Canadian Criminal Code Research Articles

Bad Religion and Bad Business: The History of the Canadian Witchcraft Provision

AbstractWitchcraft is a fascinating subject on which many volumes continue to be published. But not in Canada. This article stands in contrast to earlier Canadian pieces on witchcraft whose primary goals were to prove that the witchcraft provision marginalized women and to encourage legislators to repeal it. Parliament finally repealed the Canadian witchcraft prohibition in 2018. The moment is thus ripe to ask how—and why—this legislative oddity migrated from England into Canada. The first section of the paper considers the religious origins of the witchcraft prohibition in England and how it made its way into the Canadian Criminal Code. The second section explores how the prohibition evolved from one against unwanted spiritual practices to one against unwanted economic practices. The last section of the paper considers how witchcraft morphed into a viable Charter defence based on freedom of religion and why the prohibition against it was eventually repealed. In conclusion, the article reflects on the peculiar trajectory of witchcraft in Canada and what it might suggest not only about Canadian criminal law, but also about broader Canadian society.

The need for a Canadian Criminal Code offence of coercive control

Canada is currently considering legislating an offence of coercive control. Coercive controlling behaviour is currently criminalized in the UK, Scotland, Ireland, Northern Ireland and New South Wales, Australia. Potential benefits of the implementation of a coercive control offence in Canada include enhancing victim/survivor safety with access to protective orders; allowing police to respond in situations where physical violence is not occurring and, importantly, respond in a way that is reflective of the type of violence being enacted and the assessed risk; moving beyond an incident-based view of intimate partner violence to recognize patterns; improving perpetrator accountability and opportunities for risk management; sending a clear message that these behaviours are unacceptable; enhancing public awareness of coercive control; bringing the Criminal Code in line with other recent legislation; and creating consistency between family and criminal courts. This article summarizes the concept of coercive control, including gendered implications and risks for domestic homicide; the need for a coercive control offence, including support from professionals; and guidance for the implementation of a coercive control offence, including promising practices from international legislation, risk assessment, training for police and other professionals, and evaluation and data gathering.

SENTENCING OF PATHOLOGICAL GAMBLERS IN CANADA. LESSONS FOR SOUTH AFRICA?

The focus of this note is on one specific type of sentencing, what is called “conditional sentence” in Canada, and “correctional supervision” in South Africa. The principles relating to this form of punishment in the two legal systems are again similar. It is a community-based punishment aimed at keeping the offender out of prison, and within society under strict conditions. The conditions in each case obviously depend on the circumstances of the case. In South Africa the measures mostly include house arrest, community service, monitoring and treatment. The choice of conditions in the Canadian legislation is wider, but includes a report to a supervisor, community service and attendance of a treatment programme (s 742.3 of the Canadian Criminal Code). The importance of this type of sentence for pathological gamblers is borne out by the fact that there is generally no need for these offenders to be removed from society. They are seldom violent, are susceptible to treatment outside the prison system and as such are capable of being rehabilitated. It is suggested that pathological gamblers in South Africa should, unless the seriousness of the crime demands otherwise, be sentenced to correctional supervision. This is the approach of the Canadian courts and should be the approach adopted by the South African courts.

There Is No Such Thing as Zero Risk of Sexual Offending

The public is justifiably concerned about the risk presented by individuals with a history of sexual crime. Given that recidivism risk varies across individuals and over time, what level is so low as to be indistinguishable from sexual recidivism risk in the general population (a desistance threshold)? This risk is not zero. Comparing census data with the number of males convicted of sexual offences in the province of British Columbia in two cohorts (2006, N = 362; 2011, N = 422), we found that approximately 1% of all adult males in British Columbia would be expected to be convicted of a sexual offence by age 50. Across the full lifespan (until 99), that proportion was estimated to be 1.38% for the 2006 cohort and 1.50% for the 2011 cohort. Other research has found that most individuals released from a sexual offence present a similarly low residual risk (< 2%) after 10 years of being offence-free in the community. Consequently, applying long-term restrictions (e.g., lifetime registration; Criminal Code of Canada §161) to such individuals serves no public protection function.

Forensic evaluation of a dog with an embedded chain collar and corresponding wound age estimation

The body of a young intact male dog was presented with an embedded chain collar around his neck as possible evidence in proceedings under the Criminal Code of Canada. A photographic record was made for court purposes. The circumference of the collar versus the adjacent unaffected neck was measured, showing the collar to be 15% shorter than was necessary to be compatible with non-injury to the dog while alive. Granulation tissue and fibrosis were grossly and histologically evaluated to help estimate the age of the wound. The granulation tissue at its deepest point was 2.0 cm. Considering granulation tissue begins formation 3–5 days post-injury and forms at a rate of 0.4–1.0 mm per day, the initial age of the wound was estimated at 23–55 days; however, given the re-epithelialization and fibrous strength of the affected tissue as well as the presence of haired skin around the links, the time estimate was determined to be more likely in the order of 4–6 months. Findings were later used in court as evidence in the charge of unnecessary pain, suffering and injury to an animal under Section 445.1(1)(a) of the Criminal Code. Testimony at the trial supported the estimated age of the wound. The owner was found guilty, fined Can$1000, placed on probation for two years, and prohibited for life from owning animals.

Understanding the Diversity of People in Sex Work: Views from Leaders in Sex Worker Organizations

Criminal laws in Canada and many other countries are currently premised on the assumption of homogeneity, that is, people in sex work are cis women and girls who are being sexually exploited/sex trafficked. This perspective is also shared by antiprostitution groups and many researchers investigating the “prostitution problem”. Perpetuating this position obscures their demographic multiplicity and variety of lived experiences. We interviewed 10 leaders from seven sex worker organizations (SWOs) across Canada who reported a diversity among their clientele that is rarely captured in the extant literature and absent from the current Canadian criminal code. Our findings reveal the important role that SWOs have to play in facilitating access to health and social services and providing spaces where people in sex work can gather in safe and supportive environments, without the fear of stigma, discrimination, or police harassment. We conclude that SWOs can operate as a structural intervention beyond decriminalization that can improve equitable access to health and social services for sex workers Despite SWOs’ efforts, sex workers’ mobilization is still limited by micro-, meso-, and macrolevel stigmatization that prevents and/or discourages some workers from accessing their programs and services.

The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible?

One of the most controversial, and least discussed, elements of the defence of duress is the list of excluded offences that appears in s. 17 of the Canadian Criminal Code. In the seminal cases of R v Ruzic and R v Ryan, the Supreme Court refused to address the excluded offences and left the discussion to “another day.” This article examines the historical development of the defence through the earliest case law and the writings of Sir James Fitzjames Stephen who was one of the first theorists on duress and a major figure in drafting the Criminal Code. Stephen’s dislike of the defence of duress seems to be the only reason for the statutorily restrictive defence. This article traces the few cases following Ryan using a historic lens and current perspective to determine what is next for the embattled defence, including the place for duress and mitigation upon sentencing.

Trajectories and Outcomes of Those Not Criminally Responsible on Account of Mental Disorder through a Canadian Forensic System

Canadians adjudicated Not Criminally Responsible on Account of Mental Disorder (NCR) are detained in forensic psychiatric hospitals under a jurisdictional review board (RB) governed by the Canadian Criminal Code. The custody and management of NCR populations are administered independently across jurisdictions despite being federally legislated, and research is limited on how RBs may vary in their efforts to balance public safety and social reintegration across cases, settings, and provinces. To this end, the trajectories and outcomes were investigated in one understudied Canadian RB system on a sample of NCR individuals (n = 109) and compared to other provincial practices. A retrospective longitudinal design was employed to track an NCR cohort between 2005 and 2010 until 2015. Results demonstrated that the provincial RB aligned their operational and management practices with federal legislation, but unique deviations contributed to novel NCR trajectories and outcomes under RB supervision that were conservative relative to provincial partners. Dispositions varied as a function of risk level and were informed by clinician recommendations. Detention length differences were observed between ancestral lines, as the White ancestral group spent an average of three years less in custody than the Nonwhite ancestral group despite limited differences in demographic, clinical, and criminogenic profiles. Further research is required on NCR trajectories and outcomes across other understudied provinces and the role of forensic risk instruments in assisting with the consistent application of federal law.

WHICH STRUCTURES DOES THE HOUSEBREAKING CRIME PROTECT?

The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode. From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law. This concern is reflected by the fact that common-law jurisdictions have typically classified housebreaking as a crime against the habitation, which implies the right to “feel secure in one’s own home”. With the broadening of the ambit of the crime (variously referred to as burglary or breaking and entering in other jurisdictions) beyond merely protecting habitation, differing approaches have been taken in defining the nature of the premises that can be broken into. Thus in English law, to be a “building” within the definition of the crime (in terms of s 9(1) of the Theft Act, 1968) the structure is required to have some degree of permanence and an inhabited vehicle or vessel is specifically included in theterm “building” (s 9(4) of the Theft Act, 1968). In Canada, breaking and entering (in terms of s 348 of the Canadian Criminal Code, RSC 1985, c.C-46) include, within the understanding of a “structure” which can be broken into and entered, spaces enclosed by a fence, but not unenclosed spaces. The position in South Africa has not been definitively resolved, although it can at least be accepted that it is incorrect to state that the breaking into and entering can only be in respect of an immovable structure, and cannot be committed by breaking into a movable structure. What then is the South African position regarding the nature of a “premises” which is protected by the housebreaking crime?

Policing Perspectives Concerning Confusion and Uncertainty in Policing Practices with “Honour”-Based Crimes and Forced Marriages

Police regularly deal with various forms of violence against women and girls, such as domestic violence, family violence, and intimate partner violence in police work. However, since certain kinds of violence require a more nuanced approach to investigations, this paper reports on the experiences and challenges in policing different types of violence, such as “honour”-based crimes (HBCs), including forced marriages (FMs), within the broader Canadian discourse and political stances informing law and policy decisions. As well as what is still needed to improve responses to HBCs and FMs, it is important to consider the impact of laws and policy changes on police perceptions. I conducted 46 interviews with police officers and civilian members working in Canadian law enforcement agencies in Alberta between 2015 and 2017. Data were analyzed with constructivist grounded theory techniques to identify the emerging core (central) category of “confusion and uncertainty in policing practices;” the results show how participants experienced the core category when dealing with HBCs and FMs. In this paper, I connect the core category to three themes that contribute to it: inconsistency in the use of terminology, police perceptions of training, and police understandings of FM as well as their perspectives on the “Barbaric Cultural Practices” bill. These themes reveal how police are often met with challenges and resistance from colleagues within the service, as opinions are divided on understanding this form of violence and what to call it. Participants described the tensions and issues they observed in training which impacted both their investigations and their involvement in responding to HBCs and FMs. A significant finding points to the gap in knowledge about FM and relevant amendments to the Canadian Criminal Code.

Assessment of capacity to give informed consent for medical assistance in dying: a qualitative study of clinicians' experience.

Background:Under the Canadian Criminal Code, medical assistance in dying (MAiD) requires that patients give informed consent and that their ability to consent is assessed by 2 clinicians. In this study, we intended to understand how Canadian clinicians assessed capacity in people requesting MAiD.Methods:This qualitative study used interviews conducted between August 2019 and February 2020, by phone, video and email, to explore how clinicians assessed capacity in people requesting MAiD, what challenges they had encountered and what tools they used. The participants were recruited from provider mailing listserves of the Canadian Association of MAiD Assessors and Providers and Aide médicale à mourir. Interviews were audio-recorded and transcribed verbatim. The research team met to review transcripts and explore themes as they emerged in an iterative manner. We used abductive reasoning for thematic analysis and coding, and continued to discuss until we reached consensus.Results:The 20 participants worked in 5 of 10 provinces across Canada, represented different specialties and had experience assessing a total of 2410 patients requesting MAiD. The main theme was that, for most assessments, the participants used the conversation about how the patient had come to choose MAiD to get the information they needed. When the participants used formal capacity assessment tools, this was mostly for meticulous documentation, and they rarely asked for psychiatric consults. The participants described how they approached assessing cases of nonverbal patients and other challenging cases, using techniques such as ensuring a quiet environment and adequate hearing aids, and using questions requiring only “yes” or “no” as an answer.Interpretation:The participants were comfortable doing MAiD assessments and used their clinical judgment and experience to assess capacity in ways similar to other clinical practices. The findings of this study suggest that experienced MAiD assessors do not routinely require formal capacity assessments or tools to assess capacity in patients requesting MAiD.

Indigenous Women and the Risk of Reproductive Healthcare: Forced Sterilization, Genocide, and Contemporary Population Control

This brief, yet current, commentary discusses the way eugenically guided policies, like the Sexual Sterilization Acts in Alberta (1928–1972) and British Columbia (1933–1973), have impacted Indigenous women’s reproductive healthcare in Canada. Indigenous women from Alberta, British Columbia, Ontario, Northwest Territories, and Saskatchewan have reported they were coerced into having tubal ligation procedures by their healthcare providers, the most recent account occurring in 2018. These procedures fit the definition of genocide according to the United Nations, and a form of torture as defined by the Criminal Code of Canada. This paper includes an analysis of the legislated and non-legislated policies which aim to control Indigenous women’s reproductive rights and discusses the action the Indigenous community has taken to fight back against racist policies and practices within government and healthcare using activism, storytelling, and a class action lawsuit. The article closes with multilevel recommendations moving forward.

A Values-Based Analysis of Recovery-Oriented Practice in Mental Health Care and Medical Assistance in Dying

The Criminal Code of Canada has been amended to allow medical assistance in dying (MAiD) under prescribed criteria. There has been considerable debate regarding whether people with mental illness as the sole underlying medical condition should be eligible. It is argued that access to MAiD is not compatible with recovery-oriented care. Based on a comprehensive analysis exploring the ethical principles guiding decision making around MAiD, this paper offers a discussion of the compatibility between MAiD and recovery-oriented care and demonstrates significant overlap of these principles. The discussion around MAiD as an option in recovery-oriented care is legitimate and needs to continue.

The Unconstitutional Nature of the Criminalisation of the Purchase of Sex in Canada: R v Anwar & Harvey 2020 ONCJ 103

The Applicants, Mr Anwar and Ms Harvey, operated Fantasy Worlds Escorts (FWE) agency in London, Ontario, Canada. They were charged with the following offences under the Canadian Criminal Code relating to the commodification of sexual activity: receiving a financial or material benefit from prostitution contrary to s 286.2(1), procuring a person to offer or provide sexual services for consideration contrary to s 286.3(1) and knowingly advertising an offer to provide sexual services for consideration contrary to s 286.4. The pair challenged the charges on the basis that they were in contravention of the Canadian constitution, specifically the Canadian Charter of Rights and Freedoms as the laws in question prevented sex workers from lawfully using third parties to protect them and to prevent them from forming associations in order to create a system of mutual protection. As the provisions targeted sex workers and prevented them from accessing things that are natural, expected and encouraged in other sectors of work, the Applicants argued that the existing prostitution laws denied sex workers, who are in particular need of protection, the benefits accorded to mainstream labour.

English

The objective of this is to investigate African immigrant women’s perceptions of female genital mutilation (FGM) within the Canadian Criminal Code. Ten African immigrant women resident in Windsor, Canada were selected using snowball sampling for interviews. These women were of four African nationalities, namely Nigeria, Ghana, Somalia and Sudan. Semi-structured interview protocol with open answer possibilities guided the interviews. Most of the participants (70%) had undergone FGM, 25% had not and 5% were unable to confirm their FGM status. Participants’ perceptions of sexuality remained inconclusive, and were linked to their ethnicity and religion. The participants noted that the association between FGM and infertility in western societies was questionable and Eurocentric. Despite the prevalence of FGM, African nations have high fertility, averaging six or more children. Participants reported the need to provide a prevention protocol that is not based on ethnocentric values but gives adult women the choice to be circumcised or not. Although recent literature in developed countries continue to highlight the negative outcomes of FGM, participants in this study are starting to question the criminalization of FGM based on protecting the rights of women and children because of the ‘restructuring and reconstruction of the vagina’ in developed countries. Key words: Female genital mutilation (FGM), fertility/infertility, African immigrant women.

Physician snapshot: the forming landscape of MAiD in northwestern Ontario.

Background:Options available to Canadians at the end of life increased with the legalization of medical assistance in dying (MAiD). Bill C-14 modified the Canadian Criminal Code allowing individuals who meet very specific criteria to receive a medical intervention to hasten their death. June 2019 marked 3 years since the legislation has changed and while met with favour from most Canadians who believe it will provide enhanced options for quality of life at the end of life, there remains much debate over both its moral implications and practical components. Little is known regarding the Canadian healthcare provider experience with MAiD, in particular in rural and remote parts of the country such as northwestern Ontario.Objectives:The purpose of this study was to explore physicians’ experiences in Northwestern Ontario with MAiD. The geographic location of this study is of particular significance as physicians in rural and remote parts of Canada face unique challenges in the provision of high-quality palliative and end-of-life services. This qualitative research focused on developing a better understanding of physicians’ perceptions and practices with MAiD, in particular regarding access, decision-making, provision of service and role clarity.Methods:The researchers employed an exploratory qualitative research approach, using 1 semi-structured focus group and 18 semi-structured interviews comprising 9 set of questions. Data were collected through audio-taped semi-structured interviews, in person and by telephone.Findings:Four distinct but interconnected themes emerged from thematic analysis of the transcripts of the focus group and interviews: physician perception of patient awareness, appreciation and understanding of MAiD; challenges providing true choice at end of life; burgeoning relationships between palliative care and MAiD; and physician recommendations.Conclusion:The results of this study provide a snapshot of the Northwestern physician experiences with MAiD and contribute to the growing body of work exploring these issues on a national scale. MAiD is highlighted as both a rewarding and challenging experience for physicians in Northwestern Ontario in this study.

A Delicate Act of Judicial Balancing: Breathing New Life into Section 276 of the Criminal Code

Section 276 of the Criminal Code of Canada regulates the admission of evidence of a complainant’s prior sexual activity in sexual assault trials. Restricting the admission of such evidence has long been recognized as having salutary effects for the integrity of the criminal justice process, by eliminating reliance on stereotypical and false modes of thinking in the fact-finding process of judges and juries. The gatekeeping function of the application judge serves to ensure that the accused person’s right to full and answer and defence is not compromised in pursuit of these aims. Recent legislative changes enacted through Bill C-51, in conjunction with related jurisprudence from the Supreme Court of Canada, extend the reach of section 276. Through legislative amendments, complainants now have a right to counsel at a section 276 application, providing an opportunity for application judges to hear submissions about the impact of any proposed evidence on the privacy and dignity of a complainant. Through jurisprudential developments, Crown-led evidence of the complainant’s prior sexual activity is now subject to the same degree of scrutiny, and must meet the admissibility criteria of section 276(1) as well as R. v. Seaboyer. Complainants in cases that do not directly involve an allegation of sexual assault may also fall under the protective umbrella of section 276, as long as there is some connection between an offence of sexual violence and the offence(s) charged. Public confidence in the integrity of the administration of justice stands to be enhanced by these legislative and jurisprudential changes.

Fitness to stand trial and criminal responsibility assessments: Advocating for changes to the Canadian criminal code.

Fitness to stand trial and criminal responsibility assessments: Advocating for changes to the Canadian criminal code.

Innocence Compensation: The Success Rate of Actions for Negligent Investigation

This research is a qualitative and quantitative analysis on the success rate for plaintiffs who bring actions for negligent investigation against police officers who have wrongly accused them of criminality. This research falls within the broader framework of the success rate of plaintiffs who also seek damages from both police services and crown counsel regarding actions seeking damages for malicious prosecutions, breaches of rights under the Canadian Charter of Rights and Freedoms, and findings of miscarriages of justice pursuant to s. 691 of the Criminal Code of Canada. The data analysis shows that on a national basis, plaintiffs have a better than one in four chance to succeed in an action claiming damages for the tort of negligent investigation including its comparative remedy at civil law. The case law analysis shows that this tort has been proven when investigations have included relatively benign activity such as a simple mistake up to and including the characterization of police activity as reprehensible and high-handed.

Dennis G. Molinaro. An Exceptional Law: Section 98 and the Emergency State, 1919–1936.

Scholarly attention to the history of the legal repression of perceived radicalism in Canada has grown substantially since 9/11. This interest infuses the recent volumes of the Canadian state-trials series published by the University of Toronto Press and the Osgoode Society for Canadian Legal History, and other works such as Secret Service: Political Policing in Canada from the Fenians to Fortress America by Reg Whitaker, Gregory S. Kealey, and Andrew Parnaby (2012). Present-day concerns also permeate An Exceptional Law: Section 98 and the Emergency State, 1919–1936, Dennis G. Molinaro’s detailed examination of Section 98 of the Canadian Criminal Code. This section, passed by Parliament in 1919, took aim at “unlawful associations” and their members. An association was unlawful if its professed purpose was to “bring about any governmental, industrial or economic change within Canada by the use of force, violence, terrorism, or physical injury to person or property” (quoted on 239). This very broad definition of such associations allowed authorities to silence critics of the status quo, particularly Communists. Molinaro suggests that examining repressive laws “[helps] us find possible solutions to present-day problems” (5), and he concludes his study by connecting Section 98 to recent anti-terrorism legislation, the response to G20 riots in Toronto, and the Edward Snowden revelations.