In sum, these two provisions [ss. 126 and 127 of the CC] are the default punishments for when a statue or court order is disobeyed and where no other punishment exists. They are limited in scope, and the defence of lawful excuse is also so limited.
Within that scope, the defence of "lawful excuse" has particular meaning. I'll address this specifically in my next post when I get some more time.
Time for part 2.
So, what exactly does "lawful excuse" mean within the context of ss. 126 and 127 of the Criminal Code?
As has already been shown, the defence of lawful excuse is limited by the scope of the provisions in question - namely, a situation where a statute or a court order has been disobeyed and where no punishment has been enacted for that disobedience. The phrase "lawful excuse" is not defined anywhere in the CC and, if it is somewhere in the regs, I can't find it; therefore, we have to look to case law. Luckily, the Supreme Court of Canada has addressed the issue.
In
R. v. Holmes, the SCC considered the meaning of "lawful excuse" generally and within s. 309(1) specifically (as it was then). It was a close decision with a strong dissent, but the majority said this about the defence of "lawful excuse":
R. v. Holmes said:
On this point, I would refer to the words of Laskin J. (as he then was) in Brownridge v. The Queen, 1972 CanLII 17 (S.C.C.), [1972] S.C.R. 926, at p. 950, in a concurring judgment on this point, where he said on the subject of the construction of the words "without reasonable excuse" in what is now s. 238(5) of the Criminal Code:
"I regard the phrase "without reasonable excuse" as adding a defence or a bar to successful prosecution which would not be available without those words, but not as encompassing defences or bars that would exist without them."
The emphasized words in the above passage were relied upon in the Ontario Court of Appeal in construing the words "without lawful justification or excuse", in s. 408 of the Criminal Code, in R. v. Santeramo (1976), 32 C.C.C. (2d) 35, at p. 44, per Brooke J.A.
The Chief Justice has adopted the view that the phrase has not been so robbed of its content but that it encompasses general common law excuses, such as duress and authorization by law, which he considers must continue to be established by the accused on a balance of probabilities. I cannot, with the utmost deference, share that view. I would adopt the words of Laskin J. in Brownridge, supra. The words "without lawful excuse" do not encompass excuses or justifications that would exist if those words were omitted from the section, and thus require proof by the accused. Manifestly, if the words were omitted from the Code, general common law excuses, such as duress or authorization by law, would continue to be available to the accused. The conclusion that these general common law excuses are not encompassed within the phrase "without lawful excuse", entails the further conclusion that these excuses need not be proved on a balance of probabilities since they are not affected by the words "the proof of which lies upon him". Consequently, these excuses are, and have always been, with respect to this offence, available to an accused on exactly the same basis as they are in any other criminal offence: as long as the accused can raise a reasonable doubt, he is entitled to an acquittal. [emphasis added]
R. v. Holmes, [1988] 1 S.C.R. 914
The reasoning is quite clear. The phrase "lawful excuse" does not encompass the spectrum of common law defences, because those apply regardless of any express language saying that they apply; therefore, the phrase "lawful excuse" must be adding some defence not normally available.
Unfortunately, this doesn't provide much guidance for what defence the phrase actually adds to ss. 126 and 127. Citing
R. v. Holmes, some lower courts have recognized this dilemma:
R v. Sergeant Beregeron said:
The opinion in the case law is unanimous in saying that it is impossible to give a general definition of lawful excuse. If the law that creates the offence does not assign it a precise meaning, as is the case in prosecutions under section 87 of the Criminal Code, its meaning must be inferred from the purpose of the charge but also having regard to the context and circumstances of the case. It is clear, however, that determining whether an excuse is lawful is not a matter left to the accused to decide. Whether there is a lawful excuse will be determined based on an objective rather than a subjective standard.[emphasis added]
R. v. Sergeant J.J.G.M.L. Bergeron, 2006 CM 41
In some cases, the objective standard has been some other statutory context - i.e., a provision in a statute somewhere that could be relied on as a lawful excuse in the particular factual circumstances at issue. For example:
R. v. Curtis said:
The defence of lawful excuse set out in s. 215(2) does not encompass common-law excuses such as duress: see R. v. Holmes 1988 CanLII 84 (S.C.C.), (1988), 41 C.C.C. (3d) 497 at 522 (S.C.C.). This being so, the lawful-excuse defence in s. 215(2) may well most commonly arise (in those rare cases where it arises at all) from a statutory context. For example, an official fixed with a duty under s. 215(1) might best be able to find a lawful excuse for not doing that duty in the laws and regulations affecting his performance of his job.[emphasis added]
R. v. Curtis, 1998 CanLII 1999 (ON C.A.)
None of this helps Menard. For one thing, he claims that statutes don't apply to him, so he cannot find some lawful excuse in a statute somewhere so long as he wants to remain consistent with his claims. (Not like lack of consistency has ever troubled him, but still). For another, there are no statutes which give Menard any lawful excuses to do the idiotic FOTL things he claims he can do, despite his tortured misinterpretations of various traffic acts.
Let's imagine a fact scenario. Freeman Menard is stopped by the Ontario police as he is "traveling" (i.e., driving) on Ontario roads in his "private conveyance" (i.e., car). Menard has no license, registration or insurance. Cop goes to write him some tickets and tow his car. Menard says, "wait! I don't have to obey the
Highway Traffic Act because I have a lawful excuse by claim of right for not obeying! Look at s. 126 of your Criminal Code!"
First, as has already been shown, s. 126 would not be applicable to this scenario, because the
Highway Traffic Act clearly has punishment provisions for disobedience - the tickets and the towing are the obvious manifestations of these provisions.
Second, as has been shown above, even if s. 126 does apply (it doesn't) Menard does not have a lawful excuse because a) common law defences are not encompassed by the "lawful excuse" defence, and b) there are no statutory sources on which Menard can rely to show that he doesn't need to obey the
Highway Traffic Act.
He can always go try his "defences" and "interpretations" in traffic court after receiving his tickets. Good bloody luck.
In short, Menard is selling pure nonsense.
