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Co-Principal Liability in the context of Second Degree Murder by J.S. Patel, Criminal Defence Lawyer (403-585-1960)

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Co-principal liability was recently explained by the Court of Appeal in Regina v. Abdulle, 2020 ONCA 106 (CanLII). In circumstances involving co-principals, as is the case here, the liability of parties to an offence is addressed by s. 21 of the Code. In Regina v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, Justice Watt  explained that co-principals are liable where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: at para. 181.  This was also explained in Regina v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63. In order to be liable as principals, therefore, the parties must have had the requisite intention.  Within the scope of the requisite mens rea required for second-degree murder is outlined in s. 229 of the Criminal Code, which states that culpable homicide is murder where the person who causes the death of a human being either means to cause their death, or means to cause them bodily harm that they know is likely to cause their death and is reckless whether or not death ensues.

In Regina v. Abdulle, 2020 ONCA 106, the Ontario Court of Appeal upheld the appellants’ convictions for second-degree murder. The convictions arose from an altercation that occurred in the parking lot of the apartment building where the deceased lived. The deceased was stabbed multiple times, beaten, kicked, and stomped on by a group of young people. He was without vital signs when paramedics arrived, and he was pronounced dead at the hospital. The three appellants – Abdulle, Jama and Egal – and a fourth accused, Bryan, were charged with second-degree murder. The Crown alleged that the accused were co-principals in an attack on the deceased, that one or more of them inflicted the fatal stab wounds, and that all had the necessary intent for murder under s.229(a) of the Criminal Code. The jury convicted the appellants and acquitted Bryan. The appellants were sentenced to life imprisonment with no parole eligibility for 12 years.  The Court of Appeal made the following findings that: (a)t he trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder; (b) the trial judge did not err by improperly restricting Abdulle’s evidence; (c)The trial judge did not err by failing to give the jury an Oliver instruction [Regina v. Oliver, [2005] CanLII 3582, [2005] O.J. No. 596 (C.A.), at paras. 50-60] regarding Bryan’s evidence, warning that they should consider his testimony with particular care and caution; (d) the trial judge made no error in allowing counsel for Bryan to cross-examine a witness (Jama’s mother) on her police statement that Egal had a knife, and in failing to grant a mistrial; (e) the trial judge did not err by improperly instructing the jury concerning a witness’s prior inconsistent statement; and (f) the verdict was not unreasonable in relation to Jama.

If you have been charged with a criminal offence, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.

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

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  The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)).  The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment. The appealed raised a number of grounds. It was allowed.  A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9).  However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias.  The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed. The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27: [27]      The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about: (a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication? (b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
If you have been charged with a criminal offence and require a consultation, call Mr. J.S. Patel at 403-585-1960.

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Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.

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Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.
Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.

The issuance and compliance with the execution of search warrants and production on the media to reveal information relative to their (confidential) sources is a contentious issue in Canadian criminal jurisprudence. The seminal cases that considered such issues were in Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49, [1991] 3 S.C.R. 421; and its companion case, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50, [1991] 3 S.C.R. 459 (collectively referred as the “the ‘CBC Cases’).

Last week, the Supreme Court of Canada rendered it’s decision in Regina v. Vice Media Canada Inc., 2018 SCC 53 (CanLII). The appellants, Vice Media, is a media organization and one of its journalists, wrote and published three (3) articles in 2014 based on exchanges between the journalist and a source, a Canadian man suspected of having joined a terrorist organization in Syria. The Royal Canadian Mounted Police (the “RCMP”) successfully applied ex parte to the Provincial Court, under s.487.014 of the Criminal Code, for an order directing the appellants to produce the screen captures of the messages exchanged with the source. The majority and minority opinions are described below but it is important to note that the new Journalistic Sources Protection Act, S.C. 2017, c.22 was not considered by the Court.

The Majority Opinion

The majority opinion from the SCC stated that the CBC Cases provide a suitable frame-work for execution of production orders and search warrants on the media but refined the test in the following terms stated below. Writing for the majority of the Court, the Honourable Justice Moldaver J. said:

First, rather than treating prior partial publication as a factor that always militates in favour of granting an order, I would assess the effect of prior partial publication on a case-by-case basis. Second, with respect to the standard of review to be applied when reviewing an order relating to the media that was made ex parte, I would adopt a modified Garofoli standard (see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421): if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review. Otherwise, the traditional Garofoli standard will apply, meaning that the order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order. Third, I would reorganize the Lessard factors to make them easier to apply in practice.
When reviewing an application for a production order, the Supreme Court provided the following judicial guidance for lower court judges in the following terms at paragraph 82:
[82] Having settled the main jurisprudential issues on appeal, I wish to take this opportunity to reorganize the Lessard factors to make them easier to apply in practice. On an application for a production order against the media, the authorizing judge should apply a four-part analysis:
(1) Notice. First, the authorizing judge must consider whether to exercise his or her discretion to require notice to the media. While the statutory status quo is an ex parte proceeding (see Criminal Code, s. 487.014(1)), the authorizing judge has discretion to require notice where he or she deems appropriate (see National Post, at para. 83; CBC (ONCA), at para. 50). Proceeding ex parte may be appropriate in “cases of urgency or other circumstances” (National Post, at para. 83). However, where, for example, the authorizing judge considers that he or she may not have all the information necessary to properly engage in the analysis described below, this may be an appropriate circumstance in which to require notice.
(2) Statutory Preconditions. Second, all statutory preconditions must be met (Lessard factor 1).
(3) Balancing. Third, the authorizing judge must balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news (Lessard factor 3). In performing this balancing exercise, which can be accomplished only if the affidavit supporting the application contains sufficient detail (Lessard factor 4), the authorizing judge should consider all of the circumstances (Lessard factor 2). These circumstances may include (but are not limited to):
(a) the likelihood and extent of any potential chilling effects;
(b) the scope of the materials sought and whether the order sought is narrowly tailored;
(c) the likely probative value of the materials;
(d) whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources (Lessard factor 5);
(e) the effect of prior partial publication, now assessed on a case-by-case basis (Lessard factor 6); and
(f) more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party (Lessard factor 3).
At the end of the day, the decision as to whether to grant the order sought is discretionary (Lessard factor 2), and the relative importance of the various factors guiding that discretion will vary from case to case (see New Brunswick, at p. 478).
(4) Conditions. Fourth, if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions on the order to ensure that the media will not be unduly impeded in the publishing and dissemination of the news (Lessard factor 7). The authorizing judge may also see fit to order that the materials be sealed for a period pending review.
[83] As explained above at para. 73, if the order is granted ex parte and is later challenged by the media, the standard of review is determined by applying the following test: if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review. If, on the other hand, the media fails to meet this threshold requirement, then the traditional Garofoli standard will apply, meaning that the production order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order.

Ultimately, the Supreme Court of Canada found that is it was (a) open to the authorizing judge to proceed ex parte and decline to exercise his discretion to require notice; (b) the statutory preconditions for the production order were satisfied. This is because the Information to Obtain (the “ITO”) provided reasonable grounds to believe that (i) the source of Vice Media had committed certain offences; (ii) the appellants, Vice Media, had in their possession the materials sought by the RCMP; and (iii) finally those materials would afford evidence respecting the commission of the alleged offences.

Additionally, it was open to the authorizing judge, in conducting the balancing exercise as proposed in the CBC Cases, to conclude that the state’s interest in investigating and prosecuting the alleged crimes outweighed the media’s right to privacy in gathering and disseminating the news. What is more, the Court opined that even on a de novo review, the production order was properly granted. They came to this opinion because the SCC felt that the disclosure of the materials sought would not reveal a confidential source. Particularly, no “off the record” information or “not for attribution” communications would be disclosed. Unlike the Regina v. National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII) case, “this is not a case in which compliance with the order would result in a confidential source’s identity being revealed.”

In furthering the balancing exercise, there was no alternative source through which the materials sought may be obtained; the source used the media to publicize his activities with a terrorist organization as a sort of spokesperson on its behalf; and the state’s interest in investigating and prosecuting the alleged crimes weighed heavily in the balance. Finally, the authorizing judge imposed adequate terms in the production order.

In terms of the constitutional arguments posited based submissions made under Section 2 of the Charter, the majority further held that it was neither necessary nor appropriate in this case to formally recognize that freedom of the press enjoys distinct and independent constitutional protection under s.2(b) of the Charter. The majority also noted that the case did not attract the new Journalistic Sources Protection Act, S.C. 2017, c.22, because the facts arose before the legislation came into force. Thus, it will be interesting to see future challenges, on similar facts, to the Court under the Journalist Sources Protect Act that arises from facts that post-dates its implementation. It appears that the Court avoided this issue when the minority opinion stated in Obiter Dicta: “None of its provisions, however, was at issue before us. As a result, these reasons have intentionally avoided addressing or applying any of them.”

The Minority Opinion

There was a strong dissenting opinion from Justice Abella who wrote for the four-member minority. The minority judgement would have held that s.2(b) of the Charter “contains a distinct constitutional press right which protects the press’ core expressive functions — its right to gather and disseminate information for the public benefit without undue interference”.

Justice Abella eloquently states:

[111] This case explores the border between vigorous protection for the press and the state’s ability to investigate crime by seeking information from the press. There are, as a result, two provisions of the Canadian Charter of Rights and Freedoms at issue in this appeal. One is s. 8, which protects a reasonable expectation of privacy. The other is s. 2(b), which protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

[112] Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively. As these reasons seek to demonstrate, s. 2(b) contains a distinct constitutional press right which protects the press’ core expressive functions — its right to gather and disseminate information for the public benefit without undue interference. When the state seeks access to information in the hands of the media through a production order, both the media’s s. 2(b) rights and s. 8 privacy rights are engaged. A rigorously protective harmonized analysis is therefore required.

However, after engaging in the application of the facts, minority opinion would have dismissed the appeal on the basis that “the production order strikes a proportionate balance between the rights and interests at stake”; and the “…benefit of the state’s interest in obtaining the messages outweighs any harm to Vice Media’s rights.”

If you have been charged with a criminal offence, call our office at 403-585-1960 to spea to Mr. J.S. Patel, Barrister. Our office assumes conduct of select constitutional “test-cases” on a case by case basis .

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An example of a flaw credibility assessment of testimony in a sexual assault cases results in a conviction being overturned on appeal

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Sexual Offences and Credibility - How Credibility is Assessed in Criminal Trials
Sexual Assault and Credibility findings in a Criminal Trial: How Credibility can be assessed in Criminal Trials in Canada

In Reginav. J.L., 2018 ONCA 756the OntarioCourt of Appeal set aside the accused’s conviction for sexual assault and ordered a new trial  At trial, the case that turned largely on credibility.  This case is just one example  of a flaw credibility assessment of testimony in a sexual assault cases results in a conviction being overturned on appeal

The accused was convicted of sexually assaulting the complainant at a dance. . The key issues raised in this conviction appeal are (a) the sufficiency of the trial judge’s reasons, (b) whether he properly relied on a behavioural assumption, and (c) on the complainant’s post-occurrence demeanour in convicting the appellant. This case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.

The Court of Appeal agreed and found that the trial judge did not engage in any analysis of the testimony of the complainant and the accused other than to note “inconsistencies and many lapses of memory.”  In fact, the judge essentially relied on two (2) facts to explain why the complainant’s version of the events accepted, namely that: (i) she did not consent to sexual contact; and (ii) that the accused pressed on with attempted intercourse: the complainant’s demeanour after the incident and the finding that it “defied common sense” that a young woman would go outside in a dress in mid-December and consent to sexual activity on the ground.

The court held that the trial judge failed to consider the similarities in the complainant’s emotional state before and after the alleged assault. Her physical state was also consistent with the possibility of having engaged in consensual sexual activity. The trial judge’s assumption about what a “young woman” would or would not do could not be taken as a fact, and yet the trial judge relied on it to reject the accused’s evidence. There was a danger that this reasoning affected the trial judge’s conclusion as to whether the Crown had proven its case.  The Appellate Court stated the following in relevant part:

[46]      The second basis for the trial judge’s conclusion depended on an assumption about what a “young woman” will and will not do. As mentioned, the trial judge said: “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.”  In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that, young women would not do what the complainant was said to have consensually done.  There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.

[47]      Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. In R. v. Mah, 2002 NSCA 99 (CanLII), [2002] N.S.J. No. 349, at para. 75, Cromwell J.A. (as he then was) stated:  “Assumptions about the ways of the world appear to have contributed to the judge’s failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt”. Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge’s reasoning, his finding of guilt was tainted by error.

Again, this case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.

If you have been charged or are about to be charged with sexual assault under section 271 of the Criminal Code of Canada, contact Mr. J. S. Patel, Criminal Lawyer in Calgary  or Toronto at 403-585-1960 for an initial consultation.  

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Dangerous Driving involving alcohol and the use of a Commercial Vehicle, R. v. Raj, 2018 ONCA 623, Case Summary.

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Dangerous Operation of a Motor Vehicle, section 249(1)
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 Canadian Charter 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.”

If you have been charged with dangerous operation of a motor vehicle and require a consultation, contact Mr. J.S. Patel, DUI Criminal Lawyer for a free initial consultation. Mr. Patel is regarded a throughly prepared criminal lawyer in the context of driving matters such as DUIs and Dangerous driving.

 Call: 403-585-1960. 

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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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A Broken Bail System in Canada due to a Crown/Judicial Culture of Risk Aversion through an excessive use of Sureties: In Regina v. Tunney, 2018 ONSC 961, the Ontario Superior Court of Justice at a bail review considered Crown-onus bail hearings and held as follows:

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The Superior Court of Ontario, reviewed the viability of Section 520 of the Criminal Code of Canada (the “Code”) against the principles laid out by the Supreme Court of Canada (“SCC”) in Regina v. Antic, infra.  Tunney is a critical bail review decision by Justice Joseph Di Luca of the Ontario Superior Court of Justice.  Mr. Tunney filed an application to review his conditions of his bail order that was levied against him as a condition precedent for his release.  One of the conditions involved the use of a a surety and conditions.  Procedurally, the initial application for judicial interim release placed the onus on the Crown (“Crown onus”).   Justice Di Luca of the Superior Court found that the Justice of the Peace erred by: (a) in failing to analyze and provide reasons why lesser forms of release were insufficient in the circumstances; (b) in refusing defence counsel’s request for a bifurcated hearing where the accused would need to call his proposed surety once the court determined that surety release was appropriate; (c) in making comments that came dangerously close to placing a de facto reverse onus on the accused to call evidence to justify his release in a Crown onus bail.

Justice Di Luca held that Regina v. Antic, 2017 SCC 27 is not simply a case that “stands on its own” or can be distinguished on its facts.  The principles of stare decisis applies; and as a binding precedent, Antic, supra, must be followed.  Thus, a surety release should only be considered where all lesser forms of release fail to satisfy concerns raised by the evidence. This flexible approach can be used in the bail process when it comes to surety approval.  As a matter of best practices, it can and should often be done outside court using sworn affidavits or questionnaires.  The final determination of a proposed surety’s suitability remains a judicial function and it is up to the presiding justice to determine whether viva voce evidence is needed.  The defence should be free to argue that a bifurcated process is appropriate in any given case.  This case references the recent studies on bail and the Bail Directive in the Ontario Crown Prosecution Manual.
  1. Canada’s bail system is “broken,” in part due to “culture of risk aversion”; and an over-reliance on surety release (at paras. 29-30).
  2. The Supreme Court of Canada’s decision in Regina v. Antic, 2017 SCC 27 — which discourages over-reliance on sureties and requires procedural protections for accused persons at bail hearings — is binding on bail courts. It cannot be distinguished and justice-system participants must follow its “clear message [to] return to the first principles of bail, both as a matter of law and as a matter of practice” (at paras. 36, 45-46). The court held that, “We need to do things differently” (at para. 57).
  3. The form of release and the suitability of a surety (if one is necessary) must be kept analytically distinct. Requiring evidence of surety suitability at the bail hearing risks creating a reverse onus on the defence to justify release. Instead, in most cases the court may use a bifurcated procedure in which the form of release is determined first and, if a surety is necessary, the surety is assessed afterward, either in or out of court (at paras. 51-53). Where a surety is necessary but the proposed surety is inadequate, bail would be “set but not met.”
  4. Even if a surety release is the “safest” or “best” option for release, this is not the test in the Criminal Code. The least restrictive form of release must be ordered (at para. 46).
  5. Even where a surety is necessary, there is no requirement for the proposed surety to testify in court and he or she is not on trial (at paras. 39-41). The absence of a record of bail supervision or compliance does not mean the surety must be assessed in court (at para. 54). Nor can the Crown require viva voce evidence from a surety (at para. 55). Out-of-court assessment procedures free up scarce judicial resources and reduce delay (at paras. 39-40).
  6. Language suggesting the possibility of detention in a Crown-onus bail hearing where the Crown is not seeking detention should be avoided. It is strongly indicative that the court is imposing a reverse onus on the defence (at para. 47); and
  7. The Crown must take a reasonable and sustained position on the “bail ladder” that it is prepared to support with evidence and submissions. It should not argue a higher rung on the bail ladder or detention as an alternative position (at para. 48).

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An evidentiary assessment, from the case-law, of the motives of complainants to lie in historical sexual assault cases, and a disbelief of accused’s evidence

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Motive to Fabricate

While the assessment of credibility in a context of a sexual assault is driven by general principles, there are deeper legal principles, surrounding the rules of evidence that govern its application.   In Regina v. A.S., 2017 ONCA 994, the Ontario Court of Appeal ordered a new trial for historical sexual offences allegedly committed by a pediatrician against two (2) of his former patients. The allegations spanned a period between 1964 and 2013. He was acquitted of charges against four (4) other complainants at trial. There is a publication ban on the nature of the facts.  The factual findings are related in the decision of the Court of Appeal.  This case is helpful in that is reinforces the Appellate Court’s views on the assessment of credibility when consider a motive to lie and the Crown’s failure to corroborate evidence in the context of historical sexual assault cases, where witness memories are typically spent.

Court of Appeal’s Decision in A.S.

The Court of Appeal found that the Trial Court’s misapprehensions of evidence and unsupported conclusions, taken together, meant the convictions could not stand. In summary, trial court had held that an absence of a complainant’s motive to lie enhanced her credibility. In citing Regina v. L. (L.)(2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413 (CanLII), at para. 44, the Court of Appeal held that “There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility” (at para. 25).  Of note, is the Court’s comments that certainly the absence of any apparent motive to lie is an unreliable marker of credibility.  Consequently, it is generally an unhelpful factor in assessing credibility  The trial court also erred by drawing an inference of guilt from her disbelief of the accused’s evidence and by attributing a motive to him, to visit the complainant, that was based on a misapprehension of the evidence. In addition, the trial court also rejected defence submissions about the importance of the absence of corroboration.  It stated: “None is required. Given the way the alleged crimes were committed where the only persons present were doctor and patient, the potential for corroboration does not arise.” The Court of Appeal found that while the trial judge is correct that corroboration is not necessary in such cases, the trial court was not correct that the alleged crimes were committed where the only persons present were doctor and patient. On the complainant’s own version of events, a nurse walked in during the most serious of the assaults she described. There were other areas of potential corroboration as well, such as records confirming contact between the appellant and complainant. that never materialized. The trial court inaccurately dispensed with the potential for corroboration, presenting the risk that she may not have given sufficient consideration to the undeniable fact that the complainant’s allegations stood alone.
 

The above noted information is not intended as legal advice.  If you have been charged with a historical sexual assault offence, call Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.