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The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada.

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Under the Criminal Code of Canada (the “Code”), a “dangerous offender” designation carries serious criminal law consequences.  Generally, it is reserved for the most violent and sexual predators.  The designation carries an automatic sentence of imprisonment for an indeterminate period, with no chance of parole for seven years.   The constitutionality of those provisions of the Code were recently challenged in the Supreme Court of Canada in a case called R. v. Boutilier, 2017 SCC 64 (“Boutilier”).   The majority of the Court upheld the constitutionality of the two (2) sections of the regime that was amended in 2008.  Currently, Section 753(1) of the Code sets out this two-stage test: the designation stage and the penalty stage.  It requires the lower Court, tasked with the adjudication, at the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual (an ordinary sentence followed by a long-term supervision order, or only an ordinary sentence) unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.   In this case, the sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed B’s appeal of his dangerous offender designation and indeterminate sentence.  The matter was further appealed to the Supreme Court of Canada.
The Supreme Court stated the following in relevant part:   Continue reading The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada. →

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Whether text messages attract a reasonable expectation of privacy under Section 8 of the Canadian Charter of Rights and Freedoms; and whether such evidence ought to be ought excluded from a trial viz Section 24(2) of the Charter?

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Whether text messages attract a reasonable expectation of privacy under Section 8 of the Canadian Charter of Rights and Freedoms; and whether such evidence ought to be ought excluded from a trial viz Section 24(2) of the Charter?

Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected under s.8 of the Charter. The Supreme Court of Canada (the “SCC”) in Regina v. Marakah, 2017 SCC 59 framed the (Orwellian) issues in this way:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant? The question in this appeal is whether the guarantee against unreasonable search and seizure in s. 8 of the Canadian Charter of Rights and Freedoms can ever apply to such messages.

In a five (5): two (2) split, the SCC allowed the accused’s appeal, set aside his convictions for multiple firearms offences, and entered acquittals. The accused sent text messages dialoguing illegal transactions in firearms. The police obtained warrants to search the accused’s home and that of W. They seized the accused’s BlackBerry and W’s iPhone, searched the devices, and found incriminating text messages. It was argued at trial, by his criminal defence counsel, that the indexed messages ought not be admitted against him based on a breach of his s.8 Charter right to be secure from unreasonable search and seizure. Based on the arguments and submissions made to an application judge, it was held that the warrant for the accused’s home was invalid; and that the text messages recovered from his BlackBerry could not be used against him, but that the accused had no standing to argue that the messages recovered from W’s iPhone should not be admitted against him.  The phone did not belong to him, and as such, did not retain a privacy interest in the item.  As a logical consequence of that decision, the application judge admitted the text messages and convicted the accused. A majority of the Ontario Court of Appeal dismissed the accused’s appeal.

On further appeal, the majority of the SCC held in Marakah that the accused had a reasonable expectation of privacy in the text messages recovered from W’s iPhone, and therefore had standing to claim s.8 Charter protection for the text messages.

The majority reasoned that: the subject matter of the alleged search was the electronic conversation between the accused and W; the accused had a direct interest in the subject matter; the accused subjectively expected it to remain private; and that expectation was objectively reasonable. The majority stated that the risk that W could have disclosed the text messages to third parties did not negate the reasonableness of the accused’s expectation of privacy against state intrusion. The majority also stated that its conclusion on the issue of standing was not displaced by policy concerns.

The Crown conceded that if the accused had standing, the search was unreasonable. The text messages were thus presumptively inadmissible against the accused, subject to s.24(2) of the Charter. The majority held that the evidence should be excluded under s.24(2). The majority stated that society’s interest in the adjudication of the case on its merits favoured admission. However, the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to warrant exclusion. In addition, the police conduct had a considerable impact on the accused’s Charter-protected privacy interest in the electronic conversation. The majority concluded that, on balance, the admission of the evidence would bring the administration of justice into disrepute.

Two (2) members of the Court dissented. Justices Moldaver and Côté JJ. would have held that the accused did not have a reasonable expectation of privacy in his text message conversations with W and therefore, he lacked standing to challenge the search of W’s phone under s.8 of the Charter. The dissenting minority stated that the accused’s lack of control over W’s phone was fatal to his reasonable expectation of privacy in the text message conversations on W’s phone, and that policy considerations supported the conclusion that the accused lacked standing under s.8.

If you have been charged with a criminal offence wherein the police have secured your mobile devices in the similar matter, contact an experienced criminal lawyer from our office.  Call J.S. Patel, Barrister at 403-585-1960 or 1-888-695-2211 for a consultation.  

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Conditional Sentence Orders (CSO) granted under the Criminal Code of Canada are not “terms of imprisonment” for immigration purposes under the Immigration and Refugee Protection Act.

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The Supreme Court of Canada recently consider in a landmark decision what the phrase “Term of imprisonment” meant within the context of s.36(1)(a) of the Immigration and Refugee Protection Act (IRPA).  The Court concluded that is does not include conditional sentences orders: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 34. A conditional sentence is a sentence that is served in the community.

The Supreme Court considered whether the maximum sentence to be considered for purposes of s.36(1)(a) of the IRPA is the maximum sentence that the accused could have received at the time of the commission of the offence, not the date of the admissibility decision. A permanent resident’s right to remain in Canada is conditional on complying with knowable obligations: Tran, above, at paras. 35 and 42.

Mr. Trans is a citizen of Vietnam; and was a permanent resident of Canada, which he obtained 1989. Sometime in March 2011, Mr. Tran was charged with production of a controlled substance in relation to a marijuana grow operation containing approximately 915 plants under Section 7(1) of the Controlled Drugs Substances Act (the “CDSA”). When the offence was alleged to have been committed by Mr. Tran, the maximum penalty for the offence was seven (7) years’ imprisonment. However, prior to a conviction being entered against Mr. Tran, the maximum sentence for the offence was increased to fourteen (14) years of imprisonment, with a new minimum sentence of two (2) years’ imprisonment, if the number of plants produced was greater than five-hundred (500). Mr. Trans was sentenced to a twelve (12) month conditional sentence.

The ministers counsel of the Minister of Public Safety and Emergency Preparedness (the Canada Border Service Agency) referred Mr. Tran’s case via section 44 of the Immigration and Refugee Protection Act (the “IRPA”) to the Immigration Division for an admissibility hearing, based on alleged inadmissibility due to “serious criminality” as set out in s.36(1)(a) of the IRPA.  That section is triggered when a conviction is entered for federal offence which carries the potential for a maximum sentence of at least 10 years.  Section 64(2) was also critical in this case because it precludes the possibility of an appeal against a removal order at the Immigration Appeal Division for a federal offence for which a term of imprisonment of more than six (6) months has been imposed.

The Federal Court (trial division) allowed the appellant’s application for judicial review.  That court held that a conditional sentence was not a “term of imprisonment” under the IRPA, and that, as seven (7) years was the maximum sentence available for Mr. Tran.  As such, the then maximum sentence of seven (7) did not establish serious criminality. That was based on retrospectivity principles. However, the Federal Court of Appeal disagreed with the Trial Division; and the panel of the Appeal Division of the Federal Court allowed the Minster’s appeal from the decision of the Federal Court, finding that the reviewing justice had failed to assess whether the interpretation adopted by the administrative decision maker fell within the range of interpretations defensible on the law and facts:  Tran, supra.

Enter the Supreme Court of Canada.  The highest court within the dominion of Canada held that, in this context, “term of imprisonment” does not include conditional sentences and that the relevant maximum sentence is that available at the time of the commission of the offence. The court noted that the meaning of “term of imprisonment” varies according to statutory context, and that jail sentences and conditional sentences of equivalent length are not commensurate. A conditional sentence of longer than six months may well accord with a jail sentence of less than six months. Conditional sentences are for less serious and non-dangerous offenders. It would be absurd, and would result in undesirable avoidance of conditional sentences, to consider conditional sentences to be terms of imprisonment under s.36(1)(a) of the IRPA that could support findings of serious criminality. What is more, while s.11(i) of the Charter did not apply to the decision of the Minister’s delegate, section 36(1)(a) of the IRPA does not engage the public protection exception to the presumption against retrospectivity. Accordingly, Mr. Tran’s conditional sentence was not a “term of imprisonment” and the maximum sentence he was eligible to receive was seven (7) years. The Supreme Court of Canada  quashed the Minister’s delegate’s referral of Mr. Tran’s case to the Immigration Division, as the delegate’s opinion and resultant decision to refer were premised on an untenable interpretation of the grounds for inadmissibility under s.36(1)(a) of the IRPA. The matter was remitted to a different delegate:  Tran, supra, for a re-determination under the binding applicable legal principles.

This case will have wide spread implications for many individuals who were previous convicted, received a CSO, and the Canada Border Service Agency is attempting either a referral to the Immigration Division of the Immigration and Refugee Board, or attempting to preclude an appeal at the Immigration and Appeal Division against a valid removal order made by the Immigration Division.

The information provided above is general legal information and is not to be substituted for legal advice. If you are person that is similarly situated to the facts in the Tran case, contact our Immigration Defence Lawyers at 403-585-1960 or 1-888-695-2211.

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The Use of Identification Evidence from Eyewitnesses and Video Evidence

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Gun Charges, Weapons Offence, Eye Witness and Video Evidence.            

The Ontario Court of Appeal recently considered and reaffirmed the rules and principles governing the use of eye witness identification.   In Regina v. M.B., 2017 ONCA 653, the Court of Appeal reversed a trial judge’s decision in convicting a young offender based on the following facts.  Please note that this case has a publication ban on the identity of the accused person(s).

The Facts 

A group of men congregated at or near a bar in Hamilton Ontario. A person approach the group; and shots were fired at close range, resulting in three (3) injured persons.  The aforesaid incident was recorded on video surveillance but quality of the video was questionable.   Critical to the determination of guilt at trial was whether the accused before the Court was the person depicted on the video.   The evidence before the Court consisted of three (3) civilian witnesses who did not see what occurred relative to the shooting but watched the video, after the fact, and claimed to have recognize the accused as the shooter.   The shooter’s facial features were not visible on any of the videos. Two (2)  of the identifying witnesses were police officers who had interacted with the appellant in the past. The third (3rd) witness worked at the bar/restaurant; and had served the accused, in the past, as a customer. There was no other evidence connecting the appellant to the shooting or even showing he was in the vicinity at the time. The accused, in this case, did not testify.

In reversing the conviction, the Court of Appeal rendered the following rulings, which are considered in turn.

The General Rules Governing Eye Witness and Video Evidence

First, since the quality of the video was poor and the only evidence tying the accused to the shooting was the recognition evidence of the three witnesses, the trial judge was required to “exercise the utmost caution in assessing the identification evidence”

Second, the trial judge was wrong to interpret Regina v. Berhe,2012 ONCA 716, 113 O.R.(3d) 137 as minimizing the importance of unique identifiable features in assessing the weight of recognition evidence. Here, the witnesses’ inability to identify any special characteristic of the accused’s movement that supported the recognition was important and should have been given appropriate weight. The Court stated the following in relevant part at paragraphs 46 to 47 of the decision:

[46]        The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies. The court made this clear by endorsing the following comment by Holmes J. in R. v. Panghali, [2010] B.C.J. No. 2729 at para. 42:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[47]        In my view, the trial judge was wrong to interpret Berhe as minimizing the importance of unique identifiable features in determining the weight of recognition evidence. Here, none of the witnesses had a “long and closely familiar” relationship with the appellant. Constable Howard had seen the appellant in the neighbourhood and had spoken to him once for minutes at the end of August. T.C. had served the appellant an unspecified number of times in the restaurant and had seen him there, had spoken to him only when taking his order and did not know his name. Constable Kay had the greatest acquaintance with the appellant – having observed him 10 to 15 times as an undercover officer and having spoken with him on one occasion for 35-40 minutes. This was a case in which the inability to “articulate the particular features or idiosyncrasies that underlie the recognition” was important and should have been weighted appropriately.

Additional errors also were cited by the Court appeal relative to the shooter’s movement as the basis for identification. In this connection, the trial judge did not differentiate among the three (3) witnesses in this regard. In fact, only one (1) witness relied on the way the accused moved in her identification. That witness said she had seen him walk and run before and that played a part in her identification of him. She could not, however, point to anything distinctive about the way the appellant ran. She also said she knew the way the appellant held his hand on his pants. She agreed that looking at the video one could not tell if the shooter had hair in cornrows, or had regular afro hair, or hair that was braided. With respect to the other two witnesses, the trial judge appeared to have speculated that they must have relied on the shooter’s movement to identify him. The Court of Appeal held that it was an error to surmise a basis for identification that the witnesses themselves did not claim.

What is more, trial judge also failed to keep in mind his initial caution about the fallacy of mistaking certainty for accuracy. In his analysis, he emphasized how certain each recognition witness was in his or her identification.   In relying on the witnesses’ certainty, there is no echo in the trial judge’s reasons of his initial recitation of the caution of the Supreme Court in Hibbertthat the danger of identification evidence is that “it is deceptively credible largely because it is honest and sincere.” The mechanism by which honest and sincere identification testimony is unreliable is explained in The Law Reform Commission Report on Eyewitness Testimony (at p. 10) endorsed in Miaponoose:

The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer’s mind may be quite different from reality

Finally, the trial judge did not consider that: “The important point is that each of three witnesses’ identification was flawed. The trial judge did not consider the possibility that the same mechanism accounted for the weakness of each identification. Each of the witnesses’ confident identifications might have been mistaken because each of them unintentionally “filled-in” details of a person familiar to them when looking at a fuzzy image of someone in fact unknown. Independent flawed identification evidence from three witnesses is no more persuasive than if from one.”

While there are subtle differences in the law  of evidence and eye witness identification; and as the reader may observe, the law is constantly changing to adapt to technological advances. The result in this case might have been different had the quality of the video feed been of suitable quality.

Contact a lawyer

Proper legal advice ought to be sought at the onset of these charges to permit an professional review the details and the facts of each case to determine how they square with the prevailing law at the time. The principles in this case may change from time to time and this Blog post should not be relied on as a complete and fulsome survey of the law.    The procedural and legal issues involved with the assessment of ID evidence often fluctuates in subtle ways as the law in this area evolves.

It is important to seek legal advice on what the Crown is permitted to enter into evidence and what must be opposed.  Such strategic  decisions may be critical to the outcome of your case.

Call J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960 or 1-888-695-2211 or via email at jpatel@defence-law.com

 

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Planning and Deliberation for First Degree Murder and the Use of Bad Character Evidence in a Criminal Trial. Regina v. Robinson, 2017 ONCA 645

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Planning and deliberation are critical elements of an offence of First Degree Murder. Post offense conduct can be used as a yard stick to either support or negative an inference of planning and deliberation.  This was considered in  Regina v. Robinson, 2017 ONCA 645 . The Ontario Court of Appeal described the facts of that case in the following terms.

  The Facts  

Mr. Robison, the appellant, and Amy Gilbert lived together in an apartment in Woodstock, Ontario.  Both were alcoholics and suffered from significant mental illness.  They loved each other, but their relationship was a turbulent one.  They often argued and the appellant had abused Ms. Gilbert, including an assault that led to his conviction in 2007.

 

Mr. Robinson, the appellant, and Ms. Gilbert drank together almost every day.  On September 27, 2008, the appellant arrived home from work around 5:00 p.m.  Following their usual practice, the appellant and Ms. Gilbert started drinking beer.

 

The deceased, Mr. Clifford Fair, showed up unexpectedly at the apartment around 9:00 p.m.  He was a casual friend of Ms. Gilbert and he knew the appellant.  The appellant believed that Mr. Fair and Ms. Gilbert had a sexual relationship before he and Ms. Gilbert became a couple.  Mr. Fair, who appeared to have been drinking when he arrived, was also an alcoholic.  The three drank beer together for an hour or two.  According to the appellant, he had consumed six beers before Mr. Fair arrived, and had another six with Mr. Fair.  The appellant was also taking anti-depressant medication.  Mr. Fair had five or six beers after he arrived. At first, everyone got along.  However, as the evening wore on, the tone changed.  The appellant became concerned that Mr. Fair was drinking a great deal of the beer that he and Ms. Gilbert had intended would last the evening.  Mr. Fair began making demeaning comments about the appellant’s size and his job.  The appellant also sensed that Ms. Gilbert was becoming angry with Mr. Fair.  He apparently owed her some money.  Ms. Gilbert recalled asking Mr. Fair about a $20 debt, but denied that she was ever angry with him.  Mr. Robinson testified that he eventually decided Mr. Fair should leave.  He worried that Ms. Gilbert would start a fight with Mr. Fair over the debt and that both would become violent.  The appellant suggested to Mr. Fair that he should leave so that the appellant and Ms. Gilbert could be alone together.  He also told Mr. Fair that he wanted to go to bed as he had to go to work the next day.

 

Finally, the appellant told Mr. Fair that he must leave the apartment when he finished the beer he was drinking.  Mr. Fair, who was much bigger than the appellant, dismissed the appellant’s comments, indicating they were having a party.

 

Ms. Gilbert recalled conversations about the jobs of the appellant and Mr. Fair.  On her recollection, everyone was laughing and enjoying themselves, although the appellant was acting a little jealously.  Ms. Gilbert recalled that the appellant got up and left the room.  She thought he was going to the washroom.

 

The appellant testified that he decided he had to do something to get Mr. Fair out of the apartment.  He went to the furnace room looking for something he could use as a weapon to confront Mr. Fair with and force him to leave.  As the appellant put it, he was looking for something to help him “shoo” Mr. Fair from the apartment.  The appellant did not think Mr. Fair would go voluntarily and he knew that he would not do well in a physical confrontation with Mr. Fair.  He had seen Mr. Fair fight on a previous occasion.

 

The appellant found a hollow aluminum pipe, about 16 inches long, in the furnace room.  He wrapped a towel around one end of the pipe and secured the towel with duct tape.

 

As the appellant was looking for the duct tape to put around the towel, he noticed Mr. Fair’s partially opened backpack on the floor.  The appellant looked into the backpack and saw his camera and other property belonging to him.  The appellant quickly concluded that Mr. Fair had stolen the items and might be planning to steal more items from the appellant if the appellant became very drunk and passed out.  After the appellant saw the stolen items, he described himself as “quite a bit agitated … I was pissed off, I felt like victimized”.

 

The appellant testified that he went back into the living room armed with the aluminum pipe.  He approached Mr. Fair from behind and yelled at him.  As Mr. Fair turned around, the appellant struck him on the head with the padded end of the aluminum pipe.  According to Ms. Gilbert, the appellant walked up behind Mr. Fair, smiled at her and swung the pipe with both hands like a baseball bat, striking Mr. Fair on the head.  The appellant insisted he used only about 50 per cent of his force when he swung the pipe.

 

The appellant testified that Mr. Fair started to get up after the first blow landed and made a threatening remark to him.  The appellant swung the pipe a second time, striking Mr. Fair in the head and shoulder area, again with the padded end.  Ms. Gilbert testified that Mr. Fair started to get up after the first blow, but was immediately felled by the second.  She did not hear Mr. Fair say anything.

 

According to the appellant, Mr. Fair continued to move toward him after the second blow.  The appellant pushed Mr. Fair, who fell backward into the wall, possibly striking his head.  He then fell face first onto the floor.  Mr. Fair was unconscious and bleeding profusely from his nose and mouth.  He died within moments.

Post-Offence Conduct 

The post-offense conduct of Mr. Robsinon was considered as a relevant factor in this case.  He became very upset; checked the pulse of the deceased; stated that he had not meant to hurt him; and expressed his disbelief he could be dead. His partner, Ms. Gilbert, assisted Mr. Robinson to burying Mr. Fair’s body in his backyard. Mr. Robinson later dug up and re-buried the body on two occasions, the second time after dismembering it. The Crown expert witnesses in this case were unable to identify the medical cause of death.  They testified that there were no fatal brain injuries or skull fractures. The Crown poisted the theory there was planning and deliberation that occurred during the time the accused took to retrieve and assemble his weapon. This was rejected by the Court of Appeal.

 

The Court held that a reasonable jury could conclude the accused intended to make a pre-emptive, disabling attack, and could infer the accused intended to cause bodily harm he knew was likely to result in death and was reckless as to whether death ensued. This was sufficient to convict the accused of second degree murder.  However, this was insufficient to meet the legal burden for First Degree Murder. The Court of Appeal held that a reasonable jury could not find that Mr. Robinson had planned and deliberated upon the murder for Mr. Fair. This is because the accused’s panicked conduct immediately after striking the deceased, attested to by both the accused and his partner.  His conduct belied any inference that he had planned an attack on Mr. Fair knowing that he would probably kill Mr. Fair and that he deliberated upon his plan before executing the attack. What is more, there was no other evidence capable of supporting a finding of planning and deliberation.  The medical evidence and the timeframe of the retrieval of the weapon did not support planning and deliberation. The court entered an acquittal on first degree murder.

 

With respect to the issue of second degree murder, the Court of Appeal held that the trial judge erred in instructing the jury on the issue of Mr. Robinson’s  post-offence conduct.   The Trial Judge made the following comments in his/her isntructions:

Other evidence of post-offence conduct is the burial, the dismemberment.  You may use that evidence, together with the other evidence of the letters, to help you decide if Mr. Robinson is guilty of culpable homicide, and I’ll tell you what that is shortly…  [Emphasis added.]

  The trial judge went on to explain the inferences necessary before after-the-fact conduct could be used as evidence of guilt:

If you conclude that he actually did say what he has alleged to have said, or did do what he is alleged to have done after the offence was committed, you go on to consider the next question, whether this was because Mr. Robinson was conscious, was culpable of having committed the offence of culpable homicide, or for some other reason.  Alright, so two steps, did he actually do it, did he say it and then the second step is did he do it or say it because it’s evidence of culpability?

  The trial judge’s only reference to the definition of “culpable homicide” appears in her instructions on manslaughter.  She told the jury:

“Manslaughter is defined as culpable homicide that’s not murder.  In other words, when someone kills another person unintentionally, without the intent.  To determine John Robinson’s state of mind, what he meant to do, you should consider all of the evidence, what he did or did not do, how he did or did not do it, what he said or did not say.  You look at Mr. Robinson’s words and conduct before, at the time, and after the unlawful act that caused Mr. Fair’s death.  All of these things, and the circumstances in which they happened, may shed light on Mr. Robinson’s state of mind.  They may help you decide what he meant or didn’t mean to do.  [Emphasis added.]”

 

In this case, the conduct was only relevant to the issue of whether the accused unlawfully killed the deceased.  This means that it could not assist the jury in deciding whether the accused had the mens rea for manslaughter or murder.

While there are subtle differences in the law between the first and second degree murder are not complex, proper legal advice ought to be sought at the onset of these charges to permit an professional review the details and the facts of each case to determine how they square with the prevailing law at the time.  The procedural and legal issues involved with the assessment of evidence, such as bad character and post-offensive conduct, are complete and often fluctuates in subtle ways as the law in this area evolves. It is important to seek legal advice on what the Crown is permitted to enter into evidence and what must be opposed.

Call J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960 or 1-888-695-2211 or via email at jpatel@defence-law.com

Criminal Defence Lawyers Calgary and Toronto

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Is there a reasonable expectation of privacy, under the Charter, for hydro and electricity Records under s. 8? If so, should that evidence be excluded due to a breach of those rights?

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August 19, 2017

In Regina v. Orlandis-Habsburgo, 2017 ONCA 649, the Ontario Court of Appeal stated there is but given the applicable law at the time of the indexed offence, the police could not be criticized for their conduct and the evidence was admitted in either event despite the breach of the defendants’ Charter Rights by J.S. Patel, Barrister:  403-585-1960 or 1-888-695-2211

Two (2) accused persons in this case rented a home in a residential area in Hamilton, Ontario where they operated a commercial-sized marihuana grow-op in the basement.   Their energy provider was Horizon Utilities Corp their energy provider. It was a Government Corporation, and the Canadian Charter of Rights and Freedoms (the “Charter”) applied to its conduct.  That company had observed an irregular pattern of electricity use in the indexed residence that lead to the possible inference that the residence was being used as for to facilitate a marihuana grow-op. The energy company forwarded information pertaining to the electricity use in the residence to the police.  Based on the information received, the police began an investigation that included observations of the residence.  What is more, the police requested and obtained additional information from the energy provider about the ongoing electricity use at the residence; and electricity use by comparator customers.  Eventually, the police applied for a search warrant for the residence.  Among other things, the police relied on the energy consumption information provided to them by the energy company; and a Justice of the Peace in Ontario issued the warrant.  Sometime later, the police executed the warrant and found many marihuana plants and packaged marihuana in the basement of the residence.  The results of the search warrant led to the accused being charged with production of, and possession for the purposes of trafficking in, marihuana and possession of the proceeds of crime.

Various positions were cogently advocated by the trial under the Canadian Charter of Rights and Freedoms by the criminal defence lawyers.  They argued that the police in Ontario violated the accused’s persons rights under s. 8 of the Charter when they acquired energy consumption data from the energy provider without either their consent or prior judicial authorization, and used that information to further a criminal investigation that eventually led to the seizure of the marihuana.  The criminal defence lawyers further asserted that without the information from the energy provider there would have been no criminal investigation, no application for a search warrant and no seizure.  On this analysis, the police use of the accused’s energy consumption records to further their investigation constituted a breach of s. 8 of the Charter, which was sufficiently connected to the discovery of the marihuana to warrant the exclusion of the marihuana under s. 24(2) of the Charter from the trial proper.  Without the marihuana, in evidence at trial, the Crown’s case would fall.  Accordingly, this determination was critical to the strategy of the defence.

Defence counsel argued alternatively, that without the information unlawfully obtained by the police from the energy provider, the affidavit relied on by the police to obtain the search warrant did not contain sufficient grounds to justify the issuing of the warrant.  As such, it was posited that the critical search should be treated as a warrantless search; and presumptively unconstitutional under the common law (Regina v. Collins; and Hunter v. Southam).  The defence further argued that a warrantless search of the residence constituted a serious breach of s. 8, warranting exclusion under s. 24(2) of the marihuana seized during the search.

Apart from the s. 8 challenge based on energy provider’s sharing of the data with the police, the defence also challenged the constitutionality of various federal and provincial “privacy” laws and regulations governing Horizon.  The defence argued that these provisions contravened s. 8 of the Charter and were of no force and effect.  To the extent that the energy provider, a government actor, relied on these provisions in providing the energy consumption records to the police, Horizon’s conduct was unlawful and constituted a breach of s. 8, warranting the exclusion of the marihuana from evidence under s. 24(2).

The Ontario Court of Appeal resolved these issues in the follow manner.  The Court (regrettably) declined to decide the issue of whether it would violate s.8 of the Charter, if the hydro company had unilaterally volunteered the usage information to the police. The company and the police had jointly and informally targeted marijuana grow operations for some time; on the facts of this case, the police involvement began at the moment an employee of the hydro company noticed the suspicious usage pattern. The Court stated at paragraphs 34 to 36:

[34]      I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative.  On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity.  Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights?  As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.

[35]      I need not decide whether the appellants’ s. 8 rights would be implicated if Horizon, acting on its own initiative, volunteered the energy consumption data to the police.  The evidence establishes that the police and Horizon were acting together.  They had a mutual interest in finding marihuana grow operations.   Those operations were not only criminal, but also posed a significant fire hazard and a threat to Horizon’s legitimate interests.  Personnel at Horizon and the police developed an informal arrangement whereby Horizon would share energy consumption records with the police on an ongoing basis.  Horizon or the police might initiate the request to share the information if either had reason to believe that a customer of Horizon was operating a marihuana grow-op at a particular location.  Often when Horizon provided the initial information, the police would request additional data.  Horizon always complied.

[36]      Given the arrangement between Horizon and the police, the s. 8 analysis in this case should not depend on whether it was Horizon or the police who initiated the contact that led to the police obtaining the appellants’ energy consumption data from Horizon.  I think it is a fair reflection of the relationship between Horizon and the police to treat the police investigation in this case as beginning when Mr. Franco observed the suspicious pattern of energy consumption at the appellants’ residence and forwarded the data to the police.

In the Ontario Court of Appeal’s view, the usage of the hydro information was not highly personal or revealing of the accuseds’ biographical core of information. However, it did aver that the two accused possessed a subjective and objectively reasonable expectation of privacy. The documents governing the relationship between the hydro company and its subscribers could not amount to a waiver of privacy interests under s.8, and in fact promised to maintain the privacy of subscribers’ personal information. The governing privacy legislation created no police powers of search or seizure.  Based on the foregoing the Court found that the warrantless search was unreasonable and breached s.8.

However, at paragraph 137 of the judgement, the Court of Appeal still admitted the evidence under Section s.24(2) upon conducting the requisite analysis under the common-law. Other than the warrantless search and seizure, there was nothing to criticize about the police conduct. The police acted on the state of the law as it then was and it was hard to levy such criticism against the police when they were acting on the relevant law at that time (i.e. Regina v. Gomboc, 2010 SCC 55 (CanLII), [2010] 3 S.C.R. 211). The impact on the accuseds’ Charter-protected interests was low as stated at paragraph 134 of the case where the court stated the following in relevant part

[134]   Second, the search must be regarded as warrantless because of the infringement of the appellants’ s. 8 rights occasioned by the police examination and use of the energy consumption data.  While the appellants had a reasonable expectation of privacy in that data, the data and the inferences available from it cannot be said to include core biographical information, or information that reveals intimate and personal details of a person’s lifestyle.  The information was capable of revealing one detail – the appellants were involved at a commercial level in the growing and sale of marihuana.  Further, for the reasons outlined above, the appellants’ reasonable expectation of privacy in the data was significantly attenuated.  I do not regard the police examination and use of the data as significantly undermining the values protected by s. 8 of the Charter.

In my view, several issues require canvasing in future cases.  One issue is whether the continuous use of this concerted energy provider/policing method would be held (and more heavily criticized by the Court) as valid and acceptable given the current state of the law within the scope of the s. 24(2) exclusionary remedy to determine whether the unlawfully seized ought to be excluded or included in the trial.

The issues involved in constitutional and Charter applications for the exclusion of unlawful or unreasonably obtained evidence are complicated.  An experienced lawyer ought to be consulted in making such an application.   Contact our offices 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. It is not meant to be used as fulsome account of area of law discussed.  It is your responsibility to obtained a full legal opinion concerning your matter.

 

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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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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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The Supreme Court of Canada clarifies and confirms the “Ladder Approach” to release on bail pending a trial.

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Bail Hearings and the Reinforcement of the “Ladder Approach” and the “ability to pay”: by J.S. Patel, Criminal Lawyer – Bail Hearings: 403-585-1960 The Supreme Court of Canada recently address the constitutional of Section 512(2)(e) of the Criminal Code of Canada in the context of Judicial Interim Release (bail hearings) in Regina v. Antic 2017 SCC 27/. Parenthetically, he was not represented by a Criminal Defence lawyer at his appeal before the Supreme Court. Mr. Antic lost this appeal.  The critical issue before the appeal was whether Section 512(2)(e) permits a justice of the peace or a judge, without the submissions of a criminal defence lawyer, to require  require both a cash deposit and surety supervision only if the accused is from out of the province or does not ordinarily reside within 200 km of the place in which he or she is in custody.   Mr. Antic was an Ontario resident that ordinarily resided outside of the two-hundred (200) geographic limiter relative to the place of the indexed offence.  On an application by a criminal defence lawyer  in the Ontario Superior Court of Justice for a bail review, the presiding Justice found that since the geographical limitation in s. 515(2) (e) prevented the Superior Court from granting bail on the terms that it deemed appropriate, the provision violated the right not to be denied reasonable bail without just cause under s. 11 (e) of the Charter . Accordingly, the Court severed and struck down the geographical limitation in s. 515(2) (e) and ordered A’s release with a surety and a cash deposit of $100,000. The Public Prosecution Service of Canada (the “Crown”) sought to appeal the decision from the Superior Court to the Court of Appeal; and then ultimately to the Supreme Court of Canada.  The Supreme Court of Canada held that the provision was not unconstitutional, as found by the Superior Court of Justice in Ontario, and allowed the Crown appeal and reversed the declaration of unconstitutionality.  The real importance of this decision sits with the SCC’s reinforcement of the proper bail principles and the manner in that they were currently being inconsistently applied through out the domain of Canada.  The SCC went through all of the applicable bail principles that may be “traced back to English antiquity”, to assist the Courts, Criminal Bail Lawyer, and Crown prosecutors with succinct bail principles under the well know “Ladder Approach” – it is codified under Section 515(2) of the Criminal Code of Canada: [46]                          Aside from the release of an accused under s. 515(1) on his or her giving an undertaking without conditions, s. 515(2) sets out the other permissible forms of pre-trial release: (2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released (a) on his giving an undertaking with such conditions as the justice directs; (b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or (e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs. As stated by the Court, each provision, moving from s. 515(2)(a) to s. 515(2)(e), involves more burdensome conditions of release for the accused than the one before it. These forms of release, coupled with the specific release terms a justice or a judge may impose under s. 515(4) , have significant potential to impinge on an accused person’s liberty. The theoretical underpinnings of s. 515(2) of the Code avers that the Section 11(e) Charter right not to be denied reasonable bail without just cause is an integral part of an enlightened justice system; it fortifies the concept central to the presumption of innocence especially at the pre-trial stage shortly after the panic stricken stage of an arrest by the Toronto or Calgary Police Services.   The right is bifurcated in two (2) prongs:  (i) anyone charged with an offence, bears the right not to be denied bail without just cause (as stated above); and (ii) NOT to be denied reasonable bail. Under the first prong, “circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system”.   While under the second prong of the right, “…the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.” The SCC stated the strongly emphasized the following in regards to the second prong of the right to reasonable bail: “While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in s. 515(1)  to (3) of the Criminal Code . Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under s. 515(4)  should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person’s behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.” In Mr. Antic’s criminal bail appeal, the Court found that  s. 515(2) (e) of the Criminal Code  did not have the effect of denying him bail but rather it was the Superior Court bail review judge’s application of the bail provisions that did so. The Superior Court  judge committed two (2) errors in delineating the release order: (i) First, by requiring a cash deposit with a surety, one of the most onerous forms of release, he failed to adhere to the ladder principle. Even though Mr. Antic had offered a surety with a monetary pledge, the bail review judge was fixated on and insisted on a cash deposit because he believed the erroneous assumption that cash is more coercive than a pledge; and (ii) Second, the bail review judge erred in making his decision on the basis of speculation as to whether Mr. Antic might believe that forfeiture proceedings would not be taken against his elderly grandmother if he breached his bail terms. A judge cannot impose a more onerous form of release solely because he or she speculates that the accused will not believe in the enforceability of a surety or a pledge. Parliament expressly authorized the possibility of an accused being released on entering into a recognizance with sureties in the place of cash bail, and judges should not undermine the bail scheme by speculating, contrary to any evidence and to Parliament’s intent, that requiring cash will be more effective.  As a result the Court found at para 49 as follows, in relevant part: [49]                          Therefore, where a monetary condition of release is necessary and a satisfactory personal recognizance or recognizance with sureties can be obtained, a justice or a judge cannot impose cash bail. A pledge and a deposit perform the same function: the accused or the surety may lose his or her money if the accused person breaches the terms of bail. Release with a pledge of money thus has the same coercive power as release with a cash deposit. 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