The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)). The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment.
The appealed raised a number of grounds. It was allowed. A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9). However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias. The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed.
The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27:
[27] The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about:
(a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
(b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
If you have been charged with a criminal offence and require a consultation, call Mr. J.S. Patel at 403-585-1960.
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.
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.
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.
Assault Assault Trials, Criminal Defence Lawyers for Sexual Assault Charges.
Evidence of sexual activity between a complainant and another person may be admitted if it is not tendered for a purpose prohibited by s.276(1) of the Criminal Code and it satisfies the admissibility test under s.276(2).The basic principles governing the application of s.276 were reviewed in Regina v. T.(M.), 2012 ONCA 511, per Watt J.A., on behalf of the court (at paras. 29-43):
The Governing Principles
Section 276 of the Criminal Codecreates a statutory rule of admissibility.Enacted in negative terms, the section, like other admissibility rules, is exclusionary; it precludes the admission of certain evidence. The exclusionary effect of the rule only becomes engaged when three requirements have been met. For
discussion purposes, these requirements, which are cumulative, may be characterized as:
i.offence charged;
ii.subject-matter; and
iii. purpose.
The exclusionary rule prohibits the person charged from introducing certain evidence (subject-matter) for a specific use (purpose) in proceedings for a listed crime (offence).
The “offence” requirement is satisfied where the proceedings in which evidence is tendered relate to a listed offence.Among the listed offences are the crimes charged here: sexual assault, sexual interference, and invitation to sexual touching.
The “subject-matter” requirement, which appears in both sections 276(1) and (2), is best expressed in the language of subsection (2):
Evidence … that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person.
If the subject-matter of the proposed evidence falls outside the statutory language, the exclusionary terms of the provision do not apply.On the other hand, satisfaction of the subject-matter requirement, on its own, will not necessitate exclusion; the “purpose” requirement must also be satisfied.
The “purpose” requirement is crucial to the operation of this exclusionary rule, just as it is with the common law hearsay rule. To engage the exclusionary rule of s. 276, the proposed evidence must be offered to support either of two prohibited inferences grounded on the sexual nature of the activity:
i. that the complainant is more likely to have consented to the conduct charged; or
ii.that the complainant is less worthy of belief.
Where the purpose underlying the introduction of the evidence of extrinsic sexual activity is neither of those prohibited by s. 276(1), this exclusionary rule is not engaged.
Section 276(2) provides an exception to the exclusionary rule. To gain entry under this exception, evidence of the complainant’s extrinsic sexual activity must:
i.be of specific instances of sexual activity;
ii. be relevant to an issue at trial; and
iii. have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
To determine whether the evidence should be admitted under this exception, the presiding judge must follow the procedure described in ss. 276.1 and 276.2 and consider the factors listed in s. 276(3).
The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of assault, without more, would fall outside the section: R. v. Gervais1990 CanLII 3701 (QC CA), (1990), 58 C.C.C. (3d) 141 (Que. C.A.), at p. 154. Questions that focus on the fact, rather than the details, of an allegation of sexual assault are not prohibited by the section: R. v. M. (A.G.)(1993), 26 C.R. (4th) 379 (Que. C.A.), at p. 393.
To be receivable in a criminal trial each piece of evidence must satisfy three requirements:
• relevance
•materiality
•admissibility.
These requirements are cumulative. Evidence that comes up short on any requirement is excluded from consideration by the trier of fact.
Thus, Section 276 of the Criminal Code permits cross-examination of sexual offence complainants on prior sexual activity only in certain circumstances. In ReginavR.V.,2018 ONCA 547 (CanLII),the Ontario Court of Appeal held that s.276 does not require that the defence particularize specific instances of alleged prior sexual activity. Rather the defence lawyer is only required to demonstrate that the prior sexual activity be “adequately identified”; and tied to a proper purpose. The court ordered a new trial for sexual assault where the defence was wrongly prevented from cross-examining the complainant on her prior sexual activity.
In that case, the Crown at trial had argued that the fifteen (15) year-old complainant’s pregnancy was consistent with her allegations. This implied that only the accused could be the father. The application judge dismissed the defence’s application under s.276 to cross-examine the complainant on whether this was true. The Court of Appeal held that “the Crown’s position amounted to this: we say you are the only one who could have impregnated the complainant but you are not allowed to question her about whether this is true” (at para. 27). This, the Court of Appeal found, was “patently unfair.”
The Ontario Court of Appeal held that although there was no “fixed rule” that required granting the s.276 application, the application judge erred by requiring the defence to articulate particularized “specific instances of sexual activity.” The sexual activity was adequately identified as any activity that could have caused the pregnancy. The court’s focus should be on the probative value of the line of questioning, not on the likelihood that the cross-examination will produce results. It was no substitute to permit the defence to simply ask the complainant whether she was telling the truth; the point of cross-examination is to challenge the witness’s answers.
The court also held the trial judge, who replaced the application judge before trial, erred by holding he lacked jurisdiction to revisit the application judge’s s.276 application. A trial judge always has jurisdiction to revisit prior rulings in the same trial, and this is also true where the trial judge has replaced another judge.
Being charged with a serious, violent crime like sexual assault, may call for the assistance of an Criminal Defence lawyer in Alberta or other provinces in Canada. A lawyer will review all the evidence about the alleged sexual assault; and advise his or her client on how best to fight any charges. If the accused was not taken into custody according to the letter of the law, a lawyer might be able to have the charges dropped. An accused client has the right to mount an aggressive defense with the knowledge that it is incumbent upon the Crown to prove guilt beyond a reasonable doubt.
If you have been charged with a sexual assault offence under the Criminal Code of Canada, contact Mr. J.S. Patel, Calgary Criminal Lawyer for an initial free consultation at 403-585-1960.
Aiding and abetting, murder charges and its application in a jury trial.
The legal concept of “aiding and betting” in the context of Criminal Law has presented some difficulties in its application in a number of cases throughout Canada. This criminal law concept applies to varying degrees depending on the nature of the charge under the Criminal Code of Canada (the “Code”). Only occasional mention is made of the alternative basis for finding someone to be a party, the so-called common purpose provision in s.21(2). Subsection 21(1) of the Code provides as follows:
Every one is a party to an offence who(a) actually commits it,(b) does or omits to do anything for the purpose of aiding an any person to commit it, or(c) abets any person in committing it.
In very general terms, while it is common to speak of the concept of aiding and abetting as a singular concept, these two conceptstogether, the two concepts are distinct, and liability can flow from either one. Broadly speaking, to aid under s.21(1)(b) of the Criminal Codemeans to assist or help the actor. To abet within the meaning of s.21(1)(c) includes encouraging, instigating, promoting, or procuring the crime to be committed: Regina v. Briscoe, 2010 SCC 13, at para. 14. :
[14] The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed”: Regina v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge’s finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.
Under the most applicable concepts of criminal law (at the time of writing), it is irrelevant whether an accused personally committed a crime or aided/abetted the offence, which is why the Crown need not specify in an indictment the exact role the accused played in the offence: Reginav. Pickton, 2010 SCC 32. Thus, in Regina v. McKay, 2012 ABCA 310, even though aiding and abetting are distinct concepts, there was no error in the trial judge’s characterization that the accused did “aid and abet” the commission of the offence. This was simply the judge’s way of describing the accused as a party to the offence. The following are two (2) recent examples of how these concepts come to fruition in Criminal law.
Recently, the Ontario Court of Appeal in Regina v. Mendez, 2018 ONCA 354, the Court set aside jury convictions for first degree murder against the two (2) accused and ordered a new trial. The deceased was shot by one (1) person, and the Crown Prosecution’s theory was that the two (2) accused acted as parties. However, it was unclear who had actually shot the deceased. The trial judge’s instructions to the jury on planning and deliberation listed the evidence supporting the Crown’s theory, but left out the evidence supporting the defence position that there was insufficient evidence that the non-shooter had aided or abetted the shooter. The instructions also failed to relate the evidence to the elements of aiding and abetting but merely invited the jury to consider whether the two accused “acted jointly.”The Crown’s case was weak on the aiding or abetting of the non-shooter, but the jury was not equipped by the trial judge’s instructions to consider the weaknesses.
The Ontario Court of Appeal held that the accused persons’ post-offence conduct — changing clothes, flight, and providing a false alibi — had little probative value regarding the non-shooter’s role. Despite the risk of the jury’s misuse of this evidence and the weakness of the Crown’s case on aiding and abetting, the verdict was not unreasonable and the court did not enter an acquittal. However, a new trial was ordered..
In Reginav. Zoldi, 2018 ONCA 384, the Ontario Court of Appeal allowed the accused’s appeal against his conviction for second degree murder and ordered a new trial on second degree murder. The Crown did not appeal the accused’s acquittal with respect to first degree murder.
The basis of granting the appeal was due to the fact that the jury was misdirected on the required state of mind for an aider or abettor to murder, being instructed that it was sufficient that the accused knew that the principal intended to kill or cause him bodily harm likely to result in deathand be reckless as to whether death ensued. The correct procedure require that the jury should have been instructed that the accused must have known that the principal intended to cause death or that the principal meant to cause bodily harm that the principal knew was likely to cause death and was reckless as to whether death ensued.
The jury was instructed that two (2) decision trees were being provided, one (1) for principals (of the indexed offence); and the other for aiders and abettors. The judge delivered his instructions on principal actor liability, followed by aiding and abetting liability. Given the structure of the charge, the Court of Appeal was not satisfied that the jury would have transferred the mens reafor a principal actor into their deliberations regarding the mental state for an aider or abettor to murder. The Ontario Court of Appeal held that the trial judge was right to tell the jury that the analysis between the modes of participation was different. Having had the required different analysis highlighted for them, though, the jury may have thought that, in the context of aiding and abetting, the absence of knowledge of the principal’s subjective foresight of death was by design. The Court stated the following in relevant part at paragraph 37 of the decision:
[37] Given the structure of the charge, I am not satisfied that the jury would have transferred the mens rea for a principal actor into their deliberations regarding the mental state for an aider or abettor to murder. To be clear, the trial judge was right to tell the jury that the analysis between the modes of participation was different. Having had the required different analysis highlighted for them, though, the jury may have thought that, in the context of aiding and abetting, the absence of knowledge of the principal’s subjective foresight of death was by design.
Another error idenfitied by the Crimianl laws as acknowledged by the Court of Appeal was the trial judge’s definition of recklessness under s.229(a)(ii) and the Trial Court’s instruction to the jury that it amounted to seeing the risk that the complainant could ( as opposed to would likely ) die from the injury to be inflicted.. This this error may have been otherwise inconsequential, but it was compounded by the erroneous instruction regarding the accused’s need to know the principal’s subjective foresight of death:
As the jury was instructed only to consider the decision tree that concerned “aiding and abetting decision tree if they failed to reach a unanimous verdict of guilt for first degree murder, the fact that the jury asked a question with respect to the aiding and abetting decision tree showed that they had not achieved that unanimity. By putting the query to the trial court whether there was a distinction between intent to kill and intent to cause bodily harm likely to result in death indicated that the jury very possibly, if not likely, were deliberating under a misapprehension as to whether the accused was required to know of the principal’s subjective foresight of death. Unfortunately, the trial judge’s answer to the jury repeated the earlier erroneous instructions and indicated that the jury could convict the accused as an aider or abettor without knowing of the principal’s subjective intention for murder. The case against the accused as the principal, the shooter, was strong. However, the court could not apply the curative proviso as the jury’s question revealed that the jury was considering the accused’s culpability in terms of aiding and abbeting. In the circumstances, it could not be said that a conviction was inevitable. The Court of Appeal held as follows at paragraph 51:
[51] The jury was demonstrating some confusion. They needed assistance. Unfortunately, the answer served to repeat the error that had already been repeated on multiple occasions in the charge. In the end, read in the context of the entire charge, I am not satisfied that the jury properly understood the knowledge component of the mental element for an aider or abettor to murder.
Mr. J.S. Patel, Criminal Lawyer practices criminal law in Calgary and assumes conduct of serious criminal matters such as murder trials and appeals, sexual assaults, and domestic violence charges, DUI charges causing bodily harm or death. For a consultation, call 403-585-1960.
The above noted is only general legal information and is not intended as specific legal advice. Contact our offices if you wish to secure full legal advice.
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.
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:
whether it is feasible for the accused to represent himself or herself;
other means of obtaining representation;
impact on the accused from delay in proceedings, particularly if the accused is in custody;
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;
impact on the Crown and any co‑accused;
impact on complainants, witnesses and jurors;
fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
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.
Under the Criminal Code of Canada (the “Code”), a “dangerous offender” designation carries serious criminal law consequences. Generally, it is reserved for the most violent and sexual predators. The designation carries an automatic sentence of imprisonment for an indeterminate period, with no chance of parole for seven years. The constitutionality of those provisions of the Code were recently challenged in the Supreme Court of Canada in a case called R. v. Boutilier, 2017 SCC 64 (“Boutilier”).
The majority of the Court upheld the constitutionality of the two (2) sections of the regime that was amended in 2008. Currently, Section 753(1) of the Code sets out this two-stage test: the designation stage and the penalty stage. It requires the lower Court, tasked with the adjudication, at the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual (an ordinary sentence followed by a long-term supervision order, or only an ordinary sentence) unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.
In this case, the sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed B’s appeal of his dangerous offender designation and indeterminate sentence. The matter was further appealed to the Supreme Court of Canada.
The Supreme Court stated the following in relevant part:
Continue reading The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada.→
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 403-585-1960or 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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The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)). The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment.
The appealed raised a number of grounds. It was allowed. A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9). However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias. The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed.
The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27:
[27] The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about:
(a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
(b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
