In Regina v. Barton, 2021 ONCA 451 (RD), the Ontario Court of Appeal allowed the appellant’s appeal from his convictions for firearms-related offences.
During a warrantless search, police discovered a gun inside a planter located in a common hallway outside the appellant’s apartment. The next day, police executed a search warrant and found ammunition for the gun and a bulletproof vest inside the appellant’s apartment. The appellant was convicted after a trial by judge and jury. The defence had posited that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms, given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, the defence argued that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter.
On appeal, the Court of Appeal held that the trial judge erred in concluding that the gun was not “obtained in a manner” that infringed the appellant’s rights under the Charter. The court noted that there were causal, contextual, and temporal connections between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search the appellant’s apartment without a warrant. Therefore, the gun was unconstitutionally obtained. The Court stated as follows, in relevant part:
[4] Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.
[5] Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charterbreach: see, R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.
Reference to the discovery of the gun had to be excised from the information to obtain the search warrant. A new trial was required to determine whether excision of the discovery of the gun from the warrant information would lead to a finding that the later warranted search was unconstitutional. The court ordered a new trial on all charges to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson,2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Calgary Criminal Defence Lawyer at 403-585-1960.
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 Reginav. 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.
The application of mental health in the context of bail reviews was recently clarified in a recent decision from the Supreme Court of Canada in Regina v. Myers, 2019 SCC 18. The SCC confirmed animating and cardinal principle right out of the gate at paragraph 1:
“The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.”
Those prefatory remarks permeate the entirety of the decision. In my view this decision addressed a critical gap in the jurisprudence.The query before the Court was determine the correct approach to a detention review under s. 525of the Criminal Code of Canada (the “Code”); and to explain the place of such a review within the larger context of pre-trial custody in Canada. The Court made the following salient points.
It emphasised that Judges and justices at bail hearings should always give very careful consideration to release plans that involve supervised treatment for individuals with substance abuse and mental health issues. Of importance, it stressed at paragraph 67 of the decision that the release into treatment with appropriate conditions will often adequately address any risk, and “we must not lose sight of the fact that pre-trial detention is a measure of last resort”. It noted that Parliament intended the s.525 review provisions to be a safeguard; and that Section 525 bail reviews are not restricted to cases in which there has been an unreasonable delay in bringing the accused to trial, although delay can be relevant to the court’s review.
The onus to apply for a s.525 review is on the prosecution, and accordingly an accused person or their defence counsel need not request a hearing. Detained persons are are entitled to a s.525 hearing. This applies even if they did not have an initial bail hearing. In such cases, the review judge must apply the “ladder principle” (see ReginaAntic, [2017 SCC 27); and determine the issue of bail de novo.
At the review hearing, the task of the judge must centre on the issue of whether “…the continued detention of the accused in custody justified within the meaning of s. 515(10) [the detention provisions]?” In this connection, the hearing is a review of the detention itself, not of any order made in a lower court, although errors in detention orders may justify revisiting the order. With great clarity, Court remarked at paragraph 63:
At the hearing, unreasonable delay is not a threshold that must be met before reviewing the detention of the accused. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of 515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre-trial detention.
In terms of the reception of the evidence, the court may receive any evidence that is credible or trustworthy, unless it existed at the time of the initial bail hearing and is barred by the “due diligence” and “relevance” criteria. And finally, the reviewing judge must give directions to expedite the trial of persons in custody, and to ensure the accused will not be in a “time served” position before the trial date.
If you have been charged with a criminal offence and seeking a bail review on any of your conditions or are seeking you release, contact our office at 403-585-1960.
Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.
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 .
The Credibiity of Confidential Informants in Reviewing a Informaiton to Obtain a Warrant to Search a home
The credibility of a confidential informant is very important to the state’s case when endeavoring to uphold a warrant authorizing a search that is critical to the entire prosecution case. An accused person’s conviction was overturned recently by the Court of Appeal in Regina v. Herta, 2018 ONCA 927where the entire case for the Prosecution Service hinged on the credibility of a confidential informant. The Court permitted Mr. Herta’s appeal of his unsuccessful motion under Section 8 of the Canadian Charter of Rights and Freedoms at trial, excluded the drug evidence, and entered acquittals on all counts. The critical issue was the Information to Obtain the search warrant of a home. The critical issue was the Information to Obtain the search warrant of a home under the seminal authority of Reginav. Feeney, [1997] 2 S.C.R. 13;
The standard exacted, to review the warrant and ITO, is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. This standard requires more than an experienced-based “hunch” or reasonable suspicion, but it does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. In short, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have been issued.
In this case, the search of his home arose from the fact that an individual wanted by police (DC) was seen arriving there. The Information to Obtain (the “ITO”) the search warrant contained references from a confidential informant that this individual “DC” was armed. Consequently, the police obtained a search warrant for the house, which did not reveal a gun, but led police to find several illicit CDSA substances that formed the basis of the charges before the Provincial Court.
The Court of Appeal made it very clear that the indexed search warrant, in this case, rose or fell on the strength of the confidential informant’s tip; and consequently the Crown’s case. However, the trial judge was not tasked with a step six analysis from Regina v. Garofoli, 1990 CanLII 52 (S.C.C.). When reviewing a judicial authorization, the relevant question is not whether the reviewing Court would have granted the order. The question on review is whether or not the order could have issued. The test in this regard was set out by Sopinka J. in Garofoli, supra, as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
This is notwithstanding the fact there were heavy redactions in the ITO. However, since the redacted ITO did not contain objective facts supporting the informant’s credibility, no confidence could be safely placed in his/her information. What is more, insufficient corroborative evidence was present to justify the belief that DC was in the residence with a gun. The confirmatory information available related to things that many people would know about this person: DC.
Finally, the confidential informant’s tip was not sufficiently compelling. This is because it did not connect DC’s possession of a gun to the residence in question; and there was nothing in in the ITO that connected DC to the residence. The ITO was also potentially misleading by suggesting that DC lived at the house.
Based on the totality of the circumstances, the Court could not support the warrant and that the accused’s s.8 Charterrights were breached.
As such, the Court engaged in a s. 24(2) Charter analysis as required by Regina v. Grant2009 SCC 32 (SCC). It ruled that the impact of the breach on the Charter-protected interests of the accused weighed heavily in favour of exclusion, given the highly invasive nature of the search. Despite the importance of society’s interest in the adjudication of this case on the merits, the exclusion of evidence was warranted. Acquittals were entered on this basis.
If you have been charged with a drug related offence involving the use of Search Warrant by the police, call Mr. J.S. Patel, Barrister for a consultation: 403-585-1960.
Supreme Court of Canada rules that Historical Maintenance Records for a Breathalyzer are not first party disclosure.
In an important disclosure decision from the Supreme Court of Canada (the “SCC”) provides guidance on legal standard imposed on Crown Prosecutors and policing services to disclosed historical maintenance records that pertain to the breathalyzer device used in the context of impaired driving investigations under section 253(1) of the Criminal Code of Canada (the “Code”) or their predicate sections. Critical to the SCC’s determination was the “likely relevancy” of the records sought by the defence. Despite a well-argued case by reputable and senior defence counsel from Calgary, Alberta, the SCC ruled, in Regina v. Gubbins, 2018, SCC 44 (and the companion cases), in an eight (8) to one (1) majority, as follows, in relevant part:
First, the historical maintenance records sought by Mr. Gubbins, through counsel, that related to the breathalyzer device used in the investigation of a charge of driving “over 80” was not “first-party disclosure”. Under the cases of Regina v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at pp. 336-40; Regina v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11.and their pedigree, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges. However, in this case, the SCC found that they were third party records, and the defence must demonstrate their “likely relevance” at an application for production. However, “time-of-test” records, which show how the device was operating when the accused’s sample was taken, are “obviously relevant” and therefore are first party disclosure.
On this concept, the “likely relevance” standard is significant, but not onerous. It allows courts to prevent speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming requests for production. What is more, the he duty of the police to disclose first-party material is limited to the “fruits of the investigation” and information “obviously relevant to the accused’s case” (at para. 21). Neither includes “operational records or background information.” In citing Reginav. Jacksonfrom the Ontario Court of appeal, the Court posited:
[22]The “fruits of the investigation” refers to the police’s investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused.
This case is important and contributes to the existing case-law because the SCC’s previous decision in Reginav. St‑Onge Lamoureux, [2012] 3 SCR 187, 2012 SCC 57 (CanLII), did not decide that maintenance records are “obviously relevant,”and expert evidence establishes that the issue of whether a device was properly maintained is immaterial to its functioning at the time the sample was taken.
What is more, the Court held that the constitutionality of the statutory presumption of accuracyof breathalyzer devices is not jeopardized by the holding that historical maintenance records are third party records. The defence can use time-of-test records and testimony from the technician or officer involved to challenge the presumption. A defence is not illusory simply because it will rarely succeed. At paragraph 47, the Court stated:
The statutory presumption of accuracy refers to the specific results generated by the instrument at that time. The only question that must be answered is whether the machines were operating properly at the time of the test ― not before or after. The time-of-test records directly deal with this. The maintenance records, according to the expert evidence, do not.
Conversely, Justice Côté . dissented. In his decision, he held, that would have held that maintenance records are “obviously relevant” to rebutting the statutory presumption of accuracy, and are therefore first party disclosure. Justice Côté also would have held that the constitutionality of the statutory presumption of accuracy depends on the ability of the defence to access maintenance records. The rationale of this decision was summarized in the following terms:
Holding that only time‑of‑test records produced by the instrument can demonstrate malfunctioning effectively assumes that the machine is infallible. This confines the defence to arguments raising a doubt as to the instrument’s operation, contrary to Parliament’s intent to make malfunctioning and improper operation two distinct grounds for rebutting the presumption of accuracy. Recourse to third party disclosure will, in practice, be illusory. For an accused to have a real opportunity to show that an instrument was malfunctioning, an expert must have an evidentiary basis either to opine as to the possibility that the instrument malfunctioned or to establish the likely relevance of other information to be sought through third party disclosure. Providing nothing by way of first party disclosure forces accused persons and their experts to resort to conjecture and speculation.
And he concluded at paragraph 86:
[86] Finally, it is my view that disclosing maintenance records as first party records is not only consistent with St-Onge Lamoureux but also serves the interests of justice. Where maintenance records reveal no issues, their disclosure may compel the accused to plead guilty. Where they reveal certain issues and an expert is of the opinion that these issues may prove that the instrument malfunctioned, the maintenance records provide a basis for the accused to raise such a defence or to make subsequent O’Connor requests in a grounded, non-speculative manner.
While this decision may seem innocuous at first glance and of limited application to only breathalyzer devices, it is likely that the SCC has paved the path in anticipation for other technological devices used (or to be used) by policing services throughout Canada. The logic of the Court’s decision will have an impact on future disclosure motions that pertain to software and hard-ware used by police and their applicability to the constitutional rights of accused persons.
If you have been charged with impaired driving, “Over-80”, refusing to provide a sample, contact Mr. J. S. Patel, Barrister for a free thirty minute initial consultation over the phone. Contact 403-585-1960 to arrange an appointment.
Sexual Assault and Credibility findings in a Criminal Trial: How Credibility can be assessed in Criminal Trials in Canada
In Reginav. J.L., 2018 ONCA 756the OntarioCourt of Appeal set aside the accused’s conviction for sexual assault and ordered a new trial At trial, the case that turned largely on credibility. This case is just one example of a flaw credibility assessment of testimony in a sexual assault cases results in a conviction being overturned on appeal
The accused was convicted of sexually assaulting the complainant at a dance. . The key issues raised in this conviction appeal are (a) the sufficiency of the trial judge’s reasons, (b) whether he properly relied on a behavioural assumption, and (c) on the complainant’s post-occurrence demeanour in convicting the appellant. This case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.
The Court of Appeal agreed and found that the trial judge did not engage in any analysis of the testimony of the complainant and the accused other than to note “inconsistencies and many lapses of memory.” In fact, the judge essentially relied on two (2) facts to explain why the complainant’s version of the events accepted, namely that: (i) she did not consent to sexual contact; and (ii) that the accused pressed on with attempted intercourse: the complainant’s demeanour after the incident and the finding that it “defied common sense” that a young woman would go outside in a dress in mid-December and consent to sexual activity on the ground.
The court held that the trial judge failed to consider the similarities in the complainant’s emotional state before and after the alleged assault. Her physical state was also consistent with the possibility of having engaged in consensual sexual activity. The trial judge’s assumption about what a “young woman” would or would not do could not be taken as a fact, and yet the trial judge relied on it to reject the accused’s evidence. There was a danger that this reasoning affected the trial judge’s conclusion as to whether the Crown had proven its case. The Appellate Court stated the following in relevant part:
[46] The second basis for the trial judge’s conclusion depended on an assumption about what a “young woman” will and will not do. As mentioned, the trial judge said: “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.” In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that, young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.
[47] Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. In R. v. Mah, 2002 NSCA 99 (CanLII), [2002] N.S.J. No. 349, at para. 75, Cromwell J.A. (as he then was) stated: “Assumptions about the ways of the world appear to have contributed to the judge’s failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt”. Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge’s reasoning, his finding of guilt was tainted by error.
Again, this case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.
If you have been charged or are about to be charged with sexual assault under section 271 of the Criminal Code of Canada, contact Mr. J. S. Patel, Criminal Lawyerin Calgary or Toronto at 403-585-1960 for an initial consultation.
Informer Privilege, Innocence at Stake, Police Obligations
Pre-trial disclosure applications to secure information from confidential informants has been heavily considered by the Supreme Court of Canada in previous cases (i.e. Regina v. Barros, 2011 SCC 51). This case, however, involves an academically interesting question of criminal law. It was eloquently framed in the following manner by the Supreme Court of Canada today in the Reginav. Brassington, 2018 SCC 37, decision that was released by the Court:
When police officers are charged with crimes relating to their conduct during an investigation, can they, at their own discretion, disclose to their defence lawyers information they learned during that investigation that might reveal the identity of a confidential informer?
In very general terms, the the police informer privilege is the common law rule of evidence to the effect that a Crown witness suspected of being, or known to be, a police informer cannot be questioned as to whether or not he is one. Nor can another witness be asked questions which would disclose the identity of a police informer : A.-G. v. Briant(1846), 15 M.&W. 169, 153 E.R. 808, 15 L.J. Ex. 265, cited in Reginav. Blain (1960), 33 C.R. 217 at 219, 127 C.C.C. 267 (Sask.C.A.), also cited in Solicitor-General of Canadav. Royal Commission Re Health Records(1981), 62 C.C.C. (2d) 193 at 219, 23 C.R.(3d) 338 (S.C.C.).
In this case, four (4) police officers were charged with crimes relating to alleged misconduct during a police investigation. This criminal matter arose from the “Surrey Six” investigation, a complex RCMP investigation into a gang-related homicide. According to the Crown, about eighty (80) confidential informers were involved in the investigation.
Prior to their trial, those police officer-defendants applied for a declaration that they could discuss information they learned during the investigation with their defence counsel that might reveal the identity of confidential informers. The assigned case management judge granted the application, declaring that the officers could discuss any information in their possession with counsel. The Crown and the RCMP then brought proceedings to determine whether the communications authorized under the declaratory order constituted “disclosures” within the meaning of s. 37 of the Canada Evidence Act . Pursuant to s. 37(1) of the Act, the Crown may object to disclosures on public interest grounds. Section 37.1 of the Act provides a special right of appeal from a determination of an objection. Sections 37 and 37.1 apply to criminal proceedings and other matters over which Parliament has jurisdiction. The case management judge found that she had jurisdiction to hear the Crown’s objection but dismissed it. The Court of Appeal dismissed an appeal from the rejection of the s. 37 objection. It characterized the order allowing disclosure as civil rather than criminal in nature, held that an appeal under s. 37.1 was unavailable and held that the Crown could not object to the declaratory order under s. 37 . The case management judge’s declaratory order and the Court of Appeal’s decision were appealed to the Court.
The Supreme Court of Canada granted the Crown and order that the declaratory order should be set aside. An order should be granted pursuant to s. 37(6) of the Canada Evidence Act prohibiting the officers from disclosing informer‑privileged information to their counsel, subject to a successful innocence at stake application. The SCC ruled that the case management judge had jurisdiction to hear the Crown’s objection to the declaratory order under s. 37 of the Canada Evidence Act and an appeal to the Court of Appeal under s. 37.1 was therefore proper. The declaratory order was criminal in nature and therefore within Parliament’s constitutional authority. In determining whether an order is civil or criminal in nature, what is relevant is not the formal title or styling of the order, but its substance and purpose. Here, the order related to the accused’s claim that declaratory relief was necessary to help them make full answer and defence in ongoing criminal proceedings, and it was issued by a criminal case management judge in connection with the rights of the parties in a pending criminal proceeding, regarding what might be done by the accused in conducting their defence. The fact that it was declaratory does not change its essential character.
Furthermore, s. 37 was the proper route for challenging the order, as it authorized a form of disclosure to which the Crown was entitled to object on public interest grounds. The interconnected purposes of ss. 37 and 37.1 are to give the Crown the ability to object to disclosures on public interest grounds, and to grant an interlocutory right of appeal where it is unsuccessful. They provide a valuable tool for the Crown to protect against disclosure of confidential and privileged information, and reflect the fact that the Crown’s ability to object to disclosures on public interest grounds was not meant to be restricted to those circumstances where the disclosure is compulsory and will occur in open court. Disclosures may be equally harmful to the public interest whether they are made in or outside of court, and whether they are made under compulsion or voluntarily.
The Supreme Court of Canada ruled in this case that the officers are not entitled to disclose the informer‑privileged information to their lawyers. This is because the current jurisprudence prevents piercing informer privilege unless the accused can show that his or her innocence is at stake. As such, there is no basis for departing from that rule when the accused is a police officer. Informer privilege arises in circumstances where police receive information under a promise of confidentiality. Informers are entitled to rely on that promise. What is more, the informer privilege rule is a common law rule of long standing and it is fundamentally important to the criminal justice system. Subject to the innocence at stake exception, the privilege acts as a complete bar on the disclosure of the informer’s identity, and the police, the Crown and the courts are bound to uphold it. In order to pierce informer privilege — the innocence at stake test — is, accordingly, onerous; and that privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction. In this case, the defence counsel or their the officers (defedants) in this case did not argue that any privileged information in their possession meets the innocence at stake test. Nor did they suggest any information relating to confidential informers was genuinely relevant to their defence.
Furthermore, as previously confirmed by the Supreme Court of Canada, defence counsel are outside the circle of informer privilege, that is, the group of people who are entitled to access information covered by informer privilege. In all cases where informer privilege applies, disclosure outside the circle requires a showing of innocence at stake. Limitations placed on what the police officers can say to their lawyers do not create conflicting legal and professional duties; rather, they align with the officers’ professional duties and allow their lawyers to proceed without fear of inadvertently revealing the privileged information their clients possess. The law may require officers to exercise some degree of caution with respect to what they disclose, but that expectation does not meaningfully interfere with their relationship with counsel. The primary purpose of the right to free solicitor‑client communication in a criminal proceeding is to permit the accused and counsel to discuss issues that go to full answer and defence — “solicitor‑client communication” does not have some independent, intrinsic value over and above its relationship to full answer and defence. Like any other criminal defendant, if it becomes clear that the police officers are at genuine risk of conviction, and that this information needs to be disclosed, they can bring a Regina. v.McClure, [2001] 1 S.C.R. 445 . application. The application in this case was not brought under the ordinary McClure process, nor was it adjudicated under McClureprinciples. Instead, the accused sought a pre-trial remedy of declaratory relief, relating not to the scope of privilege, but rather to who is entitled to access information that everyone agrees is within the scope. In such cases, Access to the information will be given only where an accused demonstrates “innocence at stake”,as explained later in these reasons.
Police officers are, when accused of crimes, entitled to expect that they will be treated no less fairly than others who are accused and given the full protection of the law. What they are not entitled to expect is that they will be treated better. There is no reason to advantage police officers who, by virtue of their positions of trust, have information that has been confided to them for safekeeping. It is not their information to exploit for personal juridical gain.
Mr. J.S. Patel is a criminal defence lawyer that assumes conduct of all criminal trial and appeal matters. If you have been charged with a criminal offence, please feel free to call 403-585-1960 for a free initial consultation.
Right to Counsel and the Admissibility of Statements of Young Offenders in Canada
When the police are interacting with minors the common-law rules of voluntariness and counsel differ relative to adults. The initial stages of the investigation are critical and it is imperative that you understand your rights relative to a police investigation at the outset. In Reginav. N.B., 2018 ONCA 556, the Ontario Court of Appeal set aside a conviction for first degree murder that was allegedly committed by a 16-year-old. The police took incriminating statements from him in violation of the Youth Criminal Justice Act.
The factual basis of the allegations involved the accused allegedly brought a group of people to the body of the deceased, his cousin, and the police were contacted. The young accused was in a highly agitated state; was handcuffed; and placed in a locked police car after pushing a police officer. The police later took him to the police station, and placed in an interview room. He was told (erroneously) by the police that he was not under arrest and did not need his rights read to him. The police then interviewed him, confronting him for changing his version of events and telling him (falsely) that they had incriminating video from a surveillance camera.
At trial, the Crown Prosecutor, fairly conceded that the police breached the accused’s right to counsel and ss.25(2) and 146 of the Youth Criminal Justice Act\ (which govern the taking of statements). The trial judge admitted the accused’s statements, holding the accused had been only a witness in the murder investigation, even if arrested and detained for breaching the peace or obstructing police.
The court held that the trial judge had improperly shifted the burden to the defence to show the accused was psychologically detained. The burden should have been on the Crown regarding both the detention and whether the statutory preconditions of the Youth Criminal Justice Act for the admissibility of his statements had been met. When the proper onus was applied, a reasonable person would conclude the accused had believed he was not free to leave the interview room without speaking to the officers. The Court stated the following in relevant part:
[103] The trial judge’s discussion of burden of proof was confusing – at times he seemed to place the onus on the Crown, and at other times on the appellant. I have concluded that the trial judge held that the appellant failed to meet his burden that he was psychologically detained on a balance of probabilities.
[104] At p. 2 of his ruling, the trial judge first noted that the burden of proof with respect to proving the voluntariness of the statements lay with the Crown and the standard was beyond a reasonable doubt. He then stated that the burden of proof of compliance with s. 146 of the YCJA lay with the Crown, also to be proved beyond a reasonable doubt. The onus of proof of a breach of s. 10(b) of the Charter lay with the appellant, on a balance of probabilities. So far, so good.
[105] Then, at p. 20 of his ruling, the trial judge stated:
After his arrest at the scene for obstruct police and his transport to the police station for the conduct of an interview until 1:59 a.m. on March 10, 2006, [N.B.] was in effect detained. Until 1:59 a.m. on March 10, 2006, at which time [N.B.] was arrested for first degree murder, no officer advised him of his rights under s. 25(2) of the YCJA or of any of his Charter rights or had the requirements of s. 146 of the YCJA been implemented.
[106] The trial judge considered voluntariness, and found the appellant’s statements and utterances to be voluntary.
[107] Next, he concluded that the appellant had been neither detained nor arrested for the offense he was charged with – first degree murder – prior to 1:59 a.m. on March 10, 2006. At p. 35, the trial judge accepted the evidence offered by way of agreed facts and viva voce evidence of Detective Constables Brooks and Parcells that neither they nor any other police officer had reasonable grounds to consider the appellant a suspect at the time the statements were made. He was satisfied that before the appellant was transferred from the scene to the police station, “the decision was made that he was not under arrest and the removal of the handcuffs by Sergeant [Berriault] was corroborative of that fact, but that [N.B.] was clearly being viewed and treated as a witness only”: p. 36.
[108] Having dealt with the issues of reasonable grounds and arrest, he then turned to whether the appellant had been detained prior to his arrest. He stated at p. 39:
In this case, [the appellant] bears the responsibility of establishing on a balance of probabilities that he was psychologically detained.
[109] As mentioned, this was an error. As I have explained, the
burden to show that he was detained never shifted from the Crown to the appellant. Reading his reasons as a whole, it appears that the trial judge was aware that, if any of the three preconditions to s. 146(2) were met, the burden was on the Crown to establish implementation of the protections beyond a reasonable doubt. However, he failed to appreciate that the burden was also on the Crown to prove the absence of the preconditions beyond a reasonable doubt.
The trial judge also erred by holding that s.146 only applied where the accused is detained or arrested for the offence about which the police were questioning him or her. The statutory protections apply even if the accused has been detained or arrested for an unrelated offence. The court held these were not technical irregularities and thus the statements could not be admitted under ss.146(6).
If you have been charged with a criminal offence and you fall within the Youth Criminal Justice Act., call Mr. J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960.
Dangerous Driving Under the Criminal Code of Canada
By way of a simple and general summary of legal information, a restatement of the elements of the dangerous driving offence was provided in Regina v. Beatty, 2008 SCC 5, and Roy, 2012 SCC 26, with a significantly greater emphasis placed on the mental element of the offence and criminal blameworthiness. In Beatty, above, while confirming that the offence does not require subjective mens rea, Charron J., on behalf of the majority, provided for the application of the “modified objective test”, per Regina v. Hundal, 1993 CanLII 120 (S.C.C.), so as to ensure that punishment is imposed only upon those with “a blameworthy state of mind”. To that end, Charron J. held that the assessment of whether the accused’s conduct is a “marked departure” from the norm, is not an aspect of the actus reus, but of the mens rea. Accordingly, an evidentiary burden does not shift to the accused from the Crown’s presentation of a case of objectively dangerous driving – the actus reus. A further determination must be made whether the Crown has proven that the conduct involved a marked departure from the standard of care of a reasonable person in the circumstances that is deserving of punishment – the mens rea. Moreover, it remains open to the defence to raise a reasonable doubt that a reasonable person in the position of the accused would not have been aware of the risk posed by the manner of driving or, alternatively, would not have been able to avoid creating the danger.
In Reginav. Laverdure, 2018 ONCA 614(RD), the Ontario Court of Appeal(“OCA”) allowed the accused’s conviction appeal for dangerous driving causing death and ordered a new trial. The main reason for over-turning the conviction was due to the trial judges failure to analyze the fault component of the legal test.
In that case accused struck and killed a pedestrian who had crossed the road after attending a hockey game at a local arena in Pembroke, Ontario. At appeal, the accused argued that the trial judge made unreasonable findings of fact and that he erred in his analysis of the elements of the offence. The test for dangerous driving under the Criminal Code of Canada (the “Code”) is stated in Section 249 of the Code.; and the legal test has been considered in Reginav. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60, at para. 30; R. v. Reynolds, [2013] ONCA 433, at para. 18.
The court upheld the trial judge’s findings of fact with respect to the accused’s driving speed. Evidence from the accident reconstructionist, several witness, as well as forensic evidence supported the conclusion that he was driving “at a high rate of speed on a city street” (at para. 17). The court further upheld the finding that the circumstances as they existed on the road at the time (large groups of pedestrians crossing the road and walking along it) called for drivers to slow down and proceed cautiously.
It was open to the trial judge to find that the actus reus was established; and that he did not reason backwards from the accident (at paras. 20-22). However, while the Trial Judge correctly identified the proper test for the mens reaof the offence, the trial judge failed to identify “how and in what way” the accused’s driving went beyond negligence or carelessness to a marked departure from the standard of care that a reasonable person would show in the same position. This was not a case where the manner of driving was so egregious as to satisfy the fault element without any additional analysis of the evidence. At paragraph 25, the Court of Appeal stated:
Rather, the trial judge appears to have concluded that the act of driving dangerously necessarily constituted what he referred to as a “marked departure from what a reasonable person would expect in the circumstances”. He did not identify the “how and in what way” the appellant’s driving went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position.
If you have been charged with a Criminal Code Offence under Section 249 (i.e. Dangerous Operation of the Motor Vehicle), call Mr. J.S. Patel, Criminal Lawyer, for a free consultation.
Call 403-585-1980.
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