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 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 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.
The use of a driver’s statement in a jury trial for impaired driving charges.
The application of the rules regarding the assessment of an accused person’s statement as raised in R. v. W.(D.),1991 CanLII 93 (SCC)was considered in Regina v. Bacci, 2018 ONCA 928, where the Court of Appeal in Ontario quashed the accused’s conviction for impaired operation causing bodily harm, two counts of driving over 80 causing bodily harm contrary to s.255(2.1) of the Criminal Code, and two counts of dangerous driving causing bodily harm contrary to s.249(3) of the Criminal Code. This was due to an error errors in the trial judge’s W.(D.) instruction in his recharge to the jury.
The facts of the case were simply as follows. The accused and her four passengers were returning to the accused’s family cottage when their car flipped over after the accused failed to negotiate a curve. All four passengers testified at trial. The accused told the police “I don’t know what happened. The car just lost control.” The Crown expert witness admitted that there was a probability, albeit low, that the accident could have been caused by a mechanical failure.
Central to the success of the appeal hinged on the W.(D.) instruction relating to the accused’s statement. Again, the purpose of this instruction was famously described by the Supreme Court of Canada in the following clear terms:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
The original charge to the jury was:
I want to mention one particular piece of evidence you heard because it is deserving of special treatment according to the law.
[1] You heard from Alexandra Jones that she heard Megan Bacci state at the accident scene, “I do not know what happened. My car just lost control.” If you believe that this what was reported by Alexandra Jones was in fact said by Megan Bacci and if you accept Megan Bacci’s explanation that her vehicle just lost control and you find this lose [sic] of control was caused entirely by mechanical failure, you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration of over 80 causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser included offences in counts 1 through 4. Even if you do not accept that Megan Bacci said what was reported by Alexandra Jones or accept Megan Bacci’s explanation for what happened or accept the lose [sic] of control was caused entirely by mechanical failure, if it leaves you with a reasonable doubt about whether Megan Bacci caused the accident and the accompanying bodily harm, you must find her not guilty of those offences because the Crown would have failed to prove an essential element, that is causation of those offences beyond a reasonable doubt. You may still, however, find her guilty of the lesser and included offences in counts 1 through 4.
[2] Even if the evidence does not 1eave you with a reasonable doubt about whether Megan Bacci caused the accident, you may convict Megan Bacci only if the rest of the evidence that you do accept proves her guilt on that essential element of causation beyond a reasonable doubt.
The recharge to the jury was:
The one last area I want to mention the one particular piece of evidence you heard because it deserves special treatment and that’s what Megan Bacci said that what Alexandra Jones stated that she heard that is, “I do not know what happened, my car just lost control.”
I want to repeat this to you. If you believe that what was reported by Alexandra Jones was in fact said by Megan Bacci, and if you accept Megan Bacci’s explanation given to Alexandra Jones that her vehicle just lost control, and you find that this lost [sic] of control that is referred to was not caused by her in any way then you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration over 80 thereby causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser and included offences of 1through 4.
So “I do not know what happened, my car just lost control”, that is from Alexandra Jones about what Megan Bacci said. So one, you have to consider whether you believe that what Alexandra Jones said was in fact said by Megan Bacci. You have to accept that that’s Megan Bacci’s explanation that the vehicle just lost control, you have to accept that explanation by her and you have to find that this loss of control that’s alluded to, that’s referred was not caused by her any way, the lost [sic] of control of the vehicle was not caused by her in any way.
If you find those three things then you must find her not guilty on counts 1through 6. You still may find her guilty of the lesser and included counts, charges in counts 1 through 4.
I hope that’s cleared it up. If not, I’m sure you will have a question but you’re free to go now.
The Court of Appeal held that the original charge to the jury did not contain any errors concerning the interpretation of the above noted statement. As such it did not cause the jury to give extra scrutiny to the defence evidence and it inured to the benefit of the accused. What is more, the trial judge did not err in his original charge when he instructed the jury that the accused must be acquitted if they found that the loss of control was “entirelycaused by mechanical failure,” as it was evident that this was not the only basis for acquittal (emphasis added). This is because the second and third arms/prongs of the W.(D.) instruction made it clear that an acquittal was possible via other paths. Thus, when the entirely instruction is reviewed in as a whole, the jury charge adequately conveyed to the jury that they were not engaged in a credibility contest.
In the recharge, the trial judge similarly did not err by providing an exculpatory interpretation to the statement. However, the trial judge failed to contextualize the recharge and identify that he was correcting a previous error. In addition, the trial judge also said nothing about the second and third branch of W.(D.)in the recharge. That served to only served to confuse the jury. Due to the foregoing, this constituted a non-direction amounting to misdirection with respect to a crucial aspect of the defence. The Court stated: “In these circumstances the jury is entitled to instructions which were clear, correct and comprehensive,as S.(W.D.) mandates. Unfortunately, the last word that the jury heard was an incorrect and incomplete instruction on critical issues.”
The defence appeal was allowed, the conviction was overturned, and a new trial was ordered.
If you have been charged with impaired driving causing bodily harm and/or a similar criminal driving related offence, contact Mr. J. S. Patel, Barrister for an initial consultation at 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.
Mr. MacIsaac waswas charged with aggravated assault on July 11, 2012, and he proceed with an election for a trial in the Ontario Court of Justice and was convicted on December 16, 2013. On August 31, 2015, the Court of Appeal quashed the conviction and ordered a new trial. The accused’s counsel was served with a summons for the re-trial on November 30, 2015. On February 3, 2016,a ten (10) day re-trial was scheduled to run from February 6 to 17, 2017. On August 25, 2016, the accused applied for a stay under s.11(b). The application was denied on October 26, 2016 and the re-trial went ahead as scheduled. The trial judge reserved her decision following the last day of trial, which was February 16, 2017.On April 18, 2017, the trial judge released her judgment finding the accused guilty of aggravated assault.
The Ontario Court of Appeal court noted that the case was argued on the assumption that the eighteen (18) month presumptive ceiling established in Regina v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631applied to the re-trial. The court stated that it would deal with the appeal on that basis. The court commented, however:
[27] In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a re-trial. Re-trials must receive priority in the system, and in the normal course re-trials in the Ontario Court of Justice should occur well before Jordan’s 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for re-trials.
[28] We heard no argument on this point and it would not be appropriate to say anything more in the context of this case. This case was argued on the assumption that the 18-month presumptive ceiling applies, and I propose to deal with it on this basis. However, the Jordan criteria must be understood in the context of the Crown’s duty to re-try cases as soon as possible.
[29] I begin by reviewing the considerations raised by the parties concerning the calculation of delay. I conclude that the delay in this case either exceeds the presumptive 18-month ceiling or is unreasonable in any event. In either case, the appeal must be allowed and a stay must be granted.
What is more, the court also addressed the issue of when the clock starts for the purposes of a delay analysis in the case of a re-trial. The court held that the time for assessing delay runs from the date the appellate court quashed the conviction and ordered a new trial. Accordingly, the clock started running on August 31, 2015.
In terms of determine when the proverbial clock ceases to run, the court averred that the end date for calculating total delay was either April 18, 2017, which is when the judgement was rendered or February 17, 2017, which again, was the last day of trial. However, given that the factual foundation was not before it, the court stated that it was unnecessary to resolve the issue of whether the time a judgment is under reserve is included in the calculation of total delay. This was because the net delay in the case was unreasonable under either of the above scenarios: (a) First, under the initial scenario, in which reserve time is included, the net delay was over 19 months and exceeded the presumptive ceiling. The Crown had not established the presence of exceptional circumstances that rebut the presumption of unreasonableness. Accordingly, the delay was unreasonable; Second, (b) under the second scenario, in which the time under reserve is not included in the calculation of delay, the net delay was over seventeen (17) months. Although this net delay was below the presumptive ceiling, the defence had met its burden of showing that the delay was unreasonable.
If you have been charged with a criminal offence, it is important to ensure that sufficient and accurate representations are made on the Court record to ensure that your efforts to proceed in a diligent matter are noted despite the tests outlined by the Supreme Court of Canada inRegina v. Jordan. The common-law rules, as stated in this case, provides an example that depending on the facts of each case, may be useful in persuading the Crown or the Justice applies to your case.
If you have been charged with a criminal offence, contact Mr. J. S. Patel, Barrister for a free initial consultation regarding your matter.
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.
Failure to Provide the Necessities of Life. Elements of the Offence and the sufficiency of a jury charge.
The parents of the deceased child had their conviction for the failure to provide the necessities of life for their (deceased) child overturned by the Supreme Court of Canada (the “SCC”) recently. In Regina v. Stephan, 2018 SCC 21, the SCC overturned the a ruling from the Alberta Court of Appeal and adopted reasoning of Justice O’Ferrall’s dissent.
The facts in this case were extremely unfortunate. The majority of the panel at the Alberta Court of Appeal restated the facts in the following terms:
[2] The appellants’ son, Ezekiel, was born in August 2010. On February 27, 2012, Ezekiel began to exhibit signs of illness while at pre-school. Symptoms included fever, decreased appetite, and trouble breathing and swallowing.
[3] Both parents were concerned. Rather than take him to a medical clinic, however, they contacted a family friend, a nurse, by telephone. After listening to Ezekiel’s breathing over the phone, the friend thought the problem might be croup. The appellants treated Ezekiel with fresh air, fluids, humidity and natural supplements including garlic, olive leaf extract and Methylsulonylmethane.
[4] Over the next few days, Ezekiel’s fever abated but he still felt hot. He continued to have a decreased appetite, low energy, decreased activity, and trouble breathing.
[5] By March 5, the appellants felt Ezekiel’s condition had improved as he no longer had trouble breathing, and he returned to pre-school. DavidStephanwent out of town to work.
[6] A day later, March 6, Ezekiel was weaker. He was less responsive; he stayed in bed and moaned. He tugged at his diaper and rubbed his face, both movements that seemed to ColletStephanto be involuntary. ColletStephanlooked online for a possible explanation and phoned DavidStephanto report that Ezekiel seemed to be getting sick again.
[7] DavidStephanreturned from work on March 8 with some natural products he had picked up while away. Ezekiel was fed apple cider vinegar, onion powder, ginger root, garlic, hot peppers and horseradish root. Over the next few days, Ezekiel’s condition appeared to improve, although he began to show signs of stiffness or joint tension.
[8] Between March 9 and 12, the stiffness increased and Ezekiel’s back began to arch. He refused food, and his lethargy and weakness increased. His parents were worried.
[9] On March 12, DavidStephanwent to a business meeting. ColletStephanphoned a nurse friend to ask her to examine Ezekiel. Collet told her husband about her concerns when he came home for lunch.
[10] The family friend examined Ezekiel and suggested the problem might be meningitis. She suggested that Ezekiel be taken to the doctor. Rather than following that advice, ColletStephansearched the internet seeking information about meningitis. Based upon the information she obtained, ColletStephantried the Brudzinski and Kernig tests for meningitis. The tests involve physical manipulation of the child’s head or legs. Ezekiel tested positive on both, but Collet concluded Ezekiel had viral meningitis, rather than the more serious form of bacterial meningitis. ColletStephancommunicated her conclusions to her husband when he returned from a second business meeting that day.
[11] DavidStephanstayed home the following day, March 13,to help and to take ColletStephanto Lethbridge to sign some documents. Before leaving for Lethbridge, ColletStephancontacted a naturopathic clinic to get some advice about boosting Ezekiel’s immune system because he had meningitis. The receptionist told her to take Ezekiel to a doctor.
[12] The appellants proceeded to Lethbridge with Ezekiel lying on a bed in the back of their vehicle because he could no longer sit comfortably in his car seat. After dealing with their lawyer, the appellants went to the naturopathic clinic to purchase an echinacea tincture called Blast. They administered this to Ezekiel, went shopping, and then returned home.
[13] That evening, Ezekiel began exhibiting difficulty breathing. About 9:00 p.m., after ColletStephanhad returned from a meeting, Ezekiel stopped breathing. DavidStephanphoned his father AnthonyStephanand then 911.
[14] ColletStephangot Ezekiel breathing again by slapping him on the back and then giving him a few rescue breaths. DavidStephanphoned 911 to call off the ambulance saying they would bring Ezekiel to the hospital by car. The family left 20 minutes later for the Cardston hospital but before they arrived, Ezekiel again stopped breathing. ColletStephanperformed CPR while DavidStephandrove on and phoned 911. They were met by an ambulance outside of Cardston.
[15] The responders began performing CPR but they had difficulty securing an airway due to a lack of proper equipment. This deficiency lasted eight minutes until just before the ambulance reached the hospital in Cardston.
[16] Ezekiel was treated at the Cardston hospital and then transferred to Lethbridge in order to be taken by STARS air ambulance to the Children’s Hospital in Calgary. He never regained consciousness. On March 15 and 16, Ezekiel was neurologically assessed and determined to be brain-dead. Life sustaining therapies were discontinued and on March 18, 2012, Ezekiel died.
However, Justice O’Ferrall said the following about the facts of the case, in his dissent:
[211] On the facts of this case, it cannot be argued that the Stephans were not devoted and loving parents. They did not neglect their 18-month old son’s symptoms when he exhibited them. They did not fail to provide him with what they thought were the necessaries of life. They monitored him closely when he became ill, doing what they believed was best for him. There is no doubt the decisions they made with respect to the well-being of their son turned out to be terribly wrong, but it is not clear that their acts or omissions were criminal in the sense of deserving of punishment for moral blameworthiness.
[212] That said, a jury of their peers did find the Stephans guilty of failing to provide the necessaries of life to their son, contrary to section 215(2)(a)(ii) of the Criminal Code. However, as argued by the appellants, the trial judge’s charge to the jury was problematic, perhaps to the point of impacting the fairness of the trial. At the very least, the jury charge was confusing, misleading, and deficient in describing a key element of the offence. Furthermore, the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence. The cumulative effect of the jury instructions may have been an unsafe or suspect verdict.
The SCC accepted Justice O’Ferrall’s reasoning that in sum, the trial judge failed in his jury charge for three (3) reasons:
(1)The Trial Judge he did not adequately explain what the jury’s focus should have been in determining whether there had been a failureunder the second element of the offence. The full legal test, outlining the elements of the offence, was explained in Reginav F,2008 SCC 60 (CanLII) at paras 66-67, [2008] 3 SCR 215:
The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5 (CanLII), the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).
The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances.
Each of the four elements specified in the above test (the three elements of the actus reus plus the mens rearequirement) must be proven in order to obtain a conviction. It was important for the jury to keep these four distinct elements in mind. However, the trial judge, in his charge to the jury, combined two of them.
Secondly, the trial judge appeared to incorrectly assume the third (3rd) element of the offence had already been met in instructing the jury on the second (2nd) element of the offence. The trial judge made the following comments to the jury in this case:
In deciding whether the Crown has proven beyond a reasonable doubt that David Stephan failed to provide necessaries of life you must determine whether the Crown has proven beyond a reasonable doubt that the conduct of David Stephan represented a marked departure from the conduct of a reasonably prudent and ordinary person where that reasonable person, in all the circumstances of David Stephan would foresee that medical attention was required to maintain Ezekiel’s life, and that reasonable person would also foresee that failing to provide the medical attention would endanger Ezekiel’s life.
This was found to be an error by Justice O’Ferral because “…he foregoing instruction seems to invite the jury to assume as true the latter half of the statement (in bold) when considering whether the conduct of the parents amounted to a failure to provide the necessaries of life. The latter half of the statement is essentially the third element of the actus reus of the offence, which is to be determined only after a failure to provide the necessaries of life has been established.”
Thirdly, the trial failed to adequately explain the mens rea element of the offence to the jury. Specifically, the Trial Judge was required to explain what constituted a “marked departure”; and this was not done. Marked departure is a difficult concept even for those with legal training and therefore requires explanation. The discussion in Regina v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49 is helpful. That case dealt with the charge of dangerous driving which, like that of failing to provide the necessaries of life, requires proof of a marked departure from the standard of care of a reasonable person in order to found a conviction. The majority in Beatty explains, at paragraph 7, that:
The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.
This case demonstrates the necessity of ensuring that the jury charge is properly examined before being put to the jury either at the trial stage or (after the fact) at the appellate stage of the criminal law proceedings. It is critical to seek the advice of a criminal trial and appeal lawyer in face serious criminal charges wherein the Crown is seeking a conviction for failure to provide for the necessities of life.
If you have been charged with a serious criminal offence, contact Mr. J.S. Patel, Criminal Lawyer for advice at 403-585-1960.
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.
Criminal Lawyer in Calgary and Toronto, DUI, Over 80, Domestic Assault, Sexual Assault, Murder, Legal Aid,
The Court of Appeal in Regina v. 
