Appeal Watch: R v Shand and Canada v Almalki Denied Leave to Appeal
Appeal Watch is a new feature that profiles cases that have been recently granted or denied leave to appeal at the Supreme Court of Canada.
SCC Refuses to Revisit Murder Mens Rea Standard
In the years following the adoption of the Canadian Charter of Rights and Freedoms, the courts in Canada used their new-found power under section 7 – the right to life, liberty and security – to scrutinize objective standards of mens rea. This resulted in a push for more subjective standards, under the premise that objective standards threatened to punish the morally innocent, as they did not require the accused to possess a positive state of mind such as intention or foresight. This scrutiny was particularly intense in the context of high-stigma crimes such as murder.
This perspective on objective standards led the Supreme Court of Canada (“SCC”) to rule that the felony-murder provisions of section 213 (now section 230) of the Criminal Code, RSC 1985, c C-46 [the Code], were unconstitutional in R v Vaillancourt,  2 SCR 636, and R v Martineau,  2 SCR 633, and that a mens rea of subjective foresight of death is constitutionally required for a murder conviction.
In R v Shand, 2011 ONCA 5, the debate regarding the constitutionality of the Code’s murder provisions resurfaced. In Shand, the accused was charged with second-degree murder under section 229(c) when, in the course of a robbery, their handgun accidentally discharged and killed the victim. The accused was convicted at trial and granted appeal.
At the Ontario Court of Appeal, the appellant argued that section 229(c) of the Code – the only surviving provision that does not require a specific intention to seriously harm or kill – is unconstitutional because it labels an unintentional killing as murder. The appelant’s argument rested on the premise that the label of “murderer” should be applied based only on a mens rea of intention, not mere foresight in order to conform with the principles of fundamental justice.
The Court of Appeal rejected the appellant’s constitutional arguments and upheld the trial court’s conviction. They agreed with the Crown that Martineau and concurrent decisions (see R v Arkell,  2 SCR 695 [Arkell] and R v Luxton,  2 SCR 711) went far enough in protecting the morally innocent from being labeled murderers by ensuring subjective foresight of death as a constitutional requirement of a murder conviction.
In fact, in Martineau, the court specifically addressed section 229(c) by striking down the objective “ought to know” portion of the mens rea requirement, while leaving the subjective mens rea requirement intact. The Court of Appeal concludes that “when the subjective foresight of death is combined with an ulterior intent that is itself sufficiently culpable, together they constitute a proper normative substitute for an intent to kill.”
This week, the SCC denied leave to appeal in the Shand case. While it would be valuable to criminal lawyers across the country to get a definitive ruling from Canada’s highest court on the future of section 229(c), this signals that the Court is not interested in re-engaging in constitutional scrutiny of the mens rea requirement for murder for the time being. Perhaps the Court will see the need to offer judgment when the provision is challenged in another jurisdiction. Until then, per Arkell, subjective foresight of death remains “the highest level of moral culpability” in Canadian criminal law.
Torture Cases Denied Leave to Appeal
A leave for appeal was also denied in the case of Abdullah Almalki et al v Attorney General of Canada. In what are commonly referred to as the “torture cases” by the media, Almalki and his co-appellants Abou-Elmaati and Nuayyed Nureddin filed civil claims against the Canadian government alleging complicity in their detainment and torture in Syria and Egypt between 2001 and 2004.
These claims were put on hold while a Commission was convened to inquire into the actions of government officials in relation to the appellants’ detainment. Following the publication of the Commission’s report, the appellants put forward a motion in the Ontario Superior Court of Justice to allow for the discovery of documents that were noted in the reports.
In response, the Attorney General of Canada applied for an order in the Federal Court (FC) to have the documents withheld pursuant to section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 [CEA], which allows sensitive information to be withheld for reasons of national security. This request was denied in Canada v Almalki, 2010 FC 1106, where the FC concluded that the AG failed to demonstrate a sufficient injury would result in releasing the information.
However, in Canada v Almalki, 2011 FCA 199, the Federal Court of Appeal quashed the denial, arguing that the FC judge erred in applying the three-part test set out in Ribic v Canada, 2003 FCA 246, as the appropriate standard for determining the disclosure of documents under section 38 of the CEA. The Ribic test requires the courts to complete a balancing act which considers (1) the relevance of the information to the underlying procedure, (2) the impact of disclosure on “national security, international relations or national defence” and (3) “whether the public interest in disclosure is outweighed by the public interest in non-disclosure.”
While the Ribic decision provided that applications for disclosure “are reviewable on a standard of correctness,” the FCA also concluded that cases such as this, involving “a mixed question of fact and law,” should be “subject to the more deferential standard of ‘palpable and overriding error’” set out in Housen v Nikolaisen,  2 SCR 235.
The FCA also concluded that when applying the Ribic test, the FC judge failed to give proper consideration to the evidence for potential injury and instead gave “undue weight to the public interest in disclosure of the information.” In response to this error, the FCA allowed the appeal and ordered the documents be withheld “to prevent and minimize injury to international relations, national security and national defence.”
The power to order disclosure under section 38 of the CEA requires the courts to engage in a delicate balancing act, which pits the public interests of disclosure against the potential for injury caused to national security. However, the FCA’s decision, and the subsequent denial for an appeal, signals that Canadian courts should be cautious about weighing evidence for a sympathetic disclosure of information more heavily than the public interest of national security.