An accused who wishes to successfully raise the insanity defence must meet the requirements of a two‑stage statutory test. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. The second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder. At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of knowing that the act or omission was wrong. In the instant case, it is not in dispute that B was incapable of distinguishing right from wrong at the material time. Therefore, the only issue in this appeal is whether the psychosis resulted from a “mental disorder” within the meaning of s. 16 Cr. C.

Toxic psychosis does not always result from a “mental disorder”. In Stone, Bastarache J. proposed an approach for distinguishing toxic psychoses that result from mental disorders from those that do not. This approach is structured around two analytical tools, namely the internal cause factor and the continuing danger factor, and certain policy considerations.

The internal cause factor, the first of the analytical tools, involves comparing the accused with a normal person. The comparison between the accused and a normal person will be objective and may be based on the psychiatric evidence. The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external. Such a finding would exclude the condition of the accused from the scope of s. 16 Cr. C. The reverse also holds true.

The second analytical tool, the continuing danger factor, is directly related to the need to ensure public safety.

The foregoing conclusion leads to the question whether s. 33.1 Cr. C. is applicable. This provision applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self‑induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. Where these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence. Section 33.1 Cr. C. therefore applies to any mental condition that is a direct extension of a state of intoxication. There is no threshold of intoxication beyond which s. 33.1 Cr. C. does not apply to an accused, which means that toxic psychosis can be one of the states of intoxication covered by this provision.

Source: R. v. Bouchard-Lebrun, 2011 SCC 58

However, the defence is not bound by any such duty in undertaking its own investigation independently of the courts and the prosecution. The defence is entitled to do what it can to identify the informant and otherwise make full answer and defence, provided that the methods used are lawful. The right to make full answer and defence is fundamental to criminal justice and is protected by s. 7 of the Charter. However, not all attempts to identify an informant will be linked to that right.

It will depend on the circumstances. Some defence enquiries may amount to an obstruction of justice, or extortion, depending on the manner in which the enquiries are carried out and their intended purpose, and the other circumstances of the case.

Source: R. v. Barros, 2011 SCC 51

There is no reason to conclude that the deprivation the claimants would suffer was due to personal choice rather than government action.  The ability to make some choices does not negate the trial judge’s findings that addiction is a disease in which the central feature is impaired control over the use of the addictive substance.  Additionally, the morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.  Finally, the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions.  While it is for the relevant governments to make criminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter.  The issue is not whether harm reduction or abstinence‑based programmes are the best approach to resolving illegal drug use, but whether Canada has limited the rights of the claimants in a manner that does not comply with Charter.

The Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice.  The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it.  The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.  It thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights.  Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.  It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.  It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada.  The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed.  The goals of the CDSA are the maintenance and promotion of public health and safety.  The Minister’s decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants’ s. 7 rights.

As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy.  In the special circumstances of this case, an order in the nature of mandamus is warranted.  The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.  A declaration that the Minister erred in refusing the exemption would be inadequate, given the seriousness of the infringement and the grave consequences that might result from a lapse in Insite’s current constitutional exemption, and for various reasons, granting a permanent constitutional exemption would be inappropriate.

On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety.  In accordance with the Charter, the Minister must consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice.  Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.

Source: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44

A court may impose a fine only if satisfied, on a balance of probabilities, that the offender has the means to pay the fine (or to discharge it under s. 736, which is not possible in this case).  As a practical matter, s. 734(2) imposes a burden on the party seeking a fine to satisfy the court that the offender is able to pay.  The party opposing the fine does not assume a formal burden of proof and remains free to argue that the evidence before the court should not satisfy the court that the offender is able to pay.

In the absence of a reasonable explanation to the contrary, past receipt of illegally‑obtained funds will often support an inference that the offender still possesses sufficient funds to pay a fine.  However, a trial judge is not bound as a matter of law to reach that conclusion. The weight reasonably attributable to the past receipt of funds will vary according to at least two factors: the amount of funds acquired and the length of time that has passed between the acquisition of the funds and the imposition of sentence.  Both the text of s. 734(2) and the legislative intention to avoid the incarceration of offenders who are truly unable to pay their fines support the conclusion that proof of past receipt of illegally obtained‑funds is not always conclusive of a present ability to pay.

The Crown is not required to identify or locate the specific assets that the offender can use to pay the fine and instead may rely on indirect evidence to prove an offender’s ability to pay.  On the other hand, the text of s. 734(2) explicitly requires an affirmative finding that the offender is able to pay a fine, instead of requiring the party opposing the fine to prove that the offender is unable to pay the fine.

Source: R. v. Topp, 2011 SCC 43

by Joseph Marcus

Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court.  The Crown’s decision in this case to resile from the plea agreement and to continue the prosecution clearly constituted an act of prosecutorial discretion subject to the principles set out in Krieger:  it is only reviewable for abuse of process.  Prosecutorial discretion is not spent with the decision to initiate the proceedings, nor does it terminate with a plea agreement.  So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued, and if so, in respect of what charges.

There are two categories of abuse of process under s. 7 of the Charter:  (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.  While s. 24(1) of theCharter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice system.  Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.

The repudiation of a plea agreement may well constitute an abuse of process, either because it results in trial unfairness or meets the narrow residual category of abuse that undermines the integrity of the judicial process.  The more difficult question in this appeal is how the initial exercise of prosecutorial discretion — Crown counsel’s offer to resolve the matter on the basis of a plea to a lesser charge — should figure in the analysis regarding abuse of process.

A plea agreement should not be regarded as a contractual undertaking.  Vitiating factors, such as mistake, misrepresentation or fraud, which usually inform a private party’s right to resile from a bargain, do not fully capture the public interest considerations which are at play.

However, the analogy can usefully underscore the utmost importance of honouring the agreement.  The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare.  Moreover, the reasonably defensible test applied by the application judge to Crown counsel’s decision to enter into a plea agreement is not the appropriate measure to determine whether there is an abuse of process.  Indeed, it is the circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether that decision amounts to an abuse of process.  Reviewing for “reasonableness” a decision made in the exercise of prosecutorial discretion runs contrary to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions as well as the principles set out in Krieger.

Given that acts of prosecutorial discretion are generally beyond the reach of the court, there is good reason to impose a threshold burden on the applicant who alleges abuse of process.  A court should not embark on an inquiry into the reasons behind the exercise of prosecutorial discretion without a proper evidentiary foundation.

However, evidence that a plea agreement has been entered into and subsequently reneged by the Crown meets the requisite threshold.  Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement.  The ultimate burden of proving abuse of process, however, remains on the applicant.

In this case, the Crown’s repudiation conduct cannot be considered so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on the dangerous driving Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process.  Indeed, the Acting Assistant Deputy Minister, in good faith, determined that Crown counsel’s assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges.  This can hardly be regarded as evidence of misconduct.  Finally, the accused was returned to the position she was in at the conclusion of the preliminary hearing before the plea agreement was entered into and thus suffered no prejudice as a result of the repudiation.

Source: R. v. Nixon, 2011 SCC 34.

John D. Whyte

Marshall Rothstein at the parliamentary committee hearing to review his nomination to the Supreme Court of Canada. (February 27, 2006)

The retirements later this summer from the Supreme Court of Canada of Justices Ian Binnie and Louise Charron give Prime Minister Stephen Harper his third and fourth Supreme Court appointments.

Both the retiring justices are from Ontario and it is expected that both the new justices will be Ontario judges or lawyers. However, neither the Constitution nor legislation requires that there be three Ontario judges and, from the perspective of fair representation for jurisdictions and legal systems, it is not reasonable that Ontario has as many judges as all of the other seven common-law provinces. It is unlikely, though, that the Prime Minister will want to challenge a pattern of allocation that has been in place throughout the court’s history.

There is, however, a clear expectation — although not yet a constitutional convention — that Harper will need to meet. This is the question of whether it is prudent to have persons named to the Supreme Court appear at parliamentary hearings. Both Harper and his predecessor, Paul Martin, announced they intended to adopt this process, and the appointment of Justice Marshall Rothstein in 2006 was made subject to a parliamentary review.

On the naming of Justice Thomas Cromwell to the court in September 2008, the Prime Minister stated that the appointment would be reviewed by a House of Commons committee. However, in December the appointment was confirmed and Cromwell was sworn in without a hearing.

The reason given was that a general election was called soon after the initial announcement and, shortly after that, Parliament was suspended under the first of the controversial prorogations. Harper said the appointment needed to go forward to allow the court to meet its “vital constitutional mandate.”

There was some question whether this weak excuse revealed ambivalence toward the idea of parliamentary reviews of a candidate for appointment, but the June 3 throne speech contained a commitment to follow the hearing process.

The central question is whether parliamentary reviews of court appointments are valuable. The American experience of Senate confirmation hearings following presidential nominations for Supreme Court appointments leads some to believe that the political review of court appointees is destructive of the idea of judicial neutrality.

Certainly the American process has led to unseemly and unfair attacks on nominees. It has also failed to assess actual judicial worth. Robert Bork was an eminent constitutionalist with a superb intellectual grasp of the law but was rejected by the Senate; Clarence Thomas, who has proven to be a singularly unthoughtful — and consistently political — jurist, passed through the Senate process (although not with ease).

The process can also create false impressions. The current chief justice, John Roberts, convinced the Senate that his judicial philosophy was based on humility and restraint, but his judgments represent an extensive rewriting of constitutional standards.

Nevertheless, there is a good case for holding parliamentary reviews of Supreme Court appointees. The exercise tells Canadians something valuable about the legal process — that while legal decision-making is restrained by rules and precedent, it is at heart interpretive and thus draws on values, commitments and perceptions. Judicial judgment is human judgment, and character and integrity always lie near the heart of the judicial process.

The review process tends to focus on constitutional interpretation and it shows the degree to which each judge’s understandings of constitutional purposes — and the contexts in which they operate — determine court results.

The process reminds Canadians of the commitments to fairness, justice, equality and respect for minorities that are found in our basic laws, and this can engender an understanding of — and respect for — the rule of law and constitutional restraints.

Hearings create in politicians an appreciation of the difficulty and importance of Supreme Court decisions to the political community. Civil discussion at hearings can show how hard some of these decisions are to make — both as a matter of discovering the meaning of legal authorities and as a matter of public values and morality.

When the court makes decisions that politicians are unhappy with, as it certainly will, it will serve the nation well that political leaders will have had an opportunity to explore the nature of the judicial task and see its essential — and difficult — role in Canadian democracy.

Hearings make the court more visible as a key element of the Canadian legal process and, through this, the court and our law become more understandable, more human, more a part of our nation’s design and more respected.

John Whyte is Professor of Law Emeritus, Queen’s University.

Source: http://www.thestar.com/opinion/editorialopinion/article/1012833–questioning-our-judges

CRIME RATES have been declining in Canada for decades, as a result of demographics rather than policy initiatives. Here, as in other countries, most crimes are committed by young men, and because we have been producing fewer children of either gender there are not as many young men to commit them. According to Statistics Canada, the crime rate fell by 15 percent between 1998 and 2007, but that’s only part of the story. In 2009, StatsCan introduced an index that measures not only the change in volume of a particular crime, but also its relative seriousness in comparison with others (for example, homicide and rape are assigned higher weights than, say, shoplifting and creating mischief). The index shows that for the same decade, 1998 to 2007, the severity of crime in Canada fell by 21 percent.

Why, then, do so many Canadians believe the situation is getting worse? How is it possible that there were 77,000 fewer crimes in 2008 than the year before — including fewer violent crimes, which account for one in five in Canada — and yet almost half of us continued to believe just the opposite? Troubling in itself, this misconception also infects our attitudes toward the criminal justice system as a whole. Many Canadians conclude that it puts the interests of offenders ahead of those of victims, because they underestimate the severity of our sentencing and overestimate the number of offenders we parole. This is the dark ignorant soil in which take root the reactionary impulses that favour punitive measures such as mandatory minimum sentences over those that promote prevention and rehabilitation.

Misconceptions about crime also corrupt our attitudes toward other social issues, including immigration, as Walrus senior editor Rachel Giese reports in this issue (“Arrival of the Fittest,”). A casual reading of the news leads many of us to believe that immigrants are more likely than native-born Canadians to engage in criminal activities. But, once again, the evidence suggests otherwise. Immigration, Giese writes, actually reduces levels of violence and crime — and for proof one need look no further than Toronto, where fully half the population is born outside Canada and the crime rate has dropped 50 percent since 1991.

The media is often blamed for these disconnects. Sensational reports of gruesome crimes are thought to distort our sense of reality and make us feel — irrationally — unsafe. So, perhaps, does a surfeit of televised police procedurals. But the problem is as much about what the media doesn’t do as about what it does. Just as financial literacy is essential to an understanding of business — how can you say profits are excessive if you haven’t calculated the return on invested capital? — so, too, is a knowledge of basic criminology essential to understanding the proper functioning of the criminal justice system. For instance, the number of murders in a given city in a given year is by itself a meaningless statistic; the relevant metric is the number of homicides per capita. Thus, more people were murdered in Toronto last year than in any city in the country, but you are still more likely to be the victim of a homicide in Regina, Abbotsford, or Trois Rivières, where the incidence of such crimes per hundred thousand population is higher.

So, yes, our media should do more to promote literacy in these matters, but so should our politicians. Instead, we get Stephen Harper’s tough-on-crime agenda, which emphasizes harsher sentencing and parole regulations, policies that will result in higher rates of incarceration and, according to Correctional Services Canada, require an additional 2,500 prison spaces. The government puts the incremental cost at $2 billion, although Kevin Page, the parliamentary budget officer, believes it will be twice that number, if not more. But at any cost, it’s money wasted, because the evidence suggests that imprisoning more people for longer periods of time will not reduce crime. More disturbing, however, is the spectacle of Canadian politicians appealing to voters by advancing policies that pander to their ignorance. Policies so cynically made dishonour the people who advance them and can only compromise the quality of our criminal justice.

Source: http://www.walrusmagazine.com/articles/2011.06-editors-note/

With Canada poised to spend untold billions of dollars expanding its prison system, it’s worth looking at what else that money might buy in national projects that invest in the country’s most important capital, its people.