictions regarding whether the framework should apply solely to MBOs or other kinds of undercover investigations as well. These contradictions become fully cognizable in the subsequent jurisprudence, which tends to make this determination based on meaningless distinctions that fail to consider the reasons why the framework exists in the first place. In Hart, the most direct analysis of the new framework’s scope comes from a footnote: This rule targets Mr. Big operations in their present form. A change in the way the police use undercover operations to elicit confessions may escape the scope of this rule. However, it is not for this Court to anticipate potential developments in policing. To do so would be speculative. Time will tell whether, in a future case, the principles that underlie this rule warrant extending its application to another context.107 This is problematic for three reasons. First, it erroneously implies that MBOs are the only kind of undercover operation that the police use, and that the use of non-Mr. Big undercover operations is ‘speculative’ and best left for future courts to adjudicate. Second, it sends a signal to future judges that other kinds of undercover operations are not subject to the rule. This has the potential to misguide judges, making them look at the surface-level facts of whether there was a fictitious criminal organization with a “Mr. Big” involved rather than the principles that decrease the reliability and voluntariness of confessions. Finally, it leaves an opportunity for police officers to slightly alter the design of their operations to avoid the scrutiny of the framework. This does little to address the legal vacuum that the Hart framework was supposed to fill. These problems are compounded by the fact that Justice Moldaver contradicts the above assertion several times throughout his decision. He 107 Hart, supra note 2 at para 85. See footnote 5. 226 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 holds that the framework should apply when “the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him.”108 This categorization is a broader understanding of a typical MBO and widens the scope of the framework’s application beyond MBOs “in their present form”.109 Under this conception, there is no Mr. Big required for the framework to apply. This contradicts the decision’s later assertion that the framework is necessary because confessions to a Mr. Big figure present unique dangers.110 However, this assertion is once again contradicted by the fact that Justice Moldaver uses the framework to exclude all of the three confessions that Hart made, which included a confession to undercover officers who were not playing the Mr. Big role.111 This raises the question of whether the framework is appropriate in circumstances when the only confession is to a non-Mr. Big undercover officer or when there is no Mr. Big at all. Despite the Court’s noncommittal stance, subsequent judges have frequently applied the Hart framework to undercover operations where they believe it is warranted, from low-level one-on-one relationships with undercover officers112 to operations that are very similar to MBOs but different enough to fall outside of Hart’s scope.113 This is perhaps a reflection of the fact that undercover operations take many different forms and applying the framework to non-MBO undercover confessions is a suitable alternative to not analyzing their admissibility at all. Nevertheless, the test has been extended despite the absence of legislation or appellate court guidance on their applicability outside of Justice Moldaver’s footnote. Due to the tentative way that the doctrine was extended, no constituent test was developed to determine whether an undercover operation is factually similar enough to a MBO to warrant the application of the Hart test.114 The test has been applied to undercover operations that are quite far from Hart in terms of the level of deception involved. Emblematic of this is Sharples115 where the police believed that the accused had murdered his girlfriend. Sharples made prejudicial statements in the course of a 108 109 110 111 112 113 114 115 Ibid at para 10. Ibid at para 5. Ibid at paras 66–67. Ibid at paras 13, 24, 29, 147. Supra note 27. R v Ader, 2017 ONSC 4584 at paras 56–63 [Ader]. Hart, supra note 2 at para 219. Supra note 27. Hart Failure 227 friendship with an undercover officer.116 The two met on numerous occasions and the officer confided that he was having issues with a fictional girlfriend to get Sharples to offer relevant information about the death.117 Sharples suggested multiple detailed ways that the officer could “get rid of” his girlfriend but he did not actually confess.118 Despite this lack of a confession and the absence of anything resembling a MBO, Justice Henderson applied the Hart test on a voir dire and declined to admit these statements.119 He held that the statements had little probative value because they were unreliable.120 Specifically, Sharples’ girlfriend did not die in any of the ways that he mentioned and the statements were inconsistent with the relevant forensic evidence.121 On the other hand, the statements he made were highly prejudicial, considering the gruesome detail he went into.122 Excluding the statements on the first prong of the Hart test, Henderson did not analyze the second prong.123 Representative of the other end of the spectrum was R v Zvolensky124 where the undercover operation was based on elaborate deception but was not classified as a MBO. Zvolensky and his two co-accused were suspects in the murder of one of the co-accused’s wife.125 An undercover officer befriended all three of the suspects and concocted a plan to buy a travel canoe company together.126 The undercover officer offered to pay the upfront costs and drew up a detailed business plans to further the ruse.127 Over the span of their communications, the officer claimed to be having trouble with his wife, which escalated to a point where one of the co-accused offered the services of all three to kill the fictional wife.128 After the accused made this offer, the undercover officer asked how they could be trusted.129 One 116 117 118 119 120 121 122 123 124 125 126 127 128 129 Ibid at paras 8–14, 18. Ibid at paras 8–14, 20. Ibid at paras 20–30. Ibid at paras 38–63. Ibid. Ibid at paras 44–53. Ibid at paras 55–57. Ibid at para 63. 2017 ONCA 273 [Zvolensky]. Ibid at para 1. Ibid at paras 37–41. Ibid at paras 40–41. Ibid at paras 37–65. Ibid at para 16. 228 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 of the co-accused answered by offering details of the murder which implicated all three of them.130 After the statements were admitted at trial, Justice Pardu on appeal chose to affirm their initial admission, applying the Hart framework despite acknowledging that the investigation was nothing like a MBO.131 She ruled that the reliability of the confession was high because it resulted in evidence of the murder being discovered.132 She also affirmed the trial judge’s decision to edit out the parts of the evidence that were prejudicial to the accused and did not have an impact on the confession.133 Justice Pardu ruled that there was no abuse of process, but did not give any reasons as to why.134 In the post-Hart case Kelly,135 the Ontario Court of Appeal provided a principled way of determining whether Hart is applicable. The Court in Kelly held that when the three danger factors from Hart (unreliable confessions, prejudice to the accused, and police misconduct) could be at play in an undercover investigation leading to a confession, the Hart test should be applied.136 Since the case is relatively recent, it is difficult to determine the extent to which it will become embedded in the jurisprudence. But the model it proposes is valuable because it reflects a principled method of analyzing whether an undercover operation should be subject to the Hart framework, rather than one based on mere factual similarity. In the absence of Supreme Court guidance on these edge cases, judges have recognized that confessions attained through undercover investigations are inherently problematic and are thus likely to apply a framework that recognizes this fact, even if it was not explicitly designed to be extended in this manner. C. Psychological Consequences of Undercover Operations The Hart framework also largely fails to address the psychological implications of being the target of an undercover police investigation. While the Supreme Court cites the leading scholarly article on false confessions,137 it does not go into any detail on the actual findings or meta-analysis of the 130 131 132 133 134 135 136 137 Ibid at paras 51–65. Ibid at paras 74–93. Ibid at para 86. Ibid at paras 97–98. Ibid at para 78. Supra note 47. Ibid at paras 35–36. Kassin et al, supra note 15. Hart Failure 229 report. The report reveals that the human psyche can be incredibly malleable in the face of psychological tactics used by officers in eliciting a confession.138 Situations involving deception are by definition manipulative and have the ability to falsely alter people’s perceptions, beliefs, and behaviours.139 Kassin et al. contend that humans are inherently social beings who are “highly vulnerable to influence from change agents who seek their compliance.”140 This is compounded in circumstances where the accused is particularly young or suffers from a mental disorder.141 These factors show that the Supreme Court’s concerns about the voluntariness of confessions in Oickle142 are still relevant even when the accused does not have a subjective belief that they are speaking to a person in authority. Mr. Big figures and other members of the fictional criminal organization are not considered persons in authority in the way the jurisprudence has developed,143 but they are often still perceived as authority figures to the accused. Despite the inability to hold out state-sanctioned threats or inducements that would render a confession involuntary, they are still legally able to implicitly threaten the accused, as well as offer inducements,144 which can include promises of money and social status.145 This has the potential to undermine 138 139 140 141 142 143 144 145 Ibid at 12. Ibid at 17: “Over the years, across a range of sub-disciplines, basic research has revealed that misinformation renders people vulnerable to manipulation. To cite but a few highly recognized classics in the field, experiments have shown that presentations of false information--via confederates, witnesses, counterfeit test results, bogus norms, false physiological feedback, and the like--can substantially alter subjects' visual judgments (Asch, 1956; Sherif, 1936), beliefs (Anderson, Lepper, & Ross, 1980), perceptions of other people (Tajfel, Billig, Bundy, & Flament, 1971), behaviors toward other people (Rosenthal & Jacobson, 1968), emotional states (Schachter & Singer, 1962), physical attraction (Valins, 1966), self-assessments (Crocker, Voelkl, Testa, & Major, 1991), memories for observed and experienced events (Loftus, 2005), and even certain medical outcomes, as seen in studies of the placebo effect (Brown, 1998; Price, Finniss, & Benedetti, 2008).” Ibid at 15. Ibid at 19. Supra note 9. R v Hodgson, [1998] 2 SCR 449 at para 16, 163 DLR (4th) 577. A person in authority is “anyone formally engaged in the arrest, detention, examination or prosecution of the accused”. Oickle, supra note 9 at paras 48–57. See e.g. Shaw, supra note 35 at para 41; Caissie, supra note 36 at paras 353–55; Wruck, supra note 61 at para 18. 230 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 a confession’s voluntariness and convince the accused to act against their own interest in a situation where they are unaware of their legal jeopardy. Another factor relevant to the psychological state of the accused is the circumstances surrounding the crime they are accused of committing. Many of the targets of undercover investigations were first arrested and subsequently released. The social stigma that surrounds being a murder suspect has the potential to render an accused both socially and economically vulnerable.146 The perception of criminality can limit a person’s options for legitimate employment and increase the likelihood that they will join the fictitious criminal enterprise that the police create.147 This “alienation of the suspects from the real world and their submergence into a fictive, rotten one”148 can have a negative effect on the accused’s psyche, especially considering that one necessary purpose of these investigations is to create a relationship of dependence between the accused and the undercover officers.149 IV. DOCTRINAL AND EMPIRICAL ANALYSES This article will now consider each of the elements of the Hart framework and examine them through the lens of their ability to account for the inherent rights tensions in both MBOs and undercover operations more generally. A. Methodology The intention of this research was to determine how the Hart framework has affected the admissibility of not just Mr. Big confessions, but confessions to undercover officers more generally. To achieve this aim, this article restricted the cases analyzed to those that have specifically cited Hart. The online case reporter that revealed the greatest number of cases citing Hart was Westlaw Next Canada, which listed 196 total cases. From there, the number was narrowed down further by manually analyzing each of the cases to determine whether they assessed the admissibility of a confession to an undercover officer. Most of them did not. 146 147 148 149 Khoday, supra note 15 at 284–85. Ibid. Iftene, supra note 15 at 157. Ibid. Hart Failure 231 Any proceedings that were not undercover confession voir dires, trial decisions, or appellate decisions were discarded. Proceedings like bail applications, sentencing reasons, and disclosure applications were all excluded. Furthermore, cases were excluded from the final analysis where the confession was made to someone that the accused believed to be an officer or if the accused was knowingly in detention. Those circumstances are beyond the scope of this article. After excluding everything that was not relevant, 42 decisions remained. These decisions were sub-divided by subject matter, separating MBO confessions from non-MBO undercover confessions.150 There were 30 total MBOs analyzed and nine non-Mr. Big confessions. Each of these decisions were analyzed and the following variables were tracked: Whether the presumption of inadmissibility was applied; • Whether the probative value outweighed the prejudicial effect; • Whether an abuse of process was found; and • Whether the confession was excluded as evidence. • There are two primary limitations to this methodology, both of which stem from restricting the cases examined to those that cite Hart. The first is that there may be cases involving an undercover confession that did not cite Hart. This is potentially problematic since Hart explicitly limits its framework to MBOs.151 However, courts have repeatedly applied the framework to non-MBO undercover confessions, meaning that the scope of this article is able to show the effect that Hart has had on those undercover confessions. The second limitation is that there was no empirical analysis of the admissibility of undercover confessions prior to Hart. This somewhat limits the ability to make conclusions about whether Hart has increased or decreased the rate at which undercover confessions are admitted. However, the fact that Justice Moldaver recognized that these operations “are conducted in a legal vacuum”152 implies that many of them were admitted without scrutiny. Furthermore, there is scholarship that has tracked the prior admission of Mr. Big confessions, serving as a valid means of 150 151 152 The categorization problems mentioned in the above section make it somewhat difficult to determine what exactly the Supreme Court intended to be counted as an MBO. In the analysis, any operation where the accused confessed to a member of a fictitious criminal organization was counted. Hart, supra note 2 at paras 84–85. Ibid at para 79. 232 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 comparison. This article will now proceed to analyze the four elements of the Hart framework through both a doctrinal and an empirical lens. B. Presumption of Inadmissibility While the presumption of inadmissibility appears to be a strong safeguard against the spectre of coerced or unreliable confessions, in practice it is directly undermined by multiple factors. The first is that the entire purpose of a Mr. Big voir dire is to determine the threshold rather than the ultimate reliability of the confession.153 This tends to result in judges overlooking potential issues with the confession’s reliability based on the idea that the problems can be examined more completely at trial where they will go to weight rather than admissibility.154 The second factor concerns cases where the trier of fact was a jury rather than a judge. Concurrent to Hart, the Supreme Court released R v Mack,155 the leading authority on jury charges in the context of MBOs. While the decision engaged in a full Hart analysis,156 notably absent is any holding that Mr. Big confessions are prima facie inadmissible.157 This raises questions about whether the presumption still applies when the trier of fact is a jury. Third, the presumption of inadmissibility is typically only discussed in the voir dire judge’s recitation of the framework and does not tend to guide the overall analysis in any apparent way. It is difficult to tell what an appropriate application of the presumption would look like due to the Court’s vagueness in Hart. Perhaps, as a result, most decisions that discuss the presumptive inadmissibility do so only on a cursory basis. It is also possible that the presumption is meant to be more prospective than curative, evidenced by Justice Moldaver holding that “[c]onfronted by the reality that the Crown will ultimately bear the burden of justifying reception of a Mr. Big confession, the state will be strongly encouraged to tread carefully in how it conducts these operations.”158 While this provides more of a safeguard against confessions obtained through coercion than what existed previously, it appears that the sole effect of the presumption is 153 154 155 156 157 158 Ibid at paras 89, 98. See e.g. Johnston, supra note 47 at para 64; R v West, 2015 BCCA 379 at para 84 [West]; Wruck, supra note 61 at paras 41–44; R v Allgood, 2015 SKCA 88 at para 64; R v Yakimchuk, 2017 ABCA 101 at para 76 [Yakimchuk]. 2014 SCC 58 [Mack]. Ibid at paras 31–42. Iftene, supra note 15 at 165. Hart, supra note 2 at para 92. Hart Failure 233 procedural; the only change that it imposes is requiring a voir dire to have the confession included rather than excluded. Empirically, the presumption is generally followed in MBO cases. In the 32 Mr. Big cases examined, 28 of them specifically mention the presumption of inadmissibility. Three of the cases that do not mention it are appellate decisions and the failure to note the presumption is defensible in context.159 The fourth case that does not apply the presumption, Potter,160 gets it completely wrong and applies a presumption of admissibility.161 However, despite fundamentally misinterpreting what is arguably the key safeguard created by the Hart framework, Justice Handrigan’s analysis otherwise looks exactly like any other Mr. Big voir dire.162 In all of these cases, there is little description of the presumption and what it means beyond a recitation of the framework. In the absence of guidance from the SCC on how the presumption is supposed to inform the analysis of probative value versus prejudicial effect or abuse of process, the result is an admissibility rule that does very little to alter admissibility, even at a threshold level. The data also indicates that the presumption is inconsistently applied to non-Mr. Big undercover confessions. While some cases were willing to extend the entirety of the Hart framework to non-Mr. Big confessions,163 others only applied a quasi-analysis of Hart, choosing to use some factors from the framework and ignoring others. For instance, Ader164 involved a confession to an undercover officer who was posing as a literary agent offering the accused a book deal. The Court concluded that the operation was a variant of an MBO165 and embarked on an application of the Hart factors without applying the presumption of inadmissibility.166 The doctrinal concerns noted above may mean that this issue is moot in terms of its practical effect on the admissibility of these confessions. However, the inconsistency is worth noting as an illustration of courts’ equivocation 159 160 161 162 163 164 165 166 See Johnston, supra note 47; West, supra note 154; Mack, supra note 155. Supra note 43. Ibid at para 116. Ibid at paras 116–237. It is also possible that Justice Handrigan made a typographical error in writing his judgement. However, there is a correction of another typo at the bottom of the decision, indicating that there was at least some retroactive scrutiny. See Amin, supra note 27; Kelly, supra note 47; Zvolensky, supra note 124. Supra note 113. Ibid at para 56. Ibid at paras 57–62. See also Randle, supra note 41. That case eschews the first stage of the Hart framework altogether and begins by analyzing abuse of process. 234 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 regarding Hart’s inapplicability to non-MBO undercover confessions. Namely, they recognize the usefulness of the framework yet often apply it in a piecemeal fashion, dulling its impact. C. Probative Value Versus Prejudicial Effect Under this part of the framework the Crown must demonstrate on a balance of probabilities that the probative value of the confession outweighs the prejudicial effect of its circumstances. As a guiding case, Hart is strongly weighted towards finding that the probative value of a confession exceeds its prejudicial effect. This can be seen on the surface of the decision very clearly, where Justice Moldaver devotes 11 paragraphs to reliability analysis and only two to prejudice.167 This is borne out in subsequent decisions like Ledesma168 and Johnston,169 which neglect to engage in a prejudice analysis altogether. Both cases resulted in the confession ultimately being included. Beyond that observation, it is worth noting that the decision outlines a very clear framework for determining reliability, setting out two different tiers of analysis with nearly a dozen different non-exhaustive factors offered for consideration.170 That is not to say that the reliability framework is exhaustive. It fails to mention multiple relevant factors that can affect the confession’s ultimate reliability and might help the accused in some circumstances. For instance, procedural reliability, a measure of reliability that draws its strength from its ability to test an admission for its objective truth and accuracy,171 goes unmentioned in the list of factors to consider.172 This has resulted in procedural failures by the police, like multiple confessions not being audio recorded,173 not affecting the threshold reliability analysis. Another factor that goes unmentioned in Hart is whether the accused has a motive to lie, which is relevant in cases where the accused is induced to confess to heinous crimes as a way of proving their mettle within the fictional criminal 167 168 169 170 171 172 173 Hart, supra note 2 at paras 94–107. Supra note 40. Supra note 47. For those factors see Hart, supra note 2 at paras 100–05. R v Bradshaw, 2017 SCC 35 at paras 27–28. Strangely, Justice Moldaver notes the reliability concerns of unrecorded confessions at para 93 but fails to include this as a factor in the reliability framework that begins in the next paragraph. See e.g. Caissie, supra note 36 at para 213. Hart Failure 235 organization.174 To his credit, Justice Moldaver holds that the factors are not meant to be exhaustive.175 But no judge since Hart has endeavoured to expand that list. Prejudice, on the other hand, is limited to an assessment of moral prejudice and reasoning prejudice.176 This conception is in line with the jurisprudential evolution of bad character evidence. However, the analysis fails to consider that in MBOs, the state is intentionally creating bad character evidence that the accused will have to answer for at trial. Thousands of hours and hundreds of thousands of dollars in police resources can be spent creating “layers of deception”177 in an attempt to achieve this aim. This suggests that the state should be held to a higher standard based on their explicit role in inducing a confession that is often inextricable from its surrounding bad character evidence. The presumption of inadmissibility created by Hart does not meet this suggested higher standard because bad character evidence is already presumptively inadmissible.178 Arguably, something more is required. Furthermore, courts can attempt to mitigate the negative effects of moral and reasoning prejudice through jury instructions, but it is impossible to completely prevent juries from engaging in it. This is problematic because it creates the potential for juries to give the evidence more weight than it deserves and fails to give the accused the benefit of any reasonable doubt.179 The Great Britain Law Commission succinctly questioned the efficacy of jury instructions as a curative measure, holding that “there are two possible pitfalls: the jury may not understand the direction; and even if it is 174 175 176 177 178 179 The reliability test calls for examining inducements and threats to the accused which can affect motive, but not necessarily. The motive to lie may come from the nature of the social relationship that the undercover officers have cultivated with the accused as in Amin, supra note 27. Hart, supra note 2 at paras 102, 104. Moral prejudice and reasoning prejudice have been the only types of prejudice recognized at common law in Canada for bad character evidence. The doctrine came from Andrew Palmer, “The Scope of the Similar Fact Rule” (1994) 16:1 Adel L Rev 161 at 169. It was based on Australian case law and was subsequently adopted in Criminal Law: Evidence in Criminal Proceedings: Previous Misconduct of a Defendant: Consultation Paper, (London: Great Britain Law Commission, 1996) at para 7.2 [Previous Misconduct]. It was then adopted by the Supreme Court of Canada in R v Handy, 2002 SCC 56 at paras 31–32 [Handy]. Hart, supra note 2 at paras 93, 165, 193. Handy, supra note 176 at paras 53, 66. Previous Misconduct, supra note 176 at para 7.13. 236 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 understood, the jury may not obey it.”180 This is doubly true in light of the recognized phenomenon that confessions are given quite a bit of weight by juries and that they often find it difficult to believe that a person would confess to a crime that they did not commit.181 The prejudicial effect analysis is also severely flawed to the extent that it only accounts for the bad character evidence against the accused that arises from their willingness to engage in an enterprise that they believe to be criminal. In undercover cases where a fake criminal organization is not part of the operation, the prejudicial effect tends to not be found.182 This again shows that the test was designed to conform to the highly-specific fact patterns of MBOs and other undercover investigations often operate outside of the scope of the test. Finally, there is an inherent problem in the ultimate weighing of probative value against prejudicial effect. The balancing required by the test means there is neither a minimum standard of reliability required in a confession, nor is there an upper limit on the extent to which prejudice can exist. Rather, an undercover confession must only be more reliable than it is prejudicial. The tendency for one to outweigh the other is largely protected from appellate scrutiny due to the highly discretionary nature of the trial-level balancing.183 Given the aforementioned concerns about the imbalance in Hart’s analysis of probative value and prejudicial effect, it is perhaps unsurprising to note that probative value outweighed prejudicial effect in nearly every case that was decided subsequent to Hart. 36 post-Hart cases engaged in this balancing and only two found that the prejudicial effect outweighed probative value. The first, Sharples,184 is detailed above. The other case, Buckley,185 presented a unique combination of a highly impressionable, socially isolated accused with a confession that did not lead to the discovery of any additional evidence. Justice Arnold held that “[t]he probative value of the Mr. Big confession is so low that no instruction could provide the necessary safeguard to ensure a fair trial.”186 Based on the way that other cases were decided, it appears likely that if 180 181 182 183 184 185 186 Ibid at para 7.16. Oickle, supra note 9 at paras 34, 141. See e.g. Zvolensky, supra note 124 at para 84, Amin, supra note 27 at para 45. R v Seaboyer, [1991] 2 SCR 577, 4 OR (3d) 383; R v Moir, 2020 BCCA 116 at para 82. Supra note 27. Supra note 61. Ibid at para 99. Hart Failure 237 Buckley’s confession was slightly more reliable, then it would have been admitted as evidence despite the accused’s vulnerability. D. Abuse of Process The doctrine of abuse of process is relatively new, arriving in Canada in 1985 with R v Jewitt.187 At first, it only applied to prospective situations — that is, instances where the fairness of the accused’s trial would be incurably jeopardized going forward.188 This meant that past abuse by the state, no matter how unjust, fell outside of the ambit of the doctrine if it would not have a forward-looking effect on trial fairness.189 It was also only applicable in the clearest of cases,190 likely because the only remedy for an abuse of process at the time was a stay of proceedings. This changed in R v O’Connor,191 which recognized a “residual category”. The case held that even if trial fairness was not undermined, a stay of proceedings may be warranted when the prosecution is conducted in a way that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.”192 The next important doctrinal advance occurred in Babos,193 which unmoored abuse of process from stays of proceedings. It established that a stay, the most drastic remedy a court can order,194 is not the only remedy available on finding an abuse of process.195 Theoretically, this allowed the doctrine to be applied much more freely, removing the judicial bind between letting a likely guilty person walk free or allowing the justice system to be tainted. Hart neglected to capitalize on these developments, failing to elaborate on Justice Moldaver’s assertion in Babos that a residual category abuse of process occurs when the state engages in conduct offensive to societal notions of fair play and decency.196 While this is briefly mentioned in Hart, there is no corresponding analysis of what circumstances common to MBOs might fall under this category, with the bulk of the abuse of process analysis 187 188 189 190 191 192 193 194 195 196 [1985] 2 SCR 128, 20 DLR (4th) 651 [Jewitt]; Coughlan, supra note 15 at 422. Coughlan, supra note 15 at 423–25. Ibid at 423. Ibid at 426. [1995] 4 SCR 411, 130 DLR (4th) 235. Ibid at para 73. Supra note 97. Ibid at para 30. Ibid at para 39. Ibid at para 35. 238 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 instead focusing on the use of violence and stating that undercover confessions become problematic when they approximate coercion.197 While this lack of doctrinal clarity may seem to advantage the accused, it appears as though the Babos test sets a lower threshold for finding an abuse of process than Hart. In Babos, the Court found a residual ground abuse of process on the basis of vague threats made by the police and prosecution that they would bring additional charges against the accused if he did not cooperate.198 To contrast, it will be revealed below that a finding of an abuse of process is extremely rare in undercover confession cases even though they often involve the use of violence that the accused believes to be real. In Hart, the only example of coercion mentioned by Justice Moldaver is violence or threats of violence being used against an accused.199 Perhaps as a result, there has not been a single undercover confession excluded as an abuse of process on any ground other than violence. This is evident in Laflamme,200 the only Mr. Big case to have a confession excluded because of an abuse of process.201 In that case, the accused became involved in a MBO where the undercover police officers used simulated violence on multiple occasions.202 This included a fake beating of a bad debtor, which involved the use of fake blood.203 Later, the primary undercover officer on the investigation threw another officer — a co-member of the criminal organization — out of a moving vehicle.204 Then, the final confrontation with the Mr. Big figure involved the presence of veiled threats, which the Quebec Court of Appeal found to be a bridge too far in light of the earlier violence.205 The judicial reluctance to find an abuse of process is best exemplified by the way subsequent courts have treated LaFlamme. Courts have engaged in an extremely narrow interpretation of the level of violence that will give rise to an abuse of process, primarily by holding that because the violence was not specifically directed towards somebody within the fictional criminal 197 198 199 200 201 202 203 204 205 Hart, supra note 2 at para 115. Babos, supra note 97 at paras 58–73. Supra note 2 at para 116. Supra note 102. MacLean & Chapman, supra note 15 at 3. LaFlamme, supra note 102 at para 9. Ibid at para 65. Ibid at paras 69–71. Ibid at paras 77–78, 87. Hart Failure 239 organization, the accused was not at risk of being coerced. For example, in Randle,206 the undercover officers carried out a mock execution in front of the accused, which Justice Willcock describes as: The officers pretended to kidnap the informant and assault him in the vehicle during a short drive to a remote location. During that drive the undercover officer posing as the person abducted urinated on himself. The other undercover officers took the “victim” for a short walk to a spot where they were unseen and fired two rounds from a gun. They returned to the vehicle, having apparently shot the victim, and drove to a parking lot where they used bleach to clean their hands and then disposed of evidence. The appellant was dropped off at a hotel room.207 These facts were deemed to not be an abuse of process because “[t]here were no direct threats of force or violence against gang members and the appellant was given numerous opportunities to withdraw from the operation without any apparent consequence.”208 The same reasoning is present in the BC Court of Appeal decision, Johnston,209 which held that the fact that the violence was directed externally meant there was no coercion.210 This is troubling because it assumes that accused persons who are exposed to violence that they believe to be real will neatly separate violence against people external to the organization from violence that could be directed at them. The alternative — that once an organization reveals it has no reservations against using violence to enforce a debt or silence an informer, there is no telling how far they are willing to go — was never discussed by any court. Instead of focusing on the possibility that the accused may be coerced to confess in light of these interactions, courts are often content to examine simulated violence through the lens of police intentions. For example, the Court in Yakimchuk211 held that despite the use of simulated violence during six of the scenarios in the operation, there was no abuse of process due to the fact that “[t]he impression that the police intended to convey was that there would not be violence towards members of the organization.”212 The same reasoning exists in R v Tang,213 where an abuse of process was not 206 207 208 209 210 211 212 213 Supra note 41. Ibid at para 10. Ibid at para 87. Supra note 47. Ibid at paras 58–61. Supra note 154. Ibid at paras 61, 92, 95. 2015 BCSC 1643. 240 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 found on similar grounds. In that case, Tang was suspected of killing his mother and disposing of her body in a suitcase and dropping it into a river.214 The police posed as criminals who found the body and they threatened to tell the police about it if Tang did not give them $20,000.215 The defence argued that this amounted to extortion, but Justive Ehrcke disagreed on the grounds that the officers did not have the necessary mens rea to extort the accused because they did not intend to keep the money.216 This reasoning ignores the fact that regardless of their intentions, the police still threatened the accused, decreasing the likelihood that his confession was actually voluntary. While simulated violence is by no means a necessary component of MBOs or other undercover operations, its use is surprisingly common, perhaps due to the courts’ failure to explicitly prohibit it. Violence or threats of violence were used in some capacity in 13 of the 42 cases analyzed. Examples of these tactics include an officer putting an ostensibly loaded handgun into the mouth of another officer as part of a robbery,217 a highimpact kidnapping scenario involving the use of “extreme violence”,218 and placing a dead pig into a hockey bag, while telling the accused that it was a human body that he had to dispose of.219 None of these examples resulted in an abuse of process being found. Instead, courts have uniformly viewed the use of fake violence as a necessary way for officers to broach the subject matter of the crime that they suspect the accused has committed. This reasoning is present in West,220 where the undercover operation involved an officer grabbing an undercover female officer, throwing her to the ground, 214 215 216 217 218 219 220 Ibid at paras 8–12. There was also significant physical and circumstantial evidence known to the police before they began this operation, raising the question of why they felt it necessary to use an undercover investigation in the first place. Ibid at paras 77, 140. Ibid at para 83. Justice Ehrcke supports his assertion that mens rea requires an intention “to obtain anything.” This fails to consider that the despite not actually wanting money from the accused, the officers still intended to obtain a confession. R v Balbar, 2014 BCSC 2285 at para 379. M(M), supra note 41 at para 171. The reason given by the officer for the use of violence was to “ensure that the accused was comfortable with it.” This represents a line of reasoning on the part of law enforcement that seems to believe that the only way to get an accused talking about violent acts they have committed is to expose them to further violence. Potter, supra note 43 at para 54. The officers went to the lengths of slaughtering the animal themselves, shaving it, and covering it in fake blood. Supra note 154. Hart Failure 241 and threatening to kill her in front of the accused.221 The Court found that this display of violence did not contribute to an abuse of process because it was “understandable that the police would want to create an atmosphere in which Mr. West would not be reluctant to discuss his own involvement in violence against women.”222 Furthermore, in Randle, the British Columbia Court of Appeal relied on West to hold that “the propriety of the police conduct must be weighed in relation to the gravity of the offence being investigated.”223 This reasoning is highly problematic because it presumes that the only reasonable way for undercover officers to get an accused to talk about their past violence is to recreate the circumstances surrounding it. This fails to consider the numerous undercover investigations where the officers were able to get the accused to talk about their crime by forming a friendship based on trust and mutual understanding.224 It is also worth noting that Hart seems to place a blanket prohibition on violence or threats of violence, holding that “[a] confession derived from physical violence or threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something the community will not tolerate.”225 Note that this analysis does not distinguish between violence that directly threatens the accused and violence that is merely used in the accused’s presence. Despite Hart ostensibly reinvigorating the abuse of process doctrine, empirical analysis shows that it has not amounted to much. Of the 38 cases surveyed that addressed abuse of process, only three of them found an abuse (7.9%).226 Two of those cases were non-Mr. Big undercover operations that did not actually employ the Hart framework.227 To date, LaFlamme228 remains the only Mr. Big case in Canadian history where an abuse of process was found. There is an argument to be made that the reason for this finding is that Hart had a chilling effect on coercive police tactics. However, one only needs to look at the above examples of simulated violence to determine that this is not the case. 221 222 223 224 225 226 227 228 Ibid at para 18. Ibid at para 99. Randle, supra note 41 at para 86. See e.g. Amin, supra note 27. Hart, supra note 2 at para 116. Laflamme, supra note 102; R v Nuttall, 2016 BCSC 1404 [Nuttall 2016]; R v Derbyshire, 2016 NSCA 67 [Derbyshire]. Nuttall, supra note 226; Derbyshire, supra note 226. Supra note 102. 242 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 V. ULTIMATE EXCLUSION AND CONCLUSION Ultimately, the application of the Hart framework has resulted in a confession being excluded in five out of 40 undercover confession cases,229 or 12.5%. When analyzing MBOs only, two out of 31 confessions were excluded, or 6.4%. To put it another way, 93.6% of Mr. Big confessions that have had the benefit of the Hart decision have been admitted. To put these numbers in context, two independent academic studies prior to Hart assessed the percentage of Mr. Big confessions that were admitted. The admission rates found were 88%230 and 91.5%,231 respectively. This means that the rate at which Mr. Big confessions were admitted has actually increased since Hart was decided. This discovery should not be surprising. In a free and democratic society, there are recognized limits on what the state is allowed to do when investigating crimes. This is not based on logic, but on the recognition that the state has a monopoly on the legitimate use of force232 and that such a power comes with a corresponding imperative to use it responsibly. Since the 1990s, law enforcement has repeatedly skirted this responsibility by — intentionally or not — circumventing legal protections for accused persons who unwittingly end up in the hands of the state. The Supreme Court, as evidenced by their decision in Hart, has equivocated on the seriousness of the matter, choosing to introduce a framework that has done little to resolve the problems that it attempts to address. Each element of the framework fails to adequately protect the interests of those who confess to undercover officers, from the illusory safeguards of the presumption of inadmissibility to the abuse of process doctrine’s continued failure to prevent police misconduct. It has now been more than five years since Hart was decided. It is clear that the framework has failed to meet the Court’s goal of deterring 229 230 231 232 Two of the 42 total cases were appellate decisions that ordered a new trial. I have not included them in the final tally, instead focusing on admission or exclusion. Kouri T Keenan & Joan Brockman, Mr. Big: Exposing Undercover Investigations in Canada, (Halifax: Fernwood, 2010) at 252. Kate Puddister & Troy Riddell, “The RCMP’s ‘Mr. Big’ Sting Operation: A Case Study in Police Independence, Accountability and Oversight” (2012) 55:3 Can Public Administration 385 at 393. Max Weber, Hans Heinrich Gerth & C. Wright Mills, From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946) at 78. Hart Failure 243 unreliable confessions, prejudice to the accused, and police misconduct.233 The above empirical analysis shows that it has not had effect that it intended. The overall admission rate of Mr. Big confessions has increased and most of the non-Mr. Big confession exclusions occurred under an abuse of process analysis that did not apply the Hart framework. The case law shows that many police forces do not have reservations about using simulated violence and other coercive tactics in the presence of accused persons. Moreover, it shows that courts generally do not take issue with admitting the confessions gleaned from those operations. In other words, the Hart framework has done very little to fill the legal vacuum that the Court explicitly recognized. It is clear that something more is necessary to prevent the state from overstepping the normative limits of their authority. The ideal solution is to extend the applicability of the voluntary confession rule by changing the standard for assessing whether someone is a person in authority from a subjective to an objective standard. The voluntary confessions rule exists to protect those who are “under pressure from the uniquely coercive power of the state”,234 but only when the accused knows about it. This fails to consider that the accused may be in even more jeopardy when they are unaware of the coercive power to which they are subjected. MBOs and other undercover operations entail the police spending anywhere from hundreds of thousands to millions of dollars on a single operation that has the sole purpose of eliciting a confession from the accused.235 If this kind of resource allocation cannot be considered uniquely coercive, it is hard to tell what would be. Extending the confession rule would also not necessarily prevent MBOs from being used; it would only subject them to a framework that would prioritize the need for confessions to be voluntary in all circumstances, prevent officers from offering inducements that would overbear the will of the accused and prevent a level of trickery that would shock the community’s conscience. If the voluntary confession rule is not extended or the Hart framework is not significantly bolstered, then unreliable and abusively obtained confessions will continue to be admitted as evidence. Legally innocent people, whom the police do not have sufficient evidence to bring charges 233 234 235 Hart, supra note 2 at paras 81, 84. Grandinetti, supra note 58 at para 35. Iftene, supra note 15 at 151, 156. 244 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 against, will continue to be subject to highly manipulative and expensive operations. Police officers who go undercover will have to bear the selfimposed burden of role-playing as violent criminals. And courts will have to continue assessing the admissibility of these confessions in the legal vacuum that Hart only partially filled. If courts do not fully recognize the moral price that is paid when confessions are elicited in this manner, they risk undermining some of the most fundamental tenets of the criminal justice system — that confessions should be given voluntarily and that accused persons are innocent until proven guilty. Robson Crim Year in Review A N D B R A Y D E N M C D O N A L D K A T H L E E N K E R R - D O N O H U E I. INTRODUCTION his paper examines the jurisprudence of the Manitoba Court of Appeal [MBCA] and the Supreme Court of Canada [SCC], across a period from October of 2018 to February of 2020, inclusive. Although originally envisioned as a year in review article, we continued to update the dataset beyond the original 12-month timeframe, so as to provide the reader with the most up to date information. The goal was to create an overview of recent developments in criminal law jurisprudence relevant to the Manitoban jurisdiction. The paper begins with a detailed description of the research method and parameters used. Statistical findings are then presented by court. Next, the thematic categories and the process of their development are explained for the SCC, after which a number of specific cases from each category are discussed. This process is repeated for the MBCA. Lastly, there is some brief commentary and interpretation of trends that emerged from the data, though this paper is intended to be mainly descriptive rather than interpretive. Appendices I and II contain lists of all of the cases included in the dataset, arranged by the thematic category to which they were assigned. It is our hope that this work will provide some useful insights and information to practicing members of the Manitoba Bar, as well as academia. In selecting statistical metrics and specific cases for presentation, we endeavored to favour the practical. For instance, cases addressing commonly relied on legal tests or principles were selected for additional discussion over those which may have been more conceptually interesting, but less useful from a practitioner’s standpoint. As discussed below, there is a subjective element inherent in such determinations, especially as usefulness is largely situational. Nonetheless, we tried to keep the practitioner in mind when developing the paper that follows, particularly in deciding which cases to highlight. T 246 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 A. Methodology It was decided that both quantitative and qualitative analyses were necessary in developing a comprehensive year in review. To narrow the scope of the data, the analysis was limited to the SCC and the MBCA. Data was collected beginning in October 2019, and collection continued until March 5, 2020. Cases were put into a data table that was sorted chronologically by the date of oral or written judgement. Cases were drawn from two sources: CanLII, a free public database from the Canadian Legal Information Institute, and WestlawNext, a subscription-based database by Thomson Reuters Canada. All reported judgements issued between October 1, 2018 and February 25, 2020 were included. A set of variables to be recorded for each case was developed to form the foundation for the statistical analysis. These variables included the date of judgement, the case name, parties acting as appellant and respondent, themes, a brief description, hearing judges, the court of origin, whether the claim came before the court by leave or right, the appeal result, and the docket and citation information. When thematic categories were later developed, these were also recorded on the table for each case. Not all of the recorded variables were relied upon in the following analyses. In cases from the MBCA, not all of these variables were available or as relevant as they were in the SCC cases. Accordingly, the final statistics and themes developed for the SCC and the MBCA differ to some extent. In total, 155 cases were included in the dataset and of these, 52 cases were heard by the SCC and 103 were heard by the MBCA. Once all of the cases were included in the table, statistics were drawn from the established variables and following this, the cases were thematically grouped into categories. Once all of the cases were categorized, one noteworthy case, at a minimum, was selected from each category for further analysis. Development of thematic categories began with the identification of broad trends within the ‘themes’ variable column of the table. Cases were then assigned to thematic categories depending on what we considered to be the predominant subject matter. The process was then repeated to further refine the thematic categories. The primary limitation to the data was the potential for human error. Additionally, for the categorization of cases, while researchers attempted to be objective in the classification process, there were undoubtedly elements of subjectivity and bias. This was particularly true where a case could have been categorized in more than one section. In order to keep the data Year in Review 247 reliable, it was decided against having any cases included more than once. As such, cases were placed into the section that appeared to be the most relevant. II. RESEARCH FINDINGS: SCC A. Province/Court of Origin Of the 52 cases heard by the SCC during the timeframe, the majority originated from the province of Ontario, with 30.8% (n=16/52) of appeals originating from Ontario courts. This rate was followed by Alberta and then Quebec, with 19.2% (n=10/52) and 17.3% (n=9/52), respectively. Newfoundland and Labrador had the fourth highest rate of appeal with 7.7% (n=4/52). Both the province of Manitoba and the Court Martial Appeal Court of Canada [CMACC] had three appeals heard by the SCC (5.8% each). Saskatchewan, Nova Scotia, and British Columbia were tied for sixth place with 3.8% (n=2/52) of all appeals originating from their courts. Finally, there was one appeal originating from the Yukon (2.0%). There were no appeals originating from the Northwest Territories, Nunavut, Prince Edward Island, New Brunswick, or from the Federal Court of Appeal within the timeframe. Province / Court of Origin 20 15 16 10 10 9 4 5 3 3 2 2 0 2 1 0 0 0 0 0 Appeals ONT ALB QUE NFLD CMACC MB SK NS BC YK NWT NVT PEI NB FCA Figure 1 The three Manitoba cases heard at the SCC included: 248 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 1. R v Fedyck: A defence-initiated appeal on an unreasonable verdict. The SCC agreed with the reasons of the MBCA and dismissed the appeal.1 2. R v CJ: A Crown-initiated appeal on an unreasonable verdict. The SCC agreed with the dissent of one judge of the MBCA. The appeal was allowed, and the conviction was restored.2 3. R v Friesen: Another Crown-initiated appeal on a sentencing decision. The appeal was successful.3 B. Right of Appeal vs Leave to Appeal The breakdown of appeals between right of appeal and leave to appeal was relatively balanced. 56.0% (n=29/52) of all cases were brought to the SCC as of right, with the remaining 44.0% (n=23/52) being heard after leave was granted. C. Appellant vs Respondent Rates Defence appeals significantly outnumbered Crown appeals at the SCC. In total, 66.0% (n=35/53) of all appeals were defence-initiated, with the remaining 34.0% (n=18/53) having been advanced by the Crown. Of the 35 defence appeals heard by the SCC, just nine were successful (25.7%; n=9/35). Conversely, of the 18 Crown appeals, 14 were successful (77.8%; n=14/18), demonstrating a considerably higher rate of appellate success for the Crown. In terms of overall appellant and respondent success rates, the data was nearly balanced, with appellants having only a marginally higher rate of success. Irrespective of whether appeals were Crown or defence-initiated, the data showed that appellants were successful at a rate of 50.9% (n=27/53), whereas respondents succeeded at a rate of 49.1% (n=26/53).4 D. Overall Success Rates Inclusive of both respondent and appellant success, the Crown was significantly more successful at the SCC overall, achieving a favourable outcome at a rate of 71.7% (n=38/53). Conversely, the defence achieved favourable outcomes in 20.8% (n=11/53) of all cases. Additionally, four 1 2 3 4 R v Fedyck, 2019 SCC 3 [Fedyck]. R v CJ, 2019 SCC 8 [CJ]. R v Friesen, 2020 SCC 9 [Friesen]. (Appellant success rates include partial success/in-part wins). Year in Review 249 appeals were deemed to have mixed outcomes and as such, two were counted as defence appeals and two as Crown (3.8% each).5 Further, where the defence achieved success, it did so as the appellant party 81.8% (n=9/11) of the time and as the respondent party 18.2% (n=2/11) of the time. When factoring in partial successes (i.e. mixed outcomes), the success rate was 84.6% (n=11/13) for appellants and 15.4% (n=2/13) for respondents. Conversely, the Crown succeeded 36.8% (n=14/38) of the time as appellants and 63.2% (n=24/38) of the time as respondents. When factoring for partial successes, these rates become 40.0% (n=16/40) as appellants and 60.0% (n=24/40) as respondents. III. RESEARCH FINDINGS: MBCA Due to differences in the nature of reported information from the SCC cases, data collected on the MBCA cases was less in depth. A. Appellants As was the case before the SCC, the majority of appeals heard by the MBCA were advanced by the defence. The proportion was vastly higher however, as 92.2% (n=95/103) of appeals were advanced by the defence and 7.8% (n=8/103) by the Crown. Appellant/respondent success rate was one area where the SCC and the MBCA saw a significant statistical divergence. The appellant party enjoyed full success on appeal in 18.5% (n=19/103) of cases over the timeframe. If partial successes are counted, then this rate rises to 28.2% (n=29/103). This stands in stark contrast to the nearly symmetrical success proportions enjoyed by appellants and respondents before the SCC. B. Success and Failure by Party Despite advancing the majority of appeals by a significant margin, the defence was only successful in 12.6% (n=13/103) of appeals, whereas the Crown succeeded 77.7% (n=80/103) of the time. The remaining 9.7% (n=10/103) not captured in the previous two statistics encapsulates those cases where the Court allowed an appeal in part, representing a partial success for both parties, to some extent. Narrowing the data further, the defence success rate in cases where it was the appellant was 13.7% 5 (A partial success refers to appeals which were only allowed in-part). 250 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 (n=13/95). If partial successes are factored in, this rate increases to 20.4% (n=21/103). In contrast, the Crown was successful in 75.0% (n=6/8) of the appeals it advanced. Notably, in the two cases where the Crown’s appeal was not allowed outright, the Court allowed the appeal in part. This means that the Crown enjoyed some degree of success in every appeal it filed. Conversely, this means that the defence had no outright successes as a respondent on appeal, managing a partial success in only 25.0% (n=2/8) of appeals brought by the Crown. In a broad sense, these patterns echo those seen in the SCC data. The defence was the more active party in bringing appeals, but the Crown saw greater success both overall and relative to the appeals it brought. However, these patterns manifested with greater polarity in the MBCA jurisprudence. IV. CATEGORIES: SCC Ultimately, the following seven categories were generated for the SCC: Trial Procedure, Charter, Evidence, Defences, Sentencing, PostTrial/Prison Law, and Miscellaneous. Additionally, two subcategories, Past Sexual History and Search and Seizure, were created under Evidence. The largest category was the Trial Procedure section, with 25.0% (n=13/52) of all appeals being placed there. This was followed by the Miscellaneous section with 23.1% (n=12/52), Evidence with 15.4% (n=8/52), and Charter with 13.4% (n=7/52). Following this, both of the Evidence subcategories were tied, each with 5.8% (n=3/52). Finally, the Defences, Sentencing, and Post-Trial sections each accounted for 3.8% (n=2/52) of all appeals. Appeals Post-Trial Sentencing Evidence PSH Defences Trial Procedure Evidence S&S Misc. Charter Evidence Figure 2 Year in Review 251 V. CASE ANALYSIS: SCC A. Charter Of the 52 cases heard at the SCC, seven were categorized under Charter.6 While the cases varied greatly with respect to which sections of the Canadian Charter of Rights and Freedoms they were challenging, several stood out as being particularly significant for their precedential value. R v Le dealt primarily with arbitrary detention (section 9 of the Charter) and was significant in the degree with which it brought social context into the analysis, particularly with respect to racialized minorities.7 In Le, the accused and some other men (all from racialized minority groups) were in a backyard when several officers entered, without warrant or consent, and began to question the men and demand proof of identity.8 When the accused stated he did not have any identification, an officer asked what he was carrying in his bag and the accused fled.9 He was then pursued, arrested, and found to be in possession of a firearm, drugs, and cash.10 The SCC was tasked with determining, for the purposes of a section 9 analysis, when the appellant was detained.11 Applying the factors from R v Grant for arbitrary detention, the Court found that Le’s detention began the moment the police entered the yard.12 Further, there was neither statutory or common law power authorizing his detention at that time, thereby making it an arbitrary detention.13 When factoring psychological detention into its section 9 analysis, and more specifically, the application of the reasonable person standard, the Court held that a reasonable person in the shoes of the accused is presumed to be aware of racial contexts.14 The Court thereby acknowledged that race and minority status would affect the perceptions of a reasonable person.15 6 7 8 9 10 11 12 13 14 15 See R v Morrison, 2019 SCC 15 [Morrison]; R v Le, 2019 SCC 34 [Le]; R v Stillman, 2019 SCC 40 [Stillman]; R v Poulin, 2019 SCC 47 [Poulin]; R v KJM, 2019 SCC 55 [KJM]; R v Doonanco, 2020 SCC 2 [Doonanco]; R v Boudreault, 2018 SCC 58 [Boudreault]. Supra note 6. Ibid at para 1. Ibid at para 2. Ibid. Ibid at para 5. Ibid at para 32. Ibid at para 30. Ibid at para 82. Ibid at para 73. 252 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Here, the Court accepted that social science research has soundly established that racialized and low-income communities are disproportionately policed.16 Furthermore, the Court held that it is within this context that courts must conduct section 9 analyses.17 In R v KJM, the Court was asked to consider the unreasonable delay framework, set out in R v Jordan, in the context of young offenders.18 Specifically, the Court considered whether section 11(b) of the Charter necessitates that a lower presumptive ceiling be established for cases under the Youth Criminal Justice Act.19 The majority found that the existing ceilings are capable of accommodating the enhanced need for timeliness in youth cases.20 They further noted that this consideration can be assessed under the second branch of the current test.21 Justices Abella, Brown, and Martin were in dissent of the majority decision, finding that, given the increased vulnerability and reduced moral blameworthiness of youth, a lower presumptive ceiling was warranted.22 Ostensibly, however, the majority did not close the door on future analysis in this regard, noting that the Jordan framework applies to youth cases unless and until it can be demonstrated that a need for a lower ceiling exists.23 In R v Boudreault, the SCC held that the implementation of a mandatory victim fine surcharge amounted to cruel and unusual punishment, contrary to section 12 of the Charter, particularly for impoverished and marginalized offenders.24 The Court, therefore, found the mandatory victim fine surcharge set out in section 737 of the Criminal Code to be unconstitutional.25 As it stood, the surcharge was being applied to offenders regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on victims, leaving judges with no discretion to waive or decrease 16 17 18 19 20 21 22 23 24 25 Ibid at paras 94, 97. Ibid at para 97. Supra note 6. Ibid at para 3. Ibid at para 4. Ibid. Ibid at paras 122, 143. Ibid at para 64. Supra note 6 at paras 3–4. Ibid at para 4. Year in Review 253 it.26 The majority found that this risked some impoverished offenders receiving an effectively indeterminate sentence.27 In total, six of the eight Charter cases were defence appeals (75.0%), with the remaining two being Crown appeals (25.0%).28 That said, it should be noted that one case, R v Morrison, was counted twice in the dataset as it was a cross appeal.29 Thus, it was counted both as a defence appeal and as a Crown appeal. B. Defences Just two of the 52 cases heard by the SCC were categorized under Defences.30 In R v Blanchard, the accused was charged with failing to provide a breath sample.31 At trial, the judge accepted the defence argument of extreme intoxication akin to automatism and the Crown conceded the availability of the defence.32 The Crown conceded this again at the Court of Appeal.33 The majority of the Court of Appeal, however, rejected the defence and held that the trial judge had erred in law by allowing it to proceed and convicted Blanchard.34 The SCC allowed the defendant’s appeal and noted that, considering the Crown’s concessions in the courts below, the Court of Appeal had erred in raising and deciding the availability of the automatism defence.35 The SCC restored the acquittal but limited their analysis to Blanchard, expressly refraining from deciding the availability of this defence for future cases.36 C. Evidence There were eight appeals heard by the SCC that were placed in the Evidence category.37 Half of these appeals were defence-initiated, and the 26 27 28 29 30 31 32 33 34 35 36 37 Ibid at paras 1–2. Ibid at para 3. See Morrison, supra note 6; Le, supra note 6; Stillman, supra note 6; KJM, supra note 6; Doonanco, supra note 6; Boudreault, supra note 6. See also Poulin, supra note 6; Morrison, supra note 6. Supra note 6. See R v Gagnon, 2018 SCC 41; R v Blanchard, 2019 SCC 9 [Blanchard]. Supra note 30 at para 1. Ibid. Ibid. Ibid. Ibid. Ibid. See R v Normore, 2018 SCC 42 [Normore]; R v Gubbins, 2018 SCC 44 [Gubbins]; R v Ajise, 254 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 other half were Crown-initiated.38 There were four successful appeals, all initiated by the Crown. In R v Gubbins, the SCC articulated that breathalyzer maintenance records do not have to be disclosed by the Crown unless it can be established that they are relevant to the defence.39 There had previously been conflicting jurisprudence regarding the treatment of breathalyzer maintenance records.40 While the Court conceded that there may be instances where an accused will be able to establish relevancy, they also noted that there would be a high bar in achieving it.41 In coming to this conclusion, the Court distinguished between firstparty and third-party records, which trigger different legal tests, and held that breathalyzer maintenance records fall into the latter category.42 They noted that the rules for third-party disclosure are meant to strike a balance between the right of an accused to make full answer and defence and the need to place limits on disclosure where necessary.43 One such limit, according to the SCC, is to prevent “fishing expeditions” by the defence.44 Ostensibly, requests for breathalyzer maintenance records may be looked at with some suspicion by the courts. In R v Cyr-Langlois, the appellant had been charged with driving while over the legal limit.45 At trial, however, defence counsel alleged that the accused had not been continuously observed by police for the requisite period leading up to the test, as was protocol.46 Defence counsel further argued that the discontinuity in observation rebutted the presumption of accuracy in the breathalyzer results.47 38 39 40 41 42 43 44 45 46 47 2018 SCC 51 [Ajise]; R v Cyr-Langlois, 2018 SCC 54 [Cyr-Langlois]; R v Quartey, 2018 SCC 59 [Quartey]; R v Calnen, 2019 SCC 6 [Calnen]; R v JM, 2019 SCC 24 [JM]; R v SH, 2020 SCC 3 [SH]. See Gubbins, supra note 37; Ajise, supra note 37; Quartey, supra note 37; SH, supra note 37. See also Normore, supra note 37; Cyr-Langlois, supra note 37; Calnen, supra note 37; JM, supra note 37. Supra note 37 at paras 2, 29–33. Ibid at paras 30–31. Ibid at para 57. Ibid at paras 1–2. Ibid at para 29. Ibid. Supra note 37 at paras 6–7. Ibid at paras 8–9. Ibid at paras 1, 8. Year in Review 255 In order to rebut the presumed accuracy of breathalyzer results, an accused must adduce evidence tending to show that malfunctioning or improper operation of the approved instrument casts doubt on the reliability of the results.48 The SCC held that this claim had not been made out by the defence, as any claim of compromised reliability was based on abstract, rather than concrete, evidence.49 While the Court acknowledged that theoretical evidence can, in some instances, cast doubt on reliability, arguments that are too speculative or mere hypothetical possibilities will fail to rebut the presumption.50 1. Evidence: Past Sexual History Evidence of Past Sexual History emerged as a subcategory of Evidence, with three cases revolving around the application of section 276 of the Code. Two of the three cases were defence appeals and one was a Crown appeal.51 The SCC, in R v Goldfinch, was tasked with determining whether an accused’s evidence of past sexual history ought to be admitted under section 276 of the Code.52 The accused endeavored to include evidence establishing a “friends with benefits” relationship, which he alleged had existed between himself and the complainant.53 The SCC dismissed the appeal and held that the evidence which the accused sought to admit did not meet the requirements of the section.54 More specifically, the SCC held that the defence failed to meet the requirements of subsection 276(1) because the “friends with benefits” narrative served no purpose other than to bolster the inference that, because the complainant had consented in the past, she was more likely to have consented in the present case.55 While the Court acknowledged that there are instances where evidence of previous sexual activity between parties is relevant, the evidence in Goldfinch was neither relevant under subsection 276(1), nor did its exclusion compromise the accused's right to make full 48 49 50 51 52 53 54 55 Ibid at para 12. Ibid at paras 14–15. Ibid at paras 14, 16. See R v Barton, 2019 SCC 33; R v Goldfinch, 2019 SCC 38 [Goldfinch]. See also R v RV, 2019 SCC 41 [RV]. Supra note 51. Ibid at para 3. Ibid at paras 4–5. Ibid at para 5. 256 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 answer and defence under subsection 276(2).56 In R v RV, the SCC again considered an accused’s application of section 276.57 This time, it was in the context of allowing the defence to question the complainant, who was pregnant, on her sexual activity during the estimated period of conception.58 At trial, the complainant had testified that she was a virgin prior to the alleged assault and the Crown relied on the complainant’s pregnancy to establish the actus reus of the offence.59 The accused sought to question the complainant on whether someone else could have caused her pregnancy.60 While acknowledging that this line of questioning has the potential to tread on “dangerous ground”, the SCC nevertheless determined that the accused’s section 276 application ought to have been allowed.61 Since the Crown had relied on the pregnancy to establish guilt, the SCC noted that the presumption of innocence warrants an accused be allowed to test such “critical, corroborating physical evidence before it can be relied on to support a finding of guilt.”62 The proposed questioning was relevant and any concerns as to the impact on the complainant could be mitigated by, for example, keeping the cross-examination narrow in scope.63 Although the Court ruled that the accused’s section 276 application should have been allowed, they ultimately found that there had been no miscarriage of justice because the cross-examination that had occurred at trial nevertheless allowed for an adequate challenge of the Crown’s case.64 2. Evidence: Search and Seizure Although unreasonable search and seizure analyses are conducted under the umbrella of the Charter, they have been included here as a subset of the Evidence category. This is because we felt that the search and seizure issues raised in the cases, though analyzed in a Charter context, are of a fundamentally evidentiary nature. In total, three cases were placed in this category. One was a Crown appeal and the remaining two were defence 56 57 58 59 60 61 62 63 64 Ibid at paras 47, 49, 61, 69. Supra note 51. Ibid at para 4. Ibid at paras 4, 7. Ibid at para 4. Ibid at paras 7–8. Ibid at para 7. Ibid at paras 6–8. Ibid at para 9. Year in Review 257 appeals.65 Among these cases, two related specifically to an appellant’s reasonable expectation of privacy (REP) in digital content, in the context of child luring or child pornography charges.66 In one such case, R v Reeves, the primary question before the Court was whether the appellant had a REP in a shared family computer.67 The appellant’s spouse contacted police after she discovered child pornography on the family computer.68 The attending officer did not have a warrant, but the spouse consented to police entry into the home and to the subsequent seizure of the computer.69 At trial, Reeves successfully argued improper seizure under section 8 of the Charter, sought exclusion of the evidence on the computer under section 24(2), and was acquitted.70 On Crown appeal, the evidence was admitted and a new trial was ordered.71 Reeves appealed to the SCC, which allowed his appeal and restored his acquittal.72 The Court affirmed that he had a REP in the computer, which was not nullified by the consent of Reeves' wife.73 Likewise, in R v Mills, the appellant had been exchanging messages online with an officer posing as an underage girl as part of a police sting.74 Without prior authorization, the officer created screenshots of the conversations with Mills who was subsequently arrested after making arrangements for a sexual encounter.75 At the SCC, the appellant claimed that his section 8 Charter rights had been infringed because the screenshots captured private communication in which he asserted a REP.76 The Court reiterated that, in order to claim protection under section 8, an accused must show both a subjectively held and objectively reasonable expectation of privacy in the subject matter of 65 66 67 68 69 70 71 72 73 74 75 76 See R v Omar, 2019 SCC 32. See also R v Reeves, 2018 SCC 56 [Reeves]; R v Mills, 2019 SCC 22 [Mills]. See Reeves, supra note 65; Mills, supra note 65. Supra note 65 at paras 1–2. Ibid at para 6. Ibid at para 7. Ibid at para 3. Ibid. Ibid at paras 4–5. Ibid at para 4. Supra note 65 at para 2. Ibid at paras 2–3. Ibid at para 3. 258 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the search.77 While the Court found that Mills demonstrated a subjective expectation of privacy in the communication, they nevertheless found that his expectation was not objectively reasonable.78 The Court further noted that section 8 jurisprudence in this area is predicated on police obtaining prior authorization, in order to avoid potential privacy breaches.79 In Mills, however, that potential did not exist.80 The police had created a fictitious child and waited for adult strangers to reach out to them.81 Key to this finding was the fact that the individual Mills was communicating with was both a child and a stranger to him.82 The Court further elaborated on this concept by considering the normative standards regarding REP that had been articulated by the Court in R v Tessling.83 Namely, the Court noted that adults cannot expect that their privacy standards extend to online communications between themselves and children who they do not know.84 Both cases dealt with a topical issue that will likely continue to require clarification by the courts as technology increasingly brings individuals into contact with the criminal justice system. D. Trial Procedure 13 of the 52 appeals were placed in the Trial Procedure section, making it the most populated section overall.85 Eight of these were defence appeals, with the remaining five being Crown appeals.86 Just one defence appeal 77 78 79 80 81 82 83 84 85 86 Ibid at paras 12, 20. Ibid at paras 20, 22. Ibid at para 28. Ibid. Ibid at paras 23–24. Ibid at para 22. Ibid at para 23. Ibid at para 23. See R v Awashish, 2018 SCC 45 [Awashish]; R v Beaudry, 2019 SCC 2 [Beaudry]; R v George-Nurse, 2019 SCC 12 [George-Nurse]; R v Snelgrove, 2019 SCC 16 [Snelgrove]; R v Myers, 2019 SCC 18 [Myers]; R v D’Amico, 2019 SCC 23 [D’Amico]; R v MRH, 2019 SCC 46 [MRH]; R v Kernaz, 2019 SCC 48 [Kernaz]; R v Kelsie, 2019 SCC 17 [Kelsie]; R v Wakefield, 2019 SCC 26 [Wakefield]; R v WLS, 2019 SCC 27 [WLS]; R v Shlah, 2019 SCC 56 [Shlah]; R v Thanabalasingham, 2019 SCC 21 [Thanabalasingham]. See George-Nurse, supra note 85; Snelgrove, supra note 85; Myers, supra note 85; D’Amico, supra note 85; Kernaz, supra note 85; Wakefield, supra note 85; WLS, supra note 85; Shlah, supra note 85. See also Awashish, supra note 85; Beaudry, supra note 85; MRH, supra note 85; Kelsie, supra note 85; Thanabalasingham, supra note 85. Year in Review 259 succeeded at the SCC.87 Three Crown appeals were successful.88 Jury instruction constituted a significant trend within this section, with four of the 13 appeals arguing that the trial judge had given erroneous instructions.89 The only successful defence appeal, R v Myers, is of significant precedential value, as the SCC took the opportunity to comprehensively articulate the bail review process (namely, the 90-day review) under section 525 of the Code.90 Prior to this, there had been uncertainty with respect to the correct approach due to competing lines of authority.91 Among other things, the majority found that, contrary to arguments put forward by the Crown, unreasonable delay is not a threshold requirement for reviewing detention.92 In their analysis, the Court held that Parliament did not intend to narrow the application of section 525 reviews to only include cases of exceptional circumstances, based on unreasonable delay.93 Indeed, the Court found that, while section 525 mandates that judges consider whether continued detention is justified, it merely states that they may consider whether there has been delay.94 The Court then proceeded to set out the correct approach for section 525 reviews, which clarified that 90-day bail reviews are meant to be an automatic process.95 Further, the obligation to apply for a section 525 hearing lies solely with the jailor or, in some provinces, the prosecution.96 What is more, the application is automatically triggered at either the 30-day mark for summary offences or at the 90-day mark for indictable offences.97 There is no contemporaneous obligation on a detainee to request their hearing to take place.98 The Court further stipulated that the section mandates a judge to fix a date and give notice for the hearing, as soon as possible, upon receiving the 87 88 89 90 91 92 93 94 95 96 97 98 See Myers, supra note 85. See Thanabalasingham, supra note 85; MRH, supra note 85; Kelsie, supra note 85. See Snelgrove, supra note 85; MRH, supra note 85; Kelsie, supra note 85; Shlah, supra note 85. Supra note 85 at para 15. Ibid at para 14. Ibid at para 29. Ibid. Ibid at para 32. Ibid at para 44. Ibid at para 34. Ibid at para 35. Ibid at para 44. 260 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 application from the jailor or prosecutor.99 Additionally, the SCC reiterated that the overarching question at any section 525 hearing is whether the continued detention of the accused in custody is justified within the meaning of subsection 515(10) of the Code.100 E. Sentencing Just two of the 52 cases heard by the SCC categorized under Sentencing. One was Crown-initiated and the other was a defence appeal.101 Both appeals were successful. In the latter of the two cases, R v Rafilovich, the SCC was asked to answer the question of when, if ever, a sentencing judge should order a fine instead of forfeiture in respect to property that was used, with prior judicial authorization, to pay for the reasonable costs of an accused’s legal defence.102 In Rafilovich, the accused, whose assets had been seized under the proceeds of crime regime, applied under subsection 462.34(4)(c)(ii) of the Code to have some of his funds returned to pay for his legal expenses.103 The accused later plead guilty and, after this, the Crown asked that the judge apply a discretionary fine in the amount that had been returned to Rafilovich.104 The SCC clarified that it could not have been Parliament’s intention to return funds for reasonable legal expenses on the one hand and, on the other, to allow for a fine in lieu of forfeiture of the same funds.105 As such, the SCC held that, in most cases, ordering a fine instead of a forfeiture would undermine the intentions of Parliament.106 However, they did outline several contexts where it could be appropriate.107 For instance, where it is discovered that the accused did not have genuine financial need, where the released funds were inappropriately administered, or where there are significant changes of circumstance between the release of funds and the accused’s sentencing.108 99 100 101 102 103 104 105 106 107 108 Ibid at para 39. Ibid at para 45. See Friesen, supra note 3. See also R v Rafilovich, 2019 SCC 51 [Rafilovich]. Supra note 101 at para 7. Ibid at paras 1, 4. Ibid at paras 1, 15. Ibid at para 9. Ibid at paras 9–11. Ibid at paras 9–10. Ibid. Year in Review 261 F. Post-Trial Procedure/Prison Law Just two cases were included under the Post-Trial Procedure/Prison Law section: R v Bird was a defence appeal and was unsuccessful, while R v Penunsi was a Crown appeal which was successful.109 Similar to Myers, Penunsi was significant because the SCC took the opportunity to clarify an area of law where there had previously been conflicting authority.110 Specifically, Penunsi answered the question of whether judicial interim release (JIR) provisions under Part XVI of the Code, and thereby arrest powers, apply to peace bond provisions.111 The Court held that the statutory language in the Code demonstrated parliamentary intent for arrest and interim release provisions to apply to peace bond proceedings.112 The JIR provisions in Part XVI were therefore found to be applicable to peace bonds, with modification, taking into account the policy objectives of “timely and effective justice, and minimal impairment of liberty.”113 G. Miscellaneous The Miscellaneous section was the second most populated category and included a diverse range of themes.114 Many of the cases included in this section focused on issues that could have readily placed them into multiple categories. However, it was decided that cases would not be included in more than one section in order to avoid skewing the data. In total, 12 cases were placed into the Miscellaneous section, nine of which were defence appeals and the remaining three being Crowninitiated.115 Among these cases, only five were successful at the 109 110 111 112 113 114 115 See R v Bird, 2019 SCC 7. See also R v Penunsi, 2019 SCC 39 [Penunsi]. Supra note 109. Ibid at para 1. Ibid at paras 57, 59. Ibid at para 61. See R v Youssef, 2018 SCC 49 [Youssef]; R v Vice Media, 2018 SCC 53 [Vice]; R v Culotta, 2018 SCC 57 [Culotta]; Fedyck, supra note 1; CJ, supra note 2; R v Jarvis, 2019 SCC 10 [Jarvis]; R v Demedeiros, 2019 SCC 11 [Demedeiros]; R v Larue, 2019 SCC 25 [Larue]; Fleming v Ontario, 2019 SCC 45 [Fleming]; R v James, 2019 SCC 52 [James]; R v Javanmardi, 2019 SCC 54 [Javanmardi]; R v Collin, 2019 SCC 64 [Collin]. See Youssef, supra note 114; Vice, supra note 114; Culotta, supra note 114; Demedeiros, supra note 114; Larue, supra note 114; Fleming, supra note 114; Javanmardi, supra note 114; Collin, supra note 114; Fedyck, supra note 1. See also Jarvis, supra note 114; James, supra note 114; CJ, supra note 2. 262 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 SCC.116 Two cases stand out for their precedential impact. First, in R v Jarvis, a teacher was discovered to be recording female students using a camera pen.117 While the girls were fully clothed and in a public space, the recordings were largely focused on their upper bodies, particularly their breasts.118 Subsequently, Jarvis was charged with voyeurism under subsection 162(1) of the Code.119 The only issue before the SCC was whether the girls had a REP for the purposes of subsection 162(1).120 In their analysis, the Court took a broad and contextual approach to answer in the affirmative.121 For the purposes of subsection 162(1) of the Code, the Court acknowledged that the students being recorded were in circumstances where they could reasonably expect not to be the subjects of such recordings, giving rise to a REP.122 The Court subsequently provided a non-exhaustive list of factors for determining whether a person who is observed or recorded is in circumstances that give rise to a REP.123 Finally, though Fleming v Ontario was a civil action against the Ontario government and several named officers of the Ontario Provincial Police (OPP), the Court took the opportunity to decide on an important ancillary police powers issue.124 In Fleming, the arrest of the accused was a tactical decision by police to pre-empt possible violent clashes at a protest.125 Fleming was arrested for breaching the peace.126 The SCC found that the accused's arrest was not authorized by law and clarified that the ancillary powers doctrine does not give police the power to arrest someone, who is acting lawfully, for the purpose of preventing a potential breach of the peace.127 After applying the ancillary powers doctrine to the facts of the case, the SCC found that such a drastic measure, which severely restricted the liberty of a law-abiding individual, was not reasonably 116 117 118 119 120 121 122 123 124 125 126 127 See Jarvis, supra note 114; Fleming, supra note 114; James, supra note 114; Javanmardi, supra note 114; CJ, supra note 2. Supra note 114 at paras 7, 22. Ibid at para 10. Ibid at paras 12, 20. Ibid at paras 4, 71. Ibid at paras 91–92. Ibid at para 28. Ibid at para 29. Supra note 114 at para 6. Ibid at paras 1, 9–18. Ibid at para 6. Ibid at paras 7–8. Year in Review 263 necessary for the fulfillment of their police duties.128 The Court further noted that other, less-intrusive powers already exist at common law that would have been capable of preventing breaches of the peace.129 VI. CATEGORIES: MBCA The thematic categories differed slightly for the MBCA from their SCC counterparts. Whereas the SCC cases yielded seven categories, the MBCA cases yielded six. Despite this, the categories remained largely the same. There were an insufficient number of cases to form a Post-Trial/Prison Law category, as was done for the SCC jurisprudence. All of the remaining thematic categories represented at the SCC level are repeated here. Sentencing formed the largest category, accounting for 31.1% of the total (n=32/103). Evidence had the next highest proportion at 25.2% (n=26/103). The Past Sexual History and Search and Seizure subcategories comprised a relatively small proportion of the whole at 0.97% (n=1/103) and 4.9% (n=5/103), respectively. However, when Evidence and its subcategories are taken collectively, they account for the same proportion of the dataset as Sentencing. The third most populous category was Trial Procedure, which included 17.5% (n=18/103) of the total cases. These three categories were the largest by a significant margin. The largest category after Trial Procedure was Miscellaneous, accounting for 9.7% (n=10/103). This was followed by Charter with 8.7% (n=9/103) and Defences with 1.9% (n=2/103). Appeals Defences Evidence S&S Charter Evidence PSH Sentencing Misc. Trial Procedure Evidence Figure 3 128 129 Ibid at para 88. Ibid at paras 91–92. 264 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 VII. CASE ANALYSIS: MBCA This section takes a more in-depth look at the MBCA cases that were recorded. The sample was comprised of 103 cases. Generally, cases were highlighted for their jurisprudential impact and particular attention was paid to those cases which altered, stated, or restated tests and criteria relied upon by practitioners. In other sections, cases were highlighted as demonstrative of a wider trend in the jurisprudence or because they were representative of many other cases in the same category. A. Charter The Charter section includes cases which focused primarily on Charter issues, with the exception of search and seizure issues under section 8. These were given their own sub-category under the Evidence heading. A total of nine cases were included, making up a relatively small proportion of the total case volume (8.7%). A diverse range of Charter rights were examined by the Court, but two dominant threads emerged, appearing in over three quarters of the cases. The first was arbitrary detention and the second was unreasonable delay. Arbitrary detention claims appeared with the highest frequency, being considered by the Court in five of the nine cases.130 The jurisprudential relevance of these cases is limited, as the issues revolved around the specific facts of each case, rather than raising wider issues of substantive law. Despite the relative prevalence of section 9 related arguments, success was low for appellants; the only successful arbitrary detention argument was advanced by the Crown in R v Omeasoo et al.131 Officers in that case were investigating a reported road-rage incident involving firearms.132 They spotted the two accused at a restaurant and questioned them briefly, despite the two accused conforming to only a couple aspects of the witness description that the officers had been given.133 The officers’ questions and quick look into the vehicle disclosed nothing 130 131 132 133 See R v Tummillo, 2018 MBCA 95; R v S(WEQ), 2018 MBCA 106; R v Omeasoo et al, 2019 MBCA 43 [Omeasoo]; R v Clemons, 2020 MBCA 4 [Clemons]; R v Ong, 2020 MBCA 14. Ibid. Ibid at para 5. Ibid at paras 5–10. Year in Review 265 and the two accused were told they were free to go.134 However, one of the officers then went to use the restaurant’s bathroom, which he had just watched one of the accused leave from.135 He discovered a bullet in the urinal.136 On this basis, the accused were arrested and searched, turning up both guns and drugs.137 The trial judge found a number of Charter breaches.138 On the issue of arbitrary detention, it was held that, even after the finding of the bullet, the officers only had grounds for investigative detention, not an arrest.139 The Court of Appeal found that the trial judge erred in this respect by failing to consider the evidence collectively and in context.140 Though the Crown’s appeal was allowed, it raised a number of other issues as well.141 As such, it cannot be said that this success was rooted in the section 9 argument alone. It is noteworthy, however, given that none of the remaining arbitrary detention appeals, all made by the defence, were successful. The second dominant thread, unreasonable delay, appeared in four of the nine cases.142 The most significant of these is R v KGK, where the Court of Appeal considered how the time taken by a trial judge in rendering a decision is to be accounted for under the unreasonable delay framework established in Jordan. There was significant disagreement within the Court of Appeal, with each appellate judge providing reasons that differed from the others in some way. Ultimately, Cameron and Monnin JJA both concluded that the time it takes a judge to render a decision is subject to section 11(b) of the Charter, but not to the 18 and 30-month ceilings set out in Jordan.143 In a lengthy and detailed dissent, Hamilton JA argued, among other things, that the ceilings should apply.144 134 135 136 137 138 139 140 141 142 143 144 Ibid at para 10. Ibid at paras 8, 11. Ibid at para 11. Ibid at paras 5–12. Ibid at para 17. Ibid at para 17. Ibid at para 39. Ibid at paras 4, 19–25. See Tummillo, supra note 130; R v KGK, 2019 MBCA 9 [KGK]; R v Giesbrecht, 2019 MBCA 35; Clemons, supra note 130. Ibid at paras 173, 286. Ibid at paras 59–172. 266 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 B. Defences Defences comprised the smallest full category that was compiled, with only two cases comprising 1.9% of the dataset. In both cases, the Court of Appeal was called upon to review a trial judge’s dismissal of an accused’s arguments. In Spicer, the accused was convicted of dangerous driving causing death.145 The defence tried to argue that he was distracted by a vehicle in an oncoming lane, which was allegedly flashing its high beams.146 Interestingly, the Court did not dismiss the argument in and of itself. Rather, the Crown’s reliance on expert evidence and the testimony of another driver who saw no flashing high-beams led them to conclude that the trial judge had sufficient grounds for dismissing the argument.147 The only other case assigned to this category, CDJM, dealt with an attempted self-defence argument in the context of a boy assaulting a peer with a machete at school.148 Not surprisingly, the argument failed.149 C. Evidence The Evidence category comprises almost one third of the total caseload, accounting for 32 of the 103 cases recorded. For thematic reasons, two further sub-categories were included within Evidence: Search and Seizure and Evidence of Past Sexual History. These numbers demonstrate that evidentiary issues continue to occupy a significant amount of the Court’s time. Many of these appeals went beyond mere challenges to weight, with the Court of Appeal addressing many issues of substantive law. Furthermore, several appeals asked the Court to examine the application of widely used evidentiary rules and tests. In a rare example of a successful defence appeal, the Court in Dowd was asked to engage with the rule in Browne v Dunn.150 The issue was whether the use of the rule in Browne v Dunn against the accused by the trial judge, without an objection by the Crown or input from counsel, resulted in trial unfairness.151 Dowd was accused of sexual assault and sexual interference against a child at a bonfire party.152 It was not disputed that Dowd had taken 145 146 147 148 149 150 151 152 R v Spicer, 2019 MBCA 117 [Spicer]. Ibid at para 6. Ibid at paras 9–11. R v CDJM, 2019 MBCA 52 [CDJM]. Ibid at paras 6–10. R v Dowd, 2020 MBCA 23 [Dowd]. Ibid at para 1. Ibid at para 2. Year in Review 267 the complainant to his motor-home.153 However, he denied the allegations, testifying that he had taken the complainant to use the bathroom at the request of another adult at the party, either Mrs. K or Mrs. M.154 Neither Mrs. K nor Mrs. M were cross-examined on this point. Neither party raised or addressed it at trial, but the trial judge found a breach of the rule in her reasons, drawing two negative inferences against the accused for failing to call the witnesses.155 The accused was convicted and sentenced.156 The Court of Appeal found that unfairness had occurred as a product of the trial judge’s actions.157 In these circumstances, the trial judge’s unilateral application of the rule, without informing either party and allowing them to make submissions, amounted to an ambush at trial.158 This is precisely what the rule in Browne v Dunn was meant to avoid.159 Accordingly, the Court set aside the convictions and ordered a new trial.160 Lewin deals with the application of the commonly raised test established in R v W(D), [1991] 1 SCR 742, 12 WBC (2d) 551.161 In Lewin, the accused was able to successfully challenge the trial judge’s W(D) analysis, securing a new trial.162 This is remarkable because much of the analysis relied on credibility findings, which are owed substantial deference on appeal. The accused took issue with the trial judge’s application of the third step of the W(D) analysis, which requires the trier of fact to determine whether the accepted evidence is sufficient to establish guilt beyond a reasonable doubt.163 The Court found that the trial judge had erred in law by relying on evidence in the third stage of the test that she had explicitly rejected at an earlier stage.164 The effect of the error was to shift the onus onto the accused.165 As the Court states in its reasons, “[t]he lack of credibility of an accused does not equate to proof of guilt beyond a reasonable doubt.”166 153 154 155 156 157 158 159 160 161 162 163 164 165 166 Ibid at para 3. Ibid. Ibid at para 7. Ibid at para 3. Ibid at paras 30, 32. Ibid. Ibid. Ibid at para 41. R v Lewin, 2020 MBCA 13 [Lewin]. Ibid at paras 3–4. Ibid. Ibid at para 21. Ibid at para 22. Ibid at para 22. 268 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 For counsel looking to appeal a decision grounded in a W(D) analysis, this is definitely a case to keep in mind. 1. Evidence: Past Sexual History In the Supreme Court jurisprudence discussed above, the admission of evidence concerning the past sexual history of sexual offence complainants was identified as an emerging theme. While such issues appeared before the Supreme Court in a noticeable quantity (5.8%), there was only one such case reported before the Manitoba Court of Appeal. In Catellier, the Court of Appeal upheld the decision of the trial judge dismissing the accused’s application to cross-examine the complainant on her past sexual history.167 In point of fact, the trial judge did not actually dismiss the accused’s application outright, as he was allowed to cross-examine on some of the complainant’s past sexual history.168 Though the trial judge permitted this insofar as it was necessary to advance the defence of honest but mistaken belief in consent, undermine the complainant’s credibility, and demonstrate a motive to fabricate, she found that much of the information that the accused sought to elicit served only to advance the “twin myths” regarding sexual assault complainants.169 In upholding her decision, the Court of Appeal noted that the trial judge had explained why she was dismissing each of the accused’s requests and that she adequately balanced the competing interests of the right to full answer and defence with the “complainant’s privacy and dignity, as well as the danger of prejudice.”170 2. Evidence: Search and Seizure Section 8 issues formed a small proportion of the dataset, with five cases comprising 4.9% of the total. Even within the Evidence category, the Search and Seizure subcategory only amounts to 15.6% of cases. The Court of Appeal continued to fill in the boundaries of REP in Okemow.171 While it is trite to say that there is a reasonable expectation of privacy in a residence, the issue before the Court was whether the accused had a REP in a house that he neither owned nor resided at.172 Upon reviewing the evidence, the Court found that, although the accused had a 167 168 169 170 171 172 R v Catellier, 2018 MBCA 107 [Catellier]. Ibid at para 4. Ibid at paras 3–4. Ibid at para 5. R v Okemow, 2019 MBCA 37 [Okemow]. Ibid at paras 16–21. Year in Review 269 subjective expectation of privacy, it lacked objective reasonableness.173 The trial judge’s ruling was upheld and the accused was found to lack the standing to advance a section 8 claim.174 Similarly, the warrantless search of the residence conducted by police was determined to be lawful.175 The MBCA had the opportunity to clarify the process for disclosure of information, from a confidential informant, to a judge or justice authorizing a search warrant in Pilbeam.176 The accused in that case was convicted of possession for the purpose of trafficking after police executed a search warrant for his residence, yielding cocaine and drug paraphernalia.177 The Information to Obtain (ITO) was based on the information of a confidential informant.178 At trial, the accused challenged the search warrant under section 8, arguing that the grounds relied on by the officer were objectively insufficient.179 He also argued that there were drafting deficiencies in the ITO that were contrary to the officer’s duty of full, fair and frank disclosure of material facts.180 Following a Garofoli review, the trial judge upheld the search warrant.181 After reviewing the record, the Court determined that the ITO established objectively reasonable grounds.182 The drafting deficiencies alleged by the accused related to a number of facts that the officer explicitly withheld from the authorizing justice, citing the need to protect the identity of the confidential informant.183 In addressing this argument, the Court took the opportunity to delineate its expectations in terms of disclosure of information relating to a confidential informant within an ITO.184 The fundamental principle that the Court distilled from the existing Garofoli jurisprudence is that “the state cannot have its cake and eat it too”, as the judge or justice authorizing a search warrant is included in the circle of informant privilege.185 Officers must disclose all material information from 173 174 175 176 177 178 179 180 181 182 183 184 185 Ibid at paras 37, 43. Ibid at para 43. Ibid at para 3. R v Pilbeam, 2018 MBCA 128 [Pilbeam]. Ibid at para 2. Ibid. Ibid at paras 2–3. Ibid at para 23. Ibid at paras 3–4, 23. Ibid at para 22. Ibid at para 31. Ibid. Ibid at para 28. 270 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 or about a confidential informant in an ITO.186 Redaction of information, in collaboration with the Crown, will occur afterward in order to protect the informant before disclosure to the defence is made.187 Despite this, the Court qualified its position by stating that the failure of the police to follow this approach will not, alone, form grounds for a successful challenge.188 It is not entirely clear how this qualification is to be read with the absolute language used by the Court in describing the disclosure obligations of police, especially given that the ITO was upheld in this case. The Court seemed to indicate that, although the manner of disclosure in this case should not be commonplace, this was an exceptional instance where none of the withheld information was material.189 The success of this attempt by the Court to bring greater clarity to this area of the law remains to be seen. D. Trial Procedure Trial Procedure is a broad category in which we attempted to capture all of those matters relating to the way that a trial is conducted, rather than issues of the actual evidence or arguments before the court. Included are cases raising a range of issues, such as jurisdiction, jury charges, prejudice and admission of fresh evidence. Though not nearly as significant in number as evidence or sentencing cases, the Trial Procedure category still accounts for a large proportion of the dataset, with 18 cases amounting to 17.5%. Thus, it is clear that trial conduct itself is a reasonably strong ground of appeal. In some cases, the Court of Appeal was called upon to review its own conduct and the conduct of members of the judiciary, rather than their rulings. In both Van Wissen and Herntier, Justice Monnin was confronted with motions to recuse. 190 In Woroniuk, the Court allowed an appeal by the accused regarding the imposition of a curfew condition as part of his sentence.191 The sentencing judge had attached the condition after adjourning and placing a private call to the preparer of the pre-sentence report.192 The judge acknowledged that there was no basis in law for this, 186 187 188 189 190 191 192 Ibid at para 31. Ibid. Ibid. Ibid at paras 30, 32. R v Van Wissen, 2018 MBCA 100; R v Herntier, 2019 MBCA 25. R v Woroniuk, 2019 MBCA 77 [Woroniuk]. Ibid at para 3. Year in Review 271 but he did so regardless.193 Though the actions of the sentencing judge were found to be well-intentioned, the Court made it clear that this conduct was not to be condoned.194 The Court further stressed that judges may only rely on the facts put before them, unless judicial notice can be taken.195 They even went so far as to characterize what the trial judge had done as a “blatant disregard of a basic principle of justice”, causing “judicial resources to be expended to correct an error that the sentencing judge knew full well he was committing.”196 Immigration consequences appear to be forming the basis of an increasing number of appeals, at least from the words of Beard JA in the introductory paragraph of Cerna.197 There was some evidence of such a trend in the reported cases. The appeal in Singh and some of the cases logged under Sentencing, which are explored below, were all grounded in immigration consequences.198 In Cerna, the accused appealed his convictions and made motions to withdraw a guilty plea and introduce fresh evidence.199 He argued that the failure of trial counsel to advise him of the full consequences of a guilty plea, resulting in a non-appealable deportation order, amounted to a miscarriage of justice.200 The Court accepted the accused’s ignorance of the immigration consequences, as this was supported by the trial transcript and an affidavit by trial counsel.201 Rather, the issue raised by the Crown was whether the accused had demonstrated subjective prejudice arising as a result.202 Despite a strong case on the part of the Crown, the Court found that prejudice had occurred and allowed the withdrawal.203 There was sufficient evidence to establish that the accused might have pled differently or on different conditions.204 In so ruling, the Court highlighted that the accused is not required to have a viable defence.205 This leaves the door open to “hail 193 194 195 196 197 198 199 200 201 202 203 204 205 Ibid. Ibid at para 5. Ibid at para 4. Ibid at paras 4, 6. R v Cerna, 2020 MBCA 18 at para 1 [Cerna]. R v Singh, 2019 MBCA 105. Supra note 197 at paras 1-4. Ibid at paras 1–3. Ibid at para 30. Ibid at para 31. Ibid at para 50. Ibid at para 49. Ibid at para 38. 272 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Mary” defences where an accused credibly demonstrates a reasonable possibility that he or she may have acted differently with awareness of the full consequences.206 E. Sentencing Sentencing accounted for the same amount of the total as Evidence and its sub-categories, with 32 cases comprising 31.1% of the caseload. Sentencing also offered relatively fertile ground for the MBCA to render substantive rulings. Notably, this is where the defence enjoyed the greatest success on appeal; five of the 13 successful defence appeals were sentencing appeals, the highest proportion of success by category. The Court added to the jurisprudence on some of the fundamental aspects of sentencing in several cases. In R v Fehr, the Court upheld a harsh sentence that significantly departed from the established range. 207 The accused was sentenced to three years of incarceration for obstruction of justice, which she pled guilty to as part of a deal with the Crown.208 This was done to avoid a charge of counselling to commit murder for trying to contract the killing of a child to avoid making support payments.209 The Court ruled that, in recognizing the underlying plot as aggravating, the sentencing judge had considered the circumstances of the offence, not the higher counselling to commit charge, and therefore no error was made.210 In CCC, the Court applied recent Supreme Court jurisprudence on collateral consequences to find that vigilante violence by the partner of a sexual assault complainant against the accused should have been considered by the sentencing judge. 211 However, in this case, the error did not impact the otherwise appropriate sentence and the appeal was dismissed.212 In both Yare and Norris, the Court considered immigration consequences in the collateral consequence context. 213 In Yare, the Crown appealed the sentence imposed because the judge, after finding the appropriate sentence to be one year of imprisonment, reduced the sentence to less than 6 months so that the accused would not face certain deportation 206 207 208 209 210 211 212 213 Ibid at para 49. R v Fehr, 2018 MBCA 131 [Fehr]. Ibid at paras 1–2. Ibid at para 6. Ibid at para 21. R v CCC, 2019 MBCA 76 [CCC] at para 32. Ibid at paras 36, 40. R v Yare, 2018 MBCA 114 [Yare]; R v Norris, 2019 MBCA 101 [Norris]. Year in Review 273 consequences.214 In Norris, the accused appealed for a one-day reduction on the sentence of one of his charges, so that immigration consequences would not be triggered, as the judge had not been fully informed of these consequences at the time.215 As noted above, immigration consequences appear to be forming the basis of an increasing number of appeals. Interestingly, the appeals in both Yare and Norris were allowed. All of this suggests that the judiciary is still uncertain of how immigration consequences are to figure into legal decision making. A number of cases also raised issues of exceptional circumstances. In Dalkeith-Mackie, the Court overturned a sentencing judge’s finding of exceptional circumstances. 216 The accused participated in a convenience store robbery with a co-accused.217 The sentencing judge made his finding on the grounds that the accused was only the lookout, was participating to fuel a drug addiction, did not participate in assaulting the clerk, and had been highly successful in rehabilitative programming since the offence.218 However, in the view of the MBCA, these circumstances did not meet the high bar of exceptionality.219 As a direct result of this decision, the Court would be asked to revisit exceptional circumstances in R v Grewal.220 The accused in Grewal alleged that the law surrounding exceptional circumstances was uncertain because the decision of the Court in DalkeithMackie conflicted with past MBCA jurisprudence.221 He argued that the Court should reverse the sentencing judge’s refusal to find exceptional circumstances.222 Like the accused in Dalkeith-Mackie, the accused in Grewal had pled guilty to robbery, which was committed to fuel a drug addiction, and had performed very well in rehabilitative programming afterward.223 In considering the accused’s assertion, the Court came to the conclusion that the decision in Dalkeith-Mackie had not altered the law on this topic and was consistent with past decisions.224 In advancing his argument, the accused 214 215 216 217 218 219 220 221 222 223 224 Ibid at paras 10–13. Supra note 213 at paras 3–4. R v Dalkeith-Mackie, 2018 MBCA 118 [Dalkeith-Mackie]. Ibid at para 4. Ibid at para 27. Ibid at paras 28–29. R v Grewal, 2019 MBCA 108 [Grewal]. Ibid at para 13. Ibid at paras 9, 13. Ibid at paras 2, 5. Ibid at paras 14–16. 274 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 had conflated the parameters of a finding of exceptional circumstances with the application of those parameters in a given case.225 In doing so, the Court set out a succinct summary of the law regarding exceptional circumstances, which will hopefully provide greater clarity on this subject going forward. In addition to addressing issues of established law and principles, the Court also addressed some novel ones. Such an example can be found in JHS.226 The accused in that case alleged a number of errors on the part of the sentencing judge, but recognized the possibility that none would be sufficient to ground appellate intervention.227 Consequently, he argued that the Court ought to look at the cumulative effect of the errors, which together amounted to a reviewable error.228 The Court declined to do so, finding no authority supporting the assertion that a series of non-reviewable errors can become reviewable when considered in aggregate.229 F. Miscellaneous This is the final category of cases for discussion. Whereas other categories were created based on salient themes that emerged from the associated cases, this one was intended as a catchall for those cases which did not fit anywhere else. Some of these cases had very narrow ratios, such as commenting on the essential elements of a particular offence. Others were too broad, with several issues, which could have potentially fallen in different categories, but no dominant one. Some cases were also very brief, providing too little detail to form a basis for discussion. The ‘Miscellaneous’ category contains ten cases, forming 9.7% of the dataset. A prime example of a narrow case is Gowenlock.230 This case may be of particular interest to practitioners, as it deals with the ability of judges to order costs against counsel personally. In this case, the pre-trial judge ordered costs against counsel due to missed timelines.231 This was the first instance of a challenge to such an order, made pursuant to the Criminal Proceedings Rules of the Manitoba Court of Queen’s Bench, SI/2016-34.232 Consequently, amicus had to be appointed and the Court embarked on 225 226 227 228 229 230 231 232 Ibid at para 16. R v JHS, 2019 MBCA 24 [JHS]. Ibid at paras 15–16. Ibid at para 16. Ibid at para 19. R v Gowenlock, 2019 MBCA 5 [Gowenlock]. Ibid at para 2. Ibid at paras 2, 4–5. Year in Review 275 setting out the framework and tests for such orders.233 The decision is rather lengthy, though the Court summarizes a five-point procedure to be followed in determining whether an order should be made.234 Hopefully this test will see little use. However, counsel who find themselves in the position of contesting an order for costs personally will find this helpful. Van Wissen No 2 is illustrative of the opposite sort of case. 235 The accused included 24 grounds in his notice of appeal.236 Ultimately, the Court reduced these to 4 issues: admission of evidence, jury instruction, unreasonable verdict, and whether the trial was rendered unfair by the conduct of the trial judge.237 Given the varied nature of the issues raised, there was no particular category where this case clearly belonged, nor was any one issue of particular legal significance. Incidentally, the appeal was dismissed on all grounds.238 It should also be noted that immigration consequences appeared again in this category. In Tsui, the accused appealed the decision of a summary conviction appeal (SCA) judge who denied his motion to extend his time to appeal.239 The accused was an international student who had plead guilty to impaired driving.240 Afterwards, he was unable to renew his study permit, as he had been deemed inadmissible to Canada.241 He also failed to have his inadmissibility reviewed and had a refugee claim rejected.242 Before the SCA judge, the accused expressed the basis of his appeal as being a miscarriage of justice arising from a guilty plea that was not fully informed.243 The SCA judge denied his motion, finding that the accused had only initiated the appeal process after pursuing all other immigration options and failing.244 This led the SCA judge to conclude that the accused never possessed a bona fide intention to seek leave to appeal.245 In the end, 233 234 235 236 237 238 239 240 241 242 243 244 245 Ibid at para 5. Ibid at para 100. R v Van Wissen, 2018 MBCA 110 [Van Wissen No 2]. Ibid at para 3. Ibid. Ibid at para 159. R v Tsui, 2019 MBCA 41 [Tsui]. Ibid at para 2-3. Ibid at para 3. Ibid at paras 2–6. Ibid at para 7. Ibid at para 9. Ibid at paras 7–9. 276 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 the MBCA found that the accused had not raised an arguable matter of substance and dismissed the appeal.246 VIII. CLOSING THOUGHTS AND CONCLUSION Thus far, we have tried to present a mainly descriptive view of SCC and MBCA jurisprudence. The methods used to gather and present that data were outlined in detail. A broad statistical overview was then presented, followed by a description of the thematic categories that were developed, and some of the most significant cases that were placed in each. Before concluding, however, there were several trends that emerged from the data and jurisprudence which bear further comment. Looking first at the statistical trends, a number of interesting patterns emerged. The defence was more active than the Crown in bringing appeals before both the SCC and the MBCA. Despite this, and also at both levels, the Crown enjoyed notably greater rates of success as both an appellant and a respondent. This trend manifested more extremely at the MBCA than at the SCC, as 66.0% of the appeals heard by the SCC were advanced by the defence, compared to 92.2% at the MBCA. At the same time, the defence only obtained successful outcomes in 20.8% of the appeals heard by the SCC and in 12.6% of those heard by the MBCA. The disparity between Crown and defence success decreases only nominally when each party’s success rates on their own appeals are considered. This data clearly demonstrates that there is a higher degree of risk on appeal for the defence than for the Crown. What the data does not demonstrate is the reason for this. It could be a result of asymmetry in resources and tactical objectives between these parties. However, it may also potentially be indicative of systemic disadvantage against accused persons. We do not purport here to provide an answer to this question. Rather, we note the significance of this trend and suggest that it is worthy of further study. There were also thematic similarities in the jurisprudence between the two courts. Proportionally, the three most significant types of cases before the SCC were, in descending order, Trial Procedure, Miscellaneous, and Evidence. Together, these categories accounted for 75.1% of all of the cases heard. At the MBCA, the three most significant categories were, also in descending order, Sentencing, Evidence, and Trial Procedure. These 246 Ibid at para 19. Year in Review 277 categories accounted for 87.4% of the cases heard. Thus, the preponderance of the courts’ time has been occupied by a relatively narrow set of issues. Notably, there was also significant overlap in the predominant types of issues before the SCC and MBCA. Evidence and Trial Procedure cases constituted large proportions of the dataset before both courts. At the same time, however, there was some divergence: sentencing accounted for 31.1% of the cases before the MBCA, but only 3.8% before the SCC. It is no coincidence that evidence and trial procedure issues are so frequently appealed, given their technical and detail-specific nature. Similarly, sentencing is arguably one of the more subjective tasks undertaken by courts. Why sentencing appeals are so strongly represented at the MBCA, relative to the SCC, is unclear. Moving on to the jurisprudence itself, social context emerged as an underlying consideration in many of the decisions. Many of the cases that were selected for further analysis shared an undercurrent that brought social context into the courts’ decision-making. Both the SCC and the MBCA appeared to dedicate considerable time to discussions of racial profiling, the disproportionate impacts of certain sentences on the impoverished, immigration consequences, the use of complainants’ past sexual history, and the scope of privacy expectations. To some extent, this pattern may be reflective of the social debates underway in wider Canadian society. Conclusions of this nature are beyond the scope of this paper, but the increased attention paid to social factors in these courts’ decisions is an important trend to be aware of. Our aim in creating this paper and the associated documents was to both enhance the literature in this area and provide some potentially useful information and tools for practitioners. Each year, the courts generate veritable mountains of jurisprudence. Sifting through it to find the most valuable needles in the haystack, without losing sight of the overall shape and context of the haystack itself, is no small task. We attempted to focus on the practical, choosing to present what we believed to be helpful as well as interesting. In the interest of transparency and openness, we have listed all of the cases we logged, sorted by category and highlighted by use, in the appendices that follow. The supporting documents that we developed during our research have also been posted. As for the trends identified above, it remains to be seen how they will develop and change going forward. Neither the courts nor society are static; it may be that a similar endeavour undertaken in the upcoming years will 278 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 yield entirely different results. Regardless, it will be interesting to see how the jurisprudence of the SCC and the MBCA continues to evolve. Year in Review 279 Appendix I Charter – 13.4% 1. R v Morrison, 2019 SCC 15247 2. R v Le, 2019 SCC 34* 3. R v Stillman, 2019 SCC 40 4. R v Poulin, 2019 SCC 47 5. R v KJM, 2019 SCC 55* 6. R v Doonanco, 2020 SCC 2 7. R v Boudreault, 2018 SCC 58* Defences – 3.8% 1. R v Gagnon, 2018 SCC 41 2. R v Blanchard, 2019 SCC 9* Evidence – 15.4% 1. R v Normore, 2018 SCC 42 2. R v Gubbins, 2018 SCC 44* 3. R v Ajise, 2018 SCC 51 4. R v Cyr-Langlois, 2018 SCC 54* 5. R v Quartey, 2018 SCC 59 6. R v Calnen, 2019 SCC 6 7. R v JM, 2019 SCC 24 8. R v SH, 2020 SCC 3 Evidence: Past Sexual History – 5.8% 1. R v Barton, 2019 SCC 33 2. R v Goldfinch, 2019 SCC 38* 3. R v RV, 2019 SCC 41* Evidence: Search and Seizure – 5.8% 1. R v Reeves, 2018 SCC 56* 2. R v Mills, 2019 SCC 22* 3. R v Omar, 2019 SCC 32 247 (Morrison was counted twice in the dataset as it was a cross appeal; thus, it was counted both as a defence appeal and as a Crown appeal). 280 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 Trial Procedure – 25.0% 1. R v Awashish, 2018 SCC 45 2. R v Beaudry, 2019 SCC 2 3. R v George-Nurse, 2019 SCC 12 4. R v Snelgrove, 2019 SCC 16* 5. R v Myers, 2019 SCC 18* 6. R v D’Amico, 2019 SCC 23 7. R v Thanabalasingham, 2019 SCC 21 8. R v MRH, 2019 SCC 46* 9. R v Kernaz, 2019 SCC 48 10. R v Kelsie, 2019 SCC 17* 11. R v Wakefield, 2019 SCC 26 12. R v WLS, 2019 SCC 27 13. R v Shlah, 2019 SCC 56 * Sentencing – 3.8% 1. R v Friesen, 2020 SCC 9 2. R v Rafilovich, 2019 SCC 51* Post-Trial Procedure / Prison Law – 3.8% 1. R v Bird, 2019 SCC 7 2. R v Penunsi, 2019 SCC 39* Miscellaneous – 23.1% 1. R v Youssef, 2018 SCC 49 2. R v Vice Media, 2018 SCC 53 3. R v Culotta, 2018 SCC 57 4. R v Fedyck, 2019 SCC 3 5. R v CJ, 2019 SCC 8 6. R v Jarvis, 2019 SCC 10* 7. R v Demedeiros, 2019 SCC 11 8. R v Larue, 2019 SCC 25 9. Fleming v Ontario, 2019 SCC 45* 10. R v James, 2019 SCC 52 11. R v Javanmardi, 2019 SCC 54 12. R v Collin, 2019 SCC 64 *Included in above analysis. Year in Review 281 Appendix II Charter – 8.7% 1. R v Tummillo, 2018 MBCA 95 2. R v S (WEQ), 2018 MBCA 106 3. R v KGK, 2019 MBCA 9* 4. R v Culligan, 2019 MBCA 33 5. R v Giesbrecht, 2019 MBCA 35 6. R v Omeasoo et al, 2019 MBCA 43* 7. R v Gebru, 2019 MBCA 73 8. R v Clemons, 2020 MBCA 4 9. R v Ong, 2020 MBCA 14 (s 9) Defences – 1.9% 1. R v CDJM, 2019 MBCA 52* 2. R v Spicer, 2019 MBCA 117* Evidence – 25.2% 1. R v JMS, 2018 MBCA 117 2. R v Beaulieu, 2018 MBCA 120 3. R v Hall, 2018 MBCA 122 4. R v Mohamed, 2018 MBCA 130 5. R v Mason, 2018 MBCA 138 6. R v Atkinson et al, 2018 MBCA 136 7. R v RCRT, 2018 MBCA 139 8. R v Loonfoot, 2018 MBCA 140 9. R v JMB, 2019 MBCA 14 10. R v Merkl, 2019 MBCA 15 11. R v Houle, 2019 MBCA 17 12. R v Cleveland, 2019 MBCA 49 13. R v Williams, 2019 MBCA 55 14. R v Green, 2019 MBCA 53 15. R v Chief, 2019 MBCA 59 16. R v Dowd, 2019 MBCA 80 17. R v Pendl, 2019 MBCA 89 18. R v AJS, 2019 MBCA 93 19. R v Weldekidan, 2019 MBCA 109 20. R v Jovel, 2019 MBCA 116 282 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 21. 22. 23. 24. 25. 26. R v Devloo, 2020 MBCA 3 R v Lewin, 2020 MBCA 13* R v SRF, 2020 MBCA 21 R v Dowd, 2020 MBCA 23* R v Kupchik, 2020 MBCA 26 R v Chan, 2019 MBCA 38 Evidence: Past Sexual History – 0.97% 1. R v Catellier, 2018 MBCA 107* Evidence: Search and Seizure – 4.9% 1. R v Pilbeam, 2018 MBCA 128* 2. R v Land, 2018 MBCA 132 3. R v Penner, 2019 MBCA 8 4. R v Okemow, 2019 MBCA 37* 5. R v Plante, 2019 MBCA 39 Trial Procedure – 17.5% 1. R v Van Wissen, 2018 MBCA 100* 2. R v Ostrowski, 2018 MBCA 125 3. R v Herntier, 2019 MBCA 25* 4. R v Ewanochko, 2019 MBCA 45 5. R v Grant, 2019 MBCA 51 6. R v Froese, 2019 MBCA 56 7. R v Woroniuk, 2019 MBCA 77* 8. R v Asselin, 2019 MBCA 94 9. R v Desrochers, 2019 MBCA 120 10. R v McLeod, 2019 MBCA 124 11. R v Tade, 2020 MBCA 5 12. R v Robinson, 2020 MBCA 12 13. R v Hebert, 2020 MBCA 16 14. R v Cerna, 2020 MBCA 18* 15. R v Devloo, 2018 MBCA 108 16. R v Dignard, 2019 MBCA 6 17. R v Moslehi, 2019 MBCA 79 18. R v Singh, 2019 MBCA 105* Year in Review 283 Sentencing – 31.1% 1. R v Ndlovu, 2018 MBCA 113 2. R v Candy, 2018 MBCA 112 3. R v Yare, 2018 MBCA 114* 4. R v Dalkeith-Mackie, 2018 MBCA 118* 5. R v Safaye, 2018 MBCA 121 6. R v JED, 2018 MBCA 123 7. R v PES, 2018 MBCA 124 8. R v DARK, 2018 MBCA 133 9. R v Fehr, 2018 MBCA 131* 10. R v Bourget, 2019 MBCA 10 11. R v Provinciano, 2019 MBCA 16 12. R v Houle, 2019 MBCA 20 13. R v JHS, 2019 MBCA 24* 14. R v McIvor, 2019 MBCA 34 15. R v Rose, 2019 MBCA 40 16. R v Gardiner, 2019 MBCA 63 17. R v Sadowy, 2019 MBCA 66 18. R v Catcheway, 2019 MBCA 75 19. R v CCC, 2019 MBCA 76* 20. R v Fisher, 2019 MBCA 82 21. R v Reilly, 2019 MBCA 84 22. R v Barker, 2019 MBCA 86 23. R v Knott, 2019 MBCA 97 24. R v Norris, 2019 MBCA 101* 25. R v Hebrada-Walters, 2019 MBCA 102 26. R v Todoruk, 2019 MBCA 100 27. R v Siwicki, 2019 MBCA 104 28. R v Grewal, 2019 MBCA 108* 29. R v Pelletier, 2019 MBCA 126 30. R v Johnson, 2020 MBCA 10 31. R v Peters, 2020 MBCA 17 32. R v Ackman, 2020 MBCA 24 Misc – 9.7% 1. R v Van Wissen, 2018 MBCA 110* 2. R v Gowenlock, 2019 MBCA 5* 3. R v Klippenstein, 2019 MBCA 13 284 MANITOBA LAW JOURNAL| VOLUME 43 ISSUE 4 4. 5. 6. 7. 8. 9. 10. R v FCW, 2019 MBCA 19 R v Ewert, 2019 MBCA 29 R v Hyra, 2019 MBCA 42 R v Tsui, 2019 MBCA 41* R v Hominuk, 2019 MBCA 64 R v Dyck, 2019 MBCA 81 R v Ponace, 2019 MBCA 99 *Included in above analysis