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Mack’s Criminal Law Bulletin | Constitutionality

The appellate court deemed it improper, on appeal, to question of constitutionality of the criminal negligence provisions of the Criminal Code without having given the Crown a fair opportunity to prepare counter-arguments and to gather supporting evidence, and without having raised such issues earlier.

Mack’s Criminal Law Bulletin

By: Dallas Mack



Karl-Heinz Lilgert was convicted after a trial by judge and jury of criminal negligence causing death in connection with the sinking of a ferry off the coast of British Columbia. The electronic recording monitoring the vessel revealed that for a period of up to 14 minutes there was no “meaningful navigation of the vessel”. Two people died when the ferry ran aground.

Lilgert appealed on the basis that the trial judge erred in her instructions to the jury. On appeal Lilgert also tried to argue for the first time that the criminal negligence provisions of the Criminal Code, namely sections 219, 220 and 222(5)(b) were unconstitutional.

Lilgert argued that although the constitutionality of the impugned provisions had not been raised at trial a sufficient evidentiary record existed for a finding on whether the provisions breached section 7. Lilgert argued that if a breach was found the Crown could then be given the opportunity to tender evidence on the section 1 analysis.


The British Columbia Court of Appeal dismissed the appeal and refused to hear the challenge to the constitutionality of criminal negligence provisions of the Code.

In dismissing this request, the court offered the following comments on notice and fairness:

It would be inappropriate for this Court to make a determination on the constitutionality of key components of the Criminal Code, with far-reaching consequences, without the Crown having been given a proper opportunity, according to the usual process adhered to by our judicial system, to adduce supporting evidence.

In my opinion, it is not apparent that refusing to hear the new Charter issues would lead to an injustice. The Crown has directed this Court to numerous precedents where the Supreme Court of Canada has given careful and considered thought to the mens rea and actus reus component of criminal negligence causing death: see e.g., R. v. J.F., 2008 SCC 60 at paras. 7-11; R. v. A.D.H., 2013 SCC 28 at para. 61; and R. v. Morrisey, 2000 SCC 39 at para. 19. The fact that the mens rea requirement of this offence, and with it much of the alleged vagueness and objectivity components impugned by the appellant, has developed through numerous case precedents at the highest level of our judicial system, is all the more reason for any reconsideration to be made through the proper process. In this case, the interests of the judicial system in maintaining the principle of finality, as well as the interests of the Crown and the public in ensuring that this Court only consider striking down legislation where a proper evidentiary foundation exists, weigh in favour of denying leave to argue the Charter issue on appeal. I would therefore not grant such leave. [Emphasis added]; [paras 20-22]. Comment

Lilgert is a helpful decision that illustrates the importance and need for proper notice to allow opposing counsel (in this case the Crown) an opportunity to prepare and make meaningful submissions. This principle is heightened in circumstances like Lilgert where the motion relates to the constitutionality of a provision. The following passage illustrates this point:

In R v. Olson, this Court emphasized such reasoning, saying: “The striking down of otherwise validly enacted legislation is a serious matter which should not be approached in a casual or off-hand manner. Where a litigant seeks this extreme remedy, which goes to the heart of the division of powers between the legislature and the judiciary, the issue must be raised properly at trial.” [Para 16]. To similar effect, in R. v. Boutilier, the court offered the following comments:

A notice of constitutional question is intended to set out “the parameters of the constitutional issues to be argued and [provide] any interested Attorneys General with an indication of what will and will not be argued during the hearing”; Federation of Law Societies of Canada v. Canada (Attorney General), 2011 BCSC 1270 (B.C. S.C.) at paras. 81-83, aff’d 2002 BCCA 49 (B.C. C.A.). The Supreme Court of Canada has held that “failure to give notice invalidates a decision made in its absence without a showing of prejudice” where “the absence of notice is in itself prejudicial to the public interest”; Eaton v. Brant (County) Board of Education at para. 53. As the adjudication of constitutional questions may result in the extreme remedy of striking down otherwise validly enacted legislation, such questions must be properly raised; R. v. Lord, 2011 BCCA 295 (B.C. C.A. [In Chambers]) at paras. 25-30. [Para 106].


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