R. v. Hammoud, 2012 ABQB 110

Court of Queen’s Bench of Alberta Citation: R. v. Hammoud, 2012 ABQB 110 Date: 20120221 Docket: 101526168S1 Registry: Calgary Between: Ayyman Hammoud Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf _______________________________________________________

Summary Conviction Appeal The Honourable Judge B. A. Millar Dated the 9 th day of May, 2011 Filed on the 8 th day of August, 2011 (2011 ABPC 101526168P1, Docket: 101526168P101001) I. Introduction

I. Introduction [1] This appeal is brought by Ayyman Hammoud to challenge his conviction on May 9, 2011 for failing to attend court. For thereasons that follow I would allow the appeal and direct an acquittal. II. Background [2] The facts in this case are straightforward. Mr. Hammoud was charged with failing to attend court for his trial on December 15,2010, pursuant to s. 145(2)(

a) of the Criminal Code, R.S.C. 1985, c. C-46. [3] At his trial relating to the s. 145(2)(

a) offence, conducted on May 9, 2011, Mr. Hammoud admitted that he failed to attend court asrequired on December 15, 2010, but testified that at the time he held an honest, but mistaken, belief that the date of his trial wasDecember 16, 2010 - one day later. [4] Mr. Hammoud had previously attended all prior court appearances in this matter on February 3rd and 25th, March 2nd and 11th, June 4th, and October 12th and 27th, of 2010. III. Issues [5] There are three primary issues before the Court. (

i) Is “failing to attend”, pursuant to s. 145(2)(

a) of the Criminal Code, a strict liability offence? (ii) If not, what is the required mens rea for the offence of “failing to attend”? (iii) Did Mr. Hammoud demonstrate a lawful excuse for “failing to attend”? IV. Standard of Review [6] The standard of review on a

summary conviction appeal is correctness for errors of law, and palpable and overriding error forerrors of fact, or mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 at paras. 8, 10 and 36. V. Analysis (

i) Is “failing to attend” pursuant to s. 145(2)(

a) of the Criminal Code a strict liability offence? [7] The Crown argued that failing to attend court contrary to section 145(2)(

a) of the Criminal Code is a strict liability offence. Thegenesis of strict liability in criminal law is rooted in the case of R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299. At1302-3, Justice Dickson, writing for the Court, commenced his judgment with these words. In the present appeal the court is concerned with offences variously referred to as "statutory", "public welfare", "regulatory", "absoluteliability, or " "strict responsibility", which are not criminal in any real sense but are prohibited in the public interest. (Sherras v.

DeRutzen) Although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in substance of acivil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limitedapplication. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like. In thisappeal we are concerned with pollution.

The doctrine of the guilty mind expressed in terms of intention or recklessness, but not negligence, is at the foundation of the law ofcrimes. In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that actis without mens rea: R. v. Prince; R. v. Tolson; R. v. Rees; Beaver v. The Queen; R. v. King).

Blackstone made the point over 200 yearsago in words still apt: "to constitute a crime against human law, there must be first a vicious will, and secondly, an unlawful actconsequent upon such vicious will": Blackstone's Commentaries, vol. 4, p. 21. [Citations omitted] [8] In R. v. Wholesale Travel, (SCC), [1991] 3 S.C.R. 154 at 219, Justice Cory characterized public welfare offencesas designed to shape social behaviour to further a public interest, such as health or safety, rather than to deter people from, or punishpeople for, true criminal acts which embody moral fault.

The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers andmotorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift ofemphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection ofpublic and societal interests.

While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct,regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conductand care. This statement accords with the examples of public welfare offences provided by Justice Dickson in Sault Ste. Marie. [9] In addressing the distinction between criminal and public welfare offences Justice Dickson in Sault Ste. Marie noted, at 1309: [t]he distinction between the true criminal offence and the public welfare offence is one of prime importance.

Where the offence iscriminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally orrecklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. [Emphasis added] [10] Therefore, the threshold question is whether “failing to attend” can be correctly characterized as a public welfare offence thatattracts strict liability. If not, and the offence is truly criminal, the Crown is obligated to prove the mental element of the offence, failingwhich a conviction cannot stand.

Based on the source, purpose, and consequence of the offence set out in s. 145(2)(a), as explained morefully below, I find that “failing to attend” is not a public welfare offence that attracts strict liability. [11] First, the source of the offence being the Criminal Code, and the nature of surrounding offences located within

Part IV, informthe punitive nature of s. 145(2)(a). The Criminal Code is penal legislation focused on truly criminal behaviour. “Failing to attend” islocated within an area labelled “Escapes and Rescues” under

Part IV – Offences against the Administration of Law and Justice, whichcontains various other serious penal offences. [12] In addition, pursuant to the division of powers entrenched in ss. 91 and 92 of The Constitution Act, 1867 (UK), 30 & 31 Victoria,c. 3, only Parliament has authority to validly enact truly criminal law.

That is not to say the federal government cannot enact regulatoryoffences, but “there is as yet no Supreme Court authority classifying a Criminal Code offence as regulatory”: Don Stuart, Canadian Criminal Law: A Treatise, 5th ed. (Toronto: Thomson Carswell, 2007) at 196. [13] By comparison, regulatory offences that attract strict liability are validly enacted by provincial legislatures under differentauthority, such as the power over property and civil rights contained in s. 92(13) of the Constitution, or by Parliament’s authority otherthan the criminal law power set out in s. 91(27).

In other words, public welfare offences exist in legislative instruments outside of theCriminal Code that have as their specific aim a purpose normally focused on the convenience, health, safety or general welfare of thepublic: Wholesale Travel at 219. Particular examples of regulatory legislation that set out a host of strict liability offences are the AlbertaTraffic Safety Act, R.S.A. 2000 c. T-6, and the Alberta Occupational Health and Safety Act, R.S.A. 2000, c. O-2. [14] Second, the purpose of the offence also evinces its true criminal nature.

While there is a legitimate public benefit underlying s.145(2)(a) – i.e. to ensure an expedient and efficient justice system – that outcome is incidental to the primary objective of deterring andpunishing noncompliance with judicial orders. [15] Third, the serious consequences that can arise from a conviction under s. 145(2) also point to the criminal, rather than regulatory,

character of the offence. The Crown may elect to commence prosecution under indictment where an accused can face up to two years inprison. Moreover, convictions under s. 145(2) can impact over the longer term. For example, prior “failing to attend” convictions can bean important consideration informing a judge’s decision to grant bail in subsequent proceedings on unrelated charges. [16] On balance, the source of the offence, its object and purpose, and the potential for serious legal ramifications consequent onconviction all point towards categorizing s. 145(2)(

a) as a mens rea, rather than strict liability, offence. (ii) What is the required mens rea for the offence of failing to appear? [17] The Supreme Court of Canada has acknowledged in various cases that the mens rea requirement can be satisfied in different waysfor different criminal offences. Cory J. stated in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867 at 882-3: Depending on the provisions of the particular

section and the context in which it appears, the constitutional requirement of mens rea maybe satisfied in different ways. The offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness.Alternatively, the mens rea or element of fault can be satisfied by proof of negligence whereby the conduct of the accused is measuredon the basis of an objective standard without establishing the subjective mental state of the particular accused. In the appropriate context,negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter.

See R. v. Wholesale TravelGroup Inc., (SCC), [1991] 3 S.C.R. 154. Thus, the intent required for a particular offence may be either subjective orobjective. A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence is alleged tohave been committed. In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law, supra, at pp. 123-24 and125: What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequenceand/or circumstance as the case may be.

Whether he "could", "ought" or "should" have foreseen or whether a reasonable person wouldhave foreseen is not the relevant criterion of liability. ... In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonableinferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed.

Toconclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in thepenalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur ifthe reasoning became that the accused "must have realized it if he had thought about it". [Emphasis in original] On the other hand, the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonableperson. There is no need to establish the intention of the particular accused.

The question to be answered under the objective testconcerns what the accused "should" have known. The potential harshness of the objective standard may be lessened by the considerationof certain personal factors as well as the consideration of a defence of mistake of fact. See McIntyre J. and Lamer J., as he then was, in R.v. Tutton, (SCC), [1989] 1 S.C.R. 1392, and R. v. Waite, (SCC), [1989] 1 S.C.R. 1436.

Nevertheless,there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken careirrespective of awareness (pure objective intent). [18] In Hundal, at 884-6, the Court concluded that a modified objective test for mens rea was applicable to dangerous driving. Inreaching that conclusion, the Cory J considered the following factors:

(

i) As driving required a license, this demonstrated that those who drive were to be mentally and physically capable of doing so. (ii) The nature of driving was often so routine or automatic that it was done with little conscious thought and that “[i]t would be adenial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking ofhis manner of driving at the time of the accident”. (iii) The wording of the

section suggested an objective standard. (iv) Where the

section is designed to curb driving that is exceedingly dangerous to the public and there is compelling need foreffective legislation, “[it] is not only appropriate but essential in the control of dangerous driving that an objective standard be applied”. [19] In R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, the Supreme Court set out the considerations which are to be takeninto account when assessing the subjective or objective nature of the required mental element, which included: (

i) the gravity or seriousness of the offence, (ii) the stigma attached to it, (iii) the available penalties, (iv) the proportionality of the punishment to the moral blameworthiness of the offender, and (

v) the symmetry between the mental fault and the consequences of the offence and recognition of the principle that those causingharm intentionally must be punished more severely than those causing harm unintentionally. [20] Courts are divided as to whether the mens rea requirement for failing to appear contrary to section 145(2)(

a) is subjective orobjective. A number of decisions have concluded that the offence requires full subjective mens rea and the Crown must establish beyonda reasonable doubt that the accused knowingly or recklessly failed to attend court to obtain a conviction: R. v. Legere (1995), (ON CA), 22 O.R. (3d) 89, 77 O.A.C. 265 (Ont. C.A.); R. v. Loutitt, 2011 ABQB 545. Other cases have concluded that anobjective test is appropriate: R. v. Ludlow (1999), 1999 BCCA 365 , 136 C.C.C. (3d) 460, 125 B.C.A.C. 194 (B.C.

C.A.); R. v.Bremmer, 2006 ABPC 93. [21] I am of the view that when the criteria considered in Hundal and Creighton are considered in the context of the offence of “failingto attend”, objective mens rea is the appropriate standard for the following reasons: 1. The purpose of the

section is to ensure that individuals who have given an undertaking or recognizance to attend court complywith that obligation. 2. There is a need for effective legislation penalizing individuals who fail to honour their undertaking or recognizance to attendcourt in order to ensure the smooth functioning of the judicial system.

3. The language of the

section uses the words “fails...to attend” rather than language such as “refuses..to attend”, which suggests anobjective rather than a subjective mental element. 4. As a failure to attend is something that could frequently occur without conscious thought, as was found to be the case withdriving in Hundal, it seems inappropriate to impose a subjective mens rea test that would require the Crown to prove a consciousintention to not comply with an undertaking or recognizance to order to establish the offence. 5. The stigma attached to a conviction for failing to attend is not particularly high. 6.

The maximum sentence on a conviction for failing to attend is two years. [22] To satisfy the objective mens rea requirement for the offence of “failing to attend”, the Crown must establish that the accusedwas informed of the court date in circumstances that a reasonable person would have appreciated that he or she was required to attendcourt at the relevant time. As McLachlin J. (as she then was) pointed out in Creighton, at 58: Objective mens rea ... is not concerned with what the accused intended or knew.

Rather, the mental fault lies in failure to direct the mindto a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in theaccused’s mind, but with what should have been there, had the accused proceeded reasonably. [23] The Trial Judge found that Mr. Hammoud was in court on the day that the trial date was set for December 15, 2010 and that hefailed to attend. This satisfies the mens rea and actus reus requirements of the offence, subject to consideration of the statutory defence. iii. Did Mr.

Hammoud have a lawful excuse for failing to attend? [24] Section 145(2)(

a) contains a statutory defence. It provides that an offence occurs where a person “fails, without lawful excuse,the proof of which lies on him, to attend court...”. In considering the nature of this defence, Hall J.A. in Ludlow, stated at paras. 38-40: [38] The offence of failing to appear is not one of particularly high stigma and in appropriate cases, a court could impose a dischargedisposition upon a finding that an accused had breached the section. I prefer the reasoning in a case cited to us, R. v. Preshaw, (1976) (ON CJ), 31 C.C.C. (2d) 456 (Ont. Prov.

Ct.), a judgment of Langdon P.C.J., holding that simply forgetting the date isnot generally going to amount to a lawful excuse contrary to the conclusion reached in the earlier cases adverted to in Legere. Thosecases found that a failure to remember the date could be a defence. Nor would it seem appropriate to conclude that self-inducedintoxication by alcohol or drugs leading to a failure to appear could amount to a lawful excuse for failure to attend court as required. Iagree with the conclusion of Murphy Co. Ct. J., (as he then was), in the case of R. v. Storzuk, [1984] B.C.J.

No. 908 (QL), that self-induced intoxication was not an answer to a charge of failure to appear. [39] It seems to me that it would be impossible to envisage every situation that could amount to a lawful excuse for failure to attendcourt. Sudden illness, a breakdown of transport and the like would seem to be clear instances of situations that could amount to a lawfulexcuse for failure to appear.

Of course, any such defence would have to be based on evidence that the trier of fact believed. [40] It must not be overlooked that an obligation is imposed by statute on a person bound by an undertaking or recognizance to attend atcourt as required or directed by the terms of the operative document. Forgetting to appear seems to me a very marked departure from therequirement imposed on an accused at liberty on an undertaking or recognizance to faithfully observe the requirement to attend.

Mostpeople would and should recognize that a serious obligation concerning the proper administration of justice is thereby imposed on anaccused and a failure to attend, absent a compelling reason, or as in the instant case, an honest and reasonably based belief that noattendance is required, should usually result in a finding of a breach of the section. I would say the fault or mens rea requirement for thisclass of offence has a large element of the objective about it.

Conviction can be avoided if an accused establishes a lawful excuse by ashowing of due diligence to satisfy the obligation, including an honest and reasonable belief in a state of facts that would excuse non-attendance.

[ 25 ] The onus of establishing a lawful excuse under this

section is on the accused. At trial, Mr. Hammoud testified that he failed to attend court because he had an honest, but mistaken, belief that the court date was on December 16, rather than on December 15, 2010. In convicting Mr. Hammoud the Trial Judge stated: I am familiar with the law in the area. And I find that it's a fact as set out in Exhibit 1 that on your trial date on December 15th you did not appear ... that's not an issue. What's an issue is the mens rea. And on the day that that trial date was set for December 15th you were in court ... you were present.

In addition you received the scheduling sheet which is a written form reminding you of the trial date, and that on the 15th, through mistaken belief or lapse in memory , you did not appear. And that this in law is negligence on your part and does not constitute a lawful excuse. Therefore I find you guilty on this Information of failing to appear on December 15th. [Emphasis added] [ 26 ] In acquitting the accused in Ludlow , the majority stated: I do not consider that in the instant case, the learned

summary conviction appeal court judge asked the proper question, namely, did this appellant have an honest and reasonable belief in a state of facts that excused him from the necessity of attending court? In my opinion, if that question had been posed and the facts properly analysed, there could have been but one answer, namely he had made out a lawful excuse. I would allow this appeal and direct a verdict of acquittal. [ 27 ] Applying this approach to the circumstances of this case, I am satisfied that the Trial Judge failed to ask himself the proper question, that is, did Mr.

Hammoud have an honest and reasonable belief in a state of facts that excused him from attending court on December 15 th . The Trial Judge’s reasons do not expressly or impliedly reject Mr. Hammoud’s evidence that he was operating under an honest, but mistaken, belief as to his trial date. In my opinion, if the proper question had been posed, the Trial Judge would have concluded that the appellant had made out a lawful excuse. VI. Conclusion Mr. Hammoud’s appeal is allowed and a verdict of acquittal directed. Heard on the 8 th day of September, 2011.

Dated at the City of Calgary, Alberta this 21 st day of February, 2012. J. Strekaf J.C.Q.B.A. Appearances: Ayyman Hammoud for the Appellant, Ayyman Hammoud Andrew Barg for the Respondent, Her Majesty the Queen