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

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

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

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

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

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

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

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

 

The relevant facts were as follows:

Excessive Force

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

Constable Brewer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

   

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

 

Police Brutality, Excessive Force, Criminal Lawyers

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

     

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Removal or Withdrawal of Counsel from the Record for Ethical Reasons or Non-Payment of Fees, cases from 2018

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The Ontario Court of Appeal has recently ruled on the counsel’s ability to be withdrawn on counsel of record.  The starting point for any analysis stems from the Supreme Court of Canada’s decision in Regina v. Cunningham, [2010] 1 SCR 331, 2010 SCC 10 (CanLII) where the Court laid out the following principles to guide the Courts when it hears applications by accused persons and counsel to be withdrawn as counsel of record:  

[47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.

 [48] Assuming that timing is an issue, the court is entitled to enquire further.  Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged.  Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.  Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1), or if the accused refuses to accept counsel’s advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2).  If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for “ethical reasons”.  However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

[49] If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.), at p. 328, and Deschamps, at para. 23).  Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations.  It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.

 [50] If withdrawal is sought because of  non-payment of legal fees,  the court may exercise its discretion to refuse counsel’s request.  The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power (C. (D.D.), at p. 327).  In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:

   
  1. whether it is feasible for the accused to represent himself or herself;
  2. other means of obtaining representation;
  3. impact on the accused from delay in proceedings, particularly if the accused is in custody;
  4. conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
  5. impact on the Crown and any co‑accused;
  6. impact on complainants, witnesses and jurors;
  7. fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
  8. the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.
  As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis.  On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice.  If the answer is yes, withdrawal may be refused.
In Regina v. Short, 2018 ONCA 1, the Ontario Court of Appeal ordered a new trial for first degree murder where the trial judge refused to let defence counsel off the record six (6) prior to the commencement of the trial proper.   Defence counsel made representations to the presiding judge that indicating that there was a “loss of confidence” between the accused person and himself.  That loss of confidence was such that counsel could not discharge his duties under the Law Society Rules because he could not ethically proceed.  The second ground cited by the defence lawyer was that he was not being paid by the client.  Finally, the defence counsel argued that “Counsel took immediate steps following such a loss of confidence in the relationship to prepare and file the Notice of Application.”  Trial counsel made representations to the trial judge in which he briefly outlined the history of his relationship with the appellant; again, he indicated he had not been paid and referred to the possibility of a lawsuit for payment of the funds owed to him. Counsel also advised the trial judge that because of the non-payment, he had been unable to do things that should have been done in preparation for the second trial.     The trial court considered these explanations but further queried defence counsel on the merits of the representations made and the materials filed, which perciepirated the following response by the Defence Lawyer:    

…I am telling Your Honour that there are issues that have arisen that result in a loss of confidence between Mr. Short and I…

…[A]nd I can tell you as an officer of the court, this is not me putting on top of a non-payment of fees, a paragraph that says there’s a loss of confidence just to get an easy way out. This is probably the most difficult decision I have done. In this particular case I have, without disclosing anything, done everything I can to move this case forward. After the second trial I wiped much of my calendar clean to get this second trial as quick as possible. Obviously, there were communications between my client and I that allowed me to make the decision to go forward, financially and for another, another, another, abound of reasons. But I am telling the [sic] today, is that having no funds, and not being able to disclose to you the communications between the client and I, that I cannot represent Mr. Short going forward. [Emphasis added.]

    It is also critical to note that the trial Court did not query the accused person because it was concerned about the possibility that confidential information would be related to the Court that would not have otherwise be the case if the application had not been made. The Crown Prosecutor objected to the application made by defence counsel.  Oddly, the Crown advised the Court that only payment issues were cited to the preclusion of ethical issues, suggesting that the defence counsel was camouflaging the true nature and merits of the application.  In accepting the Crown’s argument and rejecting defence counsel’s application to be removed as counsel of record, it stated:   Given the weight and tenor of the balance of the affidavit dwelling on financial issues, I am forced to conclude that the reference to ethics in the adverb “ethically” has no basis in evidence. I am persuaded that [trial counsel’s] difficulties relate to payment of his accounts and not to an ethical dilemma.[Emphasis added.]  
The Court of Appeal in Ontario held the trial judge was obligated to accept the defence counsel’s representations (as stated above) that the solicitor-client relationship had broken down; and should have accepted his application to be removed as counsel of record.  The failure to do so culminated in an error that rendered the trial unfair and created a miscarriage of justice. What is more, the trial court also erred by failing to hear from the accused as to whether he wanted to continue with the lawyer.
If you require the assistance of a defence lawyer, call J.S. Patel at 403-585-1960. However, please note that it is not our practice to discuss matters with potential clients when you currently have a lawyer.    

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

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

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

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

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

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

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

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

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

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

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

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

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The Use of Identification Evidence from Eyewitnesses and Video Evidence

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

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

The Facts 

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

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

The General Rules Governing Eye Witness and Video Evidence

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

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

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

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

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

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

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

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

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

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

Contact a lawyer

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

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

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

 

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

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

  The Facts  

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Post-Offence Conduct 

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

 

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

 

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

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

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

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

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

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

 

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

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

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

Criminal Defence Lawyers Calgary and Toronto

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

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August 19, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

The issues involved in constitutional and Charter applications for the exclusion of unlawful or unreasonably obtained evidence are complicated.  An experienced lawyer ought to be consulted in making such an application.   Contact our offices at 403-585-1960 or 1-888-695-2211 for an initial consultation.

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used as fulsome account of area of law discussed.  It is your responsibility to obtained a full legal opinion concerning your matter.

 

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Whether a criminal defence lawyer may make an application to record to the testimony of a Crown witness, an Ontario Police officer, to further an expert spectrographic voice identification analysis to support an application to exclude all improperly obtained evidence under Section 8 of the Canadian Charter of Rights and Freedoms.

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The accused person, in Regina v. Dunstan, was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house.  At trial, his learned criminal lawyers sought to have the evidence of the drugs and cash excluded on the basis that the police had staged the break-in and placed the anonymous call in order to gain access to his house illegally, in breach of his rights under s. 8 of the Charter of Rights and Freedoms to be free from an unreasonable search and seizure.  During his application, his criminal defence lawyers requested an order permitting the defence to use a high-quality microphone to record the testimony of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the maker of the anonymous call and instigator of the break-in, for the purpose of enabling the police officer’s voice to be subjected to expert spectrographic voice identification analysis.  That application was denied by the Superior Court of Justice in Ontario.

According, defence counsel appealed that decision to the Ontario Court of Appeal on the issue of whether a Superior Court judge has the authority to make such an order. His criminal lawyers posited the following issues.  He submitted, that the Superior Court judge erred in:

(a)     determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,

(b)     holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.

The Ontario Court of Appeal found that Section 8 Charter rights of rights of an accused should not turn on the particular level of technology utilized by the court.  Justice Blair of the Court determine that if it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording, it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing, the sample is being provided in any event: Regina v.  Dunstan, 2017 ONCA 432, at para. 63:

[63]      The rights of an accused should not turn on the particular level of technology utilized by the court, in my view. If it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording – as the Crown acknowledges – it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony.  To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing – as the Crown puts it – the sample is being provided in any event.

Based on the above, the Court of Appeal granted the appeal against Mr. Dunstan’s convictions for multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime; and ordered a new trial. The court ordered a new trial.  The Appeal Court also stated that as a Superior Court judge, the pre-trial application judge had the discretionary authority to permit the staff sergeant’s testimony to be recorded on a high-quality microphone pursuant to s.136(3) of the Courts of Justice Act, but, if not, then pursuant to the Superior Court’s inherent jurisdiction at paras. 77 to 82.

Finally, the Court stated that:

[86]      The initial entry involving the break-in and the York Regional Police entry are inextricably intertwined in the circumstances.  The warrantless entry could not be justified (whatever the reasonable belief of the YRP officers and the circumstances confronting them on their arrival) if it had been triggered by an unlawful ruse carried out by state actors in the first place.  The Crown does not dispute this.  To hold otherwise – as the appellant points out – would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the “dupe” officer would insulate the conduct from attack.  For this reason, in my opinion, the two entries – the allegedly fake break-in and subsequent anonymous phone call, and the responding entry by the York Regional Police – are part of a single integrated chain of events that should not be considered, in silo fashion, as two independent and separate events.

This case demonstrates the necessity of using an experienced criminal defence lawyer, who follows updates in the law, to ensure that all your defences are fully canvassed to obtain optimal results.

For a free initial-30 minute consultation regarding your charges, contact J.S. Patel at 403-585-1960 or 1-888-695-2211.

 

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Sentencing – Immigration consequences not considered

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Sentenced overturned from twelve months of jail to six months less a day to avoid severe immigration consequences. 

The collateral immigration consequences should be considered in a sentencing hearing for a criminal matter.   Since this case involves an on-going publication ban, the names of the parties involved (inclusive of the witnesses) will be stated in this post.  The case will be referred to as Regina v. A.I., 2017 ONCA 597 (RD).For another Blog post that describes a case dealing with counsel’s obligations, under the common-law, to be aware of the immigration consequences, please consult the post of June 13, 2017 titled:  Criminal defence lawyers must be aware of the immigration consequences at a sentencing on any guilty pleas under the Criminal Code of Canada that may result in a removal order being issued against a client.

An appeal was allowed against a sentence that was imposed on an accused person who had plead guilty to arson; and received a jail term of twelve months and three (3) years of probation.   The indexed property damage was minimal.  During the sentencing hearing, the offender, was not aware of the collateral immigration consequences as he was not aware that he was no a Canadian Citizen.  Thus, no one, including the Court was aware of the offenders standing under the Immigration and Refugee Protection Act (the “IRPA”).  An offender in similar circumstances will likely be issued a removal order by the Immigration Division due to his inadmissibility to Canada under Section 36 of the IRPA, which addresses the term “serious criminality” for permanent residents in these prescribed terms:

“(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed”

The question then becomes whether Arson, under the Criminal Code of Canada, carries a maximum term of imprisonment of at least ten (10) years. The penalty for Arson under certain sections of the Code can be fourteen (14) years.

Accordingly, this offender could be caught by the Immigration Section that will likely result in a removal order against them.  The consideration that follows is whether a person, in similar circumstances, can appeal a removal order to the Immigration Appeal Division (the “IAD”), and raise equitable and humanitarian consideration, in order to remain in Canada, albeit conditionally.  What adds to this difficulty for this particular offender, is that theIRPA denies access to an appeal to the Immigration Appeal Division against any removal orders (deportation orders) when an offender has served six (6) or more months of jail. This is effectively a bright line test that ousts the jurisdiction of the Immigration Appeal Division to hear such appeals; and a sentence of twelve (12) months ought remove the jurisdiction of the IAD to hear an appeal against a removal order.  Parenthetically, the only remedy that remains is an application to persuade the Canada Border Service Agency to not issue a report that starts that process of a removal order (which is beyond the scope of this post and a complicated legal assessment that must be rendered on a case by case basis.

The Ontario Court of Appeal allowed this offender’s appeal against his effective sentence of 12 months plus three (3) years’ probation for arson. While the OCA does not cite any of the above, such legal considerations are live realities that this offender faced. Removal was likely to occur, by operation of law, with little to no legal remedy available to this offender. Ultimately, the OCA found that the sentence was unfit. Such a sentence would lead to youthful accused with special needs deported to a refugee camp in a country where he had no connection and no supports. The court reduced the accused’s sentence to six months less a day.

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed.