Luring, minimum sentences and constitutionality in Canada: R v Bertrand Marchand, 2023 SCC 26

The Canadian offence of luring has been analysed in R v Bertrand Marchand, 2023 SCC 26 (3 November 2023). See s 172.1 of the Criminal Code, reproduced at [9] of the joint judgment. Additionally, the mandatory minium sentences which the legislature had applied to it were held to be unconstitutional as they were in breach of s 12 of the Canadian Charter of Rights and Freedoms.

In deciding the constitutional point, the Court applied the method it used in its decision in R v Hills, 2023 SCC 2 (noted here on 31 January 2023). The essential fault in the legislation was that it applied minimum sentences to conduct that was only remotely related to the heart of the offence [108] so that when reasonably foreseeable scenarios that would come within the defintion of the offence were considered the result would be sentences that were so excessive as to outrage standards of decency [109].

In essence, the luring offences defined in s 172 involve using telecommunication to communicate with persons who are or who are believed to be under ages specified in three categories, for the purpose of facilitating the commission of offences with respect to those people as specified for each age category. These are what can be called grooming offences although without any need for sustained contact [13].

Comparable offences are in s 131AB of the Crimes Act 1961 (NZ), and they carry a maximum, but not a minimum, sentence.

The discussion in Bertrand Marchand of the wrongfulness of luring ([34]ff) will be relevant for sentencing purposes in similar jurisdictions. Both gravity of the offending and the moral blameworthiness of the offender - an assessment of the personal aggravating and mitigating features - are relevant ([71]ff). In the absence of direct proof of actual harm, harm can be inferred [76]. Grooming is one aggravating factor, and others (listed non-exhaustively) are the character of the communication [77], deceit [80], abuse of a position or relationship of trust [82], and the age of the victim [85]. Since luring will often be accompanied by other offending, sentencing will have to address whether to impose concurrent or cumulative sentences, and the totality principle ([89]ff).

JFK - 4 bullets fired in Dealey Plaza?

Allow me to wander a bit from the main concern of this site, out of respect for the sixtieth anniversary of the famous and infamous assassination ...

In a plain, elegant prose, of a kind that is sometimes written by the best graduates of the greatest universities, the Warren Commission summarised the reason for its own existence:

“   The President’s car which had been going north made a sharp turn toward the southwest onto Elm Street. At a speed of about 11 miles per hour, it started down the gradual descent toward a railway overpass under which the motorcade would proceed before reaching the Stemmons Freeway. The front of the Texas School Book Depository was now on the President’s right, and he waved to the crowd assembled there as he passed the building. Dealey Plaza - an open, landscaped area marking the western end of downtown Dallas - stretched out to the President’s left. A Secret Service agent riding in the motorcade radioed the Trade Mart that the President would arrive in 5 minutes.

“   Seconds later shots resounded in rapid succession. The President’s hands moved to his neck. He appeared to stiffen momentarily and lurch slightly forward in his seat. A bullet had entered the base of the back of his neck slightly to the right of the spine. It travelled downward and exited from the front of the neck, causing a nick in the left lower portion of the knot in the President’s necktie. Before the shooting started, Governor Connally had been facing toward the crowd on the right. He started to turn toward the left and suddenly felt a blow on his back. The Governor had been hit by a bullet which entered at the extreme right side of his back at a point below his right armpit. The bullet traveled through his chest in a downward and forward direction, exited below his right nipple, passed through his right wrist which had been in his lap, and then caused a wound to his left thigh. The force of the bullet’s impact appeared to spin the Governor to his right, and Mrs. Connally pulled him down into her lap. Another bullet then struck President Kennedy in the rear portion of his head, causing a massive and fatal wound. The President fell into Mrs. Kennedy’s lap.”

- Report of the President’s Commission on the Assassination of President John F. Kennedy (“the Warren Commission”, or “the Commission”), U.S. Government Printing Office, Washington, 1964, p 3.

(Note: Governor Connally’s evidence is more detailed concerning his body position when hit: upon hearing a rifle shot he instinctively turned to his right because he thought it came from over his right shoulder, and as he could not see the President he started to turn to the left but didn’t complete this turn as he felt “something strike him in the back”, Warren Commission p 49).

That happened on 22 November 1963 in Dallas, Texas at about 12.30pm. It was 5.30am on the 23rd in New Zealand, and those horrible events were reported on our morning radio news bulletins. We still claim to remember what we were doing when we heard the news.

The Warren Commission’s Report was reviewed in 1979 by the House of Representatives Select Committee on Assassinations (the Committee). The Committee came to the same conclusion as had the Commission about the shots, except that in the light of additional information from accoustics experts it added that there was a high probability that there were four shots in all.

The Commission’s Report had been doubted by many people, indeed currently a majority of Americans, for the amount of damage it required one bullet to have caused. The Commission decided that the bullet that struck the President in the back and exited near his necktie was the same bullet that struck the Governor in the back. This bullet has been sarcastically dubbed the magic bullet. So the Committee’s fourth shot made room for a division of labour: one shot hit President Kennedy in the neck, exiting by the knot of his tie, and the other hit Governor Connally.

This possible - or “highly probable” - fourth shot raised questions about where it was fired from, and what sort of conspiracy was involved.

Nowadays we can all inspect Dealey Plaza through Google Earth or Apple Maps. We can speculate about where a second gunman might have been, and whether the shot he fired hit anything.

At first glance it would be natural to think that the large hole in the back of the President’s head was an exit wound, and the shot was fired from in front of him. But, if that happened, where was the entrance wound? And careful reading of the medical evidence is convincing: the shot entered the lower part of the back of his skull just to the right of his spine, and, being angled acutely because at this point the President had his hands up by his throat and was leaning forwards and sideways towards the left, the bullet largely (it was fragmented after entry) exited approximately above the President’s right ear. The force of this tore out a large part of the back of his head, spraying a plume of blood forwards.

The Zapruder film, with the camera operating at a speed of 18.3 frames per second (Warren Commission, p 49) suggests that the large wound was in the front of the President’s head, but it was not. Modern television is transmitted at approximately 60 images per second, so it is necessary to make some allowance for misleading appearances in the older format. The Commission used the Zapruder film mainly to determine time intervals between shots.

If I had to place a second gunman I would have said he was just inside the entrance to the pedestrian walkway next to the Commerce Street underpass. The first open bay in the wall between the walkway and the road (best viewed in Apple Maps) should have given an ideal view of the presidential car, which would have appeared to have had minimal lateral movement as it was approaching the shooter directly. This corresponds to the view from the “snipers nest”in the Book Depository, from which the car would have been retreating in a straight line.

But there are difficulties with that. Traffic was slow or stationery, and occupants of cars would have seen the gunman. And Mr Tague, who stopped his car partly on the grass between Commerce Street and Main and got out to see what people were waiting for, would have been standing very close to the gunman’s line of sight. Indeed, Mr Tague was so close to a line between the Book Depository and the pedestrian underpass that he was struck in the face by a chip dislodged from the Main Street curb either by a bullet fired from the Book Depository that missed both the President and the Governor, or by something else that was dislodged by such a bullet.

Supporting the second gunman theory is information onlly published this year (2023) by Paul Landis (“The Final Witness”, Chicago Review Press, 2023) who had been a security officer behind the presidential car. He says that when the cars arrived at the hospital he saw a bullet on the top of the back of the seat where the President had been sitting, where the seat meets the body of the car. He put it in his pocket so that it would not be souvenired by approaching people, and took it in to the emergency room where he put it on to the stretcher which still, at that point, contained the President. Previously, this bullet was thought to have been retrieved from the stretcher used for Governor Connally after it had been put, with the President’s, in the corridor outside the emergency rooms. If this new information is accurate it is consistent with the throat wound being an entrance wound, exiting in the upper back and landing in the position it was allegedly found.

There were many eye witnesses, or at least people present, and the murder was captured on film. The Commission was not acting as a court, so was not limited to admissible evidence, but rather was  functioning “as a factfinding agency committed to the ascertainment of the truth” (p xiv). So much information, so much uncertainty, or, more realistically, so much information and a bit of uncertainty. But enough of the “how”, and let’s not get started on “who” any conspirators might have been.

Expert opinion evidence - applying specialised knowledge: Lang v The Queen [2023] HCA 29

We all know how irritating philosophers can be. What would they make of this: “Expert evidence need not be opinion evidence”?

Most statements about the world outside our own bodies are opinions. We can only opine about the reality that casts the shadows on the wall of Plato’s cave. But law is not philosophy.

The sentence quoted above is from Lang v The Queen [2023] HCA 29, per Kiefel CJ and Gageler J at [5]. The case is partly about the sufficiency of proof of guilt, and partly about the admissibility of expert opinion evidence. It is on the latter point that Kiefel CJ and Gageler J wrote, “to elaborate on the common law principles” [4]. Perhaps these judges read the judgments of their colleagues (Gordon and Edelman JJ, who jointly dissented on the application of the law to the evidence in this case, and Jagot J who wrote separately agreeing with the conclusion of Kiefel CJ and Gageler J that the challenged evidence here was admissible) and decided that a bit more was needed.

Principles developed under Australia’s uniform evidence legislation apply also where the law on the admissibility of expert opinion evidence is common law [11]-13]: [1]

“Those principles require that, in order to satisfy the condition of admissibility that the opinion of an expert be demonstrated to be based on specialised knowledge or experience, the inference drawn by the expert which constitutes the opinion be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to facts which the expert has observed or assumed. … it is enough that the opinion be demonstrated to be based substantially on that specialised knowledge … Reasoning sufficient to demonstrate that the opinion formed by an expert is the product of the application of his or her specialised knowledge need not be limited to formal induction or deduction. Speculation, however, is not reasoning … Nor is intuition. [The expert’s judgement] requires the justification of reasoned explanation when its conclusions are controverted.” 

The utility or value of an opinion can be addressed in two separate ways, reflecting respectively admissibility and weight: the sufficiency of the demonstration that the opinion is the product of the application of specialised knowledge, and the extent to which the expert’s reasoning is clear and convincing. [15] On the admissibility question, lack of cogency (persuasiveness) is beside the point, [16] or at least it is unless a separate challenge to admissibility is made on the grounds that the probative value of the evidence is exceded by its illegitimately prejudicial effect [17]. Such a separate challenge was not made in this case [18], [25].

Here, the issue was whether the expert had drawn substantially on his specialised knowledge in engaging in the process of reasoning that led to the formation of his opinion.

The majority held that he had. His evidence was a process of inferential reasoning, throughout which he had compared what he had seen - a single stab wound with indicia of multiple thrusts and a turning of the blade in the wound - with what he had previously seen and read of the features of relevant but not identical cases involving suicide and assault [24], [469]. 

In dissent, Gordon and Edelman JJ held that the expert had not shown how his expertise provided a substantial basis for any connection between the facts and the opinion that he expressed [242]. Instead, the asserted connection was speculative [239].

A key difference in the interpretation of the expert’s evidence here is that while the dissenters attached significance to the witness’s description of the wound as “odd”, indicating that the witness was therefore forced to speculate, the majority understood the witness to have used the word “odd” in the sense of not fitting a standard pattern, and the witness was properly applying what he had previously seen and read about to what he observed [23].

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[1] We can expect the reverse to apply in New Zealand: principles developed at common law will inform the case law under the Evidence Act 2006, s 25.

When due process fails - the importance of legal representation: Watson v R (Bahamas) [2023] UKPC 32

A cluster of embarrassing errors in the Court of Appeal of the Commonwealth of The Bahamas led to a successful appeal by the offender in Watson v R (Bahamas) [2023] UKPC 32. I say “embarrassing” because the errors were so fundamental. But, strange to say, oversights of this nature can easily occur.

The appeal Court had quashed a conviction for murder, substituted manslaughter, and in place of the original sentence of death imposed 50 years’ imprisonment. This sentence was imposed without hearing submissions on what the appropriate sentence should be.

There was, therefore, a breach of natural justice amounting to a serious breach of procedural fairness [19]. This was compounded by the Court’s failure to give reasons for the 50-year sentence  [39]. The Court had not accounted for the difference in the law of The Bahamas between murder (for which recklessness as to death is not sufficient for liability) and manslaughter [30]-[31], [35]. Additionaly, the Court had failed to give the offender credit for time spent in custody [44]. Essentially, the Court had acted on too little information.

But confidence in the Court of Appeal’s integrity is reflected by the Privy Council referring back to the Court of Appeal the sentencing determination. In a sense this allows the Court of Appeal to assess the effects of its own error.

The ease with which a court can slip into fundamental error is also illustrated by an appeal (now of historical interest) from New Zealand: Taito v R (New Zealand) [2002] UKPC 15 . Essentially, the Court of Appeal had been over-burdened with administrative tasks, and these seem to have got in the way of the Court’s perception of justice. Legislation - since repealed and replaced [1] - had required the appeal court, through its Registrar, to determine the legal aid applications of prospective appellants in criminal cases. This requirement was accommodated by the practice of the Registrar referring the issue to three judges of the Court who would assess the merits of a proposed appeal and, if no arguable ground upon which the appeal might succeed could be discerned, the Registrar would be directed to refuse legal aid and the appeal would be dismissed without a hearing. This was felt to be most unsatisfactory by many judges, and the complex policy considerations that had come into play in the environment of fiscal constraint were mentioned by Sir Ivor Richardson in “The Courts and Access to Justice” (2000) 31 Victoria University of Wellington Law Review 163. [2] The practice that had been adopted is described in Taito. Although pragmatic, the adopted procedure did not comply with statutory requirements for the hearing of appeals. In none of the 12 consolidated appeals in Taito had the Court heard argument, the appellants were not present or represented, and the judge delivering the determination either had no knowledge of the available information or had previously concluded that legal aid should not be granted as there was no arguable case. There was no exercise of judicial judgement in the disposal of the appeals. Where applicants for legal aid had sought review of their refusal, review was refused without reasons and without requests to be present being met.

The procedure that had been used by the Court of Appeal in Taito was a well-intentioned attempt to find a practical way of dealing with unmeritorious appeals, but as the Board observed, decisions as to merit could only be made after observance of procedural due process. Further, failure to supply some of the appellants with copies of the documents considered by the Court was also a source of discrimination because such an error could not have occurred had the appellants been represented by counsel. This, said the Board, was “contrary to fundamental conceptions of fairness and justice.”

Unrepresented litigants take up a disproportionate amount of the courts’ time, a point noted by Sir Ivor in his article published in 2000 and referred to above, and he added that refusal of legal aid can be a false economy. Representation by counsel is a way of promoting procedural fairness, and absence of representation can result in rights being rendered meaningless. It is easy enough for courts to make fundamental errors, as is illustrated by Watson, above, and representation by counsel cannot be regarded as an indulgence: it is a protection, although not a guarantee of compliance with due process.

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[1] See the Legal Services Act 2011.

[2] Preliminary screening of cases where an appellant sought legal aid by a panel of three judges of the Court of Appeal was a long standing practice, referred to in an earlier article by Sir Ivor: “The Role of an Appellate Judge” (1981) 5 Otago Law Review 1 at 5: “Coming next to criminal cases, because there are so few that involve only matters of law, leave to appeal is ordinarily required. In most cases, too, legal aid is sought and there is a preliminary screening by three of the judges to determine that. If any of the three has any reservations about any of the matters raised, for example, as to the directions given in the summing up, or as to the admission or rejection of evidence, or as to the sentence, then legal aid is granted and the appeal is set down for hearing. If not, legal aid is refused and the application for leave to appeal is called and dismissed without a hearing, unless in the meantime, for example, because of matters raised in further written submissions, the Court decides to hear full argument.” Plainly, unrepresented defendants were expected to know a lot of law.

Interpreting legislation, judges as not-machines, and what should we learn? Hemert v R [2023] NZSC 116

Recently, in Hemert v R [2023] NZSC 116, we were given an illustration of statutory interpretation aided by reference to extraneous material. [1] At [57] the majority (with Williams J agreeing at [111]) refer to a report from the Law Commission which mentions how the relevant section should be interpreted, and to the absence of any contrary indication in the debates that Parliament had in the course of passing the legislation. Accordingly, the natural meaning of the enactment applied, and the Court held at [63] that this had been misconstrued by the Court of Appeal.

That’s all very well, and there is of course much more of interest in this case. But what I have summarised does raise the question, what would the approach be if proper judicial assessment of the natural meaning of legislation was in conflict with what other bodies - such as the Law Commission and Parliament (or more accurately, politicians in the course of debates in Parliament) - had indicated?

The Legislation Act 2019 does not explicitly endorse reference to such extraneous materials. Whether s 10, the relevant section here, does implicitly allow that in the search for the “purpose” of the legislation, and to any relevant material for “context”, is a matter upon which screeds may be written. Generally, enactments are taken to preserve as much of the existing law as is possible (or, as is sensible, given that they are usually intended to change something). Reference to extraneous materials was a common practice before the Legislation Act came into force, replacing earlier legislation on the interpretation of legislation.

Constitutionally speaking, the courts interpret and apply legislation. Independence of the judiciary implies that individual people, whether unelected officials who work on drafting legislation, elected members of Parliament, or legal experts who do not represent any party to litigation and who are not called upon to assist the court with submissions, do not tell the courts what enacted law means. It is for the legislature to make the meaning of its enactments intrinsically clear.

Still, opinions may differ over those matters. When judges find support for their own take on what is a natural meaning of legislation in the work of extraneous bodies, they may be inclined to cite that work in support. No harm is done by that, and it may provide further clarity.

Of course, as Williams J is careful to point out at [112]-[113], application of a prescribed phrase to particular circumstances can be difficult, and its meaning may not be static where “contemporary community attitudes and values” must be taken into account, so that it may need to be developed incrementally but only as necessary. This is, we may observe, the process whereby the law shifts to meet the needs of the community as judicial experience and judgement is brought to bear in individual cases.

In some ways this approach to interpreting legislation is like the development of the common law. Who can really forget what Julius Stone said [2] (I paraphrase in order to remove some of the diction which now appears rebarbative):

“… changes in legal precepts by reference to contemporary social facts and ideals … [are brought about by] the person in the appellate judgement seat, imbued by a life-span with some of the temper, perplexities, insights, preferences and values of their generation. When we ask how [this change in precepts is to occur], the answer is certainly not in the giving of judgements which conform to predictions based on past performances. It is rather in deciding what is now just [as the judge sees it].”

Stone was writing in 1966 about how machines cannot adequately replace human beings in the judicial role. “[Judges], in doing justice, seem always to be transcending the drive, methods, and limits of mere intellect.”

And from Stone it is worth turning our attention to a lecture delivered by the Chief Justice of New Zealand on 13 July 2023, marking the occasion of the 150th anniversary of the Law School at the University of Canterbury, Christchurch, New Zealand. This asks, if I may put it generally, what topics should be included in a law degree, aside from the core subjects? This may leave one wondering if there is any room for more than there now is, or whether some subjects could be dropped. The central concern seems to be putting the law in the context of the community and its institutions (its “systems”). Getting students acquainted with how things are done, and with what should be done, has its place in the law degree.

This is not to ignore the reality that most law graduates will learn in practice more of what they need to know than they could ever be taught at law school.[3]  In the environment of office, courtroom or other workplace, an awful lot of education goes on. So, what are the surviving effects of a law degree? The mind trained to analyse and reason in the legal way, to locate relevant law both legislation and case law, and to work towards a goal desired by the client. A mind that could not be imitated by a machine.

In going to work in criminal law, most graduates have left their formal study of the subject several years in the past. There are plenty of training opportunities provided by the profession [4] to get such graduates back up to speed, and there will be colleagues who are ready with advice and assistance. Refresher seminars in the law of evidence and procedure will also be available, as will opportunities about contextual matters such as client relations, cultural contributions to legal process, and working with state agencies.

The Chief Justice’s points are, of course, well made, but it seems to me that there are plenty of ways of accommodating them outside of formal university education. University study at the undergratuate level should be devoted to getting an understanding of the intellectually demanding aspects of legal education: the substance of the subjects, their interrelationships, and the qualities that make them “law”. [5] And skills in utilising the advantages and avoiding the dangers of AI generated text will have to become second nature for students, with emphasis on accessing official versions of judicial decisions and legislation, and genuine copies of secondary materials.

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[1] The issue was interpretation of the phrase “the evidence of the offence and the circumstances of the offender” in relation to whether a life sentence for murder would be manifestly unjust. The Supreme Court held that these two elements - the evidence and the circumstances - were to be considered in the round, so that although the evidence of the offence might of itself not make a life sentence manifestly unjust, when considered with the circumstances of the offender the life sentence could be manifestly unjust, although not in this case.

[2] Julius Stone, Social Dimensions of Law and Justice, Stevens and Sons, 1966.

[3] I left my formal undergraduate law studies not knowing what bail is, but after a morning in the Magistrates' Court (observing, in preparation for becoming a duty lawyer) I certainly did know. No one was disadvantaged by my ignorance. In due course I did find a use for the considerable amount of law that I did know. Many people were advantaged by that. As Adam Gopnik observes in The Real Work - On the Mystery of Mastery (2023), "The real work is what we do for other people."

[4] What could be more wonderful than “continuing legal education”- a now institutionalised requirement. Just saying it makes us feel better.

[5] And (don’t let me go on about this), some law schools appear to gain status by heaping an awful lot of work on students, to the disadvantage of the slow, thoughtful readers.

Applications for leave to appeal before trial: W (CA624/2022) v R [2023] NZCA 397

Today is the nineteenth anniversary of the start of this site. Celebrations have been restrained and dignified, although I do seem to have to correct a lot of typing mistakes just now.

My fear that the day would pass without producing an excuse for me to mention that significant occasion has been allayed by the Court’s publication of its reasons in W (CA624/2022) v R [2023] NZCA 397.

This case deals with the criteria for deciding to grant leave for a pre-trial appeal. Occasions for such appeals are listed in the Criminal Procedure Act 2011, ss 215, 217, 218, which are reproduced at [5], [6], and (for s 218) summarised at [7]. The Court considers the policy matters that the legislation addresses at [16]-[21], and notes the relevant law in comparable jurisdictions at [23]-[24].

New Zealand ’s leading case law is in the Leonard and the Hohipa decisions, considered at [25]-[30] for Leonard, listing the decision criteria at [28]-[29]. Hohipa is referred to at [31]-[33]. The present case (W) does not overrule those criteria, but adds to them in the light of experience. Recent experience and issues arising from it are described at [34]-[41]. The two questions raised by this experience are stated at [41].

The Court does not attempt to answer the first question which is why are so many applications for leave to appeal before trial made? My own guess is that (apart from the misleading heading to s 215, and similarly to 217 and 218 which suggests that there is a “right” to appeal before trial, when there is only a right to seek leave to appeal in the relevant occasions) counsel do not wish to be criticised at a later stage of the proceedings for not having sought leave pre-trial, and do not want any inference adverse against their client to be drawn from the absence of any pre-trial application for leave.

But the other point raised in [41] is more important: the need for counsel to assist in the determination of an application for leave by particularising the issues (see [53]-[55]).

The leave criteria are restated at [52], with the interests of justice being the overall consideration. There are 13 criteria in the list, labeled (a) to (m). In Leonard the Court had identified 5 criteria favouring leave being granted (repeated here at [5]), and 5 against (see [6]). So, what are the 3 that are added in the present case? The criteria in W at [52(a)-(c)] are not in the Leonard list but they do appear in other case law.

My impression is that all the criteria, those in Leonard and those in the present case, are relevant. There is no express departure from the Leonard criteria, but the overlap of particular criteria (for example, Leonard (a) in favour of granting leave and W (d), (e), and (f); Leonard (b) and W (i) and (m)) suggests that they should all be read together. The emphasis in W is on the avoidance of unnecessary delay in the completion of the criminal proceedings [55].

And, as I said in Jeremy Finn and Don Mathias, Criminal Procedure in New Zealand (3rd ed, 2019, Thomson Reuters NZ Ltd, Wellington) at [14.6], it is important to advance at the earliest opportunity strong grounds in an application for leave to appeal, as there is no appeal against a refusal of leave.

Of particular interest to law reformers is the reference at [23] to the law in comparable jurisdictions: Canada, New South Wales, South Australia, Victoria, and England and Wales.