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Incompetence of Counsel: Disclosing a Statement to the Crown.


Ineffective Assistance of Counsel: Disclosure statements to Crown Prosecutors without informed consent of the client.

In Rex v. McDonald, 2022 ONCA 838, the Ontario Court of Appeal set aside a defendant’s convictions for aggravated assault and threatening death based on an finding that the appellant received ineffective assistance from his trial counsel resulting in a miscarriage of justice.  The indexed conduct of counsel included her improper disclosure of the appellant’s statement to the Crown, without the appellant’s knowledge or consent. 

The Court itemized various issues relative to the trial counsel’s conduct of the matter at para 12:

[12]   Before receiving Crown disclosure, the appellant’s trial counsel told him he “needed” to prepare a “statement” describing his background, relationship with the complainant, and his response to the allegations. The appellant followed his counsel’s instructions. Then, in the hope of securing an agreement to resolve the case by way of a peace bond, and after making some minor revisions, trial counsel disclosed this statement to the Crown. Counsel did not obtain written instructions from the appellant authorizing the disclosure, nor does her file contain any note, memo or docket capturing any discussion between her and the appellant about the statement’s purpose and what she was going to do with it. In fact, examination of trial counsel revealed that she did not discuss any of the following with the appellant: 1) settlement privilege; 2) the unlikelihood of a resolution (in a domestic assault case) that would allow him to enter into a bond in exchange for the charges being withdrawn; 3) how disclosing the statement to the Crown amounted to a waiver of his right to silence; 4) the specific risks associated with being cross-examined on the statement’s contents; and 5) the risks associated with preparing a statement before reviewing disclosure.

The Crown cross-examined the appellant on the statement at trial. The court observed (at para. 27) that counsel “either did not appreciate – or did not want to take the time to investigate and inform herself about – the protection settlement privilege might afford the appellant.”   Furthermore the Court further stated at para. 28 that counsel made “fundamental decisions without instructions. It was essential that the appellant understand that he enjoyed the right to silence and that he did not have to provide any information to the Crown. The appellant did not (and could not reasonably have been expected to) understand this, and trial counsel took no steps to ensure he did.”

If you have been charged with a criminal offence in Toronto, Calgary or Vancouver Island, for a free initial consultation, contact Mr. J. S. Patel, Criminal Lawyer at 403-585-1960

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Parole (in)eligibility on First Degree Murder Matters

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The imposition of consecutive parole (in)eligibility was considered in Regina v. Bissonnette, 2022 SCC 23, the Supreme Court of Canada addressed the constitutionality of s.745.51 of the Criminal Code. Section 745.51 authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first (1st) degree murders, the application of this provision permits a court to add up parole ineligibility periods of twenty-five (25) years for each murder. In a unanimous decision, the court held that s.745.51 is contrary to s.12 of the Charter (right not to be subjected to cruel and unusual treatment or punishment) and is not saved under s.1.  The Court stated the following with respect to s. 12 of the Charter.  

Supreme Court of Canada unanimously strikes down life without parole.

Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In essence, the purpose of s. 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. The protection afforded by s. 12 has two (2)  prongs. Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with human dignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity. The first prong of the s. 12 guarantee relates to punishment whose effect is grossly disproportionate to what would have been appropriate. The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and unusual by nature; these punishments will always be grossly disproportionate because they are intrinsically incompatible with human dignity.  

A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context. To determine whether a punishment is intrinsically incompatible with human dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. A punishment that is cruel and unusual by nature must always be excluded from the arsenal of punishments available to the state. It follows that the mere possibility that a punishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter.  The court declared the provision to be of no force or effect immediately under s.52(1) of the Constitution Act, 1982. The court held that the declaration strikes down the provision retroactively to the date it was enacted.

J. S. Patel, Criminal Defence Lawyer

If you have been charged with a criminal offence, call Mr. J.S. Patel, Barrister for a free telephone consultation at 403-585-1960 or 647-323-1960.

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In for an inch…. Joint/co-principal liability in Criminal Offences in Canada by JS Patel, Criminal Defence Lawyer (403-585-1960)

In Regina v. Strathdee, 2021 SCC 40, the Supreme Court of Canada (the “SCC”) upheld a decision of the Alberta Court of Appeal (2020 ABCA 443) overturning the acquittal for unlawful act manslaughter and entering a conviction. The trial judge had acquitted the accused after considering joint/co-principal liability and abetting under ss.21(1)(a) and 21(1)(c), respectively, of the Criminal Code of Canada (2019 ABQB 479).  The charges against Mr. Strathdee stemmed from a group assault in which several victims sustained multiple injuries and one victim, Mr. Tong, sustained a single stab wound which caused his death.

Joint Liability in Criminal Offences in Canada. Recent Decision from the Supreme Court of Canada (November 2021)

The SCC agreed with the Court of Appeal that there was no basis for the view that the stabbing of Tong was a distinct act outside the scope of the group attack. 

The court stated: “Having regard to the findings of fact in paras. 137 and 156-59 (CanLII) of the trial decision, and the statement of law set out by the Court of Appeal at paras. 61, 66 and 68 of its decision, this Court affirms the result of the Alberta Court of Appeal that is guilty of unlawful act manslaughter.” 

The court also clarified a statement of law in Regina v. Cabrera, 2019 ABCA 184, aff’d Shlah, 2019 SCC 56, regarding joint/co-principal liability noting:

“Joint/co-principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, is fully consistent with the foregoing.”

If you have been charged with a criminal offences in Canada, contact Mr. J.S. Patel, Criminal Defence Lawyer for a consultation: 403-585-1960 or 647-323-1960.

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Exclusion of a Firearm based on a warrantless search given that the gun and items were “Obtained in a manner” requirement that breached Section 24(2) of the Canadian Charter of Rights and Freedoms (July 23, 2021).

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In Regina v. Barton, 2021 ONCA 451 (RD), the Ontario Court of Appeal allowed the appellant’s appeal from his convictions for firearms-related offences.

During a warrantless search, police discovered a gun inside a planter located in a common hallway outside the appellant’s apartment. The next day, police executed a search warrant and found ammunition for the gun and a bulletproof vest inside the appellant’s apartment. The appellant was convicted after a trial by judge and jury.  The defence had posited that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms, given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, the defence argued that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter.

On appeal, the Court of Appeal held that the trial judge erred in concluding that the gun was not “obtained in a manner” that infringed the appellant’s rights under the Charter. The court noted that there were causal, contextual, and temporal connections between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search the appellant’s apartment without a warrant. Therefore, the gun was unconstitutionally obtained.  The Court stated as follows, in relevant part:

[4]         Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.

[5]         Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charter breach: see, R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.

Reference to the discovery of the gun had to be excised from the information to obtain the search warrant. A new trial was required to determine whether excision of the discovery of the gun from the warrant information would lead to a finding that the later warranted search was unconstitutional. The court ordered a new trial on all charges to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.

If you have been charged with a criminal offence, contact Mr. J.S. Patel, Calgary Criminal Defence Lawyer at 403-585-1960. 

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Entitlement to preliminary inquiry in (a somewhat) Historical Sexual Assault Case – a recent decision from the Court of Appeal.

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The Court of Appeal considered the entitlement to a preliminary hearing under Section 535 of the Criminal Code of Canada in Regina v. S.S., 2021 ONCA 479.  The Court upheld the order of the review judge, who allowed an application for certiorari from the order of the application judge, who found that the accused was entitled to a preliminary inquiry pursuant to s.535 of the Criminal Code. The court agreed with the review judge that the accused was not entitled to a preliminary inquiry. The accused was charged with one count of sexual assault on a person under the age of 16 and one count of sexual interference.  The indexed offences were alleged to have occurred between January 1, 2009 and December 31, 2010. At the time that the offences were alleged to have occurred, the maximum penalty for both offences was ten (10) years of jail.  There was an increase to the maximum penalty for the offence of sexual assault on a person under the age of 16 was increased to 14 years, if the Crown proceeds by way of indictment, as it had in the instant case in 2005. The maximum penalty for the offence of sexual interference was also increased to 14 years.  On September 19, 2019, s.535 was amended to restrict the right to a preliminary inquiry to persons charged with an indictable offence that is punishable by imprisonment for 14 years or more.  In December 2020, the accused elected a trial in Superior Court by judge and jury. He requested a preliminary inquiry.

The court concluded that the accused was not facing a punishment of 14 years or more in this case. Therefore, he was not entitled to a preliminary inquiry pursuant to s.535. The court stated (at para. 16) that, in reaching this conclusion, it did not need to “decide whether an accused person can waive their rights under s. 11(i) of the Charter. Even if they can, s. 43(d) of the Interpretation Act would preclude a court from imposing a sentence of more than 10 years.” The court noted that its conclusion in this regard was also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289 where the Court averred:

17]      My conclusion in this regard is also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the issue was the immigration consequences of a person convicted of an offence where the maximum penalty was, at the time of the commission of the offence, seven years. However, before conviction, the penalty was raised to 14 years with the result that a conviction for the offence would fall within the definition of serious criminality for immigration purposes. The immigration authorities began proceedings to remove the accused from Canada on the basis that he had been convicted of an offence involving “serious criminality” within the meaning of s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27(“IRPA”). The accused sought judicial review of the decision to refer his case for an admissibility hearing under the IRPA. In the end result, the Supreme Court of Canada found that the immigration authorities could not rely on the serious criminality provision in part because the maximum sentence for the accused’s offence at the time he committed it was seven years. In reaching that conclusion, Côté J. said, at para. 35:
Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) [of the IRPA] supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. [Emphasis added].
[18]      The appellant attempts to counter this interpretation by submitting that it looks at the circumstances of the offender rather than at the offence itself and thus offends the point made in Windebank, at para. 36: “In my view, the flaw, both in the respondent’s argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances.”
[19]      I do not agree. The situation here and the one in Windebank are not comparable. Here we are dealing with the maximum punishment that was stipulated for the offence at the time that the offence is said to have been committed. Thus, the issue in this case does not involve the personal characteristics of the appellant, in the sense that those personal characteristics might drive the appropriate sentence, such as the possible application of the dangerous offender provisions. Rather, it involves the penalty that can be imposed on the appellant, and anyone else in the same situation, arising from the timing of the offence, as the key for determining the seriousness of the offence for the purpose of s. 535. The personal characteristics of the appellant are not engaged in this analysis. The only connection to the appellant in his personal capacity is that it is the timing of his alleged actions leading to the offence that are of importance.
[20]      Further on this point, in Tran, the court supported its conclusion that the timing of the offence determined the maximum sentence for the purpose of s. 36(1)(a) of the IRPA, in part, based on the presumption against retrospectivity, which applies independent of s. 11(i) of the Charter: at para 43. In words that are apt to the situation here, Côté J. said, at para. 43: “The purpose of this presumption is to protect acquired rights and to prevent a change in the law from ‘look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction’ (Driedger (1983), at p. 186).”

If you have been charged with a sexual assault and seek to determine your procedural rights (i.e. preliminary hearing), contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.

     

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Co-Principal Liability in the context of Second Degree Murder by J.S. Patel, Criminal Defence Lawyer (403-585-1960)

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Co-principal liability was recently explained by the Court of Appeal in Regina v. Abdulle, 2020 ONCA 106 (CanLII). In circumstances involving co-principals, as is the case here, the liability of parties to an offence is addressed by s. 21 of the Code. In Regina v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, Justice Watt  explained that co-principals are liable where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: at para. 181.  This was also explained in Regina v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63. In order to be liable as principals, therefore, the parties must have had the requisite intention.  Within the scope of the requisite mens rea required for second-degree murder is outlined in s. 229 of the Criminal Code, which states that culpable homicide is murder where the person who causes the death of a human being either means to cause their death, or means to cause them bodily harm that they know is likely to cause their death and is reckless whether or not death ensues.

In Regina v. Abdulle, 2020 ONCA 106, the Ontario Court of Appeal upheld the appellants’ convictions for second-degree murder. The convictions arose from an altercation that occurred in the parking lot of the apartment building where the deceased lived. The deceased was stabbed multiple times, beaten, kicked, and stomped on by a group of young people. He was without vital signs when paramedics arrived, and he was pronounced dead at the hospital. The three appellants – Abdulle, Jama and Egal – and a fourth accused, Bryan, were charged with second-degree murder. The Crown alleged that the accused were co-principals in an attack on the deceased, that one or more of them inflicted the fatal stab wounds, and that all had the necessary intent for murder under s.229(a) of the Criminal Code. The jury convicted the appellants and acquitted Bryan. The appellants were sentenced to life imprisonment with no parole eligibility for 12 years.  The Court of Appeal made the following findings that: (a)t he trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder; (b) the trial judge did not err by improperly restricting Abdulle’s evidence; (c)The trial judge did not err by failing to give the jury an Oliver instruction [Regina v. Oliver, [2005] CanLII 3582, [2005] O.J. No. 596 (C.A.), at paras. 50-60] regarding Bryan’s evidence, warning that they should consider his testimony with particular care and caution; (d) the trial judge made no error in allowing counsel for Bryan to cross-examine a witness (Jama’s mother) on her police statement that Egal had a knife, and in failing to grant a mistrial; (e) the trial judge did not err by improperly instructing the jury concerning a witness’s prior inconsistent statement; and (f) the verdict was not unreasonable in relation to Jama.

If you have been charged with a criminal offence, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.

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The Crown’s Duty to Inquired under Regina v. McNeil 2009 SCC 3

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  The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)).  The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment. The appealed raised a number of grounds. It was allowed.  A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9).  However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias.  The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed. The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27: [27]      The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about: (a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication? (b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
If you have been charged with a criminal offence and require a consultation, call Mr. J.S. Patel at 403-585-1960.

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R. v. Myers: A fulsome analysis of s.525 bail reviews (30-day and 90-day reviews) by the Supreme Court of Canada

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Bail Reviews in Canada
Bail Reviews in Canada. Regina v. Myers.

The application of mental health in the context of bail reviews was recently clarified in a recent decision from the Supreme Court of Canada in Regina v. Myers, 2019 SCC 18.  The SCC confirmed animating and cardinal principle right out of the gate at paragraph 1:

 “The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.”

Those prefatory remarks permeate the entirety of the decision. In my view this decision addressed a critical gap in the jurisprudence.The query before the Court was determine the correct approach to a detention review under s. 525 of the Criminal Code of Canada (the “Code”); and to explain the place of such a review within the larger context of pre-trial custody in Canada. The Court made the following salient points.

  1. It emphasised that Judges and justices at bail hearings should always give very careful consideration to release plans that involve supervised treatment for individuals with substance abuse and mental health issues. Of importance, it stressed at paragraph 67 of the decision that the release into treatment with appropriate conditions will often adequately address any risk, and “we must not lose sight of the fact that pre-trial detention is a measure of last resort”.   It noted that Parliament intended the s.525 review provisions to be a safeguard; and that Section 525 bail reviews are not restricted to cases in which there has been an unreasonable delay in bringing the accused to trial, although delay can be relevant to the court’s review.

  2. The onus to apply for a s.525 review is on the prosecution, and accordingly an accused person or their defence counsel need not request a hearing. Detained persons are are entitled to a s.525 hearing. This applies even if they did not have an initial bail hearing. In such cases, the review judge must apply the “ladder principle” (see Regina Antic, [2017 SCC 27); and determine the issue of bail de novo.

  3. At the review hearing, the task of the judge must centre on the issue of whether “…the continued detention of the accused in custody justified within the meaning of s. 515(10) [the detention provisions]?” In this connection, the hearing is a review of the detention itself, not of any order made in a lower court, although errors in detention orders may justify revisiting the order. With great clarity, Court remarked at paragraph 63:

  4. At the hearing, unreasonable delay is not a threshold that must be met before reviewing the detention of the accused. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of  515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre-trial detention.

  5. In terms of the reception of the evidence, the court may receive any evidence that is credible or trustworthy, unless it existed at the time of the initial bail hearing and is barred by the “due diligence” and “relevance” criteria. And finally, the reviewing judge must give directions to expedite the trial of persons in custody, and to ensure the accused will not be in a “time served” position before the trial date.

If you have been charged with a criminal offence and seeking a bail review on any of your conditions or are seeking you release,  contact our office at 403-585-1960.

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Victim Fine Surcharges ruled to be Unconstitutional and contrary to Section 12 of the Charter (Cruel and Unusual Punishment) – Regina v. Boudreault, 2018 SCC 58 (CanLII)

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Supreme Court of Canada strikes down Victim Fine Surcharges.
Supreme Court of Canada strikes down Victim Fine Surcharges.
 
Upon the imposition of penalty, the Criminal Code of Canada (R.S.C.., 1985, c. C-46)once imposed a victim find surcharges upon the entry of a conviction and/or penalty pursuant to section s. 737.   The amount is set by law and is owed for each and every summary conviction or indictable offence. The surcharge is intended to fund government programs designed to assist victims of crime. The surcharge applies regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim.  That section said:
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender. Amount of surcharge (2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is (a) 30 per cent of any fine that is imposed on the offender for the offence; or (b) if no fine is imposed on the offender for the offence, (i) $100 in the case of an offence punishable by summary conviction, and (ii) $200 in the case of an offence punishable by indictment.
That section was struck down by the Supreme Court of Canada in Regina v. Boudreault, 2018 SCC 58 (CanLII), wherein the majority of that Court struck down the mandatory victim surcharge. A Supreme Court hard a number of appeals together considering the same issue.  The section is now of no force or effect.  The majority held the victim surcharge was a form of “punishment,” and therefore subject to the Charter right against cruel and unusual punishment pursuant to Section 12 of the Charter.  Some of the offenders before the Court lived in dire straights (i.e. serious poverty, deliberating addiction issues, deplorable housing, and physical issues).  Some of these offenders were recidivists, who regularly appeared before the courts, and got fined.   What is more, the consequences of failing to pay to fee could (but not necessarily) result in being taken into custody (at her Majesty’s Institutions), among other things (i.e. collection agency actions).  A fit sentence for the appellants would not include such a fine, and the overall operation and effects of the mandatory fine were grossly disproportionate.
The court continued by positing that the ongoing enforcement of victim surcharges that were imposed before the date of its judgment would violate s.12 of the Charter at each step. This could arise, where the offender is arrested or brought to court for a financial update.  The Court stated:
The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the circumstances of this case, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. Sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they are not.
However, the court left open the issue of remedy for persons in this situation, but suggested that remedies are available under s.24(1) of the Charter, and that Parliament could act administratively to create a remedy.
There were two (2) dissenting Justice.  Justice Côté, writing in dissent for herself, and Justice Rowe,would have held that:
[114] I respectfully disagree.  While I accept that the mandatory imposition of the victim surcharge may have a particularly negative impact on impecunious offenders, I cannot accept that it amounts to treatment or punishment that is truly “cruel and unusual”, as that phrase has been interpreted in this Court’s jurisprudence.  Moreover, I am of the view that the impugned provision does not deprive impecunious offenders of their security of the person, and that any deprivation of liberty that may result from the application of s. 737 of the Criminal Code accords with the principles of fundamental justice.  For these reasons, I discern no violation of either ss. 12 or 7 of the Charter, and I would dismiss the appeals accordingly.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Criminal Lawyer in Toronto and Calgary at 403-585-1960.

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Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.

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Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.
Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.

The issuance and compliance with the execution of search warrants and production on the media to reveal information relative to their (confidential) sources is a contentious issue in Canadian criminal jurisprudence. The seminal cases that considered such issues were in Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49, [1991] 3 S.C.R. 421; and its companion case, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50, [1991] 3 S.C.R. 459 (collectively referred as the “the ‘CBC Cases’).

Last week, the Supreme Court of Canada rendered it’s decision in Regina v. Vice Media Canada Inc., 2018 SCC 53 (CanLII). The appellants, Vice Media, is a media organization and one of its journalists, wrote and published three (3) articles in 2014 based on exchanges between the journalist and a source, a Canadian man suspected of having joined a terrorist organization in Syria. The Royal Canadian Mounted Police (the “RCMP”) successfully applied ex parte to the Provincial Court, under s.487.014 of the Criminal Code, for an order directing the appellants to produce the screen captures of the messages exchanged with the source. The majority and minority opinions are described below but it is important to note that the new Journalistic Sources Protection Act, S.C. 2017, c.22 was not considered by the Court.

The Majority Opinion

The majority opinion from the SCC stated that the CBC Cases provide a suitable frame-work for execution of production orders and search warrants on the media but refined the test in the following terms stated below. Writing for the majority of the Court, the Honourable Justice Moldaver J. said:

First, rather than treating prior partial publication as a factor that always militates in favour of granting an order, I would assess the effect of prior partial publication on a case-by-case basis. Second, with respect to the standard of review to be applied when reviewing an order relating to the media that was made ex parte, I would adopt a modified Garofoli standard (see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421): if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review. Otherwise, the traditional Garofoli standard will apply, meaning that the order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order. Third, I would reorganize the Lessard factors to make them easier to apply in practice.
When reviewing an application for a production order, the Supreme Court provided the following judicial guidance for lower court judges in the following terms at paragraph 82:
[82] Having settled the main jurisprudential issues on appeal, I wish to take this opportunity to reorganize the Lessard factors to make them easier to apply in practice. On an application for a production order against the media, the authorizing judge should apply a four-part analysis:
(1) Notice. First, the authorizing judge must consider whether to exercise his or her discretion to require notice to the media. While the statutory status quo is an ex parte proceeding (see Criminal Code, s. 487.014(1)), the authorizing judge has discretion to require notice where he or she deems appropriate (see National Post, at para. 83; CBC (ONCA), at para. 50). Proceeding ex parte may be appropriate in “cases of urgency or other circumstances” (National Post, at para. 83). However, where, for example, the authorizing judge considers that he or she may not have all the information necessary to properly engage in the analysis described below, this may be an appropriate circumstance in which to require notice.
(2) Statutory Preconditions. Second, all statutory preconditions must be met (Lessard factor 1).
(3) Balancing. Third, the authorizing judge must balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news (Lessard factor 3). In performing this balancing exercise, which can be accomplished only if the affidavit supporting the application contains sufficient detail (Lessard factor 4), the authorizing judge should consider all of the circumstances (Lessard factor 2). These circumstances may include (but are not limited to):
(a) the likelihood and extent of any potential chilling effects;
(b) the scope of the materials sought and whether the order sought is narrowly tailored;
(c) the likely probative value of the materials;
(d) whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources (Lessard factor 5);
(e) the effect of prior partial publication, now assessed on a case-by-case basis (Lessard factor 6); and
(f) more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party (Lessard factor 3).
At the end of the day, the decision as to whether to grant the order sought is discretionary (Lessard factor 2), and the relative importance of the various factors guiding that discretion will vary from case to case (see New Brunswick, at p. 478).
(4) Conditions. Fourth, if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions on the order to ensure that the media will not be unduly impeded in the publishing and dissemination of the news (Lessard factor 7). The authorizing judge may also see fit to order that the materials be sealed for a period pending review.
[83] As explained above at para. 73, if the order is granted ex parte and is later challenged by the media, the standard of review is determined by applying the following test: if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review. If, on the other hand, the media fails to meet this threshold requirement, then the traditional Garofoli standard will apply, meaning that the production order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order.

Ultimately, the Supreme Court of Canada found that is it was (a) open to the authorizing judge to proceed ex parte and decline to exercise his discretion to require notice; (b) the statutory preconditions for the production order were satisfied. This is because the Information to Obtain (the “ITO”) provided reasonable grounds to believe that (i) the source of Vice Media had committed certain offences; (ii) the appellants, Vice Media, had in their possession the materials sought by the RCMP; and (iii) finally those materials would afford evidence respecting the commission of the alleged offences.

Additionally, it was open to the authorizing judge, in conducting the balancing exercise as proposed in the CBC Cases, to conclude that the state’s interest in investigating and prosecuting the alleged crimes outweighed the media’s right to privacy in gathering and disseminating the news. What is more, the Court opined that even on a de novo review, the production order was properly granted. They came to this opinion because the SCC felt that the disclosure of the materials sought would not reveal a confidential source. Particularly, no “off the record” information or “not for attribution” communications would be disclosed. Unlike the Regina v. National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII) case, “this is not a case in which compliance with the order would result in a confidential source’s identity being revealed.”

In furthering the balancing exercise, there was no alternative source through which the materials sought may be obtained; the source used the media to publicize his activities with a terrorist organization as a sort of spokesperson on its behalf; and the state’s interest in investigating and prosecuting the alleged crimes weighed heavily in the balance. Finally, the authorizing judge imposed adequate terms in the production order.

In terms of the constitutional arguments posited based submissions made under Section 2 of the Charter, the majority further held that it was neither necessary nor appropriate in this case to formally recognize that freedom of the press enjoys distinct and independent constitutional protection under s.2(b) of the Charter. The majority also noted that the case did not attract the new Journalistic Sources Protection Act, S.C. 2017, c.22, because the facts arose before the legislation came into force. Thus, it will be interesting to see future challenges, on similar facts, to the Court under the Journalist Sources Protect Act that arises from facts that post-dates its implementation. It appears that the Court avoided this issue when the minority opinion stated in Obiter Dicta: “None of its provisions, however, was at issue before us. As a result, these reasons have intentionally avoided addressing or applying any of them.”

The Minority Opinion

There was a strong dissenting opinion from Justice Abella who wrote for the four-member minority. The minority judgement would have held that s.2(b) of the Charter “contains a distinct constitutional press right which protects the press’ core expressive functions — its right to gather and disseminate information for the public benefit without undue interference”.

Justice Abella eloquently states:

[111] This case explores the border between vigorous protection for the press and the state’s ability to investigate crime by seeking information from the press. There are, as a result, two provisions of the Canadian Charter of Rights and Freedoms at issue in this appeal. One is s. 8, which protects a reasonable expectation of privacy. The other is s. 2(b), which protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

[112] Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively. As these reasons seek to demonstrate, s. 2(b) contains a distinct constitutional press right which protects the press’ core expressive functions — its right to gather and disseminate information for the public benefit without undue interference. When the state seeks access to information in the hands of the media through a production order, both the media’s s. 2(b) rights and s. 8 privacy rights are engaged. A rigorously protective harmonized analysis is therefore required.

However, after engaging in the application of the facts, minority opinion would have dismissed the appeal on the basis that “the production order strikes a proportionate balance between the rights and interests at stake”; and the “…benefit of the state’s interest in obtaining the messages outweighs any harm to Vice Media’s rights.”

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