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Curative Discharges in Impaired Driving Cases. What is a curative discharge application under Criminal Code of Canada and will I receive a criminal record, if a discharge is granted by the Court? 403-585-1960

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The Criminal Code of Canada (the “Code”) imposes mandatory minimum sentences when convictions are entered for impaired driving offences under Section 253(1)(a) and (b).  This means that once a Court finds that an accused person is guilty of an offence for impaired driving or driving while their blood-alcohol ratio is over 80 milligrams percent, the Court is obligated to impose the minimum sentence that was application in the Code during the year of the indexed offence; and enter a criminal conviction on their record.  By way of an example, if an accused person is convicted of an offence on or about August of 2017, the Court would be required, by law, to impose a fine of $1000.00 plus Victim Fine Surcharge (based on the Province of the alleged offence) for a first offence, and the mandatory minimum driving prohibition, typically, one (1) year. Again, a criminal record would be entered.  Under the rubric of this regime, the sentencing judge retains no discretion to interfere with the mandatory minimums imposed by the Parliament of Canada; and must impose the minimums  There is one exception to his legal rule: “Curative Discharge Applications” for impaired driving offences.

Curative discharge application is contemplated by Section 255 of the Code.  Under certain circumstances, it accords the sentencing judge the discretion to avoid the entry of a conviction of an offence under Section 253 of the Code.   If the Court is persuaded by criminal defence counsel, it will not impose the mandatory minimum sentence required by the Code.  In such circumstances the Court will place the offender a (lengthier) term of probation with terms and conditions calibrated to assist in achieving rehabilitation concerning the underpinning substance abuse issues, whether it be alcohol or drugs or both.

The offender bears the burden of proof on the application for a curative discharge. To be granted a “curative discharge” the offender must prove, on a balance of probabilities, a number of factors, as outlined by the Court of Appeal in Alberta in Regina v. Storr and Regina v. Soosay, 2001 ABCA 287 (CanLII).   Alberta courts have identified the ‘test’ for granting an application for a curative discharge as being a reasonable chance that the offender will overcome his or her alcoholism and related problems.  ‘Overcoming’ in this context is not synonymous with the term ‘cure’.  In Regina v. Gray, 2004 ABPC 158 (CanLII) (‘Gray’), the Honourable Judge Semenuk P.C.J. commented upon this distinction in the following terms (at para.16):

“I interpret the word “overcoming”, in the public interest test stated in Beaulieu (supra) [cited by the court in Soosay], to mean surmounting the problem by managing it so as to substantially reduce the risk of recidivism. In the context of alcohol dependance, it would not be realistic to interpret the word to mean curing oneself of the problem entirely. I come to this conclusion based on the expert opinion evidence of Vivian Jones. Addictions are not cured, they are managed so as to reduce the risk that they will overtake someone’s life. That, in my view, is all that is needed to meet this aspect of the public interest test.”

A. The Test for Curative Discharge Applications. 

The Provincial Courts of Appeal, throughout the dominion of Canada, have provided guidance on factors which ought to be taken into account when deciding whether to grant a curative treatment discharge. See: Regina v. Storr, [1995] A.J. No.764 (C.A.) (‘Storr’); Regina v. Ashberry (1988), 47 C.C.C. (3d) 138 (Ont.C.A.). Those factors were neatly summarized in Regina v. Smillie, 2010 ABPC 407 (CanLII) (‘Smillie’), at paras.31-33:

  1. Circumstances of the Offence – the offender’s blood/alcohol level likely played some role in his driving behaviour that evening. However, there was no death, injury, accident or even significant regulatory failure on his part. His excessive blood/alcohol level was the principal aggravating feature of the crime.
  2. Bona Fides of the Offender – the Court considers whether it is satisfied with the offender’s motivation to seek treatment and whether that motivation if bona fide. The Court will also consider whether the motivation is governed by the threat of jail or whether it is ground in the desire to secure effective treatment and management of their condition in the community.
  3. Criminal Record as it relates to the Alcohol Related driving offence. Obviously, if an accused’s alcohol-related driving behaviour has not improved despite prior Court sanctions, there is an increased risk of the behaviour being repeated which warrants a sentence emphasizing specific and general deterrence.
  4. Driving Prohibition(s) – Whether the offender was subject to a driving prohibition at the time of his driving in this case. f he was, this demonstrates a lack of respect for Court orders and increases the likelihood that the accused will ignore Court orders respecting his/her curative treatment.
  5. Prior Discharges – Whether the accused has received the benefit of a prior curative discharge and what, if anything, the accused has done to facilitate his rehabilitation under the prior discharge. The Court will also look at the lapse in time between the prior discharge the matter currently before it.

B.  The Practical Reality of Curative Discharge Applications. 

In practice, the Court must be persuaded that the offender is a person in need of treatment for his/her substance abuse issues.  Not all offenders will meet this criteria.  This is because not all offenders have substance abuse issues – they were simply caught driving while impaired.  Put differently, their choice to drive, while impaired, was simply a poor choice in judgement; and not necessarily the produce of an addiction issue.   An applicant for a curative discharge would have to proffer evidence demonstrating a history of dependency.  That evidence ought to be provided by the medical professional, who has treated the offender for the addiction issue.  Evidence  and supporting materials from drug treatment programs, psychologists, psychiatrists, counsellors, and support groups (ie. A.A.) should be provided to the Court that details the current addiction issue(s), and the plan of treatment on a forward moving basis.   Our criminal law offices in Toronto and Calgary have a list of recommendations that we offer to our clients for the purposes of counselling and seeking rehabilitation on their own volition.

While the testimony of such professionals is advisable, there is some judicial debate about whether such treatment must be presented in the form of oral evidence.  Some criminal defence counsel provide evidence in the form of reports, which may be disputed by the Crown who may seek to cross examine such experts on their opinions and qualifications.  During the application for a curative discharge, it is also advisable to ensure that the offender address the court, when called upon to do so to relate the scope, quality and degree of their addiction; and the steps, if any, he or she has undertaken to seek rehabilitation.

The Court is also obliged to consider whether a curative discharge, if granted, would be contrary to the public interests.  At this juncture, the Crown Prosecutor, if they are opposed to the application, would posit their position on any frailties in your case regarding the above noted factors, and will assert their policy position, namely the carnage occasioned by drunk drivers, and the need to deter them through stiffer penalties, including jail terms.   The skill of your criminal lawyer is critical at this point of the application.  A common rebuttal position advance by criminal lawyers is that it would be in public interest to grant to discharge as the public interest would be best served by a treating an offender such a severe addiction issue to ensure that they become a productive member of society.  Ensuring such offenders with the taint of a criminal record, would be otherwise counter-productive to protecting the public interests. Ultimately, if the Court grants a discharge, the offender will be placed on a period of probation subject to conditions that he follow counselling and treatment as directed by his probation officer to deal with an alcohol or drug problem.   Commonly, the Court will impose a condition that the offender not possess or consume alcohol or illegal drugs. If the offender completes the period of probation successfully, he will be deemed never to have been convicted of the criminal offence of impaired driving, and will avoid the entry of a criminal record.

If should be noted that a “curative discharge” is not available for all impaired driving related offences.  It has no application to those convicted of refusing to provide a breath sample for a screening device or for the breathalyzer.  Section 255(5) of the Code limits the option of a “curative discharge” to offences under section 253 of the Code.  It is critical to consult with your counsel to ensure that the correct pleas are entered to the offences that keep your options open to a curative discharge. What is more, it is not available in all of the Provinces within Canada.  At the time of writing, the remedy of a curative discharge is not available in Ontario.

Clearly, an application for a curative discharge is complicated.  An experienced lawyer ought to be consulted in making such an application.

J.S. Patel, Barrister

Contact our offices in either Calgary or Toronto at 403-585-1960 or 1-888-695-2211 for an initial consultation.

*** The opinions expressed in this Blog are not a substitute for full and through legal advice.  Nor is it meant to be used as fulsome account of area of law discussed.  

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Recent Developments in DUI Cases: The imposition of a lawful demands is not required for issues that arise under s. 258 – Criminal Code for DUIs or Over-80 matters.

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On July 6th, 2017, the Supreme Court of Canada, in a DUI case, ruled that a police officer and the Crown is not required to establish reasonable and probable grounds for a lawful breath demand for the purposes of a Section 258 of the Criminal Code of Canada

In R. v. Alex, 2017 SCC 37 the Supreme Court of Canada was asked to consider whether sections 258(1)(c) and (g) of the Criminal Code of Canada (the “Code”) requires a police officer to have reasonable and probable grounds in order to make an evidentiary demand as a pre-condition governing the admissibility of the certificate of analysis, which captures the evidentiary breath readings of an accused person who has been charged for DUI or “Over-80”).  Mr. Alex’s Criminal Lawyers argued that the subsections of 258 of the Code imposes such a requirement.  Section 258(1)(g) establishes a statutory exception to the common law hearsay rule. It permits a certificate of analysis, which sets out the accused’s breath test results, to be filed for the truth of its contents without the need to call for oral evidence.   Section 258(1)(c) then provides two inferences that may be presumptively drawn from the certificate.

The first inference, referred to as the presumption of accuracy, is that the breath readings in the certificate are accurate measures of the accused’s blood-alcohol concentration. This presumption dispenses with the need to call the qualified technician who administered the tests to verify their accuracy.  The purpose of these evidentiary short-cuts, according to the Court, streamline the trial proceedings by permitting an accused’s blood-alcohol concentration at the time of the alleged offence to be presumptively proven through the filing of a certificate of analysis. These shortcuts, however, do not affect the issue of whether the accused’s breath readings are admissible or not. They only impact the manner of admission — specifically, whether the Crown must call two (2) additional witnesses: (i) one to verify the accuracy of the certificate and enter it as an exhibit, and (ii) to opine on the accused’s blood-alcohol concentration at the time of the alleged offence — matters which have no connection to the lawfulness of the breath demand. This was made clear in R. v. Deruelle, [1992] 2 S.C.R. 663, at pp. 673-74, where the Court observed that the breath readings remain admissible at common law through viva voce evidence, irrespective of whether the shortcuts apply.

Thus the central question for the Court was whether the opening words of each s. 258 evidentiary shortcut — “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)” — refer specifically to a lawful demand made under s. 254(3), which among other things, is predicated on the police having reasonable grounds to make the demand.

The Majority decision of the Supreme Court of Canada decided that it doesn’t imposed such a requirement.  It used the modern principles of statutory interpretation to arrive at its conclusion. Parliament did not include the word “lawful” within section 258(1)(c) or (g) of the Criminal Code and when read in light of its over context, above and beyond the plain meaning of the sections, the lawfulness of the demand had no bearing on the manner in which the Certificate of Analysis, containing the blood-alcohol breath readings, could be introduced during a trial of a DUI matter.  Effectively, the Court found that it was lawfulness of a demand was not a condition precedent to the manner in which the Certificate of Analysis could be introduced.   It further consider that that Section 8 of the Canadian Charter of Rights and Freedoms could be invoked, should a Criminal DUI lawyer decide to file the requisite notice to seek the exclusion of breath samples at trial by positing that they were inadmissible due to a breach of an accused’s persons right to be free from an unreasonable search and seizure.

The Court further reasoned that if such a line of reasoning and logic were adopted as suggested by the Mr. Alex’s criminal lawyers,

“….in many cases, trial scheduling would have to account for the possibility that two (2) additional witnesses would be required to testify. This would extend estimated lengths of trial proceedings: one day trials would become two day trials, two day trials would become three days, and so on. In addition, the Crown would have to be prepared to call a breath technician and toxicologist in every case and limitations on their availability could add to the delay. And the effects do not end there. The consequences of trial scheduling are pervasive, creating backlogs and congestion throughout the justice system as a whole. This raises the following question: For what purpose? The answer, as I will explain, is none, other than to provide an accused with a hollow form of protection against police misconduct which the Charter now accounts for in a much more satisfactory and meaningful way.”

The majority decision appears to be in inline with the it’s recent judicial pronouncements in Regina v. Jordan and Regina v. Cody where in the Court set out the new rules and law under Section 11(b) of the Charter to ensure timely trials.

For more general information about DUI charges, please refer to our link on DUIs and Over 80 offences.

If you have been charged with DUI and Over-80, this case underscores the importance of ensure that your rights under Section 8 of the Canadian Charter or Rights and Freedoms are thoroughly canvassed to ensure that all possible defences undergird a Charter Notice (where applicable) and filed in the Court prior to your trial.  To make arrangements, for a free initial thirty (30) minute telephone consultation, during our regular office hours, please contact J.S. Patel, Criminal DUI Lawyer at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto).

  *** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed. 

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Impaired Driving Causing Death. How is caustion determined according to the Québec Court of Appeal

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July 27, 2017

Impaired Driving Causing Death. How is caustion determined according to the Québec Court of Appeal Impaired driving causing death is considered to a predicate offence stemming from the original charge of impaired driving simpliciter under Section 253 of the Criminal Code of Canada. The Crown Prosecutor must prove beyond a reasonable doubt that the accused drove a vehicle while impaired and that the impairment caused by alcohol or a drug was a significant contributing cause of the death of another person.  According to the Quebec Court of Appeal, a link between impairment and the death must therefore be established. It justified its approach by canvassing the jurisprudence from the various courts in Canada including Saskatchewan and the Provincial Court in Alberta, citing with approval, Judge Rosborough decision in Craver. In 2015, in Regina v. Koma, 2015 SKCA 92 (CanLII). the Court of Appeal for Saskatchewan specifically addressed this issue (although in the context of s. 255(2.1); and decided that the prosecution did not have to establish a causal link between the accused’s blood alcohol level and the victim’s injury or the accident. It merely had to establish a temporal link between the two elements: [27]      On a plain and ordinary reading, and in its grammatical and ordinary sense, the wording of the offence under s. 255(2.1) requires the Crown to prove three things beyond a reasonable doubt so as to justify a conviction: (a)   the accused had a blood alcohol concentration of over .08 while operating a motor vehicle or having care or control of a motor vehicle, which is the offence under s. 253(1)(b) of the Criminal Code; (b)   the accused caused an accident while so operating a motor vehicle or having care or control of a motor vehicle; and (c)   the accident resulted in bodily harm to another individual. On this straightforward reading, the Crown must establish a temporal link between an accused’s prohibited blood alcohol concentration and the occurrence of an accident that has resulted in bodily harm to another, but it need not establish a causal link between those two elements. This is the interpretation given to s. 255(2.1) by the trial judge in this case and by the Court in Regina v. Carver, 2013 ABPC 140 (CanLII), 558 AR 50 [Carver], where Rosborough P.C.J. observed: [60]      Subsection 255(2.1) C.C. does not causally link the “underlying offence” of operating a motor vehicle with a proscribed blood/alcohol concentration with the additional element of causing an accident that brings about bodily harm. Rather, it conjoins two separate proof elements: (1) proof of operating a vehicle with a proscribed blood/alcohol concentration; and (2) proof that the accused caused an accident resulting in bodily harm to a person. The prosecution must prove beyond a reasonable doubt that the accused caused an accident resulting in bodily harm but there is no requirement of proof that the accused’s proscribed blood/alcohol concentration in any way brought about or contributed to that accident. [29]      This observation is well-founded because the plain and ordinary meaning of s. 255(2.1) is not altered by context. Parliament has used different language to describe the causation requirements for other consequence-related offences involving the use of a motor vehicle. As Rosborough P.C.J. noted in Carver, the word thereby or its equivalent is conspicuously absent from s. 255(2.1); whereas, as the judge in this case observed, the offence of dangerous driving causing bodily harm, for example, is committed when an individual drives dangerously and thereby causes bodily harm. The absence of thereby or its equivalent from s. 255(2.1) cannot be an oversight by Parliament. … [31]      The absence from s. 255(2.1) of a causal connection similar to that found in s. 255(2) reflects the difficulty of requiring the Crown to prove an individual has caused an accident because he or she was over .08, without the Crown leading some form of expert evidence as to the effect of blood alcohol concentrations in excess of .08 on that individual’s ability to operate a motor vehicle that is causally tied to the accident in question. However, this kind of evidentiary difficulty does not arise in cases of impaired driving or dangerous driving where objective indicia of an individual’s impairment or recklessness provide an evidentiary basis for a court to conclude the causes of an accident might include an inability to operate a motor vehicle brought on by impairment, negligence or recklessness. For this reason, the causation element of the offence of impaired driving causing bodily harm (s. 255(2)) is different. There, the Crown has to prove a causal link between an individual’s impaired operation of a motor vehicle and bodily harm to another person. [32]      Thus, for a conviction to lie under s. 255(2.1) of the Criminal Code, I conclude the Crown must prove beyond a reasonable doubt that an individual, while operating a motor vehicle or in care or control of a motor vehicle, had a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood and the individual caused an accident that resulted in bodily harm to another; but, s. 255(2.1) does not require the Crown to prove the individual’s over .08 blood alcohol concentration caused the accident. The judge made no error when she concluded similarly. As stated above, the Court of Appeal for Saskatchewan R. v. Carver, 2013 ABPC 140 (CanLII). a judgment rendered by the Provincial Court of Alberta in 2013. In that judgment, Rosborough, J. found that s. 255(2.1) Cr. C. requires proof that the accused caused the accident and stated that a causal link between the accused’s blood alcohol level and the accident need not be proved. This line of authority was followed in Quebec by Anouk Desaulnier, J.C.Q., in two cases. The Court of Appeal found that was the most fitting approach. In its final analysis, the court held that the Crown must prove more than a temporal link between driving with a prohibited level of blood alcohol and the accident. It stated at paragraph 42 that “an accused should not be convicted merely because, while driving with a blood alcohol level over the legal limit, he or she was involved in an accident that cannot be attributed to him or her in any way” (at para. 42). However, it is not necessary that the accused’s blood alcohol cause the accident. To permit the entry of a conviction, the accused must be a significant contributing cause of the accident because of his or her driving, actions, or omissions, and the accident caused by the accused must result in death.

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Whether a criminal defence lawyer may make an application to record to the testimony of a Crown witness, an Ontario Police officer, to further an expert spectrographic voice identification analysis to support an application to exclude all improperly obtained evidence under Section 8 of the Canadian Charter of Rights and Freedoms.

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The accused person, in Regina v. Dunstan, was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house.  At trial, his learned criminal lawyers sought to have the evidence of the drugs and cash excluded on the basis that the police had staged the break-in and placed the anonymous call in order to gain access to his house illegally, in breach of his rights under s. 8 of the Charter of Rights and Freedoms to be free from an unreasonable search and seizure.  During his application, his criminal defence lawyers requested an order permitting the defence to use a high-quality microphone to record the testimony of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the maker of the anonymous call and instigator of the break-in, for the purpose of enabling the police officer’s voice to be subjected to expert spectrographic voice identification analysis.  That application was denied by the Superior Court of Justice in Ontario.

According, defence counsel appealed that decision to the Ontario Court of Appeal on the issue of whether a Superior Court judge has the authority to make such an order. His criminal lawyers posited the following issues.  He submitted, that the Superior Court judge erred in:

(a)     determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,

(b)     holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.

The Ontario Court of Appeal found that Section 8 Charter rights of rights of an accused should not turn on the particular level of technology utilized by the court.  Justice Blair of the Court determine that if it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording, it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing, the sample is being provided in any event: Regina v.  Dunstan, 2017 ONCA 432, at para. 63:

[63]      The rights of an accused should not turn on the particular level of technology utilized by the court, in my view. If it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording – as the Crown acknowledges – it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony.  To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing – as the Crown puts it – the sample is being provided in any event.

Based on the above, the Court of Appeal granted the appeal against Mr. Dunstan’s convictions for multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime; and ordered a new trial. The court ordered a new trial.  The Appeal Court also stated that as a Superior Court judge, the pre-trial application judge had the discretionary authority to permit the staff sergeant’s testimony to be recorded on a high-quality microphone pursuant to s.136(3) of the Courts of Justice Act, but, if not, then pursuant to the Superior Court’s inherent jurisdiction at paras. 77 to 82.

Finally, the Court stated that:

[86]      The initial entry involving the break-in and the York Regional Police entry are inextricably intertwined in the circumstances.  The warrantless entry could not be justified (whatever the reasonable belief of the YRP officers and the circumstances confronting them on their arrival) if it had been triggered by an unlawful ruse carried out by state actors in the first place.  The Crown does not dispute this.  To hold otherwise – as the appellant points out – would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the “dupe” officer would insulate the conduct from attack.  For this reason, in my opinion, the two entries – the allegedly fake break-in and subsequent anonymous phone call, and the responding entry by the York Regional Police – are part of a single integrated chain of events that should not be considered, in silo fashion, as two independent and separate events.

This case demonstrates the necessity of using an experienced criminal defence lawyer, who follows updates in the law, to ensure that all your defences are fully canvassed to obtain optimal results.

For a free initial-30 minute consultation regarding your charges, contact J.S. Patel at 403-585-1960 or 1-888-695-2211.

 

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Sentencing – Immigration consequences not considered

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Sentenced overturned from twelve months of jail to six months less a day to avoid severe immigration consequences. 

The collateral immigration consequences should be considered in a sentencing hearing for a criminal matter.   Since this case involves an on-going publication ban, the names of the parties involved (inclusive of the witnesses) will be stated in this post.  The case will be referred to as Regina v. A.I., 2017 ONCA 597 (RD).For another Blog post that describes a case dealing with counsel’s obligations, under the common-law, to be aware of the immigration consequences, please consult the post of June 13, 2017 titled:  Criminal defence lawyers must be aware of the immigration consequences at a sentencing on any guilty pleas under the Criminal Code of Canada that may result in a removal order being issued against a client.

An appeal was allowed against a sentence that was imposed on an accused person who had plead guilty to arson; and received a jail term of twelve months and three (3) years of probation.   The indexed property damage was minimal.  During the sentencing hearing, the offender, was not aware of the collateral immigration consequences as he was not aware that he was no a Canadian Citizen.  Thus, no one, including the Court was aware of the offenders standing under the Immigration and Refugee Protection Act (the “IRPA”).  An offender in similar circumstances will likely be issued a removal order by the Immigration Division due to his inadmissibility to Canada under Section 36 of the IRPA, which addresses the term “serious criminality” for permanent residents in these prescribed terms:

“(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed”

The question then becomes whether Arson, under the Criminal Code of Canada, carries a maximum term of imprisonment of at least ten (10) years. The penalty for Arson under certain sections of the Code can be fourteen (14) years.

Accordingly, this offender could be caught by the Immigration Section that will likely result in a removal order against them.  The consideration that follows is whether a person, in similar circumstances, can appeal a removal order to the Immigration Appeal Division (the “IAD”), and raise equitable and humanitarian consideration, in order to remain in Canada, albeit conditionally.  What adds to this difficulty for this particular offender, is that theIRPA denies access to an appeal to the Immigration Appeal Division against any removal orders (deportation orders) when an offender has served six (6) or more months of jail. This is effectively a bright line test that ousts the jurisdiction of the Immigration Appeal Division to hear such appeals; and a sentence of twelve (12) months ought remove the jurisdiction of the IAD to hear an appeal against a removal order.  Parenthetically, the only remedy that remains is an application to persuade the Canada Border Service Agency to not issue a report that starts that process of a removal order (which is beyond the scope of this post and a complicated legal assessment that must be rendered on a case by case basis.

The Ontario Court of Appeal allowed this offender’s appeal against his effective sentence of 12 months plus three (3) years’ probation for arson. While the OCA does not cite any of the above, such legal considerations are live realities that this offender faced. Removal was likely to occur, by operation of law, with little to no legal remedy available to this offender. Ultimately, the OCA found that the sentence was unfit. Such a sentence would lead to youthful accused with special needs deported to a refugee camp in a country where he had no connection and no supports. The court reduced the accused’s sentence to six months less a day.

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed. 

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Challenges to Jury Selection in Criminal Courts

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Challenges to Jury Selection in Criminal Courts based on racial prejudicing and the use of “Static Jurors” in the jury selection process. 

In Regina v. Husbands, 2017 ONCA 607, the Ontario Court of Appeal set aside various jury convictions. Those convictions included two counts of second degree murder; five (5) counts of aggravated assault; and numerous other charges that stems from allegations relating to criminal negligence causing death and the reckless discharge of a firearm.  All of those charges related to a shooting at the Toronto Eaton Centre about five (5) years ago that shook the community and gained wide-spread media coverage: http://globalnews.ca/video/1616758/full-video-of-events-before-during-and-after-eaton-centre-shooting-released

The Ontario Court of Appeal found that the Jury was improperly constituted due to the trial judge’s method for assessing challenges of potential jurors for cause.  Mr. Husbands is a black male. At trial his defence counsel in Toronto, challenged the jurors “for cause” on the basis of racial prejudice.   Specifically, those criminal lawyers sought an order from the trial judge to exclude the unsworn potential jurors from the court room and that jurors be deiced by “rotating triers”.   It appears that the Crown consented to this mode of procedure but trial judge made any inquires of the Crown’s position.  The trial court ruled that challenged would be reviewed by two (2) static jurors but that the potential jurors would remain in the Court room due to its perceived obligations under section s. 640(2.2) of the Criminal Code of Canada, which states:

640(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) — and any alternate jurors are sworn.

In overturning the guilty verdict, the Court of Appeal made the following rulings:
  • The enactment of ss. 640(2.1) and (2.2) did not oust or circumscribe the common law discretion of a trial judge to exclude unsworn jurors from the trial of the truth of the challenge for cause in respect of individual prospective jurors by rotating triers. Put somewhat differently, the amendment explicitly provided trial judges with an additional discretionary authority to control the challenge for cause process and ensure a fair trial. What the amendments did not do, neither expressly nor by necessary implication, was to remove a trial judge’s pre-existing discretion to exclude unsworn jurors during the trial of the truth of challenges for cause by rotating triers: Grant, at paras. 18, 37, 41; Murray, at para. 53;
  • [37]         The amendments in ss. 640(2.1) and (2.2) do not authorize a trial judge simply to choose one method of trial of the truth of the challenges for cause rather than the other. Static triers may only be ordered upon the satisfaction of the requirements of s. 640(2.1)and (2.2). No application. No static triers. An unsuccessful application. No static triers. There is no inherent jurisdiction to choose or direct static triers. Default requires rotating triers: Swite, at paras. 28-30; Noureddine, at para. 38; V. (W.), at para. 22.
  • [38]         An application by the accused is a necessary pre-condition to the operation of ss. 640(2.1) and (2.2). In assessing whether such an application has been brought, substance trumps form. The fact that the defence has not made a formal application under s. 640(2.1) is not determinative: Grant, at para. 51. A decision by the defence to choose static triers, in the face of a proposed dichotomy between static triers with the panel excluded and rotating triers with the panel included, has been held to amount to the functional equivalent of an application to exclude sworn and unsworn jurors under s. 640(2.1): Grant, at paras. 50-51; Murray, at paras. 57-66. The use of static triers in these circumstances contravened ss.640(2.1)-(2.2); and
  • The section 686 Criminal Code curative proviso could not salvage the trial.
The court held at paragraph 50:

[50]         The trial judge’s order denied the appellant the benefits of having the truth of the challenges for cause determined by rotating triers. What is more, this denial occurred in the face of unequivocal statutory language that required, among other things, an application by the accused before static triers could be ordered. This was an application that defence counsel repeatedly said was not being advanced. Expressly and repeatedly, counsel wanted rotating triers. Yet the trial judge forged ahead, despite the entreaties of defence counsel, without any inquiries of the trial Crown about her position and seemingly oblivious to the confining language of the enabling legislation. “Expressly and repeatedly, [defence] counsel wanted rotating triers. Yet the trial judge forged ahead, despite the entreaties of defence counsel, without any inquiries of the trial Crown about her position and seemingly oblivious to the confining language of the enabling legislation” (at para. 50). A new trial was necessary.

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What are your rights under Section 11(b) of the Charter, and the Law on a Stay of Proceedings

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What are your rights under Section 11(b) of the Charter, and the Law on a Stay of Proceedings By J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto)
In Regina v. Cody, 2017 SCC 31 the Supreme Court of Canada revisited the legal and analytical framework for assessing the rights of a criminal defendant in the context of unreasonable delays in bringing the matters to trial(s).  As stated in the previous posts, the Supreme Court of Canada in Regina v. Jordan, 2016 SCC 27 for assessing claims of unreasonable delay under s.11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).   In Jordan the court set out two (2) presumptive ceilings: 18 months for provincial court cases, and 30 months for superior court cases. The issue of “net delay” is critical to that assessment.  If the total delay minus defence delay exceeds the applicable presumptive ceiling, then the delay is presumptively unreasonable.  At that point, the Crown can rebut this presumption by demonstrating “exceptional circumstances.”   Those circumstances are described in Jordan.   What is more, where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for exceptional circumstances, the Crown may demonstrate that the “transitional exceptional circumstance” justifies the delay.
The Crown prosecutors had argued in Cody  sought to modified the Jordan framework notwithstanding it’s recent pronouncement of the same.  The Supreme Court declined to modify the Jordan framework. The court stated that, properly applied, the current framework “provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt” (at para. 3). The court also clarified some of the principles set out in Jordan.
The Court Cody summarized the following concerning defence delays at paragraphs 26-43:
[26]                        Defence delay is divided into two components: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence” (Jordan, at paras. 61 and 63).
[27]                        A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal (Jordan, at para. 61). In this case, it is undisputed that Mr. Cody expressly waived 13 months of delay. Accounting for this reduces the net delay to approximately 47.5 month
[28]                         In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66).
[29]                         However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65).
[30]                         The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples.  They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64).
[31]                         The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65).  It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so
[32]                         Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a  11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
[33]                         As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context,  R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).
[34]                         This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan  In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct.
[35]                         We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan.  All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by  11(b) of the Charter.
[36]                         To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enough to “pick up the pieces once the delay has transpired” (Jordan, at para. 35). A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justice system share this responsibility (Jordan, at para. 137).
[37]                         We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.  In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay.
[38]                         In addition, trial judges should use their case management powers to minimize delay.  For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ( v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
[39]                         Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel.
The court also considered what constitutes “exceptional circumstances” (at paras. 44-66) and when the “transitional exceptional circumstance” may justify a presumptively unreasonable delay (at paras. 67-74):
[67]                          The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan (Jordan, at para. 96). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.
[68]                          Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin
[69]                          To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800).  For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).
[70]                          It is important to clarify one aspect of these considerations. This Court’s decision in R. v. Williamson, 2016 SCC 28 (CanLII), [2016] 1 S.C.R. 741, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown’s indifference (paras. 26-29). Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties’ general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances.
[71]                          When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).
[72]                          In this case, the entire proceedings at trial pre-dated the release of Jordan. The Crown must therefore show that the 36.5 months of net delay was justified in light of its reliance on the previous state of the law under Morin.
The factual and legal assessment of a remedy under Section 11(b) of the Charter for a stay of proceedings resulting, effectively, in a dismissal of the charges against you, is a complicated factual and legal assessment; and legal counsel ought to be sought from experienced counsel.  Contact J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto) 

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Regina v. Alex, SCC, Whether a lawful demand is required for Section 258 (1)(c) and (g)

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The requirement of a lawful demands is not required under s. 258 – Criminal Code for DUIs or Over-80 matters.

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On July 6th, 2017, the Supreme Court of Canada, in a DUI case, ruled that a police officer and the Crown is not required to establish reasonable and probable grounds for a lawful breath demand for the purposes of a Section 258 of the Criminal Code of Canada.

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In R. v. Alex, 2017 SCC 37the Supreme Court of Canada was asked to consider whether sections 258(1)(c) and (g) of the Criminal Code of Canada (the “Code”) requires a police officer to have reasonable and probable grounds in order to make an evidentiary demand as a pre-condition governing the admissibility of the certificate of analysis, which captures the evidentiary breath readings of an accused person who has been charged for DUI or “Over-80”).  Mr. Alex’s Criminal Lawyers argued that the subsections of 258 of the Code imposes such a requirement.  Section 258(1)(g) establishes a statutory exception to the common law hearsay rule. It permits a certificate of analysis, which sets out the accused’s breath test results, to be filed for the truth of its contents without the need to call for oral evidence.   Section 258(1)(c) then provides two inferences that may be presumptively drawn from the certificate. The first inference, referred to as the presumption of accuracy, is that the breath readings in the certificate are accurate measures of the accused’s blood-alcohol concentration. This presumption dispenses with the need to call the qualified technician who administered the tests to verify their accuracy.The purpose of these evidentiary short-cuts, according to the Court, streamline the trial proceedings by permitting an accused’s blood-alcohol concentration at the time of the alleged offence to be presumptively proven through the filing of a certificate of analysis. These shortcuts, however, do not affect the issue of whether the accused’s breath readings are admissible or not. They only impact the manner of admission — specifically, whether the Crown must call two (2) additional witnesses: (i) one to verify the accuracy of the certificate and enter it as an exhibit, and (ii) to opine on the accused’s blood-alcohol concentration at the time of the alleged offence — matters which have no connection to the lawfulness of the breath demand. This was made clear in R. v. Deruelle, [1992] 2 S.C.R. 663, at pp. 673-74, where the Court observed that the breath readings remain admissible at common law through viva voce evidence, irrespective of whether the shortcuts apply.

Thus the central question for the Court was whether the opening words of each s. 258 evidentiary shortcut — “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)” — refer specifically to a lawful demand made under s. 254(3), which among other things, is predicated on the police having reasonable grounds to make the demand.

The Majority decision of the Supreme Court of Canada decided that it doesn’t imposed such a requirement.  It used the modern principles of statutory interpretation to arrive at its conclusion. Parliament did not include the word “lawful” within section 258(1)(c) or (g) of the Criminal Code and when read in light of its over context, above and beyond the plain meaning of the sections, the lawfulness of the demand had no bearing on the manner in which the Certificate of Analysis, containing the blood-alcohol breath readings, could be introduced during a trial of a DUI matter.  Effectively, the Court found that it was lawfulness of a demand was not a condition precedent to the mannerin which the Certificate of Analysis could be introduced.   It further consider that that Section 8 of the Canadian Charter of Rights and Freedoms could be invoked, should a Criminal DUI lawyer decide to file the requisite notice to seek the exclusion of breath samples at trial by positing that they were inadmissible due to a breach of an accused’s persons right to be free from an unreasonable search and seizure.

The Court further reasoned that if such a line of reasoning and logic were adopted as suggested by the Mr. Alex’s criminal lawyers, “….

in many cases, trial scheduling would have to account for the possibility that two (2) additional witnesses would be required to testify. This would extend estimated lengths of trial proceedings: one day trials would become two day trials, two day trials would become three days, and so on. In addition, the Crown would have to be prepared to call a breath technician and toxicologist in every case and limitations on their availability could add to the delay. And the effects do not end there. The consequences of trial scheduling are pervasive, creating backlogs and congestion throughout the justice system as a whole. This raises the following question: For what purpose? The answer, as I will explain, is none, other than to provide an accused with a hollow form of protection against police misconduct which the Charter now accounts for in a much more satisfactory and meaningful way.”The majority decision appears to be in inline with the it’s recent judicial pronouncements in Regina v. Jordan and Regina v. Cody where in the Court set out the new rules and law under Section 11(b) of the Charter to ensure timely trials.

If you have been charged with DUI and Over-80, this case underscores the importance of ensure that your rights under Section 8 of the Canadian Charter or Rights and Freedoms are thoroughly canvassed to ensure that all possible defences undergird a Charter Notice (where applicable) and filed in the Court prior to your trial.  To make arrangements, for a free initial thirty (30) minute telephone consultation, during our regular office hours, please contact J.S. Patel, Criminal DUI Lawyer at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto). 

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed. 

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Section 10(b) and the Rights to Counsel and the Police Obligations to _Hold Off_

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July 23, 2017 What are the obligations imposed on the police to “hold-off” on collecting evidence against an accused person?  This was recently considered by the Ontario Court of Appeal in R.  v.  Fountain, 2017 ONCA 596
What obligations are imposed on the Police to have the requisite knowledge of the law regarding their core duties under Section 10(b) of the Charter (rights to counsel) when a person changes their mind or is ambiguous about speaking to counsel without delay?  There is an implicit requirement to “Hold off” in collecting evidence and a reasonable opportunity to speak to counsel must be afforded to a detainee, if they are reasonable diligent.  If section 10(b) of the Charter has been violated, should the evidence leading to the conviction have been excluded from the trial; and an acquittal entered. 

In general terms, the right to counsel is protected under Section 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).  While there have been granular developments in the breadth and scope of the jurisprudence defining that section, there are three (3) duties that are imposed on the police to ensure that one’s fundamental rights that are guaranteed under that section.  Those duties require the police to:

  • to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
  • if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
  • to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The Ontario Court of Appeal in Regina v. Fountain, 2017 ONCA 596 focused on the scope of the third (3rd) duty: the requirement to “hold off” collecting (or the legal parlance, conscripting) evidence against an person detained in police custody.  Confusion often arises when a person is unclear relative to whether counsel ought to be consulted immediately or at a later juncture.

At that critical moment, the Police/State is obligated to warn the detainee.  This is called a Propser warning.   The purpose of that Prosper warning is meant to alert a detainee to the fact that the “hold off” period in using him as a source of evidence is suspended upon his change of mind (implicitly or explicitly) with respect to wanting to speak to counsel without delay.  What’s more, that warning is intended to communicate to the detainee that, should he or shewish to seek legal advice, now that he is better informed, a reasonable opportunity to do so is required, under s. 10(b) of the Charter, to be afforded to him without delay.  This applies even if the detainee has changed of mind about wanting to speak to counsel.This is the essence of the Propsper warner and it was articulated by the late Justice Lamer in these terms:

“I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.”

This was not done in Regina v. Fountain; and Mr. Fountain’s rights to counsel were breached by a detective in Ontario. The recitation of the facts by the Court are:

[35]      Specifically, after Mr. Fountain had been waiting in custody for approximately six and a half hours, Det. Dellipizzi took Mr. Fountain to the interview room. Det. Dellipizzi then explained that efforts to reach Mr. Aitken had failed but that a lawyer would be present the next day at Mr. Fountain’s bail hearing. Mr. Fountain suggested he would wait until morning. Without in any way indicating that it would be problematic for Mr. Fountain to wait to speak to his lawyer, Det. Dellipizzi offered Mr. Fountain the following options:

Dellipizzi: Um, okay. So, you – what do you want to do? You want to just wait till the morning or…

Fountain: Yes.

Dellipizzi: … do you want somebody called? Okay.

[36]      When Mr. Fountain was offered the binary option of calling a legal aid lawyer now or waiting until the next day to speak to his own lawyer he would have had no reason to suspect that he would be forfeiting the “hold off” protection he had been enjoying, should he chose the latter option. Mr. Fountain was entitled to proceed as though either choice was reasonable. In this context, there was therefore nothing unreasonable in Mr. Fountain opting to wait until the next day.

[37]      Indeed, rather than demonstrating a lack of reasonable diligence on the part of Mr. Fountain, the way in which Mr. Fountain came to choose to speak to his lawyer the next morning reinforces the importance of a Prosper warning. As explained, the purpose of a Prosper warning is to ensure that detainees know what they are giving up when they abandon their efforts to speak to counsel without delay. If a detainee is not advised that they will lose a constitutional protection if they choose an offered option, that offer can operate as a trap. If Det. Dellipizzi was going to treat an option he was offering Mr. Fountain as authority to begin using Mr. Fountain as a source of evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr. Fountain this. Yet he did not do so.

[38]      In these circumstances, Mr. Fountain’s decision to decline duty counsel and wait until the next day cannot fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by treating it as such

When obtained in violation of the right to counsel, statements will generally be excluded pursuant to a Section 24(2) analysis that stems from Regina v. Grant, 2009 SCC 32, at paras. 95 and 96.  However, the Court noted, by way of general legal principles, that if a detainee is not reasonably diligent in exercising the right to counsel, the right to receive a Prosper warning at the time will also be lost. This means that the police would not be encumbered with the requirement to advise a detainee of what he will lose, if he waives his right to consult counsel without delay where the detainee has already forfeited that right by not being reasonably diligent in exercising it.  The Court found that Mr. Fountain was reasonablu diligent; and it entered an acquittal, by allowing his appeal against his conviction on four (4) counts of armed robbery, four (4) counts of forcible confinement and breaking and entering. After a judge alone trial, the accused was found to be a party to a home invasion robbery during which drugs and electronics were stolen and the four occupants were tied up and threatened with a gun. He was sentenced to four years’ imprisonment.

Importantly, the Court found that when the accused said that he wanted to wait until the next day to speak to a lawyer, this ought to have telegraphed (signaled) a change of mind to the Detective, from his earlier insistence on speaking with a lawyer at that time. That officer should have provided the detainee with a Prosper warning before delving into his questioning.  Mr. Fountain did not know what he would be giving up.  Thus, it could not be inferred that he waived his right to consult counsel without delay. Further, by choosing to wait to speak with his lawyer the following day, he was not attempting to impede the investigation or signal that he was not serious about wanting to consult counsel without delay. He was simply selecting one of two (2) options that were put to him. Given these circumstances, his decision to decline duty counsel and wait until the next day could not fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by making that finding. The evidence targeted for exclusion was crucial to the Crown’s were the statements made by the detainee prior to his consultation with duty counsel were the core feature of the Crown’s case. Without it, the prosecution fails. Given the seriousness of the breach, the impact on Mr. Fountain, and the effect on the administration of justice, the statements should have been excluded according to the Court of Appeal.  It averred tat the Prosper case has been the law since 1994. If the officer was aware of the law, he should have followed it. If he was not aware of the law pertaining to a core Charter duty, he should have been.  At paragraphs 64-65, Court emphasized the scope of the Police’s obligations to be aware of the law:

[63]      While Det. Dellipizzi presented as being careful to ensure that he did not violate Mr. Fountain’s right to counsel, and attempted to facilitate that right on more than one occasion, good faith involves much more than good intentions. Prosper has been the law since 1994. It is not an obscure decision addressing a rare event. It is a long-standing precedent governing not only a ubiquitous investigative technique – the police interview – but every case where the police use a detained suspect as a source of evidence.

[64]      As Rosenberg J.A. pointed out in Smith, at para. 384, “Prosper instructs the courts to be sensitive to the rights of an accused who it is alleged has waived his rights.” The same instruction has been given by the Supreme Court to police officers, who are expected to be educated about their core Charter duties. Where an officer aware of this body of law is presented with someone who has been insisting on their right to counsel and the officer concludes that they have apparently changed their mind after efforts to reach counsel have been frustrated, the officer should take the necessary steps to ensure that the waiver was real and informed. That did not happen. If Det. Dellipizzi was aware of the law, he should have followed it. If he was not aware of the law, he should have been.

This case is critical in factual circumstances that are imbued with Section 10(b) considerations because it tills the jurisprudence one step further that crystalizing the remedy available to detainees when the police and crown evidence demonstrates a lack of knowledge, either explicitly or inferentially, on a core right under the Charter.

   

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Section 11(b) of the Charter and the Law on a Stay of Proceedings – What are “transitional circumstances” and general information on calculating the “net-delay” by J.S. Patel, Calgary and Toronto Criminal Lawyer.

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June 25, 2017 Section 11(b) of the Charter and the Law on a Stay of Proceedings – What are “transitional circumstances” and general information on calculating the “net-delay”  by J.S. Patel, Calgary and Toronto Criminal Lawyer.   Contact J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto)

In Regina v. Cody, 2017 SCC 31 the Supreme Court of Canada revisited the legal and analytical framework for assessing the rights of a criminal defendant in the context of unreasonable delays in bringing the matters to trial(s).  As stated in the previous posts, the Supreme Court of Canada in Regina v. Jordan, 2016 SCC 27 for assessing claims of unreasonable delay under s.11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).   In Jordan the court set out two (2) presumptive ceilings: 18 months for provincial court cases, and 30 months for superior court cases. The issue of “net delay” is critical to that assessment.  If the total delay minus defence delay exceeds the applicable presumptive ceiling, then the delay is presumptively unreasonable.  At that point, the Crown can rebut this presumption by demonstrating “exceptional circumstances.”   Those circumstances are described in Jordan.   What is more, where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for exceptional circumstances, the Crown may demonstrate that the “transitional exceptional circumstance” justifies the delay.

The Crown prosecutors had argued in Cody  sought to modified the Jordan framework notwithstanding it’s recent pronouncement of the same.  The Supreme Court declined to modify the Jordan framework. The court stated that, properly applied, the current framework “provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt” (at para. 3). The court also clarified some of the principles set out in Jordan.

The Court Cody, supra, summarized the following concerning defence delays at paragraphs 26-43: [26]                        Defence delay is divided into two components: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence” (Jordan, at paras. 61 and 63) [27]                        A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal (Jordan, at para. 61). In this case, it is undisputed that Mr. Cody expressly waived 13 months of delay. Accounting for this reduces the net delay to approximately 47.5 month [28]                         In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66). [29]                         However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65). [30]                         The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples.  They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64). [31]                         The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65).  It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [32]                         Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a  11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [33]                         As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context,  v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [34]                         This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan  In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct. [35]                         We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan.  All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by  11(b) of the Charter. [36]                         To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enough to “pick up the pieces once the delay has transpired” (Jordan, at para. 35). A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justice system share this responsibility (Jordan, at para. 137). [37]                         We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials. [para. 139] In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay. [38]                         In addition, trial judges should use their case management powers to minimize delay.  For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ( v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.  [39]                         Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel.

The court also considered what constitutes “exceptional circumstances” (at paras. 44-66) and when the “transitional exceptional circumstance” may justify a presumptively unreasonable delay (at paras. 67-74):

[67]                          The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan (Jordan, at para. 96). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.  [68]                          Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin. [69]                          To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800).  For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96). [70]                          It is important to clarify one aspect of these considerations. This Court’s decision in R. v. Williamson, 2016 SCC 28 (CanLII), [2016] 1 S.C.R. 741, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown’s indifference (paras. 26-29). Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties’ general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances.  [71]                          When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).  [72]                          In this case, the entire proceedings at trial pre-dated the release of Jordan. The Crown must therefore show that the 36.5 months of net delay was justified in light of its reliance on the previous state of the law under Morin. 

The factual and legal assessment of a remedy under Section 11(b) of the Charter for a stay of proceedings resulting, effectively, in a dismissal of the charges against you, is a complicated factual and legal assessment; and legal counsel ought to be sought from experienced counsel.

Contact J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto)

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed.