Co-principal liability was recently explained by the Court of Appeal in Regina v. Abdulle, 2020 ONCA 106 (CanLII). In circumstances involving co-principals, as is the case here, the liability of parties to an offence is addressed by s. 21 of the Code. In Regina v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, Justice Watt explained that co-principals are liable where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: at para. 181. This was also explained in Reginav. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63. In order to be liable as principals, therefore, the parties must have had the requisite intention. Within the scope of the requisite mens rea required for second-degree murder is outlined in s. 229 of the Criminal Code, which states that culpable homicide is murder where the person who causes the death of a human being either means to cause their death, or means to cause them bodily harm that they know is likely to cause their death and is reckless whether or not death ensues.
In Regina v. Abdulle, 2020 ONCA 106, the Ontario Court of Appeal upheld the appellants’ convictions for second-degree murder. The convictions arose from an altercation that occurred in the parking lot of the apartment building where the deceased lived. The deceased was stabbed multiple times, beaten, kicked, and stomped on by a group of young people. He was without vital signs when paramedics arrived, and he was pronounced dead at the hospital. The three appellants – Abdulle, Jama and Egal – and a fourth accused, Bryan, were charged with second-degree murder. The Crown alleged that the accused were co-principals in an attack on the deceased, that one or more of them inflicted the fatal stab wounds, and that all had the necessary intent for murder under s.229(a) of the Criminal Code. The jury convicted the appellants and acquitted Bryan. The appellants were sentenced to life imprisonment with no parole eligibility for 12 years. The Court of Appeal made the following findings that: (a)t he trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder; (b) the trial judge did not err by improperly restricting Abdulle’s evidence; (c)The trial judge did not err by failing to give the jury an Oliver instruction [Regina v. Oliver, [2005] CanLII 3582, [2005] O.J. No. 596 (C.A.), at paras. 50-60] regarding Bryan’s evidence, warning that they should consider his testimony with particular care and caution; (d) the trial judge made no error in allowing counsel for Bryan to cross-examine a witness (Jama’s mother) on her police statement that Egal had a knife, and in failing to grant a mistrial; (e) the trial judge did not err by improperly instructing the jury concerning a witness’s prior inconsistent statement; and (f) the verdict was not unreasonable in relation to Jama.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.
The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)). The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment.
The appealed raised a number of grounds. It was allowed. A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9). However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias. The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed.
The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27:
[27] The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about:
(a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
(b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
If you have been charged with a criminal offence and require a consultation, call Mr. J.S. Patel at 403-585-1960.
Supreme Court of Canada strikes down Victim Fine Surcharges.
Upon the imposition of penalty, the Criminal Code of Canada (R.S.C.., 1985, c. C-46)once imposed a victim find surcharges upon the entry of a conviction and/or penalty pursuant to section s. 737. The amount is set by law and is owed for each and every summary conviction or indictable offence. The surcharge is intended to fund government programs designed to assist victims of crime. The surcharge applies regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim. That section said:
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is
(a) 30 per cent of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
That section was struck down by the Supreme Court of Canada in Regina v. Boudreault, 2018 SCC 58 (CanLII), wherein the majority of that Court struck down the mandatory victim surcharge. A Supreme Court hard a number of appeals together considering the same issue. The section is now of no force or effect. The majority held the victim surcharge was a form of “punishment,” and therefore subject to the Charter right against cruel and unusual punishment pursuant to Section 12 of the Charter. Some of the offenders before the Court lived in dire straights (i.e. serious poverty, deliberating addiction issues, deplorable housing, and physical issues). Some of these offenders were recidivists, who regularly appeared before the courts, and got fined. What is more, the consequences of failing to pay to fee could (but not necessarily) result in being taken into custody (at her Majesty’s Institutions), among other things (i.e. collection agency actions). A fit sentence for the appellants would not include such a fine, and the overall operation and effects of the mandatory fine were grossly disproportionate.
The court continued by positing that the ongoing enforcement of victim surcharges that were imposed before the date of its judgment would violate s.12 of the Charter at each step. This could arise, where the offender is arrested or brought to court for a financial update. The Court stated:
The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the circumstances of this case, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. Sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they are not.
However, the court left open the issue of remedy for persons in this situation, but suggested that remedies are available under s.24(1) of the Charter, and that Parliament could act administratively to create a remedy.
There were two (2) dissenting Justice. Justice Côté, writing in dissent for herself, and Justice Rowe,would have held that:
[114] I respectfully disagree. While I accept that the mandatory imposition of the victim surcharge may have a particularly negative impact on impecunious offenders, I cannot accept that it amounts to treatment or punishment that is truly “cruel and unusual”, as that phrase has been interpreted in this Court’s jurisprudence. Moreover, I am of the view that the impugned provision does not deprive impecunious offenders of their security of the person, and that any deprivation of liberty that may result from the application of s. 737 of the Criminal Code accords with the principles of fundamental justice. For these reasons, I discern no violation of either ss. 12 or 7 of the Charter, and I would dismiss the appeals accordingly.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Criminal Lawyer in Toronto and Calgary at 403-585-1960.
The use of a driver’s statement in a jury trial for impaired driving charges.
The application of the rules regarding the assessment of an accused person’s statement as raised in R. v. W.(D.),1991 CanLII 93 (SCC)was considered in Regina v. Bacci, 2018 ONCA 928, where the Court of Appeal in Ontario quashed the accused’s conviction for impaired operation causing bodily harm, two counts of driving over 80 causing bodily harm contrary to s.255(2.1) of the Criminal Code, and two counts of dangerous driving causing bodily harm contrary to s.249(3) of the Criminal Code. This was due to an error errors in the trial judge’s W.(D.) instruction in his recharge to the jury.
The facts of the case were simply as follows. The accused and her four passengers were returning to the accused’s family cottage when their car flipped over after the accused failed to negotiate a curve. All four passengers testified at trial. The accused told the police “I don’t know what happened. The car just lost control.” The Crown expert witness admitted that there was a probability, albeit low, that the accident could have been caused by a mechanical failure.
Central to the success of the appeal hinged on the W.(D.) instruction relating to the accused’s statement. Again, the purpose of this instruction was famously described by the Supreme Court of Canada in the following clear terms:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
The original charge to the jury was:
I want to mention one particular piece of evidence you heard because it is deserving of special treatment according to the law.
[1] You heard from Alexandra Jones that she heard Megan Bacci state at the accident scene, “I do not know what happened. My car just lost control.” If you believe that this what was reported by Alexandra Jones was in fact said by Megan Bacci and if you accept Megan Bacci’s explanation that her vehicle just lost control and you find this lose [sic] of control was caused entirely by mechanical failure, you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration of over 80 causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser included offences in counts 1 through 4. Even if you do not accept that Megan Bacci said what was reported by Alexandra Jones or accept Megan Bacci’s explanation for what happened or accept the lose [sic] of control was caused entirely by mechanical failure, if it leaves you with a reasonable doubt about whether Megan Bacci caused the accident and the accompanying bodily harm, you must find her not guilty of those offences because the Crown would have failed to prove an essential element, that is causation of those offences beyond a reasonable doubt. You may still, however, find her guilty of the lesser and included offences in counts 1 through 4.
[2] Even if the evidence does not 1eave you with a reasonable doubt about whether Megan Bacci caused the accident, you may convict Megan Bacci only if the rest of the evidence that you do accept proves her guilt on that essential element of causation beyond a reasonable doubt.
The recharge to the jury was:
The one last area I want to mention the one particular piece of evidence you heard because it deserves special treatment and that’s what Megan Bacci said that what Alexandra Jones stated that she heard that is, “I do not know what happened, my car just lost control.”
I want to repeat this to you. If you believe that what was reported by Alexandra Jones was in fact said by Megan Bacci, and if you accept Megan Bacci’s explanation given to Alexandra Jones that her vehicle just lost control, and you find that this lost [sic] of control that is referred to was not caused by her in any way then you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration over 80 thereby causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser and included offences of 1through 4.
So “I do not know what happened, my car just lost control”, that is from Alexandra Jones about what Megan Bacci said. So one, you have to consider whether you believe that what Alexandra Jones said was in fact said by Megan Bacci. You have to accept that that’s Megan Bacci’s explanation that the vehicle just lost control, you have to accept that explanation by her and you have to find that this loss of control that’s alluded to, that’s referred was not caused by her any way, the lost [sic] of control of the vehicle was not caused by her in any way.
If you find those three things then you must find her not guilty on counts 1through 6. You still may find her guilty of the lesser and included counts, charges in counts 1 through 4.
I hope that’s cleared it up. If not, I’m sure you will have a question but you’re free to go now.
The Court of Appeal held that the original charge to the jury did not contain any errors concerning the interpretation of the above noted statement. As such it did not cause the jury to give extra scrutiny to the defence evidence and it inured to the benefit of the accused. What is more, the trial judge did not err in his original charge when he instructed the jury that the accused must be acquitted if they found that the loss of control was “entirelycaused by mechanical failure,” as it was evident that this was not the only basis for acquittal (emphasis added). This is because the second and third arms/prongs of the W.(D.) instruction made it clear that an acquittal was possible via other paths. Thus, when the entirely instruction is reviewed in as a whole, the jury charge adequately conveyed to the jury that they were not engaged in a credibility contest.
In the recharge, the trial judge similarly did not err by providing an exculpatory interpretation to the statement. However, the trial judge failed to contextualize the recharge and identify that he was correcting a previous error. In addition, the trial judge also said nothing about the second and third branch of W.(D.)in the recharge. That served to only served to confuse the jury. Due to the foregoing, this constituted a non-direction amounting to misdirection with respect to a crucial aspect of the defence. The Court stated: “In these circumstances the jury is entitled to instructions which were clear, correct and comprehensive,as S.(W.D.) mandates. Unfortunately, the last word that the jury heard was an incorrect and incomplete instruction on critical issues.”
The defence appeal was allowed, the conviction was overturned, and a new trial was ordered.
If you have been charged with impaired driving causing bodily harm and/or a similar criminal driving related offence, contact Mr. J. S. Patel, Barrister for an initial consultation at 403-585-1960.
Dangerous Driving under the Criminal Code of Canada
In Regina v. Raj, 2018 ONCA 623 (CanLII) the Ontario Court of Appeal dealt with the conviction appeal for an accused person involving a commercial dump-truck operator. It was a case Dangerous Driving involving alcohol and the use of a Commercial Vehicle. The facts underpinning the appeal involved a proven allegation that the accused had driven the raised box of his dump truck into an over-pass. The accused was/is a professional truck driver. On July 31, 2014, he was driving a commercial dump truck on the Queen Elizabeth Highway (“QEW”). There was a trailer attached to the truck whose box could be raised and lowered using a system of buttons and levers in the truck called the Power Take-off (“PTO”) system. That day, the appellant had left the PTO lever in the ‘On’ position. Under certain circumstances, leaving the PTO engaged permitted the trailer to rise.
The accident scene was chaotic and dangerous, and the police placed the accused in a police car for 2.5 hours for his own safety. The following arguments were raised by the accused’s criminal appeal lawyers: First, it was posited that the trial judge erred by concluding that the appellant’s confinement in the police cruiser for 2.5 hours was not an arbitrary detention contrary to s. 9 of the CanadianCharter of Rights and Freedoms. Second, if that argument was successful, then it was argued that result would be that the police breached both his s. 9 and s. 10 Charter rights. This, it was argued, would call for a reappraisal of the trial judge’s s. 24(2) analysis and lead to a different result – the exclusion of the evidence relating to the smell of alcohol on the appellant’s breath. The Court disagreed. It said that the principal, and continuing, purpose of the appellant’s detention was his own safety. His truck had caused a terrible accident with extensive damage to vehicles and a bridge and injuries to several people. The police noticed the appellant walking around a dangerous accident scene and sitting on a guardrail very close to a damaged and collapsing girder. Importantly, his truck was crushed.
The Ontario Court of Appeal also upheld the decision of the trial judge admitting evidence of a smell of alcohol on the accused’s breath even though the police did not provide access to counsel during the detention, breaching s.10(b) of the Charter. The police conduct was only a mistake and not deliberate misconduct, and the police would have smelled the alcohol even if they had acted properly.
What is more, the Court of Appeal upheld the trial judge’s finding that the accused’s conduct was a marked departure from a reasonable person’s driving. This was mostly due, in large part on the accused’s alcohol consumption, and his failure over forty (40) seconds to notice that the box of his dump truck had raised. The court said that prior to colliding with the bridge superstructure the appellant drove a one (1) kilometer distance for forty (40) seconds without detecting the rising dump box despite its effect on the truck’s handling and despite it being clearly visible from all of the truck’s mirrors.Given all the factors, the Court of Appeal dismissed the possibility of the that period of time constituting an “momentary inadvertence.”
Informer Privilege, Innocence at Stake, Police Obligations
Pre-trial disclosure applications to secure information from confidential informants has been heavily considered by the Supreme Court of Canada in previous cases (i.e. Regina v. Barros, 2011 SCC 51). This case, however, involves an academically interesting question of criminal law. It was eloquently framed in the following manner by the Supreme Court of Canada today in the Reginav. Brassington, 2018 SCC 37, decision that was released by the Court:
When police officers are charged with crimes relating to their conduct during an investigation, can they, at their own discretion, disclose to their defence lawyers information they learned during that investigation that might reveal the identity of a confidential informer?
In very general terms, the the police informer privilege is the common law rule of evidence to the effect that a Crown witness suspected of being, or known to be, a police informer cannot be questioned as to whether or not he is one. Nor can another witness be asked questions which would disclose the identity of a police informer : A.-G. v. Briant(1846), 15 M.&W. 169, 153 E.R. 808, 15 L.J. Ex. 265, cited in Reginav. Blain (1960), 33 C.R. 217 at 219, 127 C.C.C. 267 (Sask.C.A.), also cited in Solicitor-General of Canadav. Royal Commission Re Health Records(1981), 62 C.C.C. (2d) 193 at 219, 23 C.R.(3d) 338 (S.C.C.).
In this case, four (4) police officers were charged with crimes relating to alleged misconduct during a police investigation. This criminal matter arose from the “Surrey Six” investigation, a complex RCMP investigation into a gang-related homicide. According to the Crown, about eighty (80) confidential informers were involved in the investigation.
Prior to their trial, those police officer-defendants applied for a declaration that they could discuss information they learned during the investigation with their defence counsel that might reveal the identity of confidential informers. The assigned case management judge granted the application, declaring that the officers could discuss any information in their possession with counsel. The Crown and the RCMP then brought proceedings to determine whether the communications authorized under the declaratory order constituted “disclosures” within the meaning of s. 37 of the Canada Evidence Act . Pursuant to s. 37(1) of the Act, the Crown may object to disclosures on public interest grounds. Section 37.1 of the Act provides a special right of appeal from a determination of an objection. Sections 37 and 37.1 apply to criminal proceedings and other matters over which Parliament has jurisdiction. The case management judge found that she had jurisdiction to hear the Crown’s objection but dismissed it. The Court of Appeal dismissed an appeal from the rejection of the s. 37 objection. It characterized the order allowing disclosure as civil rather than criminal in nature, held that an appeal under s. 37.1 was unavailable and held that the Crown could not object to the declaratory order under s. 37 . The case management judge’s declaratory order and the Court of Appeal’s decision were appealed to the Court.
The Supreme Court of Canada granted the Crown and order that the declaratory order should be set aside. An order should be granted pursuant to s. 37(6) of the Canada Evidence Act prohibiting the officers from disclosing informer‑privileged information to their counsel, subject to a successful innocence at stake application. The SCC ruled that the case management judge had jurisdiction to hear the Crown’s objection to the declaratory order under s. 37 of the Canada Evidence Act and an appeal to the Court of Appeal under s. 37.1 was therefore proper. The declaratory order was criminal in nature and therefore within Parliament’s constitutional authority. In determining whether an order is civil or criminal in nature, what is relevant is not the formal title or styling of the order, but its substance and purpose. Here, the order related to the accused’s claim that declaratory relief was necessary to help them make full answer and defence in ongoing criminal proceedings, and it was issued by a criminal case management judge in connection with the rights of the parties in a pending criminal proceeding, regarding what might be done by the accused in conducting their defence. The fact that it was declaratory does not change its essential character.
Furthermore, s. 37 was the proper route for challenging the order, as it authorized a form of disclosure to which the Crown was entitled to object on public interest grounds. The interconnected purposes of ss. 37 and 37.1 are to give the Crown the ability to object to disclosures on public interest grounds, and to grant an interlocutory right of appeal where it is unsuccessful. They provide a valuable tool for the Crown to protect against disclosure of confidential and privileged information, and reflect the fact that the Crown’s ability to object to disclosures on public interest grounds was not meant to be restricted to those circumstances where the disclosure is compulsory and will occur in open court. Disclosures may be equally harmful to the public interest whether they are made in or outside of court, and whether they are made under compulsion or voluntarily.
The Supreme Court of Canada ruled in this case that the officers are not entitled to disclose the informer‑privileged information to their lawyers. This is because the current jurisprudence prevents piercing informer privilege unless the accused can show that his or her innocence is at stake. As such, there is no basis for departing from that rule when the accused is a police officer. Informer privilege arises in circumstances where police receive information under a promise of confidentiality. Informers are entitled to rely on that promise. What is more, the informer privilege rule is a common law rule of long standing and it is fundamentally important to the criminal justice system. Subject to the innocence at stake exception, the privilege acts as a complete bar on the disclosure of the informer’s identity, and the police, the Crown and the courts are bound to uphold it. In order to pierce informer privilege — the innocence at stake test — is, accordingly, onerous; and that privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction. In this case, the defence counsel or their the officers (defedants) in this case did not argue that any privileged information in their possession meets the innocence at stake test. Nor did they suggest any information relating to confidential informers was genuinely relevant to their defence.
Furthermore, as previously confirmed by the Supreme Court of Canada, defence counsel are outside the circle of informer privilege, that is, the group of people who are entitled to access information covered by informer privilege. In all cases where informer privilege applies, disclosure outside the circle requires a showing of innocence at stake. Limitations placed on what the police officers can say to their lawyers do not create conflicting legal and professional duties; rather, they align with the officers’ professional duties and allow their lawyers to proceed without fear of inadvertently revealing the privileged information their clients possess. The law may require officers to exercise some degree of caution with respect to what they disclose, but that expectation does not meaningfully interfere with their relationship with counsel. The primary purpose of the right to free solicitor‑client communication in a criminal proceeding is to permit the accused and counsel to discuss issues that go to full answer and defence — “solicitor‑client communication” does not have some independent, intrinsic value over and above its relationship to full answer and defence. Like any other criminal defendant, if it becomes clear that the police officers are at genuine risk of conviction, and that this information needs to be disclosed, they can bring a Regina. v.McClure, [2001] 1 S.C.R. 445 . application. The application in this case was not brought under the ordinary McClure process, nor was it adjudicated under McClureprinciples. Instead, the accused sought a pre-trial remedy of declaratory relief, relating not to the scope of privilege, but rather to who is entitled to access information that everyone agrees is within the scope. In such cases, Access to the information will be given only where an accused demonstrates “innocence at stake”,as explained later in these reasons.
Police officers are, when accused of crimes, entitled to expect that they will be treated no less fairly than others who are accused and given the full protection of the law. What they are not entitled to expect is that they will be treated better. There is no reason to advantage police officers who, by virtue of their positions of trust, have information that has been confided to them for safekeeping. It is not their information to exploit for personal juridical gain.
Mr. J.S. Patel is a criminal defence lawyer that assumes conduct of all criminal trial and appeal matters. If you have been charged with a criminal offence, please feel free to call 403-585-1960 for a free initial consultation.
Dangerous Driving Under the Criminal Code of Canada
By way of a simple and general summary of legal information, a restatement of the elements of the dangerous driving offence was provided in Regina v. Beatty, 2008 SCC 5, and Roy, 2012 SCC 26, with a significantly greater emphasis placed on the mental element of the offence and criminal blameworthiness. In Beatty, above, while confirming that the offence does not require subjective mens rea, Charron J., on behalf of the majority, provided for the application of the “modified objective test”, per Regina v. Hundal, 1993 CanLII 120 (S.C.C.), so as to ensure that punishment is imposed only upon those with “a blameworthy state of mind”. To that end, Charron J. held that the assessment of whether the accused’s conduct is a “marked departure” from the norm, is not an aspect of the actus reus, but of the mens rea. Accordingly, an evidentiary burden does not shift to the accused from the Crown’s presentation of a case of objectively dangerous driving – the actus reus. A further determination must be made whether the Crown has proven that the conduct involved a marked departure from the standard of care of a reasonable person in the circumstances that is deserving of punishment – the mens rea. Moreover, it remains open to the defence to raise a reasonable doubt that a reasonable person in the position of the accused would not have been aware of the risk posed by the manner of driving or, alternatively, would not have been able to avoid creating the danger.
In Reginav. Laverdure, 2018 ONCA 614(RD), the Ontario Court of Appeal(“OCA”) allowed the accused’s conviction appeal for dangerous driving causing death and ordered a new trial. The main reason for over-turning the conviction was due to the trial judges failure to analyze the fault component of the legal test.
In that case accused struck and killed a pedestrian who had crossed the road after attending a hockey game at a local arena in Pembroke, Ontario. At appeal, the accused argued that the trial judge made unreasonable findings of fact and that he erred in his analysis of the elements of the offence. The test for dangerous driving under the Criminal Code of Canada (the “Code”) is stated in Section 249 of the Code.; and the legal test has been considered in Reginav. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60, at para. 30; R. v. Reynolds, [2013] ONCA 433, at para. 18.
The court upheld the trial judge’s findings of fact with respect to the accused’s driving speed. Evidence from the accident reconstructionist, several witness, as well as forensic evidence supported the conclusion that he was driving “at a high rate of speed on a city street” (at para. 17). The court further upheld the finding that the circumstances as they existed on the road at the time (large groups of pedestrians crossing the road and walking along it) called for drivers to slow down and proceed cautiously.
It was open to the trial judge to find that the actus reus was established; and that he did not reason backwards from the accident (at paras. 20-22). However, while the Trial Judge correctly identified the proper test for the mens reaof the offence, the trial judge failed to identify “how and in what way” the accused’s driving went beyond negligence or carelessness to a marked departure from the standard of care that a reasonable person would show in the same position. This was not a case where the manner of driving was so egregious as to satisfy the fault element without any additional analysis of the evidence. At paragraph 25, the Court of Appeal stated:
Rather, the trial judge appears to have concluded that the act of driving dangerously necessarily constituted what he referred to as a “marked departure from what a reasonable person would expect in the circumstances”. He did not identify the “how and in what way” the appellant’s driving went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position.
If you have been charged with a Criminal Code Offence under Section 249 (i.e. Dangerous Operation of the Motor Vehicle), call Mr. J.S. Patel, Criminal Lawyer, for a free consultation.
Assault Assault Trials, Criminal Defence Lawyers for Sexual Assault Charges.
Evidence of sexual activity between a complainant and another person may be admitted if it is not tendered for a purpose prohibited by s.276(1) of the Criminal Code and it satisfies the admissibility test under s.276(2).The basic principles governing the application of s.276 were reviewed in Regina v. T.(M.), 2012 ONCA 511, per Watt J.A., on behalf of the court (at paras. 29-43):
The Governing Principles
Section 276 of the Criminal Codecreates a statutory rule of admissibility.Enacted in negative terms, the section, like other admissibility rules, is exclusionary; it precludes the admission of certain evidence. The exclusionary effect of the rule only becomes engaged when three requirements have been met. For
discussion purposes, these requirements, which are cumulative, may be characterized as:
i.offence charged;
ii.subject-matter; and
iii. purpose.
The exclusionary rule prohibits the person charged from introducing certain evidence (subject-matter) for a specific use (purpose) in proceedings for a listed crime (offence).
The “offence” requirement is satisfied where the proceedings in which evidence is tendered relate to a listed offence.Among the listed offences are the crimes charged here: sexual assault, sexual interference, and invitation to sexual touching.
The “subject-matter” requirement, which appears in both sections 276(1) and (2), is best expressed in the language of subsection (2):
Evidence … that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person.
If the subject-matter of the proposed evidence falls outside the statutory language, the exclusionary terms of the provision do not apply.On the other hand, satisfaction of the subject-matter requirement, on its own, will not necessitate exclusion; the “purpose” requirement must also be satisfied.
The “purpose” requirement is crucial to the operation of this exclusionary rule, just as it is with the common law hearsay rule. To engage the exclusionary rule of s. 276, the proposed evidence must be offered to support either of two prohibited inferences grounded on the sexual nature of the activity:
i. that the complainant is more likely to have consented to the conduct charged; or
ii.that the complainant is less worthy of belief.
Where the purpose underlying the introduction of the evidence of extrinsic sexual activity is neither of those prohibited by s. 276(1), this exclusionary rule is not engaged.
Section 276(2) provides an exception to the exclusionary rule. To gain entry under this exception, evidence of the complainant’s extrinsic sexual activity must:
i.be of specific instances of sexual activity;
ii. be relevant to an issue at trial; and
iii. have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
To determine whether the evidence should be admitted under this exception, the presiding judge must follow the procedure described in ss. 276.1 and 276.2 and consider the factors listed in s. 276(3).
The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of assault, without more, would fall outside the section: R. v. Gervais1990 CanLII 3701 (QC CA), (1990), 58 C.C.C. (3d) 141 (Que. C.A.), at p. 154. Questions that focus on the fact, rather than the details, of an allegation of sexual assault are not prohibited by the section: R. v. M. (A.G.)(1993), 26 C.R. (4th) 379 (Que. C.A.), at p. 393.
To be receivable in a criminal trial each piece of evidence must satisfy three requirements:
• relevance
•materiality
•admissibility.
These requirements are cumulative. Evidence that comes up short on any requirement is excluded from consideration by the trier of fact.
Thus, Section 276 of the Criminal Code permits cross-examination of sexual offence complainants on prior sexual activity only in certain circumstances. In ReginavR.V.,2018 ONCA 547 (CanLII),the Ontario Court of Appeal held that s.276 does not require that the defence particularize specific instances of alleged prior sexual activity. Rather the defence lawyer is only required to demonstrate that the prior sexual activity be “adequately identified”; and tied to a proper purpose. The court ordered a new trial for sexual assault where the defence was wrongly prevented from cross-examining the complainant on her prior sexual activity.
In that case, the Crown at trial had argued that the fifteen (15) year-old complainant’s pregnancy was consistent with her allegations. This implied that only the accused could be the father. The application judge dismissed the defence’s application under s.276 to cross-examine the complainant on whether this was true. The Court of Appeal held that “the Crown’s position amounted to this: we say you are the only one who could have impregnated the complainant but you are not allowed to question her about whether this is true” (at para. 27). This, the Court of Appeal found, was “patently unfair.”
The Ontario Court of Appeal held that although there was no “fixed rule” that required granting the s.276 application, the application judge erred by requiring the defence to articulate particularized “specific instances of sexual activity.” The sexual activity was adequately identified as any activity that could have caused the pregnancy. The court’s focus should be on the probative value of the line of questioning, not on the likelihood that the cross-examination will produce results. It was no substitute to permit the defence to simply ask the complainant whether she was telling the truth; the point of cross-examination is to challenge the witness’s answers.
The court also held the trial judge, who replaced the application judge before trial, erred by holding he lacked jurisdiction to revisit the application judge’s s.276 application. A trial judge always has jurisdiction to revisit prior rulings in the same trial, and this is also true where the trial judge has replaced another judge.
Being charged with a serious, violent crime like sexual assault, may call for the assistance of an Criminal Defence lawyer in Alberta or other provinces in Canada. A lawyer will review all the evidence about the alleged sexual assault; and advise his or her client on how best to fight any charges. If the accused was not taken into custody according to the letter of the law, a lawyer might be able to have the charges dropped. An accused client has the right to mount an aggressive defense with the knowledge that it is incumbent upon the Crown to prove guilt beyond a reasonable doubt.
If you have been charged with a sexual assault offence under the Criminal Code of Canada, contact Mr. J.S. Patel, Calgary Criminal Lawyer for an initial free consultation at 403-585-1960.
Aiding and abetting, murder charges and its application in a jury trial.
The legal concept of “aiding and betting” in the context of Criminal Law has presented some difficulties in its application in a number of cases throughout Canada. This criminal law concept applies to varying degrees depending on the nature of the charge under the Criminal Code of Canada (the “Code”). Only occasional mention is made of the alternative basis for finding someone to be a party, the so-called common purpose provision in s.21(2). Subsection 21(1) of the Code provides as follows:
Every one is a party to an offence who(a) actually commits it,(b) does or omits to do anything for the purpose of aiding an any person to commit it, or(c) abets any person in committing it.
In very general terms, while it is common to speak of the concept of aiding and abetting as a singular concept, these two conceptstogether, the two concepts are distinct, and liability can flow from either one. Broadly speaking, to aid under s.21(1)(b) of the Criminal Codemeans to assist or help the actor. To abet within the meaning of s.21(1)(c) includes encouraging, instigating, promoting, or procuring the crime to be committed: Regina v. Briscoe, 2010 SCC 13, at para. 14. :
[14] The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed”: Regina v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge’s finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.
Under the most applicable concepts of criminal law (at the time of writing), it is irrelevant whether an accused personally committed a crime or aided/abetted the offence, which is why the Crown need not specify in an indictment the exact role the accused played in the offence: Reginav. Pickton, 2010 SCC 32. Thus, in Regina v. McKay, 2012 ABCA 310, even though aiding and abetting are distinct concepts, there was no error in the trial judge’s characterization that the accused did “aid and abet” the commission of the offence. This was simply the judge’s way of describing the accused as a party to the offence. The following are two (2) recent examples of how these concepts come to fruition in Criminal law.
Recently, the Ontario Court of Appeal in Regina v. Mendez, 2018 ONCA 354, the Court set aside jury convictions for first degree murder against the two (2) accused and ordered a new trial. The deceased was shot by one (1) person, and the Crown Prosecution’s theory was that the two (2) accused acted as parties. However, it was unclear who had actually shot the deceased. The trial judge’s instructions to the jury on planning and deliberation listed the evidence supporting the Crown’s theory, but left out the evidence supporting the defence position that there was insufficient evidence that the non-shooter had aided or abetted the shooter. The instructions also failed to relate the evidence to the elements of aiding and abetting but merely invited the jury to consider whether the two accused “acted jointly.”The Crown’s case was weak on the aiding or abetting of the non-shooter, but the jury was not equipped by the trial judge’s instructions to consider the weaknesses.
The Ontario Court of Appeal held that the accused persons’ post-offence conduct — changing clothes, flight, and providing a false alibi — had little probative value regarding the non-shooter’s role. Despite the risk of the jury’s misuse of this evidence and the weakness of the Crown’s case on aiding and abetting, the verdict was not unreasonable and the court did not enter an acquittal. However, a new trial was ordered..
In Reginav. Zoldi, 2018 ONCA 384, the Ontario Court of Appeal allowed the accused’s appeal against his conviction for second degree murder and ordered a new trial on second degree murder. The Crown did not appeal the accused’s acquittal with respect to first degree murder.
The basis of granting the appeal was due to the fact that the jury was misdirected on the required state of mind for an aider or abettor to murder, being instructed that it was sufficient that the accused knew that the principal intended to kill or cause him bodily harm likely to result in deathand be reckless as to whether death ensued. The correct procedure require that the jury should have been instructed that the accused must have known that the principal intended to cause death or that the principal meant to cause bodily harm that the principal knew was likely to cause death and was reckless as to whether death ensued.
The jury was instructed that two (2) decision trees were being provided, one (1) for principals (of the indexed offence); and the other for aiders and abettors. The judge delivered his instructions on principal actor liability, followed by aiding and abetting liability. Given the structure of the charge, the Court of Appeal was not satisfied that the jury would have transferred the mens reafor a principal actor into their deliberations regarding the mental state for an aider or abettor to murder. The Ontario Court of Appeal held that the trial judge was right to tell the jury that the analysis between the modes of participation was different. Having had the required different analysis highlighted for them, though, the jury may have thought that, in the context of aiding and abetting, the absence of knowledge of the principal’s subjective foresight of death was by design. The Court stated the following in relevant part at paragraph 37 of the decision:
[37] Given the structure of the charge, I am not satisfied that the jury would have transferred the mens rea for a principal actor into their deliberations regarding the mental state for an aider or abettor to murder. To be clear, the trial judge was right to tell the jury that the analysis between the modes of participation was different. Having had the required different analysis highlighted for them, though, the jury may have thought that, in the context of aiding and abetting, the absence of knowledge of the principal’s subjective foresight of death was by design.
Another error idenfitied by the Crimianl laws as acknowledged by the Court of Appeal was the trial judge’s definition of recklessness under s.229(a)(ii) and the Trial Court’s instruction to the jury that it amounted to seeing the risk that the complainant could ( as opposed to would likely ) die from the injury to be inflicted.. This this error may have been otherwise inconsequential, but it was compounded by the erroneous instruction regarding the accused’s need to know the principal’s subjective foresight of death:
As the jury was instructed only to consider the decision tree that concerned “aiding and abetting decision tree if they failed to reach a unanimous verdict of guilt for first degree murder, the fact that the jury asked a question with respect to the aiding and abetting decision tree showed that they had not achieved that unanimity. By putting the query to the trial court whether there was a distinction between intent to kill and intent to cause bodily harm likely to result in death indicated that the jury very possibly, if not likely, were deliberating under a misapprehension as to whether the accused was required to know of the principal’s subjective foresight of death. Unfortunately, the trial judge’s answer to the jury repeated the earlier erroneous instructions and indicated that the jury could convict the accused as an aider or abettor without knowing of the principal’s subjective intention for murder. The case against the accused as the principal, the shooter, was strong. However, the court could not apply the curative proviso as the jury’s question revealed that the jury was considering the accused’s culpability in terms of aiding and abbeting. In the circumstances, it could not be said that a conviction was inevitable. The Court of Appeal held as follows at paragraph 51:
[51] The jury was demonstrating some confusion. They needed assistance. Unfortunately, the answer served to repeat the error that had already been repeated on multiple occasions in the charge. In the end, read in the context of the entire charge, I am not satisfied that the jury properly understood the knowledge component of the mental element for an aider or abettor to murder.
Mr. J.S. Patel, Criminal Lawyer practices criminal law in Calgary and assumes conduct of serious criminal matters such as murder trials and appeals, sexual assaults, and domestic violence charges, DUI charges causing bodily harm or death. For a consultation, call 403-585-1960.
The above noted is only general legal information and is not intended as specific legal advice. Contact our offices if you wish to secure full legal advice.
Guilty pleas, striking or vacating a guilty plea in Canada.
“Simply put, pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused.”
In Regina v. Wong, 2018 SCC 25, a 4:3 majority of the Supreme Court of Canadaheld that when an accused person seeks to withdraw a guilty plea on the basis that he or she did not appreciate the consequences of that plea, he or she must establish subjective prejudice.
The Supreme Court said that an Accused person who seeks to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea should be required to establish subjective prejudice. To that end, the accused must file an affidavit establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions.
Because the original guilty plea is an exercise of the accused’s own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused’s subjective judgment. The inquiry is subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim. Ultimately, what matters is the accused’s decision to plead guilty or to proceed to trial, and not whether that decision is, to someone else, reckless or irrational. This framework is premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded. But like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances. Courts should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. This approach strikes the proper balance between finality of guilty pleas and fairness to the accused. The accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds and requiring the accused to articulate a route to an acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty.”
The accused, Mr. Wong, is a permanent resident, had pleaded guilty to cocaine trafficking and was sentenced to nine (9) months’ imprisonment without realizing this would automatically make him inadmissible to Canada and prevent him from appealing the inadmissibility. The majority from the Supreme Court held that the accused’s had filed an affidavit that failed to indicate that he would have proceeded differently had he known of the collateral immigration consequences and that therefore the plea could not be withdrawn. However, the Crown conceded a sentence of six (6) months less a day was appropriate and this would restore the accused’s right to appeal his inadmissibility.
The three-member dissent would have used a “modified objective” test: whether a reasonable person in the same situation as the accused would have proceeded differently had he or she been aware of the collateral consequences. The dissent stated:
The dissent’s modified objective approach to determine whether an accused has shown prejudice would not account for the fundamentally subjective and deeply personal nature of the decision to plead guilty. Pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused. To permit reviewing courts to substitute their own view of what someone in the accused’s circumstances would have done is to run a serious risk of doing injustice to that accused. A modified objective framework focusses upon what a judicially constructed hypothetical person would do, instead of how the particular accused would have proceeded. Furthermore, this approach would likely be difficult for lower courts to apply. Given the highly contextual and even idiosyncratic nature of factors that influence important decisions, adopting a standard based on what a hypothetical reasonable person who need not be presumed to have taken the best or single most rational course of action would have done effectively confers upon reviewing courts unbounded discretion to reach whatever conclusion they see fit. The modified objective framework also adopts a variable standard of scrutiny, not tied to a particular accused, but rather to a reasonable person. However, different accused, even different similarly situated accused, may ascribe varying levels of significance to different collateral consequences. Thus, a modified objective approach risks resulting in vacated guilty pleas even where there is no evidence that the accused personally would have done something differently. Even further, an accused who admits under cross‑examination that he or she would have proceeded identically would still be entitled to withdraw his or her plea if a reasonable accused in his or her circumstances would withdraw the plea. This would impose unnecessary and substantial demands on a criminal justice system that is already overburdened.
This case illustrates the importance of ensuring that sufficient representations are made to a court when an application is made to vacate a guilty plea. If you are facing similar circumstances, call Mr. J.S. Patel, Criminal Lawyer at 403-585-1960.
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The Court of Appeal in Regina v. 
