R v Belcourt : Privacy and Punishment When the Safety Is Off

The British Columbia Court of Appeal (“BCCA”) decision in R v Belcourt, 2015 BCCA 126 [Belcourt], weighed the constitutional underpinnings of two different issues—privacy, and instructions on mens rea requirements—in a second-degree murder charge.

The BCCA concluded that the privacy rights of Belcourt, the accused, were not infringed by the production of text messages under a general warrant. However, they did conclude that the trial judge did not clearly explain the mens rea requirement of the notoriously tricky section 229(c) of the Criminal Code, RSC 1985, c C-46 [Code] to the jury, and thus ordered a new trial.

Facts and Issues Before the Court

On March 3, 2010, Andrew Belcourt and the co-accused Samuel McGrath entered into the home of a certain Leslie Hankel with the intention of robbing him. Armed with a sawed-off shotgun, Belcourt guarded Hankel in Hankel’s bedroom while McGrath searched the rest of the apartment for drugs and money. Belcourt had practised using the shotgun but testified that he was unsure about the safety mechanisms on the gun.

While Belcourt was standing guard, the shotgun discharged into the ceiling while resting on Belcourt’s shoulder.   Stunned, Belcourt grabbed the gun to load another shell in it; the gun discharged again, hitting Hankel in the face and killing him. Belcourt and McGrath both subsequently ran from the apartment.

At trial, Belcourt was convicted of second-degree murder.

The Crown argued that Belcourt shot Hankel because Belcourt’s mask had fallen off and he did not wish to be identified. The testimonies of Belcourt’s friends indicated that Belcourt had said as much to them.

Belcourt denied this. Additionally, Belcourt argued that the trial judge erred in two respects:

1. The first was by failing to grant a remedy under section 24 of the Charter or section 52 of the Constitution Act, 1982 for the exclusion of evidence from text messages obtained from Telus.
2. The second was the trial judge’s improper instructions to the jury on the correct mens rea requirements for section 229(c) of the Code.

The BCCA dismissed the first issue, arguing that the police had lawfully produced the text messages obtained under a general warrant from Telus. The BCCA found that the increased privacy restrictions under Part VI of the Criminal Code—which apply to wiretaps and were recently applied to the production of prospective text messages in the Supreme Court (“SCC”) decision in R v TELUS Communications Co, [2013] 2 SCR 3 [Telus]—did not apply to the production of historical text messages.

However, the BCCA found some problematic ambiguities in the instructions of the trial judge to the jury on section 229(c), particularly with the use of the term “accidental” (Belcourt, para 77). As a result, the BCCA ordered a new trial.

Issue 1: Excluding Text Message Evidence

The police filed two production orders requiring Telus provide them with any incoming and outgoing text messages from the phones of McGrath and Belcourt at or around the time of the offence. These orders were authorized under section 487.012 of the Code. Belcourt argued that the police should instead have sought authorization from Part VI of the Code (which includes sections 183-196.1), as this type of warrant would be more difficult for police to get and could allow him to exclude that evidence.

Belcourt’s argument stemmed from the precedent set in the SCC decision in Telus. In that case, the police filed a production order with a general warrant, demanding text messages stored in Telus’ computer database. Telus appealed—they argued that production of these text messages would constitute an “interception of private communications” (Telus, para 2) and thus required a wiretap authorization under Part VI rather than a general warrant.

The appeal in Telus rested on the definition of “interception.” A narrow or technical definition of interception would require the act of interception to occur simultaneously with the making of the communication, as in the wiretap of a phone call.

This narrow definition would not encompass modern text-based communications systems. Text messages can be distinguished from phone calls in that they may not be delivered to the recipient, can remain in Telus’ transmission infrastructure for 5 days before Telus will stop trying to deliver it, and can be copied and shared. Justice Abella, writing for the Court, stated that “technical differences inherent in new technology should not determine the scope of protection afforded to private communications” and that such a narrow definition would not be keeping pace with technological developments (para 5).

Additionally, it would not accord with the purpose of Part VI, which seeks to “offer broad protection for private communications from unauthorized interference by the state” (para 35). Using their broader definition, the Court concluded that the production order in that case met the requirements of “interception of private communications,” and thus should have been authorized under Part VI rather than the general warrant.

It was this broader definition of “interception” which Belcourt hoped to use to his advantage. Belcourt submitted that his text messages were stored as part of the unique transmission process of text-based communications, and that his private messages should be afforded equal protection under Part VI.

Justice Kirkpatrick for the BCCA disagreed. She distinguished Telus, stating that the key feature was that the police had “interject[ed] themselves in the communication process by using an investigative technique that comes between the sender and receiver of a message” (Belcourt, para 46). The broad definition of “interception” did not apply to this case, where the police were seeking to “obtain a stored electronic record of a text message after it has been sent and received” (para 46).

Kirkpatrick argued that such an interpretation accords with the purpose of Part VI. The safeguards of Part VI are to prevent police from engaging in indiscriminate requests for production, and “any retrospective investigation technique is outside its ambit” (para 48).

It should be noted that Justice Abella did not comment on historical text messages in Telus. At the very outset of her decision, Justice Abella noted that the scope of the appeal was narrow, and that the court had not been asked to determine and would not address whether a “general warrant is available to authorize the production of historical text messages,” as is the case at bar (Telus, para 15).

Justice Kirkpatrick additionally explored Belcourt’s alternate submission that the information to obtain (ITO) production orders did not sufficiently balance his privacy rights. Justice Kirkpatrick dismissed this submission, outlining that the ITO clearly identified why it believed the text messages in question would help the investigation. The text messages were “relevant or rationally connected to the incident under investigation” (para 60).

Justice Kirkpatrick dismissed the first issue on appeal, finding that Part VI did not apply to historical text messages, but to prospective ones only. As such, Belcourt’s section 8 rights were not violated, and the trial judge did not err in refraining from granting a remedy under section 52 of the Constitution Act or section 28 of the Charter.

Issue 2: The Trial Judge’s Instructions on 229(c)

Section 229(c) of the Code states that culpable homicide is murder where “a person, for an unlawful object, does anything that he knows … is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.”

R v Shand, 2011 ONCA 5 [Shand], provides a critical precedent for the mens rea component of section 229(c). Similarly to this case, the court in Shand dealt with the potentially accidental discharge of a firearm, and determined that the mens rea requirement under section 229(c) was not a question of what the accused ought to have known, but rather “what he actually knew and foresaw” (Shand, para 195).

Belcourt used a similar line of reasoning. He argued that the instructions of the trial judge left open the possibility that he was “convicted of murder for an accidental homicide that was unintended and subjectively unforeseeable” (Belcourt, para 69).

Justice Kirkpatrick agreed that the trial judge’s instructions on the mens rea of this offence were problematic. The trial judge wrote that section 229(c) would apply to Belcourt “even if the discharge of the firearm was accidental” (para 77). He also wrote that “the Crown must prove that Belcourt knew that his act of holding a loaded shotgun with his finger on the trigger and the safety off was likely to cause death if the gun discharged” (para 77).

The suggestion in these instructions that section 229(c) applied to Belcourt, “even if the discharge of the firearm was accidental” blurred the requirements of this section. The defense of accident is not a defense under section 229(c) because a subjective foresight of death replaces the intention to kill, as required under section 229(a).

The jury could easily be confused by the term “accidental,” using it in the sense of an “accident” as an unintended consequence of an action. This could lead the jury to believe that subjective foresight of death (as an “accidental” and unintended consequence of Belcourt’s actions) is not relevant to section 229(c), when this subjective foresight is actually central to the section’s application. Clearer instructions needed to be given on what factors were relevant to that subjective foresight (such as Belcourt’s unfamiliarity with the weapon and with its slam-fire feature, as well as his belief that the safety was off, etc.) without using confusing terms such as “accidental.”

Additionally, the second line of instructions focused too much on Belcourt’s actions rather than his intentions (with the wording presuming Belcourt knew the safety was off, though he had indicated he did not).

As such, Justice Kirkpatrick found that Belcourt was entitled to a new trial.

Commentary

Justice Kirkpatrick was faced with two very different issues, both highlighting interesting underlying constitutional concerns.

The issue of excluding text message evidence spoke to ongoing conversations on the nature of privacy and police powers (highlighted by the recent SCC decision in R v Fearon, 2014 SCR 621 [Fearon]). Justice Kirkpatrick does not ignore the potential Charter infringements here, recognizing the underlying philosophical principles that concerned the court in Fearon, such as their caution that measures should be taken to “limit the potential invasion of privacy that may, but does not inevitably result from a cell phone search” (Fearon, para 74). However, Justice Kirkpatrick wisely limits the scope of Part VI’s protection, following the precedent in Telus and refraining from over-broadening privacy protections at the sacrifice of police powers.

Justice Kirkpatrick is likewise cautious when dealing with the issue of section 229(c), a notoriously slippery section that often seems on the verge of unconstitutionality. Even after its objective arm (“ought to know”) was struck down in R v Martineau, [1990] 2 SCR 633, numerous academics have still worried that the section may be difficult to apply in a constitutional manner (see, for example, Kent Roach, “The Problematic Revival of Murder Under Section 229(c) of the Criminal Code” (2010) Alberta L Rev 47:3).

As such, the jury instructions on this section necessitate the utmost clarity. In this case, the ambiguities with respect to subjective foresight were enough to cause concern. Justice Kirkpatrick approached this thorny constitutional issue with deference, allowing that the right to life, liberty, and security of the person was too great to convict Belcourt for murder when the punishment may not have fit the crime.