Tag Archives: Counselling for DUI

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The Crown’s Duty to Inquired under Regina v. McNeil 2009 SCC 3

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  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.

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Victim Fine Surcharges ruled to be Unconstitutional and contrary to Section 12 of the Charter (Cruel and Unusual Punishment) – Regina v. Boudreault, 2018 SCC 58 (CanLII)

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Supreme Court of Canada strikes down Victim Fine Surcharges.
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.

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Refusing to provide breath sample after causing an accident resulting in death. Sentencing principles.

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Criminal Code Offence of Refusal to Provide a Breath Sample
Refusal to Provide a Breath Sample. Call Mr. J. S. Patel, Criminal Lawyer at 403-585-1960 for a consultation.

In Regina v. Suter, 2018 SCC 34, a 6:1 majority of the Supreme Court of Canada allowed the accused’s appeal in part.  The Court set aside his 26-month sentence of imprisonment, imposed by the lower sentencing court, for the offence of refusing to provide a breath sample knowing that he caused an accident resulting in a death (Criminal Code, s.255(3.2)),and imposed a sentence of time served of just over ten (10) and a (1/2) half months.

That said, the circumstances of this case are unique as related recently on CBC news. The fatal accident was caused by a non-impaired driving error, and Mr. Suter refused to provide the police with a breath sample because he received bad legal advice. The lawyer he called from the police station expressly told him not to provide a breath sample, and Mr. Suter demurred. Added to this, sometime after the accident, Mr. Suter was attacked by a group of vigilantes who used a set of pruning shears to cut off his thumb. His wife was also attacked in a separate incident. He later pleaded guilty to the s.255(3.2) offence and the other charges were withdrawn.

The sentencing judge imposed a sentence of four (4) months’ imprisonment plus a thirty (30) month driving prohibition. The Judge found that the accident was caused by a non-impaired driving error. He also found that the accused’s refusal to provide a breath sample was the result of bad legal advice and was a mistake of law, which fundamentally changed the accused’s moral culpability. In addition, he noted several other mitigating factors, and also took into account the violent vigilante actions against the accused. However, the Court of Appeal, the Court of Appeal disagreed with this sentence.  The Appeal court increased the custodial portion of the sentence to twenty-six (26) months. The court found that: the deficient legal advice did not constitute a mistake of law and it could not be used to mitigate the accused’s sentence; the sentencing judge failed to consider, as an aggravating factor, that the accused chose to drive while distracted in the context of his health and pre-existing alcohol problems; and the sentencing judge erred by taking the vigilante violence into account.

The majority of the Supreme Court held that both the sentencing judge and the Court of Appeal committed errors in principle that resulted in the imposition of unfit sentences. The majority held as follows:

The Court of Appeal erred by effectively sentencing the accused for the uncharged offence of careless driving or dangerous driving causing death. A further error was committed by the Court of Appeal in failing to consider the vigilante violence suffered by the accused. The majority stated that vigilante violence against an offender for his or her role in the commission of an offence is a collateral consequence that should be considered — to a limited extent — when crafting an appropriate sentence.

What is more, the sentencing judge erred in finding that the accused was acting under a mistake of law when he refused to provide the police with a breath sample and that this factor fundamentally changed the accused’s moral culpability. He also erred in giving undue weight to the accused’s non-impairment as a mitigating factor.

Taking into account the attenuating factors in the case, the majority of the Supreme Court of Canada concluded that a sentence of 15 to 18 months’ imprisonment would have been a fit sentence at the time of sentencing. The majority held, however, that in the circumstances of this case – the accused had already served just over 10 and a half months of his custodial sentence and had spent almost nine months waiting for the court’s decision – it would not be in the interests of justice to re-incarcerate the accused.

The final dissenting opinion came from Justice Gascon.  His decision was predicated on principles of deference towards the sentencing judge. Justice Gascon would have set aside the 26-month sentence of imprisonment imposed by the Court of Appeal and restored the four-month sentence imposed by the sentencing judge. Gascon J. held that there was no legal basis to justify appellate intervention with the initial sentence in the case.

If you have been charged with refusing to provide a sample of your breath, it is critical that you receive competent legal advice from the outset.  Mr. Patel is regarded as an excellent advocate for the rights of those charged with DUI related criminal code offences.  Call Mr. J. S. Patel, Criminal Lawyer at 403-585-1960 to arrange for a free initial consultation.

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Admissibility of Statements made by Youth Offenders.

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 Youth Criminal Justice Act.
Right to Counsel and the Admissibility of Statements of Young Offenders in Canada

When the police are interacting with minors the common-law rules of voluntariness and counsel differ relative to adults.  The initial stages of the investigation are critical and it is imperative that you understand your rights relative to a police investigation at the outset.  In Reginav. N.B., 2018 ONCA 556, the Ontario Court of Appeal  set aside a conviction for first degree murder that was allegedly committed by a 16-year-old.  The police took incriminating statements from him in violation of the Youth Criminal Justice Act.

The factual basis of the allegations involved the accused allegedly brought a group of people to the body of the deceased, his cousin, and the police were contacted. The young accused was in a highly agitated state; was handcuffed; and placed in a locked police car after pushing a police officer. The police later took him to the police station, and placed in an interview room.  He was told (erroneously) by the police that he was not under arrest and did not need his rights read to him. The police then interviewed him, confronting him for changing his version of events and telling him (falsely) that they had incriminating video from a surveillance camera.

At trial, the Crown Prosecutor, fairly conceded that the police breached the accused’s right to counsel and ss.25(2) and 146 of the Youth Criminal Justice Act\ (which govern the taking of statements). The trial judge admitted the accused’s statements, holding the accused had been only a witness in the murder investigation, even if arrested and detained for breaching the peace or obstructing police.

The court held that the trial judge had improperly shifted the burden to the defence to show the accused was psychologically detained. The burden should have been on the Crown regarding both the detention and whether the statutory preconditions of the Youth Criminal Justice Act for the admissibility of his statements had been met. When the proper onus was applied, a reasonable person would conclude the accused had believed he was not free to leave the interview room without speaking to the officers.  The Court stated the following in relevant part:

[103]    The trial judge’s discussion of burden of proof was confusing – at times he seemed to place the onus on the Crown, and at other times on the appellant.  I have concluded that the trial judge held that the appellant failed to meet his burden that he was psychologically detained on a balance of probabilities.
[104]    At p. 2 of his ruling, the trial judge first noted that the burden of proof with respect to proving the voluntariness of the statements lay with the Crown and the standard was beyond a reasonable doubt.  He then stated that the burden of proof of compliance with s. 146 of the YCJA lay with the Crown, also to be proved beyond a reasonable doubt.  The onus of proof of a breach of s. 10(b) of the Charter lay with the appellant, on a balance of probabilities.  So far, so good.
[105]    Then, at p. 20 of his ruling, the trial judge stated:
After his arrest at the scene for obstruct police and his transport to the police station for the conduct of an interview until 1:59 a.m. on March 10, 2006, [N.B.] was in effect detained.  Until 1:59 a.m. on March 10, 2006, at which time [N.B.] was arrested for first degree murder, no officer advised him of his rights under s. 25(2) of the YCJA or of any of his Charter rights or had the requirements of s. 146 of the YCJA been implemented.
[106]    The trial judge considered voluntariness, and found the appellant’s statements and utterances to be voluntary.
[107]    Next, he concluded that the appellant had been neither detained nor arrested for the offense he was charged with – first degree murder – prior to 1:59 a.m. on March 10, 2006.  At p. 35, the trial judge accepted the evidence offered by way of agreed facts and viva voce evidence of Detective Constables Brooks and Parcells that neither they nor any other police officer had reasonable grounds to consider the appellant a suspect at the time the statements were made. He was satisfied that before the appellant was transferred from the scene to the police station, “the decision was made that he was not under arrest and the removal of the handcuffs by Sergeant [Berriault] was corroborative of that fact, but that [N.B.] was clearly being viewed and treated as a witness only”: p. 36.
[108]    Having dealt with the issues of reasonable grounds and arrest, he then turned to whether the appellant had been detained prior to his arrest.  He stated at p. 39:
In this case, [the appellant] bears the responsibility of establishing on a balance of probabilities that he was psychologically detained.
[109]    As mentioned, this was an error.  As I have explained, the
burden to show that he was detained never shifted from the Crown to the appellant.  Reading his reasons as a whole, it appears that the trial judge was aware that, if any of the three preconditions to s. 146(2) were met, the burden was on the Crown to establish implementation of the protections beyond a reasonable doubt.  However, he failed to appreciate that the burden was also on the Crown to prove the absence of the preconditions beyond a reasonable doubt.

The trial judge also erred by holding that s.146 only applied where the accused is detained or arrested for the offence about which the police were questioning him or her. The statutory protections apply even if the accused has been detained or arrested for an unrelated offence.  The court held these were not technical irregularities and thus the statements could not be admitted under ss.146(6).

If you have been charged with a criminal offence  and you fall within the  Youth Criminal Justice Act., call Mr. J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960. 

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

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

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

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

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

A. The Test for Curative Discharge Applications. 

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

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

B.  The Practical Reality of Curative Discharge Applications. 

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

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

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

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

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

J.S. Patel, Barrister

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

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

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

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