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We need counsel in our community who can respectfully, with experience, approach the Crown and ask them to provide the very best offer to the client without trial as based on the evidence. The Crown is not to intimidate counsel to take any Crown offer where, if it is not accepted by the client, Counsel for the client is to be held in contempt by her colleague and for no valid reason. It is subtle but Crown intimidation is illegal. Police intimidation is illegal and we will review cases such as R v Oikle in our next CPD series that will address this issue. This is an excerpt of the jurisprudence from Oikle. Read more by clicking here.

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We need counsel in our community who can respectfully, with experience, approach the Crown and ask them to  provide the very best offer to  the client without trial as based on the evidence.   The Crown is not to intimidate counsel to take any Crown offer where, if it is not accepted by the client, Counsel for the client is to be held in contempt by her colleague and for no valid reason.  It is subtle  but Crown intimidation is illegal. Police intimidation is illegal and we will review cases such as R v Oikle in our next CPD series that will address this issue.  This is an excerpt of the jurisprudence from Oikle.  Read more by clicking here.   


1                                    Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:

 

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

 

 

This Court adopted the “Ibrahim rule” in Prosko v. The King (1922), 63 S.C.R. 226, and subsequently applied it in cases like Boudreau v. The King, [1949] S.C.R. 262, Fitton, supra,  R. v. Wray, [1971] S.C.R. 272, and Rothman v. The Queen, [1981] 1 S.C.R. 640.

 

2                                   The Ibrahim rule gives the accused only “a negative right — the right not to be tortured or coerced into making a statement by threats or promises held out by a person who is and whom he subjectively believes to be a person in authority”: Hebert, supra, at p. 165.  However, Hebert also recognized a second, “much broader” approach, according to which “[t]he absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent” (p. 166).

 

3                                   While not always followed, McLachlin J. noted at p. 166 that this aspect of the confessions rule “persists as part of our fundamental notion of procedural fairness”.  This approach is most evident in the so-called “operating mind” doctrine, developed by this Court in Ward, supra, Horvath v. The Queen, [1979] 2 S.C.R. 376, and R. v. Whittle, [1994] 2 S.C.R. 914.  In those cases the Court made “a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found”: Ward, supra, at p. 40.  The “operating mind” doctrine dispelled once and for all the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises. 

 

4                                   These cases focused not just on reliability, but on voluntariness conceived more broadly.  None of the reasons in Ward or Horvath ever expressed any doubts about the reliability of the confessions in issue.  Instead, they focused on the lack of voluntariness, whether the cause was shock (Ward), hypnosis (Horvath, per Beetz J.), or “complete emotional disintegration” (Horvath, supra, at p. 400, per Spence J.).  Similarly, in Hobbins v. The Queen, [1982] 1 S.C.R. 553, at pp. 556-57, Laskin C.J. noted that in determining the voluntariness of a confession, courts should be alert to the coercive effect of an “atmosphere of oppression”, even though there was “no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence”; see also R. v. Liew, [1999] 3 S.C.R. 227, at para. 37.  Clearly, the confessions rule embraces more than the narrow Ibrahim formulation; instead, it is concerned with voluntariness, broadly understood.

 

2.    The Charter Era

 

5                                   The Charter constitutionalized a new set of protections for accused persons, contained principally in ss. 7 to 14 thereof.  The entrenchment of these rights answered certain questions that had once been asked under the aegis of the confessions rule.  For example, while the confessions rule did not exclude statements elicited by undercover officers in jail cells (Rothman, supra), such confessions can violate the Charter: see Hebert, supra, and R. v. Broyles, [1991] 3 S.C.R. 595.

 

6                                   In Hebert, supra, McLachlin J. interpreted the right to silence in light of existing common law protections, such as the confessions rule.  However, given the focus of that decision on defining constitutional rights, it did not decide the inverse question: namely, the scope of the common law rules in light of the Charter.  One possible view is that the Charter subsumes the common law rules.



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Intimidation of a Justice System Participant (Offence)

This page was last substantively updated or reviewed January 2020. (Rev. # 86127)


Intimidation of a Justice System Participant
s. 423.1 of the Crim. Code
Election / Plea
Crown ElectionIndictment
JurisdictionProv. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp.Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
MinimumNone
Maximum14 years incarceration
Reference
Offence Elements
Sentence Digests

Offence Wording

Intimidation of a justice system participant or a journalist

423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in

(a) a group of persons or the general public in order to impede the administration of criminal justice;
(b) a justice system participant or military justice system participant in order to impede him or her in the performance of his or her duties; or
(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.

(2) [Repealed, 2015, c. 13, s. 12]

Punishment

(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.
[omitted (4)]
2001, c. 32, s. 11; 2015, c. 13, s. 12; 2019, c. 15, s. 47.

– CCC (CanLII), (DOJ)

Note up: 423.1(1) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code SectionSubject of OffenceDraft Wording
423.1Intimidation of a justice system participant or a journalist"... without lawful authority and with the intent to provoke a state of fear in [name1] or the general public in order to impede the administration of justice ... , to wit: [particulars], contrary to section 423.1 of the Criminal Code."






 

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