Tag Archives: Charter Defences

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Cross Examining on Specific Instances of Sexual activity,and the Jurisdiction of trial judge to revisit pre-trial rulings of prior judges on Pre-Trial Applications.

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Sexual Offences
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. 

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Aiding and Abetting on Murder Charges – Post-offence conduct – Probative value on party liability, J.S. Patel, Barrister

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Serious Criminal Offences, Parties to an Offence
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 death and 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.    

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Striking or Vacating a guilty plea in Criminal Courts in Canada. Legal Requirements from the Supreme Court of Canada.

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Removal of a guilty plea
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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“Bail Pending Appeal” and securing release from custody after a conviction has been entered: recent cases.

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Criminal bail hearings, Bail at Appeal,
Bail Hearings, Bail Pending Appeal, Criminal Bail Hearings, Urgent Criminal Defence Lawyers

What is Bail Pending Appeal?

If you have been convicted of a Criminal Code offence or of an offence under an Act of Parliament resulting in a jail term, an application can be made to secure judicial interim release (i.e. Bail) pending the outcome of your appeal.   It is critical to note, that the criminal law standards for securing bail are elevated, primarily due to the loss of the presumption of innocence due to the entry of the conviction.  Section 679(3) of the Criminal Code allows a judge of a court of appeal to order the release of an offender who has appealed his (or her) conviction “if the appellant establishes that (a) the appeal … is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest.” There are two (2) components to the last criterion. The offender must establish that he or she is not a threat to public safety – the offender will not commit a criminal offence while on bail – and that a reasonable person who is thoughtful, dispassionate, informed and respectful of society’s fundamental values would not lose confidence in the administration of justice if the appeal court released the applicant.  
In determining the public interest involves the balancing of great many factors. Some were listed in Regina v McNaughton, 2010 ABCA 97at para. 12, 26 Alta LR (5th) 126: Without attempting to compile a complete list, some of the factors that are relevant to the exercise of the jurisdiction include:  
  • ensuring fairness in the appeal process, to avoid the prospect of the applicant serving a sentence when the appeal is ultimately allowed (Charter of Rights, s. 11(e); Farinacciat paras. 43, 48; v. Fox, 2000 ABCA 283, 8 M.V.R. (4th) 1 at paras. 18-9; R. v. Colville, 2003 ABCA 133, 327 A.R. 143 at para. 12);
 
  • the fact of conviction, and the public importance of respecting the trial decision and the trial process (Nguyen[ (1997), 97 BCAC 86, 119 CCC (3d) 269] at para.18; Farinacciat para. 41; v. Rhyason, 2006 ABCA 120, 57 Alta. L.R. (4th) 31, 208 C.C.C. (3d) 193);
 
  • the apparent strength of the grounds for appeal, recognizing that it is not the role of the bail judge to resolve the merits ( v. Heyden(1999), 127 O.A.C. 190, 141 C.C.C. (3d) 570 at paras. 7-8, 12; Rhyasonat paras. 13-18; Colvilleat para. 16);
 
  • the standard of review that will be applied by the appeal court ( v. Sagoo, 2009 ABCA 357, 464 A.R. 258 at para. 9);
 
  • any risk that the applicant will reoffend if released (Nguyenat para. 7; Foxat paras.18, 20-21);
 
  • the applicant’s history of compliance with court orders and legally imposed conditions;
 
  • whether the applicant was released pending trial, and if so if his release was uneventful;
 
  • whether conditions of release could be crafted that would protect the public interest;
 
  • the seriousness of the charges, reflected in the severity of the sentence, although no class of offence is excluded from release (Nguyenat paras. 13, 20-24; Heydenat para. 12; v. R.D.L.(1995), 178 A.R. 142 at para. 5);
 
  • the effect on the perception of the administration of justice if the applicant is released, including the perception of an informed and reasonable member of society (Nguyenat paras. 25-6; Rhyasonat para. 20; Foxat para. 18; Colvilleat para. 17);
 
  • the status and state of readiness of the appeal (Farinacciat paras. 44, 48; Heydenat para. 12; D.L.at paras. 5, 12).
It cannot be said that the presence or absence of any one of those factors is determinative of the public interest, or of the eligibility of the appellant for release pending appeal: Regina v Gingras, 2012 BCCA 467 at para. 45, 293 CCC (3d) 100.

The Court of Appeal has recently considered two (2) cases that have considered the recent application of this rule:  R. v. C.L, infra, and R. v. B.G.  Each are discussed below:

Regina v. C.L, infra The Ontario of Court of Appeal dismissed the accused’s application for bail pending appeal. Following a judge-alone trial, the accused in this case was convicted of sexual assault and being unlawfully in a dwelling house.  As a consequence of the conviction and the outcome of the sentencing hearing, this accused person received a sentence of two (2) years less a day imprisonment plus two (2) years of probation.  His application for bail pending appeal was dismissed.  In dismissing the accused’s application, Trotter J.A. held that the public interest criterion was not met. This was because “[t]he materials filed fail to demonstrate that the grounds of appeal have sufficient strength to overcome the serious enforceability considerations present in this case” (at para. 21).     The Ontario Court of Appeal took umbrage with accused’s new charges of breach of recognizance, combined with his failure to mention them in his bail pending appeal affidavits.  The Court stated that it did not inspire confidence about compliance with any bail pending appeal order that might be made. Justice Trotter stated as follows (at para. 13): “The new criminal charges should have been disclosed. Judges of this court rely heavily on the trustworthiness of affidavits sworn in support of bail pending appeal applications. They are expected to be both accurate and complete     Regina v. B.G, Infra, In Regina and B.G., 2018 ONCA 455 (RD), Justice Brown of the Ontario Court of Appeal, granted the accused’s application for bail pending appeal from his conviction for child pornography and sexual offences. The trial judge found that the accused had taken and distributed photographs depicting his young daughter naked. The Crown opposed the application on the grounds that the public interest criterion was not met. The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: R v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23 & 26. The public confidence criterion requires balancing several factors: the seriousness of the offence; the strength of the grounds of appeal; public safety; and flight risks: Oland, at paras. 37- Justice Brown held as follows:   [12]       The offences of which the applicant was convicted are very serious, involving as they do a vulnerable young child. However, when that factor is weighed with the remaining factors under the Oland public interest test – the strength of the grounds of appeal, no flight risk, and no threat to public safety – on balance, reviewability is favoured over enforceability.   “The offences of which the applicant was convicted are very serious, involving as they do a vulnerable young child. However, when that factor is weighed with the remaining factors under the Oland public interest test – the strength of the grounds of appeal, no flight risk, and no threat to public safety – on balance, reviewability is favoured over enforceability.”

These cases demonstrate the importance of the benefits of a properly prepared bail application (affidavits and arguments).  The procedure in securing bail prior to trial differs markedly when a conviction has been entered and a person has been remanded into custody.

If you have been convicted of a criminal code offence and you are seeking bail, contact Mr. J.S. Patel, Barrister at 403-585-1960 to secure a telephone consultation.  

 

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Failure to Provide the Necessities of Life. Elements of the Criminal Code Offence and the sufficiency of a jury charge.

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Failure to Provide Necessities
Failure to Provide the Necessities of Life. Elements of the Offence and the sufficiency of a jury charge.

The parents of the deceased child had their conviction for the failure to provide the necessities of life for their (deceased) child overturned by the Supreme Court of Canada  (the “SCC”) recently.  In Regina v. Stephan, 2018 SCC 21, the SCC overturned the a ruling from the Alberta Court of Appeal and adopted reasoning of Justice O’Ferrall’s dissent.

The facts in this case were extremely unfortunate.  The majority of the panel at the Alberta Court of Appeal restated the facts in the following terms:

   

[2]               The appellants’ son, Ezekiel, was born in August 2010. On February 27, 2012, Ezekiel began to exhibit signs of illness while at pre-school. Symptoms included fever, decreased appetite, and trouble breathing and swallowing. 

[3]               Both parents were concerned. Rather than take him to a medical clinic, however, they contacted a family friend, a nurse, by telephone. After listening to Ezekiel’s breathing over the phone, the friend thought the problem might be croup. The appellants treated Ezekiel with fresh air, fluids, humidity and natural supplements including garlic, olive leaf extract and Methylsulonylmethane. 

[4]               Over the next few days, Ezekiel’s fever abated but he still felt hot. He continued to have a decreased appetite, low energy, decreased activity, and trouble breathing.

[5]               By March 5, the appellants felt Ezekiel’s condition had improved as he no longer had trouble breathing, and he returned to pre-school. David Stephan went out of town to work.

[6]               A day later, March 6, Ezekiel was weaker. He was less responsive; he stayed in bed and moaned. He tugged at his diaper and rubbed his face, both movements that seemed to Collet Stephan to be involuntary. Collet Stephanlooked online for a possible explanation and phoned David Stephan to report that Ezekiel seemed to be getting sick again. 

[7]               David Stephan returned from work on March 8 with some natural products he had picked up while away. Ezekiel was fed apple cider vinegar, onion powder, ginger root, garlic, hot peppers and horseradish root. Over the next few days, Ezekiel’s condition appeared to improve, although he began to show signs of stiffness or joint tension. 

[8]               Between March 9 and 12, the stiffness increased and Ezekiel’s back began to arch. He refused food, and his lethargy and weakness increased. His parents were worried. 

[9]               On March 12, David Stephan went to a business meeting. Collet Stephan phoned a nurse friend to ask her to examine Ezekiel. Collet told her husband about her concerns when he came home for lunch. 

[10]           The family friend examined Ezekiel and suggested the problem might be meningitis. She suggested that Ezekiel be taken to the doctor. Rather than following that advice, Collet Stephan searched the internet seeking information about meningitis. Based upon the information she obtained, Collet Stephan tried the Brudzinski and Kernig tests for meningitis. The tests involve physical manipulation of the child’s head or legs. Ezekiel tested positive on both, but Collet concluded Ezekiel had viral meningitis, rather than the more serious form of bacterial meningitis. Collet Stephan communicated her conclusions to her husband when he returned from a second business meeting that day. 

[11]           David Stephan stayed home the following day, March 13, to help and to take Collet Stephan to Lethbridge to sign some documents. Before leaving for Lethbridge, Collet Stephan contacted a naturopathic clinic to get some advice about boosting Ezekiel’s immune system because he had meningitis. The receptionist told her to take Ezekiel to a doctor. 

[12]           The appellants proceeded to Lethbridge with Ezekiel lying on a bed in the back of their vehicle because he could no longer sit comfortably in his car seat. After dealing with their lawyer, the appellants went to the naturopathic clinic to purchase an echinacea tincture called Blast. They administered this to Ezekiel, went shopping, and then returned home. 

[13]           That evening, Ezekiel began exhibiting difficulty breathing. About 9:00 p.m., after Collet Stephan had returned from a meeting, Ezekiel stopped breathing. David Stephan phoned his father Anthony Stephan and then 911. 

[14]           Collet Stephan got Ezekiel breathing again by slapping him on the back and then giving him a few rescue breaths. David Stephan phoned 911 to call off the ambulance saying they would bring Ezekiel to the hospital by car. The family left 20 minutes later for the Cardston hospital but before they arrived, Ezekiel again stopped breathing. Collet Stephan performed CPR while David Stephan drove on and phoned 911. They were met by an ambulance outside of Cardston. 

[15]           The responders began performing CPR but they had difficulty securing an airway due to a lack of proper equipment. This deficiency lasted eight minutes until just before the ambulance reached the hospital in Cardston. 

[16]           Ezekiel was treated at the Cardston hospital and then transferred to Lethbridge in order to be taken by STARS air ambulance to the Children’s Hospital in Calgary. He never regained consciousness. On March 15 and 16, Ezekiel was neurologically assessed and determined to be brain-dead. Life sustaining therapies were discontinued and on March 18, 2012, Ezekiel died.

However, Justice O’Ferrall said the following about the facts of the case, in his dissent:

 
[211] On the facts of this case, it cannot be argued that the Stephans were not devoted and loving parents. They did not neglect their 18-month old son’s symptoms when he exhibited them. They did not fail to provide him with what they thought were the necessaries of life. They monitored him closely when he became ill, doing what they believed was best for him. There is no doubt the decisions they made with respect to the well-being of their son turned out to be terribly wrong, but it is not clear that their acts or omissions were criminal in the sense of deserving of punishment for moral blameworthiness.     [212]      That said, a jury of their peers did find the Stephans guilty of failing to provide the necessaries of life to their son, contrary to section 215(2)(a)(ii) of the Criminal Code. However, as argued by the appellants, the trial judge’s charge to the jury was problematic, perhaps to the point of impacting the fairness of the trial. At the very least, the jury charge was confusing, misleading, and deficient in describing a key element of the offence. Furthermore, the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence. The cumulative effect of the jury instructions may have been an unsafe or suspect verdict.    

The SCC accepted Justice O’Ferrall’s reasoning that in sum, the trial judge failed in his jury charge for three (3) reasons:

    (1)The Trial Judge he did not adequately explain what the jury’s focus should have been in determining whether there had been a failureunder the second element of the offence.  The full legal test, outlining the elements of the offence, was explained in Reginav F,2008 SCC 60 (CanLII) at paras 66-67, [2008] 3 SCR 215:     The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5 (CanLII), the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).       The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances.     Each of the four elements specified in the above test (the three elements of the actus reus plus the mens rearequirement) must be proven in order to obtain a conviction. It was important for the jury to keep these four distinct elements in mind. However, the trial judge, in his charge to the jury, combined two of them.     Secondly, the trial judge appeared to incorrectly assume the third (3rd) element of the offence had already been met in instructing the jury on the second (2nd) element of the offence. The trial judge made the following comments to the jury in this case:     In deciding whether the Crown has proven beyond a reasonable doubt that David Stephan failed to provide necessaries of life you must determine whether the Crown has proven beyond a reasonable doubt that the conduct of David Stephan represented a marked departure from the conduct of a reasonably prudent and ordinary person where that reasonable person, in all the circumstances of David Stephan would foresee that medical attention was required to maintain Ezekiel’s life, and that reasonable person would also foresee that failing to provide the medical attention would endanger Ezekiel’s life.     This was found to be an error by Justice O’Ferral because “…he foregoing instruction seems to invite the jury to assume as true the latter half of the statement (in bold) when considering whether the conduct of the parents amounted to a failure to provide the necessaries of life. The latter half of the statement is essentially the third element of the actus reus of the offence, which is to be determined only after a failure to provide the necessaries of life has been established.”     Thirdly, the trial failed to adequately explain the mens rea element of the offence to the jury. Specifically, the Trial Judge was required to explain what constituted a “marked departure”; and this was not done.  Marked departure is a difficult concept even for those with legal training and therefore requires explanation. The discussion in Regina v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49 is helpful. That case dealt with the charge of dangerous driving which, like that of failing to provide the necessaries of life, requires proof of a marked departure from the standard of care of a reasonable person in order to found a conviction. The majority in Beatty explains, at paragraph 7, that:     The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.     This case demonstrates the necessity of ensuring that the jury charge is properly examined before being put to the jury either at the trial stage or (after the fact) at the appellate stage of the criminal law proceedings.  It is critical to seek the advice of a criminal trial and appeal lawyer in face serious criminal charges wherein the Crown is seeking a conviction for failure to provide for the necessities of life.      

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

   

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The mandatory minimum punishment laws for the production of a controlled substance, contrary to Section 7(1) of the Controlled Drugs Substances Act, was struck down as unconstitutional by the Ontario of the Appeal.

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Unlawful Production of a Controlled Substance and Unconstitutional Mandatory Minimum Sentences: Drug Sentence Appeal Lawyers.
Section 7(1) of the Controlled Drugs Substances Act
 
The Ontario Court of Appeal upheld a decision of the Superior Court in striking down the mandatory minimums required under ‘Unauthorized Production” provisions of Section 7(1) of Controlled Drugs Substances Act (the “CDSA”).  InReginaand VU, 2018 ONCA 436, the Ontario Court of Appeal considered three (3) separate sentence appeals, from three (2) accused persons who had levied a challenge, through defence counsel, to the constitutionality of the mandatory minimum sentences for marijuana production under the CDSA. Each defendants, Pham, Vu, Li, were convicted of unauthorized production of marijuana under s.7(1) of the CDSA.  Criminal Defence counsel, at the sentencing stage, had filed an application under the Judicature Act to challenge the applicable mandatory minimum as contrary to s.12 of the Charter of Rights and Freedoms as cruel and unusual punishment.  Each appeal is summarized below.
In the Regina v. Pham appeal, the Ontario Court of Appeal upheld the sentencing judge’s ruling (which is reported at 2016 ONSC 5312) that the two (2)-year mandatory minimum under CDSA s.7(2)(b)(v) which involves the production of more than five hundred (500) plants was contrary to s.12.  That same order of juridical logic was applied to s.7(2)(b)(vi) (three-year minimum for production of more than five-hundred (500) plants where statutory aggravating factor applies. What is more, the ONCA also upheld the ruling, from the Sentencing Court, that the aggravating factor under CDSA s.7(3)(c), which is the production constituting a potential safety hazard in a residential area was unconstitutional.  In considering the application of the famed Reginav. Oakes, [1986] 1 SCR 103test, the highest Court in Ontario found that none of these provisions could be saved under s.1 of the Charter. The Court stated the following in relevant part:  
[83]      I do not accept these submissions. With respect to ss. 7(2)(b)(vi) and 7(3)(c), they ignore the fundamental finding that this three-year mandatory minimum can apply to persons who have no moral culpability in relation to the statutory aggravating factor. The provisions could have been tailored to avoid this result. They are neither minimally impairing nor proportionate. [84]      Similarly, with respect to s. 7(2)(b)(v), as the Pham sentencing judge noted, Parliament could have provided a safety valve to allow judges to grant exemptions in exceptional cases. Once again, the provisions are neither minimally impairing nor proportional.
The court also rejected the Crown’s argument, raised for the first time on appeal, that the impugned mandatory minimum provisions could be “read down” by inserting the words “if the production is for the purpose of trafficking” into each subsection.
In the Reginav. Vuappeal, the Ontario upheld Justice Durno striking down of the three (3) year minimum arising out of s.7(3)(c) of the CDSA(reported at 2015 ONSC 5834 and 2015 ONSC 7965), but set aside his ruling that the two (2) year minimum under s.7(2)(b)(v) was constitutional. The court held that its findings in the Phamappeal governed the constitutional issues in the Vu Appeal with equal force. Durno J. had also struck down the mandatory minimums under ss.7(2)(b)(i) and (ii) of the CDSA (less than 201 and more than five plants). The accused had not been charged under these sections. The Court of Appeal agreed with the Crown that it was not open to the sentencing judge to declare invalid provisions not applicable to the accused. As a result, the Crown did not have an appeal route in relation to these declarations as they did not play a role in the sentencing decision and the court did not have to consider their constitutionality.
In the Li appeal, the court reversed the sentencing judge’s ruling (reported at 2016 ONSC 1757) and held that the 12-month mandatory minimum under s.7(2)(b)(iii) of the CDSA (production of more than 200 but less than 501 plants) violated s.12 of the Charter and could not be saved under s.1. The analysis and reasonable hypotheticals from the Pham appeal applied equally to this accused.  The Court concluded the case in the following terms at paragraphs 119 to 121:
[119]    In summary, I would dismiss the Crown’s appeal in Pham and uphold the declarations that ss. 7(2)(b)(v), (vi) and 7(3)(c) of the CDSA are unconstitutional. [120]    I would also dismiss the Crown’s appeal in Vu. My conclusion in respect of the Pham appeal governs the constitutional arguments in relation to ss. 7(2)(b)(v), (vi) and 7(3)(c). The Crown has not demonstrated that it has an appeal route to this court relating to their ss. 7(2)(b)(i) and (ii) argument as the declarations of invalidity in relation to those sections had no impact on the sentence Mr. Vu received. As Mr. Vu has now completed his sentence, I would dismiss his sentence appeal as moot. [121]    Finally, I would allow Mr. Li’s appeal. Based on my reasoning in the Pham appeal, I would hold that s. 7(2)(b)(iii) of the CDSA violates s. 12 of the Charter, cannot be saved by s. 1 and should be declared of no force and effect under s. 52 of the Constitution Act. I would reduce Mr. Li’s sentence from 12 months’ imprisonment to six months’ less one day.
This case demonstrates the importance the importance of considering the constitutionality of mandatory minimums before concede the statutorily imposed requirements in the Code.  A well-crafted section 12 Charterchallenge can make the difference between years of imprisonment and possibly a non-custodial term.
Call Mr. J.S. Patel, Barrister for a consultation, if you have been charged with producing a controlled substance under the CDSA:  403-585-1960.    

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A crushing sentence that was imposed by the sentencing judge was overturned, at appeal, by the Ontario Court of Appeal.

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Recently the Court of Appeal in Regina v.  Williams, 2018 ONCA 367the Ontario Court of Appeal allowed the accused’s appeal against his twelve (12)-year sentence (less five years for time served) which was imposed, following his guilty plea, in response to convictions for drug and firearm offences arising out of two sets of charges.  He pled guilty to: 1)   Possession of cocaine for the purpose of trafficking, 2)   Possession of cannabis for the purpose of trafficking, 3)  Carrying a concealed firearm, 4)  Possession of a restricted firearm with readily accessible ammunition, and 5)   Breach of recognizance (for possession of a firearm).

The trial court imposed what the Court of Appeal viewed as a crushing sentence, which precluding the prospects of rehabilitation, a valid sentencing objective.  The Court of Appeal stated:

 While the sentencing judge noted the appellant’s guilty pleas to the second set of charges in his narrative of events, his reasons do not indicate he took the guilty pleas into account in determining the appropriate sentence. Further, while the trial judge noted the appellant’s relative youth at the time of sentencing, his reasons do not indicate he took into account that the appellant was just 23 years of age and a first offender at the time of the first set of offences or that a first penitentiary sentence should be the shortest possible that achieves the relevant sentencing objectives. Finally, we are of the view the sentencing judge did not accord sufficient weight to the factor that the appellant should not be crushed by the sentence. In our view, the sentence imposed all but eliminates the appellant’s prospects for rehabilitation when considering the “Principles and Purposes of Sentencing”  in the Criminal Code of Canada.  While denunciation and deterrence are widely accepted as primary sentencing principles, section 718(d) clearly requires consideration to the issue of rehabilitation. 

The reasons for sentence did not indicate that the sentencing judge took into account the fact that the accused was only 23 years old and a first offender at the time of the first set of charges, or that a first penitentiary sentence should be the shortest possible sentence that achieves the relevant sentencing objectives.  Furthermore, the sentencing judge failed to sufficiently consider that the sentence should not be crushing to the accused.  The court reduced the sentence to nine years.

If you are seeking to appeal your conviction against your sentence, contact our law firm at 403-585-1960 and speak to J.S. Patel, Barrister.  We accept legal aid on a case by case basis and charge a consultation fee for a review of appellate matters.

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Police brutality and Excessive force in arresting an accused person through the use of a baton and pepper spray: Contact: J.S. Patel at 403-585-1960

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In Regina  v. Hines, 2018 ONCJ 197, the Ontario Court of Justice held the police used excessive force where, in the context of a “chaotic” situation, they struck the accused in the face with a baton and pepper sprayed him while he was handcuffed.

 

The relevant facts were as follows:

Excessive Force

[18]            As indicated at the outset, Mr. Brannagan conceded that Brewer’s use of pepper spray was excessive force and a Charter violation. Mr. Chu also alleged that, in addition to pepper spray, excessive force was used in striking Mr. Hines in the face with a baton during the arrest. Those blows opened up two significant lacerations on the defendant’s face, which was made additionally painful by the application of pepper spray. The Crown refused to call Brewer, submitting that the defendant had the burden to prove facts that supported the Charter violation. While I agree the burden lies with the defendant to establish Charter violations, I ruled that fairness required this Court to call Brewer as a witness, allowing both counsel the opportunity to conduct cross-examinations. I did so because Brewer was, by nature of his actions that night, and by nature of his position as a police officer, a witness adverse to the defendant’s interest.

Constable Brewer

[19]            Brewer admitted striking Hines with his baton. He is unable to remember the number of strikes or the exact location of the strikes. Brewer was aware of facial injuries suffered by Hines but unaware if the cause was his baton strikes or when he was taken to the ground. He maintained he was frightened by the knife, and Hines assaultive behaviour, and not knowing if Hines still had a weapon. He also maintained the blows were done to effect an arrest, and not after Hines was handcuffed.

[20]            Constable Brewer’s status as a police officer is somewhat unusual. In September of 2017, he was convicted of Common Nuisance and Unauthorized Possession of a Firearm in Durham region arising from an incident that occurred on December 1, 2016. Constable Brewer had brought a handgun into the bedroom in which his spouse was sleeping, then followed her to the main floor holding the gun, put the gun in his own mouth, and then fired it eight times into the night sky outside his house. At the time, Brewer agreed he was suffering from depression, alcoholism and PTSD.

[21]            In addition to the criminal record resulting from the incident above, Brewer admitted drinking while on duty and being disciplined for it in November of 2016. Brewer denies alcohol was a factor in this case and does not think his mental health problems were either. Essentially he was of the view that Hines was “being actively resistant” and was attempting to get out of his scout car when he employed pepper spray.

[22]            While I found Constable Brewer’s evidence to be for the most part candid (and quite heartbreaking regarding his present condition), this last contention is demonstrably false. Mr. Hines was handcuffed to the rear and splayed out horizontally in the back seat of the scout car. Brewer stopped the scout car as it starts to leave the scene, and Brewer opened the door. Hines was not resisting; he was not kicking; and he certainly was not trying to escape.

[23]            In my view, to insist escape was the reason for employing pepper spray undermines what was otherwise credible evidence. That false contention makes his evidence, that he was unsure that his baton strikes connected with the defendant’s face, virtually impossible to accept.

At the Charter application, the Crown refused to call as a witness the police officer who struck and sprayed the accused, and so the court called the officer as a witness adverse in interest to the defence. The court declined to stay the charges (assault police, possession of a knife, possession of cocaine, and threatening), holding that a remedy could be fashioned on sentence.  The Court stated that:

[34]            A stay of proceedings is a drastic remedy, a remedy of last resort to be granted only in the clearest of cases (O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411). The defendant submits that no remedy short of a stay of proceedings is appropriate. Alternative remedies, sentence reduction for example, would not send the necessary message that the justice system denounces police brutality.

[35]            The defendant does not argue abuse of process in that the police conduct interfered with a fair trial. Rather, that it fell within the residual category referred to in paragraph 73 of O’Connor:

73               As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused’s trial.  For this reason, I do not think that it is helpful to speak of there being any one particular “right against abuse of process” within the Charter.  Depending on the circumstances, different Charter guarantees may be engaged.  For instance, where the accused claims that the Crown’s conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra).  Alternatively, the circumstances may indicate an infringement of the accused’s right to a fair trial, embodied in ss. 7 and 11(d) of the Charter.  In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system.  In addition, there is a residual category of conduct caught by s. 7 of the Charter.  This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[36]            When determining if a stay is the appropriate remedy for the “residual” category, the approach taken by the Supreme Court in R. v. Regan sets out the appropriate test to be considered. There are three factors to be considered by a court asked to order a stay of proceedings, as set out in Regan 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297, at paras. 54 – 57:

(1)     Will the prejudice caused by the impugned behaviour be manifested, perpetuated or aggravated through the conduct of a trial, or by its outcome;

(2)     Is any other remedy reasonably capable of removing the prejudice; and

(3)     If there should be doubt as to the appropriateness of a stay, how do the interests that would be served by a stay weigh against society’s interest in having a final decision on the charges on the merits?

[37]            Applying the above test, I conclude that there is a societal interest in having a judicial decision on the merits regarding the knife attack on Mr. Humphries. A remedy exists to reflect police brutality, which can be factored into the sentence. The assault police, possession of the knife, possession of cocaine, and uttering threats charges will be stayed as the only remedy capable of expressing this Court’s condemnation of Constable Brewer’s excessive use of force, as well as a recog­nition of the significant harm caused to Mr. Hines resulting from this brutality.

 

A different result was achieved in Reginav. Girbav, 2012 ABPC 219 wherein the Court, on similarly related facts, entered a stay of Proceedings by the Honourable Judge Brown of the Provincial Court of Alberta. In that decision, the Court, in directing the stay stated:

“While the beating meted out to Mr. Girbav was a far cry from the horrific assault in Tran, to allow the prosecution to continue, given the wantonness of the attack on Mr. Girbav and the attempt at burnishing the account after the fact, would cause irreparable harm to the justice system.  As in Mohmedi, Gladue and Tran, this appears to be a case in which the officers succumbed to anger in their dealings with Mr. Girbav.”
 

Cleary, this is a fact-driven inquiry that is mixed with complex issues of law and jurisprudence. It is critical to seek legal advice as soon as possible to ensure that the relevant evidence (including injuries) are well documented and evidence is preserved.

   

The above noted information is not intended as legal advice nor does it puport to provide information on any civil claims against a police force.  It is general information about specifically reported cases .  

 

Police Brutality, Excessive Force, Criminal Lawyers

If you have been charged with a offence that involved the use of excessive police force and/or abuse, call Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960 for a consultation during regular office hours. 

     

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The conduct of the defence in assessing the delay at trial under Section 11(b) of the Charter; and whether the calculation of the delay is the period between charge and verdict or between charge and sentence.

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August 20, 2017

The conduct of the defence in assessing the delay at trial under Section 11(b) of the Charter; and whether the calculation of the delay is the period between charge and verdict or between charge and sentence.  By J.S. Patel, Barrister, 403-585-1960 or 1-888-695-2211

In our previous Blog on R. v. Jordan, and R. v. Cody, we outlined the general legal test that the Courts use to determine whether a delay is considered unreasonable and to stay all charges against an accused person.  Two (2) presumptive ceilings were set: (a) eighteen (18) months of delay in matters in the Provincial Court; and (b) thirty (30) months for charges in the Superior Courts in Canada.  The issue of defence delay was expounded upon more recently in Regina v. Cody 2017 SCC 31; and it is described in our blow summarizing the judgement.  The conduct of the defence and Counsel is a relevant factor in determining whether there was an unreasonable delay that would attract a stay of proceedings under Section 24(2) of the Charter.

For instance, in Regina v. Mallozzi, 2017 ONCA 644, the Ontario Court of Appeal upheld the Trial Court’s Assessment of the alleged defence delay, in dismissing the accused’s application for a stay of proceedings on the basis of unreasonable delay under s.11(b) of the Charter.  In that case, the accused was convicted of two (2) counts of producing marijuana.  There was a preliminary inquiry;  and two (2) mistrials, which spanned over five (5)  years from the date he was charged. The court held that the “net-delay” was under the thirty (30) month ceiling created by  Jordan; and importantly, that the defence waived or caused thirty-seven (37) of the total sixty (60) months of delay. What is more, many dates had been offered to try to accommodate the schedule of defence counsel while the Crown and court were able to proceed earlier, and there was an express waiver of a further period.

In the obiter dictum of the judgement, the Ontario Court of Appeal further opined that even if the total ‘net-delay’ had surpassed the thirty (30) month ceiling as posited in R. v. Jordan (SCC), the resulting delay would have been justifiable given the two (2) mistrials, which the Court would have found fell within the rubric of term: ‘exceptional delay.’  This is because, in the Court’s view, the first (1st) mistrial came to fruition as a result of a defence objection concerning the empanelment of the 12th juror under Section 642 of the Criminal Code of Canada (the “Code”).   Defence counsel’s assertion that this delay was due to the summoning of too few potential jurors was rejected.  The Court of Appeal found that the defence position on this issue had been “frivolous.”  What is more, the second mistrial was agreed to by the Crown and the defence on the basis that the five of the jurors on the current panel had been on the previous panel. The Court took the view that the this second mistrial had been unnecessary; and that these particular events were unforeseeable.  Thus, they were not a “failure of the system” as advocated by the accused person at appeal.  Finally, the Court of Appeal also stated the transitional provision applied to the delay, which was incurred prior to the decision in Jordan, above.

What is interesting, however, is that the Ontario Court of Appeal, explicitly declined to decide whether the period of delay for s.11(b) purposes is the period between charge and verdict or between charge and sentence. Accordingly, this issue remains arguably open for consideration should the issue arise against in the future.

The issues involved in Charter applications under Section 11(b) involve complicated considerations and a thorough assessment of the applicable legal principles.  While it is clearly impossible to predict the outcome of proceedings and manner in which trials will unfold, the Mallozzi case clearly demonstrates the importance of considering the manner of defence delay and the strategic steps that need to be taken at trial. Experienced lawyers 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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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)