The imposition of consecutive parole (in)eligibility was considered in Regina v. Bissonnette, 2022 SCC 23, the Supreme Court of Canada addressed the constitutionality of s.745.51 of the Criminal Code. Section 745.51 authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first (1st) degree murders, the application of this provision permits a court to add up parole ineligibility periods of twenty-five (25) years for each murder. In a unanimous decision, the court held that s.745.51 is contrary to s.12 of the Charter(right not to be subjected to cruel and unusual treatment or punishment) and is not saved under s.1. The Court stated the following with respect to s. 12 of the Charter.
Supreme Court of Canada unanimously strikes down life without parole.
Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In essence, the purpose of s. 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. The protection afforded by s. 12 has two (2) prongs. Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with human dignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity. The first prong of the s. 12 guarantee relates to punishment whose effect is grossly disproportionate to what would have been appropriate. The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and unusual by nature; these punishments will always be grossly disproportionate because they are intrinsically incompatible with human dignity.
A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context. To determine whether a punishment is intrinsically incompatible with human dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. A punishment that is cruel and unusual by nature must always be excluded from the arsenal of punishments available to the state. It follows that the mere possibility that a punishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter. The court declared the provision to be of no force or effect immediately under s.52(1) of the Constitution Act, 1982. The court held that the declaration strikes down the provision retroactively to the date it was enacted.
J. S. Patel, Criminal Defence Lawyer
If you have been charged with a criminal offence, call Mr. J.S. Patel, Barrister for a free telephone consultation at 403-585-1960 or 647-323-1960.
In Regina v. Strathdee, 2021 SCC 40, the Supreme Court of Canada (the “SCC”) upheld a decision of the Alberta Court of Appeal (2020 ABCA 443) overturning the acquittal for unlawful act manslaughter and entering a conviction. The trial judge had acquitted the accused after considering joint/co-principal liability and abetting under ss.21(1)(a) and 21(1)(c), respectively, of the Criminal Code of Canada (2019 ABQB 479). The charges against Mr. Strathdee stemmed from a group assault in which several victims sustained multiple injuries and one victim, Mr. Tong, sustained a single stab wound which caused his death.
Joint Liability in Criminal Offences in Canada. Recent Decision from the Supreme Court of Canada (November 2021)
The SCC agreed with the Court of Appeal that there was no basis for the view that the stabbing of Tong was a distinct act outside the scope of the group attack.
The court stated: “Having regard to the findings of fact in paras. 137 and 156-59 (CanLII) of the trial decision, and the statement of law set out by the Court of Appeal at paras. 61, 66 and 68 of its decision, this Court affirms the result of the Alberta Court of Appeal that is guilty of unlawful act manslaughter.”
The court also clarified a statement of law in Regina v. Cabrera, 2019 ABCA 184, aff’d Shlah, 2019 SCC 56, regarding joint/co-principal liability noting:
“Joint/co-principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, is fully consistent with the foregoing.”
If you have been charged with a criminal offences in Canada, contact Mr. J.S. Patel, Criminal Defence Lawyer for a consultation: 403-585-1960 or 647-323-1960.
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.
The application of mental health in the context of bail reviews was recently clarified in a recent decision from the Supreme Court of Canada in Regina v. Myers, 2019 SCC 18. The SCC confirmed animating and cardinal principle right out of the gate at paragraph 1:
“The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.”
Those prefatory remarks permeate the entirety of the decision. In my view this decision addressed a critical gap in the jurisprudence.The query before the Court was determine the correct approach to a detention review under s. 525of the Criminal Code of Canada (the “Code”); and to explain the place of such a review within the larger context of pre-trial custody in Canada. The Court made the following salient points.
It emphasised that Judges and justices at bail hearings should always give very careful consideration to release plans that involve supervised treatment for individuals with substance abuse and mental health issues. Of importance, it stressed at paragraph 67 of the decision that the release into treatment with appropriate conditions will often adequately address any risk, and “we must not lose sight of the fact that pre-trial detention is a measure of last resort”. It noted that Parliament intended the s.525 review provisions to be a safeguard; and that Section 525 bail reviews are not restricted to cases in which there has been an unreasonable delay in bringing the accused to trial, although delay can be relevant to the court’s review.
The onus to apply for a s.525 review is on the prosecution, and accordingly an accused person or their defence counsel need not request a hearing. Detained persons are are entitled to a s.525 hearing. This applies even if they did not have an initial bail hearing. In such cases, the review judge must apply the “ladder principle” (see ReginaAntic, [2017 SCC 27); and determine the issue of bail de novo.
At the review hearing, the task of the judge must centre on the issue of whether “…the continued detention of the accused in custody justified within the meaning of s. 515(10) [the detention provisions]?” In this connection, the hearing is a review of the detention itself, not of any order made in a lower court, although errors in detention orders may justify revisiting the order. With great clarity, Court remarked at paragraph 63:
At the hearing, unreasonable delay is not a threshold that must be met before reviewing the detention of the accused. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of 515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre-trial detention.
In terms of the reception of the evidence, the court may receive any evidence that is credible or trustworthy, unless it existed at the time of the initial bail hearing and is barred by the “due diligence” and “relevance” criteria. And finally, the reviewing judge must give directions to expedite the trial of persons in custody, and to ensure the accused will not be in a “time served” position before the trial date.
If you have been charged with a criminal offence and seeking a bail review on any of your conditions or are seeking you release, contact our office at 403-585-1960.
Supreme Court of Canada strikes down Victim Fine Surcharges.
Upon the imposition of penalty, the Criminal Code of Canada (R.S.C.., 1985, c. C-46)once imposed a victim find surcharges upon the entry of a conviction and/or penalty pursuant to section s. 737. The amount is set by law and is owed for each and every summary conviction or indictable offence. The surcharge is intended to fund government programs designed to assist victims of crime. The surcharge applies regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim. That section said:
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is
(a) 30 per cent of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
That section was struck down by the Supreme Court of Canada in Regina v. Boudreault, 2018 SCC 58 (CanLII), wherein the majority of that Court struck down the mandatory victim surcharge. A Supreme Court hard a number of appeals together considering the same issue. The section is now of no force or effect. The majority held the victim surcharge was a form of “punishment,” and therefore subject to the Charter right against cruel and unusual punishment pursuant to Section 12 of the Charter. Some of the offenders before the Court lived in dire straights (i.e. serious poverty, deliberating addiction issues, deplorable housing, and physical issues). Some of these offenders were recidivists, who regularly appeared before the courts, and got fined. What is more, the consequences of failing to pay to fee could (but not necessarily) result in being taken into custody (at her Majesty’s Institutions), among other things (i.e. collection agency actions). A fit sentence for the appellants would not include such a fine, and the overall operation and effects of the mandatory fine were grossly disproportionate.
The court continued by positing that the ongoing enforcement of victim surcharges that were imposed before the date of its judgment would violate s.12 of the Charter at each step. This could arise, where the offender is arrested or brought to court for a financial update. The Court stated:
The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the circumstances of this case, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. Sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they are not.
However, the court left open the issue of remedy for persons in this situation, but suggested that remedies are available under s.24(1) of the Charter, and that Parliament could act administratively to create a remedy.
There were two (2) dissenting Justice. Justice Côté, writing in dissent for herself, and Justice Rowe,would have held that:
[114] I respectfully disagree. While I accept that the mandatory imposition of the victim surcharge may have a particularly negative impact on impecunious offenders, I cannot accept that it amounts to treatment or punishment that is truly “cruel and unusual”, as that phrase has been interpreted in this Court’s jurisprudence. Moreover, I am of the view that the impugned provision does not deprive impecunious offenders of their security of the person, and that any deprivation of liberty that may result from the application of s. 737 of the Criminal Code accords with the principles of fundamental justice. For these reasons, I discern no violation of either ss. 12 or 7 of the Charter, and I would dismiss the appeals accordingly.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Criminal Lawyer in Toronto and Calgary at 403-585-1960.
The Credibiity of Confidential Informants in Reviewing a Informaiton to Obtain a Warrant to Search a home
The credibility of a confidential informant is very important to the state’s case when endeavoring to uphold a warrant authorizing a search that is critical to the entire prosecution case. An accused person’s conviction was overturned recently by the Court of Appeal in Regina v. Herta, 2018 ONCA 927where the entire case for the Prosecution Service hinged on the credibility of a confidential informant. The Court permitted Mr. Herta’s appeal of his unsuccessful motion under Section 8 of the Canadian Charter of Rights and Freedoms at trial, excluded the drug evidence, and entered acquittals on all counts. The critical issue was the Information to Obtain the search warrant of a home. The critical issue was the Information to Obtain the search warrant of a home under the seminal authority of Reginav. Feeney, [1997] 2 S.C.R. 13;
The standard exacted, to review the warrant and ITO, is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. This standard requires more than an experienced-based “hunch” or reasonable suspicion, but it does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. In short, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have been issued.
In this case, the search of his home arose from the fact that an individual wanted by police (DC) was seen arriving there. The Information to Obtain (the “ITO”) the search warrant contained references from a confidential informant that this individual “DC” was armed. Consequently, the police obtained a search warrant for the house, which did not reveal a gun, but led police to find several illicit CDSA substances that formed the basis of the charges before the Provincial Court.
The Court of Appeal made it very clear that the indexed search warrant, in this case, rose or fell on the strength of the confidential informant’s tip; and consequently the Crown’s case. However, the trial judge was not tasked with a step six analysis from Regina v. Garofoli, 1990 CanLII 52 (S.C.C.). When reviewing a judicial authorization, the relevant question is not whether the reviewing Court would have granted the order. The question on review is whether or not the order could have issued. The test in this regard was set out by Sopinka J. in Garofoli, supra, as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
This is notwithstanding the fact there were heavy redactions in the ITO. However, since the redacted ITO did not contain objective facts supporting the informant’s credibility, no confidence could be safely placed in his/her information. What is more, insufficient corroborative evidence was present to justify the belief that DC was in the residence with a gun. The confirmatory information available related to things that many people would know about this person: DC.
Finally, the confidential informant’s tip was not sufficiently compelling. This is because it did not connect DC’s possession of a gun to the residence in question; and there was nothing in in the ITO that connected DC to the residence. The ITO was also potentially misleading by suggesting that DC lived at the house.
Based on the totality of the circumstances, the Court could not support the warrant and that the accused’s s.8 Charterrights were breached.
As such, the Court engaged in a s. 24(2) Charter analysis as required by Regina v. Grant2009 SCC 32 (SCC). It ruled that the impact of the breach on the Charter-protected interests of the accused weighed heavily in favour of exclusion, given the highly invasive nature of the search. Despite the importance of society’s interest in the adjudication of this case on the merits, the exclusion of evidence was warranted. Acquittals were entered on this basis.
If you have been charged with a drug related offence involving the use of Search Warrant by the police, call Mr. J.S. Patel, Barrister for a consultation: 403-585-1960.
Supreme Court of Canada rules that Historical Maintenance Records for a Breathalyzer are not first party disclosure.
In an important disclosure decision from the Supreme Court of Canada (the “SCC”) provides guidance on legal standard imposed on Crown Prosecutors and policing services to disclosed historical maintenance records that pertain to the breathalyzer device used in the context of impaired driving investigations under section 253(1) of the Criminal Code of Canada (the “Code”) or their predicate sections. Critical to the SCC’s determination was the “likely relevancy” of the records sought by the defence. Despite a well-argued case by reputable and senior defence counsel from Calgary, Alberta, the SCC ruled, in Regina v. Gubbins, 2018, SCC 44 (and the companion cases), in an eight (8) to one (1) majority, as follows, in relevant part:
First, the historical maintenance records sought by Mr. Gubbins, through counsel, that related to the breathalyzer device used in the investigation of a charge of driving “over 80” was not “first-party disclosure”. Under the cases of Regina v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at pp. 336-40; Regina v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11.and their pedigree, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges. However, in this case, the SCC found that they were third party records, and the defence must demonstrate their “likely relevance” at an application for production. However, “time-of-test” records, which show how the device was operating when the accused’s sample was taken, are “obviously relevant” and therefore are first party disclosure.
On this concept, the “likely relevance” standard is significant, but not onerous. It allows courts to prevent speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming requests for production. What is more, the he duty of the police to disclose first-party material is limited to the “fruits of the investigation” and information “obviously relevant to the accused’s case” (at para. 21). Neither includes “operational records or background information.” In citing Reginav. Jacksonfrom the Ontario Court of appeal, the Court posited:
[22]The “fruits of the investigation” refers to the police’s investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused.
This case is important and contributes to the existing case-law because the SCC’s previous decision in Reginav. St‑Onge Lamoureux, [2012] 3 SCR 187, 2012 SCC 57 (CanLII), did not decide that maintenance records are “obviously relevant,”and expert evidence establishes that the issue of whether a device was properly maintained is immaterial to its functioning at the time the sample was taken.
What is more, the Court held that the constitutionality of the statutory presumption of accuracyof breathalyzer devices is not jeopardized by the holding that historical maintenance records are third party records. The defence can use time-of-test records and testimony from the technician or officer involved to challenge the presumption. A defence is not illusory simply because it will rarely succeed. At paragraph 47, the Court stated:
The statutory presumption of accuracy refers to the specific results generated by the instrument at that time. The only question that must be answered is whether the machines were operating properly at the time of the test ― not before or after. The time-of-test records directly deal with this. The maintenance records, according to the expert evidence, do not.
Conversely, Justice Côté . dissented. In his decision, he held, that would have held that maintenance records are “obviously relevant” to rebutting the statutory presumption of accuracy, and are therefore first party disclosure. Justice Côté also would have held that the constitutionality of the statutory presumption of accuracy depends on the ability of the defence to access maintenance records. The rationale of this decision was summarized in the following terms:
Holding that only time‑of‑test records produced by the instrument can demonstrate malfunctioning effectively assumes that the machine is infallible. This confines the defence to arguments raising a doubt as to the instrument’s operation, contrary to Parliament’s intent to make malfunctioning and improper operation two distinct grounds for rebutting the presumption of accuracy. Recourse to third party disclosure will, in practice, be illusory. For an accused to have a real opportunity to show that an instrument was malfunctioning, an expert must have an evidentiary basis either to opine as to the possibility that the instrument malfunctioned or to establish the likely relevance of other information to be sought through third party disclosure. Providing nothing by way of first party disclosure forces accused persons and their experts to resort to conjecture and speculation.
And he concluded at paragraph 86:
[86] Finally, it is my view that disclosing maintenance records as first party records is not only consistent with St-Onge Lamoureux but also serves the interests of justice. Where maintenance records reveal no issues, their disclosure may compel the accused to plead guilty. Where they reveal certain issues and an expert is of the opinion that these issues may prove that the instrument malfunctioned, the maintenance records provide a basis for the accused to raise such a defence or to make subsequent O’Connor requests in a grounded, non-speculative manner.
While this decision may seem innocuous at first glance and of limited application to only breathalyzer devices, it is likely that the SCC has paved the path in anticipation for other technological devices used (or to be used) by policing services throughout Canada. The logic of the Court’s decision will have an impact on future disclosure motions that pertain to software and hard-ware used by police and their applicability to the constitutional rights of accused persons.
If you have been charged with impaired driving, “Over-80”, refusing to provide a sample, contact Mr. J. S. Patel, Barrister for a free thirty minute initial consultation over the phone. Contact 403-585-1960 to arrange an appointment.
Dangerous Driving under the Criminal Code of Canada
In Regina v. Raj, 2018 ONCA 623 (CanLII) the Ontario Court of Appeal dealt with the conviction appeal for an accused person involving a commercial dump-truck operator. It was a case Dangerous Driving involving alcohol and the use of a Commercial Vehicle. The facts underpinning the appeal involved a proven allegation that the accused had driven the raised box of his dump truck into an over-pass. The accused was/is a professional truck driver. On July 31, 2014, he was driving a commercial dump truck on the Queen Elizabeth Highway (“QEW”). There was a trailer attached to the truck whose box could be raised and lowered using a system of buttons and levers in the truck called the Power Take-off (“PTO”) system. That day, the appellant had left the PTO lever in the ‘On’ position. Under certain circumstances, leaving the PTO engaged permitted the trailer to rise.
The accident scene was chaotic and dangerous, and the police placed the accused in a police car for 2.5 hours for his own safety. The following arguments were raised by the accused’s criminal appeal lawyers: First, it was posited that the trial judge erred by concluding that the appellant’s confinement in the police cruiser for 2.5 hours was not an arbitrary detention contrary to s. 9 of the CanadianCharter of Rights and Freedoms. Second, if that argument was successful, then it was argued that result would be that the police breached both his s. 9 and s. 10 Charter rights. This, it was argued, would call for a reappraisal of the trial judge’s s. 24(2) analysis and lead to a different result – the exclusion of the evidence relating to the smell of alcohol on the appellant’s breath. The Court disagreed. It said that the principal, and continuing, purpose of the appellant’s detention was his own safety. His truck had caused a terrible accident with extensive damage to vehicles and a bridge and injuries to several people. The police noticed the appellant walking around a dangerous accident scene and sitting on a guardrail very close to a damaged and collapsing girder. Importantly, his truck was crushed.
The Ontario Court of Appeal also upheld the decision of the trial judge admitting evidence of a smell of alcohol on the accused’s breath even though the police did not provide access to counsel during the detention, breaching s.10(b) of the Charter. The police conduct was only a mistake and not deliberate misconduct, and the police would have smelled the alcohol even if they had acted properly.
What is more, the Court of Appeal upheld the trial judge’s finding that the accused’s conduct was a marked departure from a reasonable person’s driving. This was mostly due, in large part on the accused’s alcohol consumption, and his failure over forty (40) seconds to notice that the box of his dump truck had raised. The court said that prior to colliding with the bridge superstructure the appellant drove a one (1) kilometer distance for forty (40) seconds without detecting the rising dump box despite its effect on the truck’s handling and despite it being clearly visible from all of the truck’s mirrors.Given all the factors, the Court of Appeal dismissed the possibility of the that period of time constituting an “momentary inadvertence.”
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.
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).
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 completeRegina 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.
Criminal Lawyer in Calgary and Toronto, DUI, Over 80, Domestic Assault, Sexual Assault, Murder, Legal Aid,
The Court of Appeal in Regina v. 
