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Police brutality and Excessive force in arresting an accused person through the use of a baton and pepper spray: Contact: J.S. Patel at 403-585-1960

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In Regina  v. Hines, 2018 ONCJ 197, the Ontario Court of Justice held the police used excessive force where, in the context of a “chaotic” situation, they struck the accused in the face with a baton and pepper sprayed him while he was handcuffed.

 

The relevant facts were as follows:

Excessive Force

[18]            As indicated at the outset, Mr. Brannagan conceded that Brewer’s use of pepper spray was excessive force and a Charter violation. Mr. Chu also alleged that, in addition to pepper spray, excessive force was used in striking Mr. Hines in the face with a baton during the arrest. Those blows opened up two significant lacerations on the defendant’s face, which was made additionally painful by the application of pepper spray. The Crown refused to call Brewer, submitting that the defendant had the burden to prove facts that supported the Charter violation. While I agree the burden lies with the defendant to establish Charter violations, I ruled that fairness required this Court to call Brewer as a witness, allowing both counsel the opportunity to conduct cross-examinations. I did so because Brewer was, by nature of his actions that night, and by nature of his position as a police officer, a witness adverse to the defendant’s interest.

Constable Brewer

[19]            Brewer admitted striking Hines with his baton. He is unable to remember the number of strikes or the exact location of the strikes. Brewer was aware of facial injuries suffered by Hines but unaware if the cause was his baton strikes or when he was taken to the ground. He maintained he was frightened by the knife, and Hines assaultive behaviour, and not knowing if Hines still had a weapon. He also maintained the blows were done to effect an arrest, and not after Hines was handcuffed.

[20]            Constable Brewer’s status as a police officer is somewhat unusual. In September of 2017, he was convicted of Common Nuisance and Unauthorized Possession of a Firearm in Durham region arising from an incident that occurred on December 1, 2016. Constable Brewer had brought a handgun into the bedroom in which his spouse was sleeping, then followed her to the main floor holding the gun, put the gun in his own mouth, and then fired it eight times into the night sky outside his house. At the time, Brewer agreed he was suffering from depression, alcoholism and PTSD.

[21]            In addition to the criminal record resulting from the incident above, Brewer admitted drinking while on duty and being disciplined for it in November of 2016. Brewer denies alcohol was a factor in this case and does not think his mental health problems were either. Essentially he was of the view that Hines was “being actively resistant” and was attempting to get out of his scout car when he employed pepper spray.

[22]            While I found Constable Brewer’s evidence to be for the most part candid (and quite heartbreaking regarding his present condition), this last contention is demonstrably false. Mr. Hines was handcuffed to the rear and splayed out horizontally in the back seat of the scout car. Brewer stopped the scout car as it starts to leave the scene, and Brewer opened the door. Hines was not resisting; he was not kicking; and he certainly was not trying to escape.

[23]            In my view, to insist escape was the reason for employing pepper spray undermines what was otherwise credible evidence. That false contention makes his evidence, that he was unsure that his baton strikes connected with the defendant’s face, virtually impossible to accept.

At the Charter application, the Crown refused to call as a witness the police officer who struck and sprayed the accused, and so the court called the officer as a witness adverse in interest to the defence. The court declined to stay the charges (assault police, possession of a knife, possession of cocaine, and threatening), holding that a remedy could be fashioned on sentence.  The Court stated that:

[34]            A stay of proceedings is a drastic remedy, a remedy of last resort to be granted only in the clearest of cases (O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411). The defendant submits that no remedy short of a stay of proceedings is appropriate. Alternative remedies, sentence reduction for example, would not send the necessary message that the justice system denounces police brutality.

[35]            The defendant does not argue abuse of process in that the police conduct interfered with a fair trial. Rather, that it fell within the residual category referred to in paragraph 73 of O’Connor:

73               As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused’s trial.  For this reason, I do not think that it is helpful to speak of there being any one particular “right against abuse of process” within the Charter.  Depending on the circumstances, different Charter guarantees may be engaged.  For instance, where the accused claims that the Crown’s conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra).  Alternatively, the circumstances may indicate an infringement of the accused’s right to a fair trial, embodied in ss. 7 and 11(d) of the Charter.  In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system.  In addition, there is a residual category of conduct caught by s. 7 of the Charter.  This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[36]            When determining if a stay is the appropriate remedy for the “residual” category, the approach taken by the Supreme Court in R. v. Regan sets out the appropriate test to be considered. There are three factors to be considered by a court asked to order a stay of proceedings, as set out in Regan 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297, at paras. 54 – 57:

(1)     Will the prejudice caused by the impugned behaviour be manifested, perpetuated or aggravated through the conduct of a trial, or by its outcome;

(2)     Is any other remedy reasonably capable of removing the prejudice; and

(3)     If there should be doubt as to the appropriateness of a stay, how do the interests that would be served by a stay weigh against society’s interest in having a final decision on the charges on the merits?

[37]            Applying the above test, I conclude that there is a societal interest in having a judicial decision on the merits regarding the knife attack on Mr. Humphries. A remedy exists to reflect police brutality, which can be factored into the sentence. The assault police, possession of the knife, possession of cocaine, and uttering threats charges will be stayed as the only remedy capable of expressing this Court’s condemnation of Constable Brewer’s excessive use of force, as well as a recog­nition of the significant harm caused to Mr. Hines resulting from this brutality.

 

A different result was achieved in Reginav. Girbav, 2012 ABPC 219 wherein the Court, on similarly related facts, entered a stay of Proceedings by the Honourable Judge Brown of the Provincial Court of Alberta. In that decision, the Court, in directing the stay stated:

“While the beating meted out to Mr. Girbav was a far cry from the horrific assault in Tran, to allow the prosecution to continue, given the wantonness of the attack on Mr. Girbav and the attempt at burnishing the account after the fact, would cause irreparable harm to the justice system.  As in Mohmedi, Gladue and Tran, this appears to be a case in which the officers succumbed to anger in their dealings with Mr. Girbav.”
 

Cleary, this is a fact-driven inquiry that is mixed with complex issues of law and jurisprudence. It is critical to seek legal advice as soon as possible to ensure that the relevant evidence (including injuries) are well documented and evidence is preserved.

   

The above noted information is not intended as legal advice nor does it puport to provide information on any civil claims against a police force.  It is general information about specifically reported cases .  

 

Police Brutality, Excessive Force, Criminal Lawyers

If you have been charged with a offence that involved the use of excessive police force and/or abuse, call Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960 for a consultation during regular office hours. 

     

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The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada.

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Under the Criminal Code of Canada (the “Code”), a “dangerous offender” designation carries serious criminal law consequences.  Generally, it is reserved for the most violent and sexual predators.  The designation carries an automatic sentence of imprisonment for an indeterminate period, with no chance of parole for seven years.   The constitutionality of those provisions of the Code were recently challenged in the Supreme Court of Canada in a case called R. v. Boutilier, 2017 SCC 64 (“Boutilier”).   The majority of the Court upheld the constitutionality of the two (2) sections of the regime that was amended in 2008.  Currently, Section 753(1) of the Code sets out this two-stage test: the designation stage and the penalty stage.  It requires the lower Court, tasked with the adjudication, at the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual (an ordinary sentence followed by a long-term supervision order, or only an ordinary sentence) unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.   In this case, the sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed B’s appeal of his dangerous offender designation and indeterminate sentence.  The matter was further appealed to the Supreme Court of Canada.
The Supreme Court stated the following in relevant part:   Continue reading The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada. →

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

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

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

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

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

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

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

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

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

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

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The Use of Identification Evidence from Eyewitnesses and Video Evidence

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Gun Charges, Weapons Offence, Eye Witness and Video Evidence.            

The Ontario Court of Appeal recently considered and reaffirmed the rules and principles governing the use of eye witness identification.   In Regina v. M.B., 2017 ONCA 653, the Court of Appeal reversed a trial judge’s decision in convicting a young offender based on the following facts.  Please note that this case has a publication ban on the identity of the accused person(s).

The Facts 

A group of men congregated at or near a bar in Hamilton Ontario. A person approach the group; and shots were fired at close range, resulting in three (3) injured persons.  The aforesaid incident was recorded on video surveillance but quality of the video was questionable.   Critical to the determination of guilt at trial was whether the accused before the Court was the person depicted on the video.   The evidence before the Court consisted of three (3) civilian witnesses who did not see what occurred relative to the shooting but watched the video, after the fact, and claimed to have recognize the accused as the shooter.   The shooter’s facial features were not visible on any of the videos. Two (2)  of the identifying witnesses were police officers who had interacted with the appellant in the past. The third (3rd) witness worked at the bar/restaurant; and had served the accused, in the past, as a customer. There was no other evidence connecting the appellant to the shooting or even showing he was in the vicinity at the time. The accused, in this case, did not testify.

In reversing the conviction, the Court of Appeal rendered the following rulings, which are considered in turn.

The General Rules Governing Eye Witness and Video Evidence

First, since the quality of the video was poor and the only evidence tying the accused to the shooting was the recognition evidence of the three witnesses, the trial judge was required to “exercise the utmost caution in assessing the identification evidence”

Second, the trial judge was wrong to interpret Regina v. Berhe,2012 ONCA 716, 113 O.R.(3d) 137 as minimizing the importance of unique identifiable features in assessing the weight of recognition evidence. Here, the witnesses’ inability to identify any special characteristic of the accused’s movement that supported the recognition was important and should have been given appropriate weight. The Court stated the following in relevant part at paragraphs 46 to 47 of the decision:

[46]        The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies. The court made this clear by endorsing the following comment by Holmes J. in R. v. Panghali, [2010] B.C.J. No. 2729 at para. 42:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[47]        In my view, the trial judge was wrong to interpret Berhe as minimizing the importance of unique identifiable features in determining the weight of recognition evidence. Here, none of the witnesses had a “long and closely familiar” relationship with the appellant. Constable Howard had seen the appellant in the neighbourhood and had spoken to him once for minutes at the end of August. T.C. had served the appellant an unspecified number of times in the restaurant and had seen him there, had spoken to him only when taking his order and did not know his name. Constable Kay had the greatest acquaintance with the appellant – having observed him 10 to 15 times as an undercover officer and having spoken with him on one occasion for 35-40 minutes. This was a case in which the inability to “articulate the particular features or idiosyncrasies that underlie the recognition” was important and should have been weighted appropriately.

Additional errors also were cited by the Court appeal relative to the shooter’s movement as the basis for identification. In this connection, the trial judge did not differentiate among the three (3) witnesses in this regard. In fact, only one (1) witness relied on the way the accused moved in her identification. That witness said she had seen him walk and run before and that played a part in her identification of him. She could not, however, point to anything distinctive about the way the appellant ran. She also said she knew the way the appellant held his hand on his pants. She agreed that looking at the video one could not tell if the shooter had hair in cornrows, or had regular afro hair, or hair that was braided. With respect to the other two witnesses, the trial judge appeared to have speculated that they must have relied on the shooter’s movement to identify him. The Court of Appeal held that it was an error to surmise a basis for identification that the witnesses themselves did not claim.

What is more, trial judge also failed to keep in mind his initial caution about the fallacy of mistaking certainty for accuracy. In his analysis, he emphasized how certain each recognition witness was in his or her identification.   In relying on the witnesses’ certainty, there is no echo in the trial judge’s reasons of his initial recitation of the caution of the Supreme Court in Hibbertthat the danger of identification evidence is that “it is deceptively credible largely because it is honest and sincere.” The mechanism by which honest and sincere identification testimony is unreliable is explained in The Law Reform Commission Report on Eyewitness Testimony (at p. 10) endorsed in Miaponoose:

The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer’s mind may be quite different from reality

Finally, the trial judge did not consider that: “The important point is that each of three witnesses’ identification was flawed. The trial judge did not consider the possibility that the same mechanism accounted for the weakness of each identification. Each of the witnesses’ confident identifications might have been mistaken because each of them unintentionally “filled-in” details of a person familiar to them when looking at a fuzzy image of someone in fact unknown. Independent flawed identification evidence from three witnesses is no more persuasive than if from one.”

While there are subtle differences in the law  of evidence and eye witness identification; and as the reader may observe, the law is constantly changing to adapt to technological advances. The result in this case might have been different had the quality of the video feed been of suitable quality.

Contact a lawyer

Proper legal advice ought to be sought at the onset of these charges to permit an professional review the details and the facts of each case to determine how they square with the prevailing law at the time. The principles in this case may change from time to time and this Blog post should not be relied on as a complete and fulsome survey of the law.    The procedural and legal issues involved with the assessment of ID evidence often fluctuates in subtle ways as the law in this area evolves.

It is important to seek legal advice on what the Crown is permitted to enter into evidence and what must be opposed.  Such strategic  decisions may be critical to the outcome of your case.

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

 

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The conduct of the defence in assessing the delay at trial under Section 11(b) of the Charter; and whether the calculation of the delay is the period between charge and verdict or between charge and sentence.

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August 20, 2017

The conduct of the defence in assessing the delay at trial under Section 11(b) of the Charter; and whether the calculation of the delay is the period between charge and verdict or between charge and sentence.  By J.S. Patel, Barrister, 403-585-1960 or 1-888-695-2211

In our previous Blog on R. v. Jordan, and R. v. Cody, we outlined the general legal test that the Courts use to determine whether a delay is considered unreasonable and to stay all charges against an accused person.  Two (2) presumptive ceilings were set: (a) eighteen (18) months of delay in matters in the Provincial Court; and (b) thirty (30) months for charges in the Superior Courts in Canada.  The issue of defence delay was expounded upon more recently in Regina v. Cody 2017 SCC 31; and it is described in our blow summarizing the judgement.  The conduct of the defence and Counsel is a relevant factor in determining whether there was an unreasonable delay that would attract a stay of proceedings under Section 24(2) of the Charter.

For instance, in Regina v. Mallozzi, 2017 ONCA 644, the Ontario Court of Appeal upheld the Trial Court’s Assessment of the alleged defence delay, in dismissing the accused’s application for a stay of proceedings on the basis of unreasonable delay under s.11(b) of the Charter.  In that case, the accused was convicted of two (2) counts of producing marijuana.  There was a preliminary inquiry;  and two (2) mistrials, which spanned over five (5)  years from the date he was charged. The court held that the “net-delay” was under the thirty (30) month ceiling created by  Jordan; and importantly, that the defence waived or caused thirty-seven (37) of the total sixty (60) months of delay. What is more, many dates had been offered to try to accommodate the schedule of defence counsel while the Crown and court were able to proceed earlier, and there was an express waiver of a further period.

In the obiter dictum of the judgement, the Ontario Court of Appeal further opined that even if the total ‘net-delay’ had surpassed the thirty (30) month ceiling as posited in R. v. Jordan (SCC), the resulting delay would have been justifiable given the two (2) mistrials, which the Court would have found fell within the rubric of term: ‘exceptional delay.’  This is because, in the Court’s view, the first (1st) mistrial came to fruition as a result of a defence objection concerning the empanelment of the 12th juror under Section 642 of the Criminal Code of Canada (the “Code”).   Defence counsel’s assertion that this delay was due to the summoning of too few potential jurors was rejected.  The Court of Appeal found that the defence position on this issue had been “frivolous.”  What is more, the second mistrial was agreed to by the Crown and the defence on the basis that the five of the jurors on the current panel had been on the previous panel. The Court took the view that the this second mistrial had been unnecessary; and that these particular events were unforeseeable.  Thus, they were not a “failure of the system” as advocated by the accused person at appeal.  Finally, the Court of Appeal also stated the transitional provision applied to the delay, which was incurred prior to the decision in Jordan, above.

What is interesting, however, is that the Ontario Court of Appeal, explicitly declined to decide whether the period of delay for s.11(b) purposes is the period between charge and verdict or between charge and sentence. Accordingly, this issue remains arguably open for consideration should the issue arise against in the future.

The issues involved in Charter applications under Section 11(b) involve complicated considerations and a thorough assessment of the applicable legal principles.  While it is clearly impossible to predict the outcome of proceedings and manner in which trials will unfold, the Mallozzi case clearly demonstrates the importance of considering the manner of defence delay and the strategic steps that need to be taken at trial. Experienced lawyers ought to be consulted in making such an application.

Contact our offices at 403-585-1960 or 1-888-695-2211 for an initial consultation.

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

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

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August 19, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Whether a criminal defence lawyer may make an application to record to the testimony of a Crown witness, an Ontario Police officer, to further an expert spectrographic voice identification analysis to support an application to exclude all improperly obtained evidence under Section 8 of the Canadian Charter of Rights and Freedoms.

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The accused person, in Regina v. Dunstan, was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house.  At trial, his learned criminal lawyers sought to have the evidence of the drugs and cash excluded on the basis that the police had staged the break-in and placed the anonymous call in order to gain access to his house illegally, in breach of his rights under s. 8 of the Charter of Rights and Freedoms to be free from an unreasonable search and seizure.  During his application, his criminal defence lawyers requested an order permitting the defence to use a high-quality microphone to record the testimony of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the maker of the anonymous call and instigator of the break-in, for the purpose of enabling the police officer’s voice to be subjected to expert spectrographic voice identification analysis.  That application was denied by the Superior Court of Justice in Ontario.

According, defence counsel appealed that decision to the Ontario Court of Appeal on the issue of whether a Superior Court judge has the authority to make such an order. His criminal lawyers posited the following issues.  He submitted, that the Superior Court judge erred in:

(a)     determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,

(b)     holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.

The Ontario Court of Appeal found that Section 8 Charter rights of rights of an accused should not turn on the particular level of technology utilized by the court.  Justice Blair of the Court determine that if it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording, it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing, the sample is being provided in any event: Regina v.  Dunstan, 2017 ONCA 432, at para. 63:

[63]      The rights of an accused should not turn on the particular level of technology utilized by the court, in my view. If it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording – as the Crown acknowledges – it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony.  To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing – as the Crown puts it – the sample is being provided in any event.

Based on the above, the Court of Appeal granted the appeal against Mr. Dunstan’s convictions for multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime; and ordered a new trial. The court ordered a new trial.  The Appeal Court also stated that as a Superior Court judge, the pre-trial application judge had the discretionary authority to permit the staff sergeant’s testimony to be recorded on a high-quality microphone pursuant to s.136(3) of the Courts of Justice Act, but, if not, then pursuant to the Superior Court’s inherent jurisdiction at paras. 77 to 82.

Finally, the Court stated that:

[86]      The initial entry involving the break-in and the York Regional Police entry are inextricably intertwined in the circumstances.  The warrantless entry could not be justified (whatever the reasonable belief of the YRP officers and the circumstances confronting them on their arrival) if it had been triggered by an unlawful ruse carried out by state actors in the first place.  The Crown does not dispute this.  To hold otherwise – as the appellant points out – would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the “dupe” officer would insulate the conduct from attack.  For this reason, in my opinion, the two entries – the allegedly fake break-in and subsequent anonymous phone call, and the responding entry by the York Regional Police – are part of a single integrated chain of events that should not be considered, in silo fashion, as two independent and separate events.

This case demonstrates the necessity of using an experienced criminal defence lawyer, who follows updates in the law, to ensure that all your defences are fully canvassed to obtain optimal results.

For a free initial-30 minute consultation regarding your charges, contact J.S. Patel at 403-585-1960 or 1-888-695-2211.

 

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

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

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

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

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

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

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

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

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

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

Fountain: Yes.

Dellipizzi: … do you want somebody called? Okay.

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

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

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

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

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

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

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

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