Miscellaneous
This week on Legally Speaking with Michael Mulligan:Recently, small groups of protesters have been intentionally blocking highways to get attention for their cause and to compel the government to meet various demands. So far, police have exercised restraint and have attempted to persuade the protesters to move before arresting them. The police are not, however, required to wait any period of time before arresting people who are committing a criminal offence. As discussed on the show, section 423 (1) (g) of the Criminal Code makes it an offence, punishable by up to five years in jail, to block or obstruct a highway for the purpose of compelling any other person to abstain from doing anything they that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing. While there is a right to freedom of expression in Canada, that right does not permit expression in any way someone wishes. Assaulting someone might also be a form of expression, but it is also prohibited. Section 423 (1) (g) is premised on the obstruction being intentional and for the prohibited purpose. It would not criminalize a very large group of people marching and protesting who incidentally caused traffic to slow down, for example. Also discussed on the show are various sections of the Criminal Code that permit people to act on their own, to arrest or stop someone from committing a criminal offence. Section 494 permits anyone to arrest someone they find committing a criminal offence. If you arrest someone pursuant to this section, you are then required to deliver the person to a peace officer. This section could have application if a highway was being blocked in a remote location where police were not readily available. Section 27 of the Criminal Code also permits anyone to use as much force “as is reasonably necessary” to prevent the commission of an offence, such as obstructing a highway contract to section 423 (1) (g), but only is the offence is “likely to cause immediate and serious injury to the person or property of anyone”. This section could have application if a highway blockade was preventing someone from obtaining emergency medical assistance. Section 30 of the Criminal Code also permits anyone who witnesses a “breach of the peace”, which is not defined, to detain someone who is causing the breach of the peace, or about to join or renew a breach of the peace for the purpose of “giving him into the custody of a peace officer”. This section would have clear application to, for example, stop someone who was participating in a riot. Section 32 (3) of the Criminal Code also deals expressly with riots and provides that “every one is justified in obeying an order of a peace officer to use force to suppress a riot if (a) he acts in good faith; and (b) the order is not manifestly unlawful.” Also, on the show, the case of a babysitter who plead guilty to criminal negligence causing the death of a 17-month-old she was caring for is discussed. The babysitter was sentenced to 1-year in jail back in 2013 after the child drowned in a small amount of water in a bathtub.Because the Crown failed to provide the babysitter, or her lawyer, with 140 pages of material including a medical report showing that the child had been hospitalized for a post-viral brain infection two months before her death, as well as material that cast doubt on the reliability of the Crown’s expert pathologist, the Court of Appeal has allowed an appeal to proceed many years after the jail sentence has already been served.Follow this link for a transcript of the show and links to the cases discussed.