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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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Does the right to a trial within a reasonable period of time under Section 11(b) of the Charter apply to re-trial? By J.S. Patel, Calgary Criminal Lawyer

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Section 11(b) of the Charter
Right to a trial within a reasonable period of time and the calculation of delay after a re-trial.

The right to have a trial within a reasonable period of time was reconsidered by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, and there have been many decision considering the principles that stem from that seminal case.   Recently, the Ontario Court of Appeal, in Regina v. MacIsaac,2018 ONCA 650 (CanLII), allowed the appeal of an accused and quashed his conviction of aggravated assault under the Criminal Code of Canada; and stayed the charges against him due to a violation of his rights under Section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).  This was based on the following time-line in that case.

Mr. MacIsaac waswas charged with aggravated assault on July 11, 2012, and he proceed with an election for a trial in the Ontario Court of Justice and was convicted on December 16, 2013.  On August 31, 2015, the Court of Appeal quashed the conviction and ordered a new trial. The accused’s counsel was served with a summons for the re-trial on November 30, 2015. On February 3, 2016, a ten (10) day re-trial was scheduled to run from February 6 to 17, 2017.  On August 25, 2016, the accused applied for a stay under s.11(b). The application was denied on October 26, 2016 and the re-trial went ahead as scheduled.  The trial judge reserved her decision following the last day of trial, which was February 16, 2017. On April 18, 2017, the trial judge released her judgment finding the accused guilty of aggravated assault.

The Ontario Court of Appeal court noted that the case was argued on the assumption that the eighteen (18) month presumptive ceiling established in Regina v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631applied to the re-trial. The court stated that it would deal with the appeal on that basis. The court commented, however:

[27]     In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a re-trial. Re-trials must receive priority in the system, and in the normal course re-trials in the Ontario Court of Justice should occur well before Jordan’s 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for re-trials.
[28]     We heard no argument on this point and it would not be appropriate to say anything more in the context of this case. This case was argued on the assumption that the 18-month presumptive ceiling applies, and I propose to deal with it on this basis. However, the Jordan criteria must be understood in the context of the Crown’s duty to re-try cases as soon as possible.
[29]     I begin by reviewing the considerations raised by the parties concerning the calculation of delay. I conclude that the delay in this case either exceeds the presumptive 18-month ceiling or is unreasonable in any event. In either case, the appeal must be allowed and a stay must be granted.

What is more, the court also addressed the issue of when the clock starts for the purposes of a delay analysis in the case of a re-trial. The court held that the time for assessing delay runs from the date the appellate court quashed the conviction and ordered a new trial. Accordingly, the clock started running on August 31, 2015.

In terms of determine when the proverbial clock ceases to run, the court averred that the end date for calculating total delay was either April 18, 2017, which is when the judgement was rendered or February 17, 2017, which again, was the last day of trial.  However, given that the factual foundation was not before it, the court stated that it was unnecessary to resolve the issue of whether the time a judgment is under reserve is included in the calculation of total delay. This was because the net delay in the case was unreasonable under either of the above scenarios: (a) First, under the initial scenario, in which reserve time is included, the net delay was over 19 months and exceeded the presumptive ceiling. The Crown had not established the presence of exceptional circumstances that rebut the presumption of unreasonableness. Accordingly, the delay was unreasonable;  Second, (b) under the second scenario, in which the time under reserve is not included in the calculation of delay, the net delay was over seventeen (17) months. Although this net delay was below the presumptive ceiling, the defence had met its burden of showing that the delay was unreasonable.

If you have been charged with a criminal offence, it is important to ensure that sufficient and accurate representations are made on the Court record to ensure that your efforts to proceed in a diligent matter are noted despite the tests outlined by the Supreme Court of Canada in Regina v. Jordan. The common-law rules, as stated in this case, provides an example that depending on the facts of each case, may be useful in persuading the Crown or the Justice  applies to your case.

If you have been charged with a criminal offence, contact Mr. J. S. Patel, Barrister for a free initial consultation regarding your matter.

Call 403-585-1960

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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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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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Conditional Sentence Orders (CSO) granted under the Criminal Code of Canada are not “terms of imprisonment” for immigration purposes under the Immigration and Refugee Protection Act.

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The Supreme Court of Canada recently consider in a landmark decision what the phrase “Term of imprisonment” meant within the context of s.36(1)(a) of the Immigration and Refugee Protection Act (IRPA).  The Court concluded that is does not include conditional sentences orders: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 34. A conditional sentence is a sentence that is served in the community.

The Supreme Court considered whether the maximum sentence to be considered for purposes of s.36(1)(a) of the IRPA is the maximum sentence that the accused could have received at the time of the commission of the offence, not the date of the admissibility decision. A permanent resident’s right to remain in Canada is conditional on complying with knowable obligations: Tran, above, at paras. 35 and 42.

Mr. Trans is a citizen of Vietnam; and was a permanent resident of Canada, which he obtained 1989. Sometime in March 2011, Mr. Tran was charged with production of a controlled substance in relation to a marijuana grow operation containing approximately 915 plants under Section 7(1) of the Controlled Drugs Substances Act (the “CDSA”). When the offence was alleged to have been committed by Mr. Tran, the maximum penalty for the offence was seven (7) years’ imprisonment. However, prior to a conviction being entered against Mr. Tran, the maximum sentence for the offence was increased to fourteen (14) years of imprisonment, with a new minimum sentence of two (2) years’ imprisonment, if the number of plants produced was greater than five-hundred (500). Mr. Trans was sentenced to a twelve (12) month conditional sentence.

The ministers counsel of the Minister of Public Safety and Emergency Preparedness (the Canada Border Service Agency) referred Mr. Tran’s case via section 44 of the Immigration and Refugee Protection Act (the “IRPA”) to the Immigration Division for an admissibility hearing, based on alleged inadmissibility due to “serious criminality” as set out in s.36(1)(a) of the IRPA.  That section is triggered when a conviction is entered for federal offence which carries the potential for a maximum sentence of at least 10 years.  Section 64(2) was also critical in this case because it precludes the possibility of an appeal against a removal order at the Immigration Appeal Division for a federal offence for which a term of imprisonment of more than six (6) months has been imposed.

The Federal Court (trial division) allowed the appellant’s application for judicial review.  That court held that a conditional sentence was not a “term of imprisonment” under the IRPA, and that, as seven (7) years was the maximum sentence available for Mr. Tran.  As such, the then maximum sentence of seven (7) did not establish serious criminality. That was based on retrospectivity principles. However, the Federal Court of Appeal disagreed with the Trial Division; and the panel of the Appeal Division of the Federal Court allowed the Minster’s appeal from the decision of the Federal Court, finding that the reviewing justice had failed to assess whether the interpretation adopted by the administrative decision maker fell within the range of interpretations defensible on the law and facts:  Tran, supra.

Enter the Supreme Court of Canada.  The highest court within the dominion of Canada held that, in this context, “term of imprisonment” does not include conditional sentences and that the relevant maximum sentence is that available at the time of the commission of the offence. The court noted that the meaning of “term of imprisonment” varies according to statutory context, and that jail sentences and conditional sentences of equivalent length are not commensurate. A conditional sentence of longer than six months may well accord with a jail sentence of less than six months. Conditional sentences are for less serious and non-dangerous offenders. It would be absurd, and would result in undesirable avoidance of conditional sentences, to consider conditional sentences to be terms of imprisonment under s.36(1)(a) of the IRPA that could support findings of serious criminality. What is more, while s.11(i) of the Charter did not apply to the decision of the Minister’s delegate, section 36(1)(a) of the IRPA does not engage the public protection exception to the presumption against retrospectivity. Accordingly, Mr. Tran’s conditional sentence was not a “term of imprisonment” and the maximum sentence he was eligible to receive was seven (7) years. The Supreme Court of Canada  quashed the Minister’s delegate’s referral of Mr. Tran’s case to the Immigration Division, as the delegate’s opinion and resultant decision to refer were premised on an untenable interpretation of the grounds for inadmissibility under s.36(1)(a) of the IRPA. The matter was remitted to a different delegate:  Tran, supra, for a re-determination under the binding applicable legal principles.

This case will have wide spread implications for many individuals who were previous convicted, received a CSO, and the Canada Border Service Agency is attempting either a referral to the Immigration Division of the Immigration and Refugee Board, or attempting to preclude an appeal at the Immigration and Appeal Division against a valid removal order made by the Immigration Division.

The information provided above is general legal information and is not to be substituted for legal advice. If you are person that is similarly situated to the facts in the Tran case, contact our Immigration Defence Lawyers at 403-585-1960 or 1-888-695-2211.