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.
Supreme Court of Canada strikes down Victim Fine Surcharges.
Upon the imposition of penalty, the Criminal Code of Canada (R.S.C.., 1985, c. C-46)once imposed a victim find surcharges upon the entry of a conviction and/or penalty pursuant to section s. 737. The amount is set by law and is owed for each and every summary conviction or indictable offence. The surcharge is intended to fund government programs designed to assist victims of crime. The surcharge applies regardless of the severity of the crime, the characteristics of the offender, or the effects of the crime on the victim. That section said:
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is
(a) 30 per cent of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
That section was struck down by the Supreme Court of Canada in Regina v. Boudreault, 2018 SCC 58 (CanLII), wherein the majority of that Court struck down the mandatory victim surcharge. A Supreme Court hard a number of appeals together considering the same issue. The section is now of no force or effect. The majority held the victim surcharge was a form of “punishment,” and therefore subject to the Charter right against cruel and unusual punishment pursuant to Section 12 of the Charter. Some of the offenders before the Court lived in dire straights (i.e. serious poverty, deliberating addiction issues, deplorable housing, and physical issues). Some of these offenders were recidivists, who regularly appeared before the courts, and got fined. What is more, the consequences of failing to pay to fee could (but not necessarily) result in being taken into custody (at her Majesty’s Institutions), among other things (i.e. collection agency actions). A fit sentence for the appellants would not include such a fine, and the overall operation and effects of the mandatory fine were grossly disproportionate.
The court continued by positing that the ongoing enforcement of victim surcharges that were imposed before the date of its judgment would violate s.12 of the Charter at each step. This could arise, where the offender is arrested or brought to court for a financial update. The Court stated:
The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the circumstances of this case, the fit sentence for the offenders would not have included the surcharge, as it would have caused undue hardship given their impecuniosity. Sentencing is first and foremost an individualized exercise which balances various goals, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. The crucial issue is whether the offenders are able to pay, and in this case, they are not.
However, the court left open the issue of remedy for persons in this situation, but suggested that remedies are available under s.24(1) of the Charter, and that Parliament could act administratively to create a remedy.
There were two (2) dissenting Justice. Justice Côté, writing in dissent for herself, and Justice Rowe,would have held that:
[114] I respectfully disagree. While I accept that the mandatory imposition of the victim surcharge may have a particularly negative impact on impecunious offenders, I cannot accept that it amounts to treatment or punishment that is truly “cruel and unusual”, as that phrase has been interpreted in this Court’s jurisprudence. Moreover, I am of the view that the impugned provision does not deprive impecunious offenders of their security of the person, and that any deprivation of liberty that may result from the application of s. 737 of the Criminal Code accords with the principles of fundamental justice. For these reasons, I discern no violation of either ss. 12 or 7 of the Charter, and I would dismiss the appeals accordingly.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Criminal Lawyer in Toronto and Calgary at 403-585-1960.
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.
Dangerous Driving under the Criminal Code of Canada
In Regina v. Raj, 2018 ONCA 623 (CanLII) the Ontario Court of Appeal dealt with the conviction appeal for an accused person involving a commercial dump-truck operator. It was a case Dangerous Driving involving alcohol and the use of a Commercial Vehicle. The facts underpinning the appeal involved a proven allegation that the accused had driven the raised box of his dump truck into an over-pass. The accused was/is a professional truck driver. On July 31, 2014, he was driving a commercial dump truck on the Queen Elizabeth Highway (“QEW”). There was a trailer attached to the truck whose box could be raised and lowered using a system of buttons and levers in the truck called the Power Take-off (“PTO”) system. That day, the appellant had left the PTO lever in the ‘On’ position. Under certain circumstances, leaving the PTO engaged permitted the trailer to rise.
The accident scene was chaotic and dangerous, and the police placed the accused in a police car for 2.5 hours for his own safety. The following arguments were raised by the accused’s criminal appeal lawyers: First, it was posited that the trial judge erred by concluding that the appellant’s confinement in the police cruiser for 2.5 hours was not an arbitrary detention contrary to s. 9 of the CanadianCharter of Rights and Freedoms. Second, if that argument was successful, then it was argued that result would be that the police breached both his s. 9 and s. 10 Charter rights. This, it was argued, would call for a reappraisal of the trial judge’s s. 24(2) analysis and lead to a different result – the exclusion of the evidence relating to the smell of alcohol on the appellant’s breath. The Court disagreed. It said that the principal, and continuing, purpose of the appellant’s detention was his own safety. His truck had caused a terrible accident with extensive damage to vehicles and a bridge and injuries to several people. The police noticed the appellant walking around a dangerous accident scene and sitting on a guardrail very close to a damaged and collapsing girder. Importantly, his truck was crushed.
The Ontario Court of Appeal also upheld the decision of the trial judge admitting evidence of a smell of alcohol on the accused’s breath even though the police did not provide access to counsel during the detention, breaching s.10(b) of the Charter. The police conduct was only a mistake and not deliberate misconduct, and the police would have smelled the alcohol even if they had acted properly.
What is more, the Court of Appeal upheld the trial judge’s finding that the accused’s conduct was a marked departure from a reasonable person’s driving. This was mostly due, in large part on the accused’s alcohol consumption, and his failure over forty (40) seconds to notice that the box of his dump truck had raised. The court said that prior to colliding with the bridge superstructure the appellant drove a one (1) kilometer distance for forty (40) seconds without detecting the rising dump box despite its effect on the truck’s handling and despite it being clearly visible from all of the truck’s mirrors.Given all the factors, the Court of Appeal dismissed the possibility of the that period of time constituting an “momentary inadvertence.”
Refusal to Provide a Breath Sample. Call Mr. J. S. Patel, Criminal Lawyer at 403-585-1960 for a consultation.
In Regina v. Suter, 2018 SCC 34, a 6:1 majority of the Supreme Court of Canada allowed the accused’s appeal in part. The Court set aside his 26-month sentence of imprisonment, imposed by the lower sentencing court, for the offence of refusing to provide a breath sample knowing that he caused an accident resulting in a death (Criminal Code, s.255(3.2)),and imposed a sentence of time served of just over ten (10) and a (1/2) half months.
That said, the circumstances of this case are unique as related recently on CBC news. The fatal accident was caused by a non-impaired driving error, and Mr. Suter refused to provide the police with a breath sample because he received bad legal advice. The lawyer he called from the police station expressly told him not to provide a breath sample, and Mr. Suter demurred. Added to this, sometime after the accident, Mr. Suter was attacked by a group of vigilantes who used a set of pruning shears to cut off his thumb. His wife was also attacked in a separate incident. He later pleaded guilty to the s.255(3.2) offence and the other charges were withdrawn.
The sentencing judge imposed a sentence of four (4) months’ imprisonment plus a thirty (30) month driving prohibition. The Judge found that the accident was caused by a non-impaired driving error. He also found that the accused’s refusal to provide a breath sample was the result of bad legal advice and was a mistake of law, which fundamentally changed the accused’s moral culpability. In addition, he noted several other mitigating factors, and also took into account the violent vigilante actions against the accused. However, the Court of Appeal, the Court of Appeal disagreed with this sentence. The Appeal court increased the custodial portion of the sentence to twenty-six (26) months. The court found that: the deficient legal advice did not constitute a mistake of law and it could not be used to mitigate the accused’s sentence; the sentencing judge failed to consider, as an aggravating factor, that the accused chose to drive while distracted in the context of his health and pre-existing alcohol problems; and the sentencing judge erred by taking the vigilante violence into account.
The majority of the Supreme Court held that both the sentencing judge and the Court of Appeal committed errors in principle that resulted in the imposition of unfit sentences. The majority held as follows:
The Court of Appeal erred by effectively sentencing the accused for the uncharged offence of careless driving or dangerous driving causing death. A further error was committed by the Court of Appeal in failing to consider the vigilante violence suffered by the accused. The majority stated that vigilante violence against an offender for his or her role in the commission of an offence is a collateral consequence that should be considered — to a limited extent — when crafting an appropriate sentence.
What is more, the sentencing judge erred in finding that the accused was acting under a mistake of law when he refused to provide the police with a breath sample and that this factor fundamentally changed the accused’s moral culpability. He also erred in giving undue weight to the accused’s non-impairment as a mitigating factor.
Taking into account the attenuating factors in the case, the majority of the Supreme Court of Canada concluded that a sentence of 15 to 18 months’ imprisonment would have been a fit sentence at the time of sentencing. The majority held, however, that in the circumstances of this case – the accused had already served just over 10 and a half months of his custodial sentence and had spent almost nine months waiting for the court’s decision – it would not be in the interests of justice to re-incarcerate the accused.
The final dissenting opinion came from Justice Gascon. His decision was predicated on principles of deference towards the sentencing judge. Justice Gascon would have set aside the 26-month sentence of imprisonment imposed by the Court of Appeal and restored the four-month sentence imposed by the sentencing judge. Gascon J. held that there was no legal basis to justify appellate intervention with the initial sentence in the case.
Right to Counsel and the Admissibility of Statements of Young Offenders in Canada
When the police are interacting with minors the common-law rules of voluntariness and counsel differ relative to adults. The initial stages of the investigation are critical and it is imperative that you understand your rights relative to a police investigation at the outset. In Reginav. N.B., 2018 ONCA 556, the Ontario Court of Appeal set aside a conviction for first degree murder that was allegedly committed by a 16-year-old. The police took incriminating statements from him in violation of the Youth Criminal Justice Act.
The factual basis of the allegations involved the accused allegedly brought a group of people to the body of the deceased, his cousin, and the police were contacted. The young accused was in a highly agitated state; was handcuffed; and placed in a locked police car after pushing a police officer. The police later took him to the police station, and placed in an interview room. He was told (erroneously) by the police that he was not under arrest and did not need his rights read to him. The police then interviewed him, confronting him for changing his version of events and telling him (falsely) that they had incriminating video from a surveillance camera.
At trial, the Crown Prosecutor, fairly conceded that the police breached the accused’s right to counsel and ss.25(2) and 146 of the Youth Criminal Justice Act\ (which govern the taking of statements). The trial judge admitted the accused’s statements, holding the accused had been only a witness in the murder investigation, even if arrested and detained for breaching the peace or obstructing police.
The court held that the trial judge had improperly shifted the burden to the defence to show the accused was psychologically detained. The burden should have been on the Crown regarding both the detention and whether the statutory preconditions of the Youth Criminal Justice Act for the admissibility of his statements had been met. When the proper onus was applied, a reasonable person would conclude the accused had believed he was not free to leave the interview room without speaking to the officers. The Court stated the following in relevant part:
[103] The trial judge’s discussion of burden of proof was confusing – at times he seemed to place the onus on the Crown, and at other times on the appellant. I have concluded that the trial judge held that the appellant failed to meet his burden that he was psychologically detained on a balance of probabilities.
[104] At p. 2 of his ruling, the trial judge first noted that the burden of proof with respect to proving the voluntariness of the statements lay with the Crown and the standard was beyond a reasonable doubt. He then stated that the burden of proof of compliance with s. 146 of the YCJA lay with the Crown, also to be proved beyond a reasonable doubt. The onus of proof of a breach of s. 10(b) of the Charter lay with the appellant, on a balance of probabilities. So far, so good.
[105] Then, at p. 20 of his ruling, the trial judge stated:
After his arrest at the scene for obstruct police and his transport to the police station for the conduct of an interview until 1:59 a.m. on March 10, 2006, [N.B.] was in effect detained. Until 1:59 a.m. on March 10, 2006, at which time [N.B.] was arrested for first degree murder, no officer advised him of his rights under s. 25(2) of the YCJA or of any of his Charter rights or had the requirements of s. 146 of the YCJA been implemented.
[106] The trial judge considered voluntariness, and found the appellant’s statements and utterances to be voluntary.
[107] Next, he concluded that the appellant had been neither detained nor arrested for the offense he was charged with – first degree murder – prior to 1:59 a.m. on March 10, 2006. At p. 35, the trial judge accepted the evidence offered by way of agreed facts and viva voce evidence of Detective Constables Brooks and Parcells that neither they nor any other police officer had reasonable grounds to consider the appellant a suspect at the time the statements were made. He was satisfied that before the appellant was transferred from the scene to the police station, “the decision was made that he was not under arrest and the removal of the handcuffs by Sergeant [Berriault] was corroborative of that fact, but that [N.B.] was clearly being viewed and treated as a witness only”: p. 36.
[108] Having dealt with the issues of reasonable grounds and arrest, he then turned to whether the appellant had been detained prior to his arrest. He stated at p. 39:
In this case, [the appellant] bears the responsibility of establishing on a balance of probabilities that he was psychologically detained.
[109] As mentioned, this was an error. As I have explained, the
burden to show that he was detained never shifted from the Crown to the appellant. Reading his reasons as a whole, it appears that the trial judge was aware that, if any of the three preconditions to s. 146(2) were met, the burden was on the Crown to establish implementation of the protections beyond a reasonable doubt. However, he failed to appreciate that the burden was also on the Crown to prove the absence of the preconditions beyond a reasonable doubt.
The trial judge also erred by holding that s.146 only applied where the accused is detained or arrested for the offence about which the police were questioning him or her. The statutory protections apply even if the accused has been detained or arrested for an unrelated offence. The court held these were not technical irregularities and thus the statements could not be admitted under ss.146(6).
If you have been charged with a criminal offence and you fall within the Youth Criminal Justice Act., call Mr. J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960.
Dangerous Driving Under the Criminal Code of Canada
By way of a simple and general summary of legal information, a restatement of the elements of the dangerous driving offence was provided in Regina v. Beatty, 2008 SCC 5, and Roy, 2012 SCC 26, with a significantly greater emphasis placed on the mental element of the offence and criminal blameworthiness. In Beatty, above, while confirming that the offence does not require subjective mens rea, Charron J., on behalf of the majority, provided for the application of the “modified objective test”, per Regina v. Hundal, 1993 CanLII 120 (S.C.C.), so as to ensure that punishment is imposed only upon those with “a blameworthy state of mind”. To that end, Charron J. held that the assessment of whether the accused’s conduct is a “marked departure” from the norm, is not an aspect of the actus reus, but of the mens rea. Accordingly, an evidentiary burden does not shift to the accused from the Crown’s presentation of a case of objectively dangerous driving – the actus reus. A further determination must be made whether the Crown has proven that the conduct involved a marked departure from the standard of care of a reasonable person in the circumstances that is deserving of punishment – the mens rea. Moreover, it remains open to the defence to raise a reasonable doubt that a reasonable person in the position of the accused would not have been aware of the risk posed by the manner of driving or, alternatively, would not have been able to avoid creating the danger.
In Reginav. Laverdure, 2018 ONCA 614(RD), the Ontario Court of Appeal(“OCA”) allowed the accused’s conviction appeal for dangerous driving causing death and ordered a new trial. The main reason for over-turning the conviction was due to the trial judges failure to analyze the fault component of the legal test.
In that case accused struck and killed a pedestrian who had crossed the road after attending a hockey game at a local arena in Pembroke, Ontario. At appeal, the accused argued that the trial judge made unreasonable findings of fact and that he erred in his analysis of the elements of the offence. The test for dangerous driving under the Criminal Code of Canada (the “Code”) is stated in Section 249 of the Code.; and the legal test has been considered in Reginav. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60, at para. 30; R. v. Reynolds, [2013] ONCA 433, at para. 18.
The court upheld the trial judge’s findings of fact with respect to the accused’s driving speed. Evidence from the accident reconstructionist, several witness, as well as forensic evidence supported the conclusion that he was driving “at a high rate of speed on a city street” (at para. 17). The court further upheld the finding that the circumstances as they existed on the road at the time (large groups of pedestrians crossing the road and walking along it) called for drivers to slow down and proceed cautiously.
It was open to the trial judge to find that the actus reus was established; and that he did not reason backwards from the accident (at paras. 20-22). However, while the Trial Judge correctly identified the proper test for the mens reaof the offence, the trial judge failed to identify “how and in what way” the accused’s driving went beyond negligence or carelessness to a marked departure from the standard of care that a reasonable person would show in the same position. This was not a case where the manner of driving was so egregious as to satisfy the fault element without any additional analysis of the evidence. At paragraph 25, the Court of Appeal stated:
Rather, the trial judge appears to have concluded that the act of driving dangerously necessarily constituted what he referred to as a “marked departure from what a reasonable person would expect in the circumstances”. He did not identify the “how and in what way” the appellant’s driving went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position.
If you have been charged with a Criminal Code Offence under Section 249 (i.e. Dangerous Operation of the Motor Vehicle), call Mr. J.S. Patel, Criminal Lawyer, for a free consultation.
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.
If you have been convicted of a Criminal Code offence or of an offence under an Act of Parliament resulting in a jail term, an application can be made to secure judicial interim release (i.e. Bail) pending the outcome of your appeal.
It is critical to note, that the criminal law standards for securing bail are elevated, primarily due to the loss of the presumption of innocence due to the entry of the conviction. Section 679(3) of the Criminal Code allows a judge of a court of appeal to order the release of an offender who has appealed his (or her) conviction “if the appellant establishes that (a) the appeal … is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest.” There are two (2) components to the last criterion. The offender must establish that he or she is not a threat to public safety – the offender will not commit a criminal offence while on bail – and that a reasonable person who is thoughtful, dispassionate, informed and respectful of society’s fundamental values would not lose confidence in the administration of justice if the appeal court released the applicant.
In determining the public interest involves the balancing of great many factors. Some were listed in Regina v McNaughton, 2010 ABCA 97at para. 12, 26 Alta LR (5th) 126:
Without attempting to compile a complete list, some of the factors that are relevant to the exercise of the jurisdiction include:
ensuring fairness in the appeal process, to avoid the prospect of the applicant serving a sentence when the appeal is ultimately allowed (Charter of Rights, s. 11(e); Farinacciat paras. 43, 48; v. Fox, 2000 ABCA 283, 8 M.V.R. (4th) 1 at paras. 18-9; R. v. Colville, 2003 ABCA 133, 327 A.R. 143 at para. 12);
the fact of conviction, and the public importance of respecting the trial decision and the trial process (Nguyen[ (1997), 97 BCAC 86, 119 CCC (3d) 269] at para.18; Farinacciat para. 41; v. Rhyason, 2006 ABCA 120, 57 Alta. L.R. (4th) 31, 208 C.C.C. (3d) 193);
the apparent strength of the grounds for appeal, recognizing that it is not the role of the bail judge to resolve the merits ( v. Heyden(1999), 127 O.A.C. 190, 141 C.C.C. (3d) 570 at paras. 7-8, 12; Rhyasonat paras. 13-18; Colvilleat para. 16);
the standard of review that will be applied by the appeal court ( v. Sagoo, 2009 ABCA 357, 464 A.R. 258 at para. 9);
any risk that the applicant will reoffend if released (Nguyenat para. 7; Foxat paras.18, 20-21);
the applicant’s history of compliance with court orders and legally imposed conditions;
whether the applicant was released pending trial, and if so if his release was uneventful;
whether conditions of release could be crafted that would protect the public interest;
the seriousness of the charges, reflected in the severity of the sentence, although no class of offence is excluded from release (Nguyenat paras. 13, 20-24; Heydenat para. 12; v. R.D.L.(1995), 178 A.R. 142 at para. 5);
the effect on the perception of the administration of justice if the applicant is released, including the perception of an informed and reasonable member of society (Nguyenat paras. 25-6; Rhyasonat para. 20; Foxat para. 18; Colvilleat para. 17);
the status and state of readiness of the appeal (Farinacciat paras. 44, 48; Heydenat para. 12; D.L.at paras. 5, 12).
The Court of Appeal has recently considered two (2) cases that have considered the recent application of this rule: R. v. C.L, infra, and R. v. B.G. Each are discussed below:
Regina v. C.L, infra
The Ontario of Court of Appeal dismissed the accused’s application for bail pending appeal. Following a judge-alone trial, the accused in this case was convicted of sexual assault and being unlawfully in a dwelling house. As a consequence of the conviction and the outcome of the sentencing hearing, this accused person received a sentence of two (2) years less a day imprisonment plus two (2) years of probation. His application for bail pending appeal was dismissed. In dismissing the accused’s application, Trotter J.A. held that the public interest criterion was not met. This was because “[t]he materials filed fail to demonstrate that the grounds of appeal have sufficient strength to overcome the serious enforceability considerations present in this case” (at para. 21).
The Ontario Court of Appeal took umbrage with accused’s new charges of breach of recognizance, combined with his failure to mention them in his bail pending appeal affidavits. The Court stated that it did not inspire confidence about compliance with any bail pending appeal order that might be made. Justice Trotter stated as follows (at para. 13): “The new criminal charges should have been disclosed. Judges of this court rely heavily on the trustworthiness of affidavits sworn in support of bail pending appeal applications. They are expected to be both accurate and completeRegina v. B.G, Infra,
In Regina and B.G., 2018 ONCA 455 (RD), Justice Brown of the Ontario Court of Appeal, granted the accused’s application for bail pending appeal from his conviction for child pornography and sexual offences. The trial judge found that the accused had taken and distributed photographs depicting his young daughter naked. The Crown opposed the application on the grounds that the public interest criterion was not met. The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice:R v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23 & 26. The public confidence criterion requires balancing several factors: the seriousness of the offence; the strength of the grounds of appeal; public safety; and flight risks: Oland, at paras. 37-
Justice Brown held as follows:
[12] The offences of which the applicant was convicted are very serious, involving as they do a vulnerable young child. However, when that factor is weighed with the remaining factors under the Oland public interest test – the strength of the grounds of appeal, no flight risk, and no threat to public safety – on balance, reviewability is favoured over enforceability.
“The offences of which the applicant was convicted are very serious, involving as they do a vulnerable young child. However, when that factor is weighed with the remaining factors under the Oland public interest test – the strength of the grounds of appeal, no flight risk, and no threat to public safety – on balance, reviewability is favoured over enforceability.”
These cases demonstrate the importance of the benefits of a properly prepared bail application (affidavits and arguments). The procedure in securing bail prior to trial differs markedly when a conviction has been entered and a person has been remanded into custody.
If you have been convicted of a criminal code offence and you are seeking bail, contact Mr. J.S. Patel, Barrister at 403-585-1960 to secure a telephone consultation.
Criminal Lawyer in Calgary and Toronto, DUI, Over 80, Domestic Assault, Sexual Assault, Murder, Legal Aid,
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?
