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The mandatory minimum punishment laws for the production of a controlled substance, contrary to Section 7(1) of the Controlled Drugs Substances Act, was struck down as unconstitutional by the Ontario of the Appeal.

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Unlawful Production of a Controlled Substance and Unconstitutional Mandatory Minimum Sentences: Drug Sentence Appeal Lawyers.
Section 7(1) of the Controlled Drugs Substances Act
 
The Ontario Court of Appeal upheld a decision of the Superior Court in striking down the mandatory minimums required under ‘Unauthorized Production” provisions of Section 7(1) of Controlled Drugs Substances Act (the “CDSA”).  InReginaand VU, 2018 ONCA 436, the Ontario Court of Appeal considered three (3) separate sentence appeals, from three (2) accused persons who had levied a challenge, through defence counsel, to the constitutionality of the mandatory minimum sentences for marijuana production under the CDSA. Each defendants, Pham, Vu, Li, were convicted of unauthorized production of marijuana under s.7(1) of the CDSA.  Criminal Defence counsel, at the sentencing stage, had filed an application under the Judicature Act to challenge the applicable mandatory minimum as contrary to s.12 of the Charter of Rights and Freedoms as cruel and unusual punishment.  Each appeal is summarized below.
In the Regina v. Pham appeal, the Ontario Court of Appeal upheld the sentencing judge’s ruling (which is reported at 2016 ONSC 5312) that the two (2)-year mandatory minimum under CDSA s.7(2)(b)(v) which involves the production of more than five hundred (500) plants was contrary to s.12.  That same order of juridical logic was applied to s.7(2)(b)(vi) (three-year minimum for production of more than five-hundred (500) plants where statutory aggravating factor applies. What is more, the ONCA also upheld the ruling, from the Sentencing Court, that the aggravating factor under CDSA s.7(3)(c), which is the production constituting a potential safety hazard in a residential area was unconstitutional.  In considering the application of the famed Reginav. Oakes, [1986] 1 SCR 103test, the highest Court in Ontario found that none of these provisions could be saved under s.1 of the Charter. The Court stated the following in relevant part:  
[83]      I do not accept these submissions. With respect to ss. 7(2)(b)(vi) and 7(3)(c), they ignore the fundamental finding that this three-year mandatory minimum can apply to persons who have no moral culpability in relation to the statutory aggravating factor. The provisions could have been tailored to avoid this result. They are neither minimally impairing nor proportionate. [84]      Similarly, with respect to s. 7(2)(b)(v), as the Pham sentencing judge noted, Parliament could have provided a safety valve to allow judges to grant exemptions in exceptional cases. Once again, the provisions are neither minimally impairing nor proportional.
The court also rejected the Crown’s argument, raised for the first time on appeal, that the impugned mandatory minimum provisions could be “read down” by inserting the words “if the production is for the purpose of trafficking” into each subsection.
In the Reginav. Vuappeal, the Ontario upheld Justice Durno striking down of the three (3) year minimum arising out of s.7(3)(c) of the CDSA(reported at 2015 ONSC 5834 and 2015 ONSC 7965), but set aside his ruling that the two (2) year minimum under s.7(2)(b)(v) was constitutional. The court held that its findings in the Phamappeal governed the constitutional issues in the Vu Appeal with equal force. Durno J. had also struck down the mandatory minimums under ss.7(2)(b)(i) and (ii) of the CDSA (less than 201 and more than five plants). The accused had not been charged under these sections. The Court of Appeal agreed with the Crown that it was not open to the sentencing judge to declare invalid provisions not applicable to the accused. As a result, the Crown did not have an appeal route in relation to these declarations as they did not play a role in the sentencing decision and the court did not have to consider their constitutionality.
In the Li appeal, the court reversed the sentencing judge’s ruling (reported at 2016 ONSC 1757) and held that the 12-month mandatory minimum under s.7(2)(b)(iii) of the CDSA (production of more than 200 but less than 501 plants) violated s.12 of the Charter and could not be saved under s.1. The analysis and reasonable hypotheticals from the Pham appeal applied equally to this accused.  The Court concluded the case in the following terms at paragraphs 119 to 121:
[119]    In summary, I would dismiss the Crown’s appeal in Pham and uphold the declarations that ss. 7(2)(b)(v), (vi) and 7(3)(c) of the CDSA are unconstitutional. [120]    I would also dismiss the Crown’s appeal in Vu. My conclusion in respect of the Pham appeal governs the constitutional arguments in relation to ss. 7(2)(b)(v), (vi) and 7(3)(c). The Crown has not demonstrated that it has an appeal route to this court relating to their ss. 7(2)(b)(i) and (ii) argument as the declarations of invalidity in relation to those sections had no impact on the sentence Mr. Vu received. As Mr. Vu has now completed his sentence, I would dismiss his sentence appeal as moot. [121]    Finally, I would allow Mr. Li’s appeal. Based on my reasoning in the Pham appeal, I would hold that s. 7(2)(b)(iii) of the CDSA violates s. 12 of the Charter, cannot be saved by s. 1 and should be declared of no force and effect under s. 52 of the Constitution Act. I would reduce Mr. Li’s sentence from 12 months’ imprisonment to six months’ less one day.
This case demonstrates the importance the importance of considering the constitutionality of mandatory minimums before concede the statutorily imposed requirements in the Code.  A well-crafted section 12 Charterchallenge can make the difference between years of imprisonment and possibly a non-custodial term.
Call Mr. J.S. Patel, Barrister for a consultation, if you have been charged with producing a controlled substance under the CDSA:  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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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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Whether text messages attract a reasonable expectation of privacy under Section 8 of the Canadian Charter of Rights and Freedoms; and whether such evidence ought to be ought excluded from a trial viz Section 24(2) of the Charter?

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

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

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

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

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

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

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

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

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

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

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

  The Facts  

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Post-Offence Conduct 

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

 

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

 

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

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

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

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

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

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

 

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

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

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

Criminal Defence Lawyers Calgary and Toronto

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

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August 19, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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What are your rights under Section 11(b) of the Charter, and the Law on a Stay of Proceedings

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What are your rights under Section 11(b) of the Charter, and the Law on a Stay of Proceedings By J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto)
In Regina v. Cody, 2017 SCC 31 the Supreme Court of Canada revisited the legal and analytical framework for assessing the rights of a criminal defendant in the context of unreasonable delays in bringing the matters to trial(s).  As stated in the previous posts, the Supreme Court of Canada in Regina v. Jordan, 2016 SCC 27 for assessing claims of unreasonable delay under s.11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).   In Jordan the court set out two (2) presumptive ceilings: 18 months for provincial court cases, and 30 months for superior court cases. The issue of “net delay” is critical to that assessment.  If the total delay minus defence delay exceeds the applicable presumptive ceiling, then the delay is presumptively unreasonable.  At that point, the Crown can rebut this presumption by demonstrating “exceptional circumstances.”   Those circumstances are described in Jordan.   What is more, where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for exceptional circumstances, the Crown may demonstrate that the “transitional exceptional circumstance” justifies the delay.
The Crown prosecutors had argued in Cody  sought to modified the Jordan framework notwithstanding it’s recent pronouncement of the same.  The Supreme Court declined to modify the Jordan framework. The court stated that, properly applied, the current framework “provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt” (at para. 3). The court also clarified some of the principles set out in Jordan.
The Court Cody summarized the following concerning defence delays at paragraphs 26-43:
[26]                        Defence delay is divided into two components: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence” (Jordan, at paras. 61 and 63).
[27]                        A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal (Jordan, at para. 61). In this case, it is undisputed that Mr. Cody expressly waived 13 months of delay. Accounting for this reduces the net delay to approximately 47.5 month
[28]                         In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66).
[29]                         However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65).
[30]                         The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples.  They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64).
[31]                         The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65).  It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so
[32]                         Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a  11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
[33]                         As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context,  R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).
[34]                         This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan  In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct.
[35]                         We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan.  All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by  11(b) of the Charter.
[36]                         To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enough to “pick up the pieces once the delay has transpired” (Jordan, at para. 35). A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justice system share this responsibility (Jordan, at para. 137).
[37]                         We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.  In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay.
[38]                         In addition, trial judges should use their case management powers to minimize delay.  For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ( v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
[39]                         Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel.
The court also considered what constitutes “exceptional circumstances” (at paras. 44-66) and when the “transitional exceptional circumstance” may justify a presumptively unreasonable delay (at paras. 67-74):
[67]                          The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan (Jordan, at para. 96). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.
[68]                          Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin
[69]                          To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800).  For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).
[70]                          It is important to clarify one aspect of these considerations. This Court’s decision in R. v. Williamson, 2016 SCC 28 (CanLII), [2016] 1 S.C.R. 741, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown’s indifference (paras. 26-29). Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties’ general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances.
[71]                          When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).
[72]                          In this case, the entire proceedings at trial pre-dated the release of Jordan. The Crown must therefore show that the 36.5 months of net delay was justified in light of its reliance on the previous state of the law under Morin.
The factual and legal assessment of a remedy under Section 11(b) of the Charter for a stay of proceedings resulting, effectively, in a dismissal of the charges against you, is a complicated factual and legal assessment; and legal counsel ought to be sought from experienced counsel.  Contact J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto) 

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Regina v. Alex, SCC, Whether a lawful demand is required for Section 258 (1)(c) and (g)

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The requirement of a lawful demands is not required under s. 258 – Criminal Code for DUIs or Over-80 matters.

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On July 6th, 2017, the Supreme Court of Canada, in a DUI case, ruled that a police officer and the Crown is not required to establish reasonable and probable grounds for a lawful breath demand for the purposes of a Section 258 of the Criminal Code of Canada.

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In R. v. Alex, 2017 SCC 37the Supreme Court of Canada was asked to consider whether sections 258(1)(c) and (g) of the Criminal Code of Canada (the “Code”) requires a police officer to have reasonable and probable grounds in order to make an evidentiary demand as a pre-condition governing the admissibility of the certificate of analysis, which captures the evidentiary breath readings of an accused person who has been charged for DUI or “Over-80”).  Mr. Alex’s Criminal Lawyers argued that the subsections of 258 of the Code imposes such a requirement.  Section 258(1)(g) establishes a statutory exception to the common law hearsay rule. It permits a certificate of analysis, which sets out the accused’s breath test results, to be filed for the truth of its contents without the need to call for oral evidence.   Section 258(1)(c) then provides two inferences that may be presumptively drawn from the certificate. The first inference, referred to as the presumption of accuracy, is that the breath readings in the certificate are accurate measures of the accused’s blood-alcohol concentration. This presumption dispenses with the need to call the qualified technician who administered the tests to verify their accuracy.The purpose of these evidentiary short-cuts, according to the Court, streamline the trial proceedings by permitting an accused’s blood-alcohol concentration at the time of the alleged offence to be presumptively proven through the filing of a certificate of analysis. These shortcuts, however, do not affect the issue of whether the accused’s breath readings are admissible or not. They only impact the manner of admission — specifically, whether the Crown must call two (2) additional witnesses: (i) one to verify the accuracy of the certificate and enter it as an exhibit, and (ii) to opine on the accused’s blood-alcohol concentration at the time of the alleged offence — matters which have no connection to the lawfulness of the breath demand. This was made clear in R. v. Deruelle, [1992] 2 S.C.R. 663, at pp. 673-74, where the Court observed that the breath readings remain admissible at common law through viva voce evidence, irrespective of whether the shortcuts apply.

Thus the central question for the Court was whether the opening words of each s. 258 evidentiary shortcut — “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)” — refer specifically to a lawful demand made under s. 254(3), which among other things, is predicated on the police having reasonable grounds to make the demand.

The Majority decision of the Supreme Court of Canada decided that it doesn’t imposed such a requirement.  It used the modern principles of statutory interpretation to arrive at its conclusion. Parliament did not include the word “lawful” within section 258(1)(c) or (g) of the Criminal Code and when read in light of its over context, above and beyond the plain meaning of the sections, the lawfulness of the demand had no bearing on the manner in which the Certificate of Analysis, containing the blood-alcohol breath readings, could be introduced during a trial of a DUI matter.  Effectively, the Court found that it was lawfulness of a demand was not a condition precedent to the mannerin which the Certificate of Analysis could be introduced.   It further consider that that Section 8 of the Canadian Charter of Rights and Freedoms could be invoked, should a Criminal DUI lawyer decide to file the requisite notice to seek the exclusion of breath samples at trial by positing that they were inadmissible due to a breach of an accused’s persons right to be free from an unreasonable search and seizure.

The Court further reasoned that if such a line of reasoning and logic were adopted as suggested by the Mr. Alex’s criminal lawyers, “….

in many cases, trial scheduling would have to account for the possibility that two (2) additional witnesses would be required to testify. This would extend estimated lengths of trial proceedings: one day trials would become two day trials, two day trials would become three days, and so on. In addition, the Crown would have to be prepared to call a breath technician and toxicologist in every case and limitations on their availability could add to the delay. And the effects do not end there. The consequences of trial scheduling are pervasive, creating backlogs and congestion throughout the justice system as a whole. This raises the following question: For what purpose? The answer, as I will explain, is none, other than to provide an accused with a hollow form of protection against police misconduct which the Charter now accounts for in a much more satisfactory and meaningful way.”The majority decision appears to be in inline with the it’s recent judicial pronouncements in Regina v. Jordan and Regina v. Cody where in the Court set out the new rules and law under Section 11(b) of the Charter to ensure timely trials.

If you have been charged with DUI and Over-80, this case underscores the importance of ensure that your rights under Section 8 of the Canadian Charter or Rights and Freedoms are thoroughly canvassed to ensure that all possible defences undergird a Charter Notice (where applicable) and filed in the Court prior to your trial.  To make arrangements, for a free initial thirty (30) minute telephone consultation, during our regular office hours, please contact J.S. Patel, Criminal DUI Lawyer at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto). 

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

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Section 10(b) and the Rights to Counsel and the Police Obligations to _Hold Off_

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July 23, 2017 What are the obligations imposed on the police to “hold-off” on collecting evidence against an accused person?  This was recently considered by the Ontario Court of Appeal in R.  v.  Fountain, 2017 ONCA 596
What obligations are imposed on the Police to have the requisite knowledge of the law regarding their core duties under Section 10(b) of the Charter (rights to counsel) when a person changes their mind or is ambiguous about speaking to counsel without delay?  There is an implicit requirement to “Hold off” in collecting evidence and a reasonable opportunity to speak to counsel must be afforded to a detainee, if they are reasonable diligent.  If section 10(b) of the Charter has been violated, should the evidence leading to the conviction have been excluded from the trial; and an acquittal entered. 

In general terms, the right to counsel is protected under Section 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).  While there have been granular developments in the breadth and scope of the jurisprudence defining that section, there are three (3) duties that are imposed on the police to ensure that one’s fundamental rights that are guaranteed under that section.  Those duties require the police to:

  • to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
  • if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
  • to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The Ontario Court of Appeal in Regina v. Fountain, 2017 ONCA 596 focused on the scope of the third (3rd) duty: the requirement to “hold off” collecting (or the legal parlance, conscripting) evidence against an person detained in police custody.  Confusion often arises when a person is unclear relative to whether counsel ought to be consulted immediately or at a later juncture.

At that critical moment, the Police/State is obligated to warn the detainee.  This is called a Propser warning.   The purpose of that Prosper warning is meant to alert a detainee to the fact that the “hold off” period in using him as a source of evidence is suspended upon his change of mind (implicitly or explicitly) with respect to wanting to speak to counsel without delay.  What’s more, that warning is intended to communicate to the detainee that, should he or shewish to seek legal advice, now that he is better informed, a reasonable opportunity to do so is required, under s. 10(b) of the Charter, to be afforded to him without delay.  This applies even if the detainee has changed of mind about wanting to speak to counsel.This is the essence of the Propsper warner and it was articulated by the late Justice Lamer in these terms:

“I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.”

This was not done in Regina v. Fountain; and Mr. Fountain’s rights to counsel were breached by a detective in Ontario. The recitation of the facts by the Court are:

[35]      Specifically, after Mr. Fountain had been waiting in custody for approximately six and a half hours, Det. Dellipizzi took Mr. Fountain to the interview room. Det. Dellipizzi then explained that efforts to reach Mr. Aitken had failed but that a lawyer would be present the next day at Mr. Fountain’s bail hearing. Mr. Fountain suggested he would wait until morning. Without in any way indicating that it would be problematic for Mr. Fountain to wait to speak to his lawyer, Det. Dellipizzi offered Mr. Fountain the following options:

Dellipizzi: Um, okay. So, you – what do you want to do? You want to just wait till the morning or…

Fountain: Yes.

Dellipizzi: … do you want somebody called? Okay.

[36]      When Mr. Fountain was offered the binary option of calling a legal aid lawyer now or waiting until the next day to speak to his own lawyer he would have had no reason to suspect that he would be forfeiting the “hold off” protection he had been enjoying, should he chose the latter option. Mr. Fountain was entitled to proceed as though either choice was reasonable. In this context, there was therefore nothing unreasonable in Mr. Fountain opting to wait until the next day.

[37]      Indeed, rather than demonstrating a lack of reasonable diligence on the part of Mr. Fountain, the way in which Mr. Fountain came to choose to speak to his lawyer the next morning reinforces the importance of a Prosper warning. As explained, the purpose of a Prosper warning is to ensure that detainees know what they are giving up when they abandon their efforts to speak to counsel without delay. If a detainee is not advised that they will lose a constitutional protection if they choose an offered option, that offer can operate as a trap. If Det. Dellipizzi was going to treat an option he was offering Mr. Fountain as authority to begin using Mr. Fountain as a source of evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr. Fountain this. Yet he did not do so.

[38]      In these circumstances, Mr. Fountain’s decision to decline duty counsel and wait until the next day cannot fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by treating it as such

When obtained in violation of the right to counsel, statements will generally be excluded pursuant to a Section 24(2) analysis that stems from Regina v. Grant, 2009 SCC 32, at paras. 95 and 96.  However, the Court noted, by way of general legal principles, that if a detainee is not reasonably diligent in exercising the right to counsel, the right to receive a Prosper warning at the time will also be lost. This means that the police would not be encumbered with the requirement to advise a detainee of what he will lose, if he waives his right to consult counsel without delay where the detainee has already forfeited that right by not being reasonably diligent in exercising it.  The Court found that Mr. Fountain was reasonablu diligent; and it entered an acquittal, by allowing his appeal against his conviction on four (4) counts of armed robbery, four (4) counts of forcible confinement and breaking and entering. After a judge alone trial, the accused was found to be a party to a home invasion robbery during which drugs and electronics were stolen and the four occupants were tied up and threatened with a gun. He was sentenced to four years’ imprisonment.

Importantly, the Court found that when the accused said that he wanted to wait until the next day to speak to a lawyer, this ought to have telegraphed (signaled) a change of mind to the Detective, from his earlier insistence on speaking with a lawyer at that time. That officer should have provided the detainee with a Prosper warning before delving into his questioning.  Mr. Fountain did not know what he would be giving up.  Thus, it could not be inferred that he waived his right to consult counsel without delay. Further, by choosing to wait to speak with his lawyer the following day, he was not attempting to impede the investigation or signal that he was not serious about wanting to consult counsel without delay. He was simply selecting one of two (2) options that were put to him. Given these circumstances, his decision to decline duty counsel and wait until the next day could not fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by making that finding. The evidence targeted for exclusion was crucial to the Crown’s were the statements made by the detainee prior to his consultation with duty counsel were the core feature of the Crown’s case. Without it, the prosecution fails. Given the seriousness of the breach, the impact on Mr. Fountain, and the effect on the administration of justice, the statements should have been excluded according to the Court of Appeal.  It averred tat the Prosper case has been the law since 1994. If the officer was aware of the law, he should have followed it. If he was not aware of the law pertaining to a core Charter duty, he should have been.  At paragraphs 64-65, Court emphasized the scope of the Police’s obligations to be aware of the law:

[63]      While Det. Dellipizzi presented as being careful to ensure that he did not violate Mr. Fountain’s right to counsel, and attempted to facilitate that right on more than one occasion, good faith involves much more than good intentions. Prosper has been the law since 1994. It is not an obscure decision addressing a rare event. It is a long-standing precedent governing not only a ubiquitous investigative technique – the police interview – but every case where the police use a detained suspect as a source of evidence.

[64]      As Rosenberg J.A. pointed out in Smith, at para. 384, “Prosper instructs the courts to be sensitive to the rights of an accused who it is alleged has waived his rights.” The same instruction has been given by the Supreme Court to police officers, who are expected to be educated about their core Charter duties. Where an officer aware of this body of law is presented with someone who has been insisting on their right to counsel and the officer concludes that they have apparently changed their mind after efforts to reach counsel have been frustrated, the officer should take the necessary steps to ensure that the waiver was real and informed. That did not happen. If Det. Dellipizzi was aware of the law, he should have followed it. If he was not aware of the law, he should have been.

This case is critical in factual circumstances that are imbued with Section 10(b) considerations because it tills the jurisprudence one step further that crystalizing the remedy available to detainees when the police and crown evidence demonstrates a lack of knowledge, either explicitly or inferentially, on a core right under the Charter.