June 17, 2017:  An example of where a Criminal Court Judge may not take judicial notice of the evaporation and a Judge can take judicial notice of the evaporation rate of alcohol in person, in the context of the impaired driving or DUI case.

The manner in which a Judge in the Criminal Courts take judicial notice of the evaporation rates of alcohol in a person’s body was considered recently by the Ontario Court of Appeal in Regina v. Kraus, 2017 ONCA 458.  In that case, the accused was alleged to have driven her vehicle across three (3) lanes of oncoming traffic before striking another vehicle, and crashing her car into the median in the road.  One issue before the Criminal Court at trial was whether open bottles of alcohol had been left in the accused’s car for a number of days, thereby leaving the inference open as to whether the accused had consumed the same. The Ontario Court of Appeal found that while the trial judge had erred by taking judicial notice of the evaporation rate of alcohol, there was overwhelming evidence from other sources that the accused had been impaired by alcohol.

For instance:

• (a) she accused had admitted she drank three (3) coolers that day;
• (b) that her driving was extreme;
• (c) there were numerous open bottles and “consumed alcohol” in the vehicle; and
• (d) a cab driver, the arresting officer, and the breath technician smelled alcohol and noted slurred speech.

In applying s. 686 of the Criminal Code of Canada, the Ontario Court of Appeal found that the verdict would have been the same without the error. This case demonstrates, in our opinion, how a judge may render an error at trial in taking facts into consideration, while having no effect on the outcome at the Court of Appeal when there is other evidence that amply supports a conviction.   Our office assumes conduct of various appeals but prior to doing so, we only engage in such appellate matters when there is a reasonable likelihood  of success to ensure that your resources are not put to waste.  To arrive at that conclusion, we offer an opinion at a reasonable fee before actually proceeding with the merits of an appeal.  To book a consultation via telephone, contact the Law Offices of J. S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto).  

June 16, 2017:  Humanitarian and Compassionate Grounds applications for permanent residency in Canada based on a risk of gender based violence.

In Delille v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 508 (CanLII), the Federal Court in an immigration case found that an officer’s assessment of a Humanitarian and Compassionate grounds application (“H&C Application) was unreasonable.  In rejecting an H&C application, the officer discounted the evidence of the principal Applicant of gender-based violence which as endured in both Canada and the United States. Such experiences resulted in documented psychological trauma and were therefore relevant to the H&C analysis, particularly in light of the evidence on violence against women in the applicants’ country of origin.   In citing the authority of MCI and  Kanthasamy, 2015 SCC 61, the Federal Court found that the H&C officer was to inquire as to whether “a reasonable person in a civilized community” would want to relieve the misfortunes of the applicant. The evidence of the principal applicant’s experiences after leaving Haiti was clearly relevant to the Humanitarian and Compassionate analysis, in furtherance of the application submitted. The officer erred in failing to consider those factors: paras. 43-44.

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.

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 Freedomsto be free from an unreasonable search and seizure.During hisapplication, his criminal defence lawyersrequested 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 counselappealed 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 Appealgranted 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.

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.

The Ontario Court of Appeal recently allowed an appeal against a suspended sentencing at the request a Toronto Criminal Appeal lawyer on behalf of his client in Regina v. Tmenov, 2017 ONCA 454 (RD), the Ontario Court of Appeal allowed the accused’s appeal against his suspended sentence.  Mr. Tmenov pleaded guilty to counts of break and enter to commit theft and break and enter with intent. After a joint submission between his Criminal Defence lawyer and the Crown Prosecutor, he was sentenced to a suspended sentence with two years’ probation. The sentencing judge credited the appellant’s pre-sentence custody of 132 days at a rate of 1.5:1 resulting in a credit of 198 days. The result was that the appellant, who is a convention refugee, was ordered deported and, because he had received a custodial sentence greater than 180 days (as interpreted by certain decisions of the Federal Court) he is barred from appealing the deportation order. His criminal lawyer brough an “fresh evidence application” on appear with the consent of the Crown arguing that “…trial counsel did not appreciate the immigration consequences of attributing enhanced credit to the period of pre-sentence custody. As these consequences were not brought to the attention of the sentencing judge or taken into consideration in the appellant’s sentence, this court is entitled to intervene: Regina v. Pham, 2013 SCC 15 (CanLII); R. v. Nassri, 2015 ONCA 316 (CanLII)..  This case illustrates the importance of ensuring that your criminal defence lawyer is completely aware of all the collateral consequences that might unfold especially when your criminal matters may negatively impact your immigration status in Canada and result in deportation.  In our view, it is critical to provide a Criminal Court judge with all the information necessary and in some cases an informed opinion from an immigration practitioner to ensure that the Court has the exercise it’s limited jurisdiction under Pham, as cited above. For a free initial thirty minute consultation during office hours, please contact J.S. Patel at 403-585-1960.

Reasonable or Rational Inferences from Circumstantial Evidence in Criminal Trials: Regina.v.Villaroman, 2016 SCC 33. (July 29, 2016) by J.S. Patel, Barrister, 403-585-1960

The Supreme Court of Canda (the “Court”) in R. v. Villaroman, 2016 SCC 33 (“Villaroman”) recently dealt with a number of issues that have an impact on field of criminal defence law, such as circumstantial evidence and the inferences that may be drawn from them. The issue before the the Court was whether trial judge erred in his analysis of circumstantial evidence by requiring that inference supporting conclusion other than guilt be based on evidence rather than upon lack of evidence. The effect of the Villarman decision will likely have practical implications concerning the strategic choices criminal lawyers while in sexual offence cases in criminal jury trials. In my view, it expands and clarifies the current pedigree of jurisprudence stemming from the “Rule in Hodges” from the Hodge’s (1838), 2 Lewin 227, 168 E.R. 1136.In Hodge’s Case,the evidence of identification was made up entirely of circumstantial evidence: p. 1137. Baron Alderson, the trial judge, instructed the jury that in order to convict, they must be satisfied “not only that those circumstances were consistent with [the accused] having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the [accused] was the guilty person”: p. 1137. This sort of jury instruction came to be required in circumstantial cases: see, e.g., McLean v. The King,[1933] S.C.R. 688.Over time, this requirement was relaxed: see, e.g., Regina v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860. It is now settled that no particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial….

A. The Facts

Mr. Villarman, the defendant in the within matter, experienced technological issues with his personal laptop computer. He left it with a repair shop to effect repairs of the same. The technician who had carriage of the repairs for the indexed computer found child pornography on the laptop. As such, he called the police. The police searchedthe laptop; and confirmed the presence of child pornography. Mr. Villarmanwas charged with a number of pornography related offences, including possession of child pornography.

B. The Proceedings in the Trial Court and the Alberta Court of Appeal

The criminal trial was conducted before the Honourable Mr. Justice Yamuchi (the “Trial Judge”) of the Court of the Queen’s bench of Alberta (Judicial District of Calgary – Calgary Criminal Division) who found that the mainly circumstantial evidence against Mr. Villarman proved his guilt on the charge of possession of child pornography on the criminal law standard: Beyond a Reasonable Doubt. Justice Yamuchi also also disagreed with defence counsel characterization of the police conduct relative to the police search of the laptop. Defence counsel had (rightly) argued that the Calgary Police Service’s conduct violated Mr. Villarman rights under the Canadian Charter of Rights and Freedoms under Sections 8. That argument was dismissed by the Court of the Queen’s Bench of Alberta (Calgary Criminal Division). The Alberta Court of Appeal concluded that the Trial Judgehad misstated the current (criminal) law respecting (circumstantial evidence and that the verdict of guilt based on that evidence was unreasonable. The Alberta Court of Appeal accordingly set aside the conviction and entered an acquittal for Mr. Villarman. However, the Court of Appeal declined to consider the Section 8 Charter issues because its acquittal of Villarmanrendered such issues those issues academic. The appeal unit of the Crown Prosecutors’ Offices in Calgary, Alberta appealed the acquittal to the Supreme Court of Canada.

C. Acquittal Overturned by the Supreme Court of Canada

The Supreme Court of Canada heard the Crown Prosecutors and held that their appeal ought to be allowed. The Court set aside the acquittal set aside and remitted the case back to the Alberta Court of Appeal for hearing and disposition of issues raised by criminal lawyers for Mr. Villarman under Section 8 and 24(2) of the Charter. The Court did provide his ruling on the use of circumstantial evidence and the inferences that may be drawn from the same. It stated that no particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt. An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. As stated in the found in s. 10.2 of the Model Jury Instructions prepared by the National Committee on Jury Instructions of the Canadian Judicial Council, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes. The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty. The Court said at para. 28 to 29 [28] The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”: Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict. [29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago — the risk that the jury will “fill in the blanks” or “jump to conclusions” — has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, [1955] S.C.R., 16 per Rand J., at p. 22; John,per Laskin J., dissenting but not on this point, at p. 813.” Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. While the Supreme Courthas used, in past cases, the words “rational” and “reasonable” interchangeably to describe the potential inferences, there is an advantage of using the word “reasonable” to avoid the risk of confusion between the reasonable doubt standard and inferences that may arise from circumstantial evidence. However, using the traditional term “rational” is not an error as the necessary message may be imparted in different ways. The Court stated the following in representative part: [33] The words “rational” and “reasonable” are virtually synonyms: “rational” means “of or based on reasoning or reason”; “reasonable” means “in accordance with reason”: Canadian Oxford Dictionary (2nd ed. 2004). While some have argued that there is a significant difference, I do not find that position convincing: see, e.g., E. Scott, “Hodge’s Case: A Reconsideration” (1965-66), 8 C.L.Q. 17, at p. 25; A. M. Gans, “Hodge’s Case Revisited” (1972-73), 15 C.L.Q. 127, at p. 132. It seems that our jurisprudence has used the words “rational” and “reasonable” interchangeably with respect to inferences: see McLean; Fraser v. The King, [1936] S.C.R. 1, at p. 2; Boucher, at pp. 18, 22 and 29; John,at p. 792; Cooper, at p. 881; Lizotte v. The King, [1951] S.C.R. 115, at p. 132; Mitchell, at p. 478; Griffin, at para. 33. This, in addition to the dictionary definitions, suggests that there is no difference in substance between them. [34] There is an advantage of using the word “reasonable”. It avoids the risk of confusion that might arise from using the word “reasonable” in relation to “reasonable doubt” but referring to “rational” inferences or explanations when speaking about circumstantial evidence: see John, per Laskin J., dissenting but not on this point, at p. 815. In saying this, I do not suggest that using the traditional term “rational” is an error: the Court has said repeatedly and recently that the necessary message may be imparted in different ways: see, e.g., Griffin, at para. 33. A view that inferences of innocence must be based on proven facts is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.The court averred that when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. The Court of Appeal found that the trial judge erred because he failed to consider reasonable inferences inconsistent with guilt that could have arisen from a lack of evidence. While there are certainly some problematic statements in the trial judge’s reasons, when the reasons are read as a whole and these passages are read in their proper context, he made no reversible error. The Court stated that the QB judge correctly stated the law in relation to circumstantial evidence. Contrary to Mr. Villarman position, the judge did not lose sight of proper process of inference-drawing, the overall burden of proof, or the difference between the standard applied to a committal for trial and the reasonable doubt standard applied to a finding of guilt. The judge’s conclusions that a user of Mr. Villarman’s computer knowingly downloaded pornography and that Mr. Villarman was knowingly in possession of the child pornography that had been saved on his computer were reasonable. While there were gaps in the Crown evidence about Mr. Villarman’s possession and control of the computer, the Court of Appeal’s analysis of these gaps in effect retried the case. It was for the trial judge to decide whether the evidence of Mr. Villarman’s possession and control, when considered in light of human experience and the evidence as a whole and the absence of evidence, excluded all reasonable inferences other than guilt. While not every trier of fact would inevitably have reached the same conclusion as did the trial judge, that conclusion was a reasonable one. If you have been charged with a sexual offence such as Child Pornography, it is imperative that you contact a competent criminal lawyer. For a free consultation on your criminal charges, call Mr. J.S. Patel, Barrister at 403-585-1960

Trinity Western University Graduates overturned a decision by the Barrister’s Society of Nova Society to prevent graduates to practice law given notwithstanding the restrictions and putative discriminatory treatment against the LGBTQ community, July 26, 2016

The Nova Scotia Court of appeal (“NSCA”) recently rendered a controversial decision permitted graduates from the Trinity Western University, in Langley, British Columbia (“TWA”), to practice law in the Province of Nova Scotia.  TWA is a private Christian School that requires its students to honor a covenant that says students must abstain from sexual intimacy that violates the “sacredness of marriage between a man and a woman.”The Nova Scotia Barrister’s Society (along with numerous other law societies in Canada) banned graduates from practicing law in that province. Trinity Western University is a private Christian university in British Columbia. Trinity Western’s students must adhere to a “Community Covenant” that prohibits sexual intimacy outside the marriage of man and woman. The Federation of Canadian Law Societies approved the proposed law degree offered by NWT.  The NWT operate as a private university under the aegis of the Evangelical Free Church of Canada.  It views itself “an arm of the Church”. It was chartered by the Trinity Junior College Act, S.B.C. 1969, c. 44. That statute said the College would educate its students “with an underlying philosophy and viewpoint that is Christian”. The College later changed its name to Trinity Western University. Since 1984, Trinity Western has belonged to the Association of Universities and Colleges of Canada. Its degrees, including those in nursing and teaching, have been recognized as academically sound in British Columbia and elsewhere. Its enrollment approximates 4,000.  The Covenant of the NWT is an encompassing code of conduct that, in addition to mundane items, prohibits sexual intimacy outside the marriage between a man and a woman. Excerpts from the Covenant include:

The TWU community covenant involves a commitment on the part of all members to embody attitudes and to practise actions identified in the Bible as virtues, and to avoid those portrayed as destructive. Members of the TWU community, therefore, commit themselves to:

• Observe modesty, purity and appropriate intimacy in all relationships, reserve sexual expressions of intimacy for marriage, and within marriage take every reasonable step to resolve conflict and avoid divorce . . .

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

• Sexual intimacy that violates the sacredness of marriage between a man and a woman . . .

… according to the Bible, sexual intimacy is reserved for marriage between one man and one woman … . Trinity Western’s student body includes LGBTQ students. The Covenant prohibits harassment based on sexual orientation.The Covenant governs the student’s term at Trinity Western in British Columbia. It does not govern post-graduation activities, such as articling or law practice. This is precisely the locus of the compliant by the NWT against the Barrister’s Society. Trinity Western and its supporters say the Covenant manifests their genuine beliefs that are protected in a pluralistic society governed by constitutional freedoms of religion, conscience and association. The Barristers’ Society undertook broad consultations that culminated in a resolution and regulation to restrict the ability of Trinity Western’s law graduates to article in Nova Scotia.   Along with a prospective law student, the NWT, applied to challenge the Barrister’s Society’s statutory authority to pass the resolution and regulation. They also submitted that, if the resolution and regulation were intra vires the legislation, they infringed the applicants’ religious and associational freedoms under the Charter of Rights and Freedoms. A judge of the Supreme Court of Nova Scotia agreed. The judge held that the resolution and regulation overstepped the Society’s statutory authority and, in the alternative, unjustifiably infringed the Charter freedoms of Trinity Western and the prospective student. The Barrister’s Society appealed to the NSCA. The Court essentially found that the Barrister’s Society did not have the authority to “issue rulings whether someone in British Columbia ‘unlawfully’ violated the Human Rights Act or the charter.”  No comment was made regarding the issues that were raised under the Canadian Charter of Rights and Freedoms.  It is anticipated that the Barristers’ Society will likely leave to appeal this decision to the Supreme Court of Canada in Ottawa.

The ruling may be reviewed:

http://www.courts.ns.ca/Decisions_Of_Courts/documents/2016nsca59.pdf