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. R. v. Bissonnette

In R. v. Bissonnette (SCC, 2022) the Supreme Court of Canada considered the rarely used 'royal prerogative of mercy', which is a right held by the Govenor-General to remit a criminal sentence:
(e) Can the Royal Prerogative of Mercy Save the Impugned Provision?

[112] Lastly, it is necessary to determine whether the impugned provision can be found to be constitutional based on the existence of the royal prerogative of mercy, since there is some debate over this question. In my view, the parole system is currently the only mechanism that offers a realistic possibility of release for individuals serving a sentence of life imprisonment under Canadian law. The royal prerogative of mercy cannot be considered a true sentence review mechanism, because it is exercised only in exceptional circumstances.

[113] The royal prerogative of mercy gives Her Majesty the Queen an absolute discretion to grant a remission of sentence to any individual sentenced by a court, regardless of the nature or seriousness of the crime committed (ss. 748 and 749 Cr. C.). This prerogative arises from the former absolute power of British monarchs to pardon their subjects. Historically, the royal prerogative has had two strands and two objectives: “to show compassion by relieving an individual of the full weight of his or her sentence” and “to correct miscarriages of justice such as wrongful convictions” (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 28). Before the death penalty was abolished, the royal prerogative was often used to commute that sentence (C. Strange, “Mercy for Murderers? A Historical Perspective on the Royal Prerogative of Mercy” (2001), 64 Sask. L. Rev. 559, at p. 561).

[114] The power to exercise this prerogative has been conferred on the person holding office as Governor General of Canada by Letters Patent (Letters Patent Constituting the Office of Governor General of Canada (1947), Canada Gazette, Part I, vol. 81, p. 3014, s. XII (reproduced in R.S.C. 1985, App. II, No. 31)). The Governor General acts only on the advice of the Minister of Public Safety and Emergency Preparedness Canada, or that of at least one other minister (Parole Board of Canada, Royal Prerogative of Mercy Ministerial Guidelines, October 31, 2014 (online), at p. 2). The Governor General may grant two types of pardons: a free pardon and a conditional pardon (s. 748(2) Cr. C.).

[115] The royal prerogative of mercy is exercised “only [in] rare cases in which consideration[s] of justice, humanity and compassion override the normal administration of justice” (Ministerial Guidelines, at pp. 4‑5). For a pardon to be granted, there must be exceptional circumstances involving substantial injustice or undue hardship (pp. 3‑5). The Ministerial Guidelines state that pardons are available only in “truly deserving cases” (p. 3). Although it is difficult to calculate how many applications for the exercise of the royal prerogative of mercy have been granted, it would seem that the number is very limited (as an illustration, from 2014‑2015 to 2018‑2019, 5 applications were granted, 3 were denied and 175 were discontinued (Parole Board of Canada, Performance Monitoring Report 2018‑2019, at p. 170)).

[116] This Court has established that the royal prerogative of mercy is part of the array of mechanisms by which the principle of individualization in sentencing is given effect (Luxton, at p. 725). However, it has never found that this discretion on its own constitutes a true sentence review mechanism. On the contrary, in Luxton, to support its conclusion that the sentence of imprisonment for life without eligibility for parole for 25 years is constitutional, the Court simply stated that the royal prerogative, like escorted absences from custody for humanitarian purposes, demonstrates that “Parliament has been sensitive to the particular circumstances of each offender” (p. 725). In R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, which concerned the constitutionality of a provision that limited, for life, the freedom of offenders convicted of sexual offences to be in various public places, on pain of imprisonment, this Court held that the royal prerogative of mercy does not constitute an “acceptable review process” because it is used only exceptionally (p. 798). The Court has instead found this discretion to be a mechanism of last resort in the case of unjust imprisonment (R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 51; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 89).

[117] The royal prerogative of mercy in Canadian law can be distinguished from the power of the Secretary of State in English law to release prisoners on compassionate grounds under s. 30 of the Crime (Sentences) Act 1997. In 2014, a special constitution of the Court of Appeal of England and Wales held in McLoughlin that the law of England provides life prisoners with a realistic possibility of release (para. 35). The court found that the term “compassionate grounds” must be interpreted broadly, in a manner compatible with art. 3 of the European Convention on Human Rights, and that these grounds are not restricted to the ones listed in the “Lifer Manual” (McLoughlin, at paras. 31‑33; United Kingdom, Ministry of Justice, National Offender Management Service, PSO 4700 — The Indeterminate Sentence Manual (2010), at ch. 12). In 2017, the ECHR held in Hutchinson that English law is consistent with art. 3 of the European Convention on Human Rights because it establishes a true review mechanism that makes whole life prison sentences reducible (§§ 57, 70 and 72). The ECHR found that the Secretary of State has a duty to release a whole life prisoner where “continued detention can no longer be justified on legitimate penological grounds” (Hutchinson, at § 70). It would therefore seem that this discretion is broadly construed in English law. As a result, these principles are not relevant in interpreting the discretion conferred by the royal prerogative of mercy in Canadian law.

[118] In short, the royal prerogative of mercy, because of its exceptional nature, is at best a release mechanism based on compassion and on the existence of humanitarian grounds under Canadian law. Individuals suffering the normal consequences of a properly imposed sentence are in fact unlikely to obtain such a pardon. This is clear from the Ministerial Guidelines: “. . . an act of executive clemency will not be considered where the difficulties experienced by an individual applicant result from the normal consequences of the application of the law” (p. 4 (emphasis added); Sup. Ct. reasons, at paras. 963 and 967). The existence of the royal prerogative of mercy therefore creates no realistic possibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism.
. R. v. Zakos

In R. v. Zakos (Ont CA, 2022) the Court of Appeal extensively explains criminal entrapment, a form of abuse of process [paras 21-51].

. R. v. St. Clair

In R. v. St. Clair (Ont CA, 2021) the Court of Appeal engaged in an interesting review of some of the current (2018) regime regarding marijuana laws:
Overview of the regulatory regime

[16] Prior to the decriminalization of the possession of marijuana for non-medical purposes in 2018, the regulatory regime governing possession of marijuana for medical purposes was continually in flux. At the time of the appellant’s arrest, possession of marijuana remained an offence, with an exemption for medical use set out by the Regulations. The Regulations were repealed in 2018 when Parliament enacted the Cannabis Act, S.C. 2018, c. 16.

[17] The Regulations established a regime in which health care practitioners could authorize persons under their professional treatment to possess and consume specified quantities of cannabis as part of that professional treatment: Regulations, ss. 3, 7, and 8. Section 7 required health care practitioners to provide a “medical document” to persons under their treatment. Section 8 required the document to set out the practitioner’s contact and professional registration number, the name and contact details of the person under their care, and the daily quantity of marijuana that the person was authorized to use over a specified time period. Section 8(4) required the medical document to be signed and dated by the practitioner providing the document.

[18] A person furnished with a s. 8 medical document authorizing use of marijuana would be eligible to apply to a licensed producer to be registered as a client of that producer: Regulations, s. 130. An applicant would be required to provide the producer with the applicant’s original medical document and certify the accuracy of the information it contained.

[19] If the applicant was accepted as a client, the producer would be required to provide the client with a “registration document” containing information including the name of the producer, the name of the client, the client’s date of birth and address, and a unique identifier number: Regulations, s. 133.

[20] The Regulations established labelling requirements to be attached to the container of the marijuana products provided to the client. This included a label stating, among other things, the name, telephone number, and email address of the producer: Regulations, s. 84(1). Additionally, the producer was required to attach a client label stating the client’s name, the name of the health care professional who provided the client’s medical document, the name of the licenced producer, and the authorized quantity as set out on the client’s medical document. The producer was also required to provide the client with a separate copy of the client label: Regulations, 87(1)(b).

[21] A person authorized to possess marijuana under the Regulations was required, on demand, to “demonstrate to a police officer that the possession or production is authorized”: Regulations, s. 15. Similarly, a licenced producer was obligated, at the request of the police, to disclose whether a person was a client of the producer and what substance and daily quantity was authorized by the medical document issued to that person: Regulations, s. 121(1).

[22] The Regulations did not specify what would constitute a sufficient demonstration that a person’s possession of marijuana was authorized.
. R v Tutu

In R v Tutu (Ont CA, 2021) the Court of Appeal set out the current law regarding arbitrary detention by the state:
[9] Detention engages s. 9 of the Charter, which provides: “Everyone has the right not to be arbitrarily detained or imprisoned.” The principles governing s. 9 have recently been laid out in a sequence of decisions from the Supreme Court and this court.

[10] Arbitrary detention is prohibited in order to “protect individual liberty against unjustified state interference”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25. It protects “an individual’s right to make an informed choice about whether to interact with the police or to simply walk away”: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 30. Upon detention, an individual must be informed of the additional rights afforded by the Charter, such as the right to be informed of the reasons for the detention (s. 10(a)), and the right to retain and instruct counsel without delay and to be informed of that right (s. 10(b)): Thompson, at para. 31.

[11] The court must make two inquiries in assessing whether s. 9 applies: (1) Was the claimant detained? (2) If so, was the detention arbitrary?: Le, at para. 29.

[12] A detention arises only where the police suspend an individual’s liberty through “a significant physical or psychological restraint”: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Not every interference with an individual’s liberty attracts Charter scrutiny.

[13] Physical detention is usually obvious. More difficult is psychological detention, which the court in Grant noted “is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply”: at para. 44. The Grant court set out three factors to be assessed, at para. 44:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [Emphasis added.]
[14] This court explained in Thompson that psychological detention or restraint can arise in two ways, when: (1) “an individual is legally required to comply with a police direction or demand”; or (2) absent legal compulsion, when “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: see Thompson, at para. 36; Grant, at paras. 30-31; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 22, and Le, at paras. 25-26.

[15] The s. 9 inquiry engages all the circumstances of the encounter. It requires an objective assessment of what a reasonable person in the shoes of the accused would perceive about his or her freedom to leave: Le, at para. 106. The focus is on how the police behaved and, considering the totality of the circumstances, how their behaviour would reasonably be perceived: Le, at para. 116. The focus is not on what was actually in the accused’s mind at the particular moment. Nor is it on the police officer’s intention.
. R. v. Cowan

In R. v. Cowan (SCC, 2021) the Supreme Court of Canada considered the inchoate criminal offences of abetting and counselling, which I have always found interesting:
[29] For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13). An accused’s guilt is the same regardless of the way in which they participated in the offence –– the person who provides the gun is guilty of the same offence as the person who pulls the trigger (ibid.; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 59).

[30] Sections 21 and 22 of the Criminal Code set out the various ways in which an accused may participate in and be found guilty of a particular offence. Those provisions codify both liability for an accused who participates in an offence by actually committing it, under s. 21(1)(a) (principal liability); and liability for an accused who participates in an offence by, for example, abetting or counselling another person to commit the offence, under s. 21(1)(c) or s. 22(1) (party liability) (R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 51).

[31] Where, as here, an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party (R. v. Isaac, 1984 CanLII 130 (SCC), [1984] 1 S.C.R. 74, at p. 81, citing R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458). This principle applies where an accused is prosecuted as either an abettor or counsellor.

[32] The essential elements of abetting are well established. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence (Briscoe, at paras. 14‑15). As for the mens rea, it has two components: intent and knowledge (para. 16). The abettor must have intended to abet the principal in the commission of the offence and known that the principal intended to commit the offence (paras. 16‑17).

[33] Although the jurisprudence setting out the elements of abetting refers to encouraging “the principal”, intending to abet “the principal”, and knowing that “the principal” intended to commit the offence, the Crown is not required to prove the identity of “the principal” or their specific role in the commission of the offence for party liability to attach (R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at pp. 687‑89).

[34] In Thatcher, the accused was charged with first degree murder. To establish his guilt, the Crown presented two alternative theories of liability. It argued that the accused was either the principal offender, in that he personally murdered the victim, or a party to the offence, in that he had the victim murdered by someone else. The trial judge instructed the jury that the Crown’s inability to adduce evidence of another specific, identified individual as the person who actually committed the murder did not preclude the jury from finding the accused guilty as a party. The jury returned a verdict of guilty on the offence of first degree murder. The accused appealed on the basis that the trial judge erred in instructing the jury that the Crown was not required to prove the identity of the principal offender. His appeal was dismissed by the Court of Appeal for Saskatchewan. On further appeal, this Court agreed with the Court of Appeal, holding that the trial judge’s instructions were “perfectly proper”, because “[t]here is, of course, no burden on the Crown to point to a specific, identified person as the personal assailant of the victim” (pp. 687‑88).

[35] Similar principles apply to counselling, which is defined in the Criminal Code to include “procur[ing], solicit[ing] and incit[ing]” (s. 22(3)). The actus reus is the “deliberate encouragement or active inducement of the commission of a criminal offence” (R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 29 (emphasis deleted)). The person deliberately encouraged or actively induced by the counsellor must also actually participate in the offence (para. 63, per Charron J., dissenting on other grounds; Criminal Code, s. 22(1)). As for the mens rea, the counsellor must have “either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct” (Hamilton, at para. 29).

[36] While one of the requisite elements of counselling is the actual participation in the offence by the person counselled, that person can participate not only as a principal, but also as a party. This is reflected by the wording of s. 22(1), which states that an accused is a party if they “counse[l] another person to be a party to an offence and that other person is afterwards a party to that offence”. The precise manner of participation is irrelevant, since whether the person counselled is a principal or a party, “[t]he focus on a prosecution for counselling is on the counsellor’s conduct and state of mind, not that of the person counselled” (Hamilton, at para. 74).
. R. v. Fan

In R. v. Fan (Ont CA, 2021) the Court of Appeal considered the seldom-litigated issue of 'ignorance of the law' under CCC s.19 (here contrasted with the valid defence issue of mistake of fact):
Ignorance of the Law

[44] The question of whether an error reflects a mistake of fact or ignorance of the law is a vexing one. However, the trial judge made no error in her characterization of the appellants’ asserted misunderstanding as a mistake of law.

[45] Section 19 of the Criminal Code provides that: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence”. This provision, which was enacted in 1892, codifies the common law: see Don Stuart, Canadian Criminal Law – A Treatise, 8th ed. (Toronto: Thomson Reuters, 2020), at p. 374.[4]

[46] Section 19 enjoys a broad application. It applies both to “ignorance of the existence of the law and that as to its meaning, scope or application”: Molis v. The Queen, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356, at p. 362. In this case, the appellants were aware that the production and possession of marijuana was illegal unless properly authorized. Thus, they were aware of the existence of the law; their apparent mistake pertained to its application.

[47] Traditionally, s. 19 applied to a person’s understanding of a statute. Today, the section applies to the existence and language of offence-creating provisions, as well as authorizations required for regulated activities, such as the possession of firearms and drugs.

[48] This is demonstrated in MacDonald, a decision relied upon by the trial judge, in which the accused made a mistake about the scope of his licence to possess a firearm under the Firearms Act, S.C. 1995, c. 39. The licence authorized possession only in Alberta; MacDonald was found in possession of the firearm in Halifax. MacDonald was convicted at trial.

[49] The Nova Scotia Court of Appeal set aside the conviction, holding that MacDonald was labouring under a mistake of fact, vitiating mens rea: 2012 NSCA 50, 317 N.S.R. (2d) 90, rev’d in part 2014 SCC 3, [2014] 1 S.C.R. 37. In restoring the conviction, the Supreme Court of Canada held, at para. 57, that given that s. 19 extended to the terms of his licence, “Mr. MacDonald’s subjective belief that he could possess the firearm in Halifax is therefore nothing other than a mistake of law.” This principle has been applied to licences under the CDSA in R. v. Vu, 2018 ONCA 436, 140 O.R. (3d) 641, at para. 67.[5]

[50] To require the Crown to prove that the appellants understood the legal framework in which they operated confuses actus reus and mens rea requirements. In this context, a proper authorization or licence negates the actus reus of activity that would otherwise be illegal. Conceived as a mens rea component, it would require the Crown to prove that an accused person knew the conditions of their licence or authorization. As Lamer C.J. held in R. v. Forster, 1992 CanLII 118 (SCC), [1992] 1 S.C.R. 339, at p. 346: “[K]nowledge that one’s actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence.” See also R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, at pp. 960-61.


The Complexity of the Regulatory Regime and the Appellants’ Diligence

[54] The appellants also rely on the fact that their conduct occurred in a complex, regulatory framework that was in a state of flux at the time. They further submit that they took steps to confirm the legality of their grown operation by consulting various sources. I am not persuaded by either argument.

[55] It has long been the case that s. 19 may operate in highly regulated contexts. In R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, Lamer C.J., writing for himself in a concurring judgment, addressed the feature of complexity when considering whether the concept of officially induced error of law should be introduced into Canadian law, noting at p. 29:
As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essentially foundation to the rule of law. [Emphasis added.]
The Supreme Court formally recognized officially induced error in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, at pp. 433-36.[7]

[56] The appellants did not rely on an officially induced error of law. In their apparent attempts to confirm the legality of the grow operation, they consulted no official sources. Although they purported to rely upon the statutory declarations accompanying the licences, this was no substitute for consulting an “official” for the purposes of the officially induced error exception to s. 19: see Stucky, at para. 109. As noted above, all six licences in question disclosed a toll-free Health Canada number from which information about the licences could be obtained.

[57] The appellant’s reliance on their efforts to confirm legality is simply a claim that they did their best, a claim the trial judge rejected. Even if accepted, these efforts could not elude the reach of s. 19 of the Criminal Code. In La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756, Wagner J. (as he then was) said, at para. 57: “A defendant can therefore gain nothing by showing that it made a reasonable effort to know the law or that it acted in good faith in ignorance of the law, since such evidence cannot exempt it from liability.” Section 19 does not reward effort; it demands correctness. Canadian jurisprudence does not recognize the concept of “a reasonable mistake of law”.[8] To do so would undermine the rule with respect to ignorance of the law, which Lamer C.J. said in Jorgensen, at para. 5, is “an orienting principle of our criminal law which should not be lightly disturbed.”


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