In Regina v. Barton, 2021 ONCA 451 (RD), the Ontario Court of Appeal allowed the appellant’s appeal from his convictions for firearms-related offences.
During a warrantless search, police discovered a gun inside a planter located in a common hallway outside the appellant’s apartment. The next day, police executed a search warrant and found ammunition for the gun and a bulletproof vest inside the appellant’s apartment. The appellant was convicted after a trial by judge and jury. The defence had posited that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms, given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, the defence argued that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter.
On appeal, the Court of Appeal held that the trial judge erred in concluding that the gun was not “obtained in a manner” that infringed the appellant’s rights under the Charter. The court noted that there were causal, contextual, and temporal connections between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search the appellant’s apartment without a warrant. Therefore, the gun was unconstitutionally obtained. The Court stated as follows, in relevant part:
[4] Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.
[5] Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charterbreach: see, R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.
Reference to the discovery of the gun had to be excised from the information to obtain the search warrant. A new trial was required to determine whether excision of the discovery of the gun from the warrant information would lead to a finding that the later warranted search was unconstitutional. The court ordered a new trial on all charges to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson,2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Calgary Criminal Defence Lawyer at 403-585-1960.
The Court of Appeal considered the entitlement to a preliminary hearing under Section 535 of the Criminal Code of Canada in Regina v. S.S., 2021 ONCA 479. The Court upheld the order of the review judge, who allowed an application for certiorari from the order of the application judge, who found that the accused was entitled to a preliminary inquiry pursuant to s.535 of the Criminal Code. The court agreed with the review judge that the accused was not entitled to a preliminary inquiry. The accused was charged with one count of sexual assault on a person under the age of 16 and one count of sexual interference. The indexed offences were alleged to have occurred between January 1, 2009 and December 31, 2010. At the time that the offences were alleged to have occurred, the maximum penalty for both offences was ten (10) years of jail. There was an increase to the maximum penalty for the offence of sexual assault on a person under the age of 16 was increased to 14 years, if the Crown proceeds by way of indictment, as it had in the instant case in 2005. The maximum penalty for the offence of sexual interference was also increased to 14 years. On September 19, 2019, s.535 was amended to restrict the right to a preliminary inquiry to persons charged with an indictable offence that is punishable by imprisonment for 14 years or more. In December 2020, the accused elected a trial in Superior Court by judge and jury. He requested a preliminary inquiry.
The court concluded that the accused was not facing a punishment of 14 years or more in this case. Therefore, he was not entitled to a preliminary inquiry pursuant to s.535. The court stated (at para. 16) that, in reaching this conclusion, it did not need to “decide whether an accused person can waive their rights under s. 11(i) of the Charter. Even if they can, s. 43(d) of the Interpretation Act would preclude a court from imposing a sentence of more than 10 years.” The court noted that its conclusion in this regard was also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289 where the Court averred:
17] My conclusion in this regard is also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness),2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the issue was the immigration consequences of a person convicted of an offence where the maximum penalty was, at the time of the commission of the offence, seven years. However, before conviction, the penalty was raised to 14 years with the result that a conviction for the offence would fall within the definition of serious criminality for immigration purposes. The immigration authorities began proceedings to remove the accused from Canada on the basis that he had been convicted of an offence involving “serious criminality” within the meaning of s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27(“IRPA”). The accused sought judicial review of the decision to refer his case for an admissibility hearing under the IRPA. In the end result, the Supreme Court of Canada found that the immigration authorities could not rely on the serious criminality provision in part because the maximum sentence for the accused’s offence at the time he committed it was seven years. In reaching that conclusion, Côté J. said, at para. 35:
Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) [of the IRPA] supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. [Emphasis added].
[18] The appellant attempts to counter this interpretation by submitting that it looks at the circumstances of the offender rather than at the offence itself and thus offends the point made in Windebank, at para. 36: “In my view, the flaw, both in the respondent’s argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances.”
[19] I do not agree. The situation here and the one in Windebank are not comparable. Here we are dealing with the maximum punishment that was stipulated for the offence at the time that the offence is said to have been committed. Thus, the issue in this case does not involve the personal characteristics of the appellant, in the sense that those personal characteristics might drive the appropriate sentence, such as the possible application of the dangerous offender provisions. Rather, it involves the penalty that can be imposed on the appellant, and anyone else in the same situation, arising from the timing of the offence, as the key for determining the seriousness of the offence for the purpose of s. 535. The personal characteristics of the appellant are not engaged in this analysis. The only connection to the appellant in his personal capacity is that it is the timing of his alleged actions leading to the offence that are of importance.
[20] Further on this point, in Tran, the court supported its conclusion that the timing of the offence determined the maximum sentence for the purpose of s. 36(1)(a) of the IRPA, in part, based on the presumption against retrospectivity, which applies independent of s. 11(i) of the Charter: at para43. In words that are apt to the situation here, Côté J. said, at para. 43: “The purpose of this presumption is to protect acquired rights and to prevent a change in the law from ‘look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction’ (Driedger (1983), at p. 186).”
If you have been charged with a sexual assault and seek to determine your procedural rights (i.e. preliminary hearing), contact Mr. J.S. Patel,Barrister at 403-585-1960 for a consultation.
Co-principal liability was recently explained by the Court of Appeal in Regina v. Abdulle, 2020 ONCA 106 (CanLII). In circumstances involving co-principals, as is the case here, the liability of parties to an offence is addressed by s. 21 of the Code. In Regina v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, Justice Watt explained that co-principals are liable where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: at para. 181. This was also explained in Reginav. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63. In order to be liable as principals, therefore, the parties must have had the requisite intention. Within the scope of the requisite mens rea required for second-degree murder is outlined in s. 229 of the Criminal Code, which states that culpable homicide is murder where the person who causes the death of a human being either means to cause their death, or means to cause them bodily harm that they know is likely to cause their death and is reckless whether or not death ensues.
In Regina v. Abdulle, 2020 ONCA 106, the Ontario Court of Appeal upheld the appellants’ convictions for second-degree murder. The convictions arose from an altercation that occurred in the parking lot of the apartment building where the deceased lived. The deceased was stabbed multiple times, beaten, kicked, and stomped on by a group of young people. He was without vital signs when paramedics arrived, and he was pronounced dead at the hospital. The three appellants – Abdulle, Jama and Egal – and a fourth accused, Bryan, were charged with second-degree murder. The Crown alleged that the accused were co-principals in an attack on the deceased, that one or more of them inflicted the fatal stab wounds, and that all had the necessary intent for murder under s.229(a) of the Criminal Code. The jury convicted the appellants and acquitted Bryan. The appellants were sentenced to life imprisonment with no parole eligibility for 12 years. The Court of Appeal made the following findings that: (a)t he trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder; (b) the trial judge did not err by improperly restricting Abdulle’s evidence; (c)The trial judge did not err by failing to give the jury an Oliver instruction [Regina v. Oliver, [2005] CanLII 3582, [2005] O.J. No. 596 (C.A.), at paras. 50-60] regarding Bryan’s evidence, warning that they should consider his testimony with particular care and caution; (d) the trial judge made no error in allowing counsel for Bryan to cross-examine a witness (Jama’s mother) on her police statement that Egal had a knife, and in failing to grant a mistrial; (e) the trial judge did not err by improperly instructing the jury concerning a witness’s prior inconsistent statement; and (f) the verdict was not unreasonable in relation to Jama.
If you have been charged with a criminal offence, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.
The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)). The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment.
The appealed raised a number of grounds. It was allowed. A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9). However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias. The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed.
The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27:
[27] The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about:
(a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
(b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
If you have been charged with a criminal offence and require a consultation, call Mr. J.S. Patel at 403-585-1960.
The application of mental health in the context of bail reviews was recently clarified in a recent decision from the Supreme Court of Canada in Regina v. Myers, 2019 SCC 18. The SCC confirmed animating and cardinal principle right out of the gate at paragraph 1:
“The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.”
Those prefatory remarks permeate the entirety of the decision. In my view this decision addressed a critical gap in the jurisprudence.The query before the Court was determine the correct approach to a detention review under s. 525of the Criminal Code of Canada (the “Code”); and to explain the place of such a review within the larger context of pre-trial custody in Canada. The Court made the following salient points.
It emphasised that Judges and justices at bail hearings should always give very careful consideration to release plans that involve supervised treatment for individuals with substance abuse and mental health issues. Of importance, it stressed at paragraph 67 of the decision that the release into treatment with appropriate conditions will often adequately address any risk, and “we must not lose sight of the fact that pre-trial detention is a measure of last resort”. It noted that Parliament intended the s.525 review provisions to be a safeguard; and that Section 525 bail reviews are not restricted to cases in which there has been an unreasonable delay in bringing the accused to trial, although delay can be relevant to the court’s review.
The onus to apply for a s.525 review is on the prosecution, and accordingly an accused person or their defence counsel need not request a hearing. Detained persons are are entitled to a s.525 hearing. This applies even if they did not have an initial bail hearing. In such cases, the review judge must apply the “ladder principle” (see ReginaAntic, [2017 SCC 27); and determine the issue of bail de novo.
At the review hearing, the task of the judge must centre on the issue of whether “…the continued detention of the accused in custody justified within the meaning of s. 515(10) [the detention provisions]?” In this connection, the hearing is a review of the detention itself, not of any order made in a lower court, although errors in detention orders may justify revisiting the order. With great clarity, Court remarked at paragraph 63:
At the hearing, unreasonable delay is not a threshold that must be met before reviewing the detention of the accused. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of 515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre-trial detention.
In terms of the reception of the evidence, the court may receive any evidence that is credible or trustworthy, unless it existed at the time of the initial bail hearing and is barred by the “due diligence” and “relevance” criteria. And finally, the reviewing judge must give directions to expedite the trial of persons in custody, and to ensure the accused will not be in a “time served” position before the trial date.
If you have been charged with a criminal offence and seeking a bail review on any of your conditions or are seeking you release, contact our office at 403-585-1960.
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.
The Credibiity of Confidential Informants in Reviewing a Informaiton to Obtain a Warrant to Search a home
The credibility of a confidential informant is very important to the state’s case when endeavoring to uphold a warrant authorizing a search that is critical to the entire prosecution case. An accused person’s conviction was overturned recently by the Court of Appeal in Regina v. Herta, 2018 ONCA 927where the entire case for the Prosecution Service hinged on the credibility of a confidential informant. The Court permitted Mr. Herta’s appeal of his unsuccessful motion under Section 8 of the Canadian Charter of Rights and Freedoms at trial, excluded the drug evidence, and entered acquittals on all counts. The critical issue was the Information to Obtain the search warrant of a home. The critical issue was the Information to Obtain the search warrant of a home under the seminal authority of Reginav. Feeney, [1997] 2 S.C.R. 13;
The standard exacted, to review the warrant and ITO, is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. This standard requires more than an experienced-based “hunch” or reasonable suspicion, but it does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. In short, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have been issued.
In this case, the search of his home arose from the fact that an individual wanted by police (DC) was seen arriving there. The Information to Obtain (the “ITO”) the search warrant contained references from a confidential informant that this individual “DC” was armed. Consequently, the police obtained a search warrant for the house, which did not reveal a gun, but led police to find several illicit CDSA substances that formed the basis of the charges before the Provincial Court.
The Court of Appeal made it very clear that the indexed search warrant, in this case, rose or fell on the strength of the confidential informant’s tip; and consequently the Crown’s case. However, the trial judge was not tasked with a step six analysis from Regina v. Garofoli, 1990 CanLII 52 (S.C.C.). When reviewing a judicial authorization, the relevant question is not whether the reviewing Court would have granted the order. The question on review is whether or not the order could have issued. The test in this regard was set out by Sopinka J. in Garofoli, supra, as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
This is notwithstanding the fact there were heavy redactions in the ITO. However, since the redacted ITO did not contain objective facts supporting the informant’s credibility, no confidence could be safely placed in his/her information. What is more, insufficient corroborative evidence was present to justify the belief that DC was in the residence with a gun. The confirmatory information available related to things that many people would know about this person: DC.
Finally, the confidential informant’s tip was not sufficiently compelling. This is because it did not connect DC’s possession of a gun to the residence in question; and there was nothing in in the ITO that connected DC to the residence. The ITO was also potentially misleading by suggesting that DC lived at the house.
Based on the totality of the circumstances, the Court could not support the warrant and that the accused’s s.8 Charterrights were breached.
As such, the Court engaged in a s. 24(2) Charter analysis as required by Regina v. Grant2009 SCC 32 (SCC). It ruled that the impact of the breach on the Charter-protected interests of the accused weighed heavily in favour of exclusion, given the highly invasive nature of the search. Despite the importance of society’s interest in the adjudication of this case on the merits, the exclusion of evidence was warranted. Acquittals were entered on this basis.
If you have been charged with a drug related offence involving the use of Search Warrant by the police, call Mr. J.S. Patel, Barrister for a consultation: 403-585-1960.
The use of a driver’s statement in a jury trial for impaired driving charges.
The application of the rules regarding the assessment of an accused person’s statement as raised in R. v. W.(D.),1991 CanLII 93 (SCC)was considered in Regina v. Bacci, 2018 ONCA 928, where the Court of Appeal in Ontario quashed the accused’s conviction for impaired operation causing bodily harm, two counts of driving over 80 causing bodily harm contrary to s.255(2.1) of the Criminal Code, and two counts of dangerous driving causing bodily harm contrary to s.249(3) of the Criminal Code. This was due to an error errors in the trial judge’s W.(D.) instruction in his recharge to the jury.
The facts of the case were simply as follows. The accused and her four passengers were returning to the accused’s family cottage when their car flipped over after the accused failed to negotiate a curve. All four passengers testified at trial. The accused told the police “I don’t know what happened. The car just lost control.” The Crown expert witness admitted that there was a probability, albeit low, that the accident could have been caused by a mechanical failure.
Central to the success of the appeal hinged on the W.(D.) instruction relating to the accused’s statement. Again, the purpose of this instruction was famously described by the Supreme Court of Canada in the following clear terms:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
The original charge to the jury was:
I want to mention one particular piece of evidence you heard because it is deserving of special treatment according to the law.
[1] You heard from Alexandra Jones that she heard Megan Bacci state at the accident scene, “I do not know what happened. My car just lost control.” If you believe that this what was reported by Alexandra Jones was in fact said by Megan Bacci and if you accept Megan Bacci’s explanation that her vehicle just lost control and you find this lose [sic] of control was caused entirely by mechanical failure, you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration of over 80 causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser included offences in counts 1 through 4. Even if you do not accept that Megan Bacci said what was reported by Alexandra Jones or accept Megan Bacci’s explanation for what happened or accept the lose [sic] of control was caused entirely by mechanical failure, if it leaves you with a reasonable doubt about whether Megan Bacci caused the accident and the accompanying bodily harm, you must find her not guilty of those offences because the Crown would have failed to prove an essential element, that is causation of those offences beyond a reasonable doubt. You may still, however, find her guilty of the lesser and included offences in counts 1 through 4.
[2] Even if the evidence does not 1eave you with a reasonable doubt about whether Megan Bacci caused the accident, you may convict Megan Bacci only if the rest of the evidence that you do accept proves her guilt on that essential element of causation beyond a reasonable doubt.
The recharge to the jury was:
The one last area I want to mention the one particular piece of evidence you heard because it deserves special treatment and that’s what Megan Bacci said that what Alexandra Jones stated that she heard that is, “I do not know what happened, my car just lost control.”
I want to repeat this to you. If you believe that what was reported by Alexandra Jones was in fact said by Megan Bacci, and if you accept Megan Bacci’s explanation given to Alexandra Jones that her vehicle just lost control, and you find that this lost [sic] of control that is referred to was not caused by her in any way then you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration over 80 thereby causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser and included offences of 1through 4.
So “I do not know what happened, my car just lost control”, that is from Alexandra Jones about what Megan Bacci said. So one, you have to consider whether you believe that what Alexandra Jones said was in fact said by Megan Bacci. You have to accept that that’s Megan Bacci’s explanation that the vehicle just lost control, you have to accept that explanation by her and you have to find that this loss of control that’s alluded to, that’s referred was not caused by her any way, the lost [sic] of control of the vehicle was not caused by her in any way.
If you find those three things then you must find her not guilty on counts 1through 6. You still may find her guilty of the lesser and included counts, charges in counts 1 through 4.
I hope that’s cleared it up. If not, I’m sure you will have a question but you’re free to go now.
The Court of Appeal held that the original charge to the jury did not contain any errors concerning the interpretation of the above noted statement. As such it did not cause the jury to give extra scrutiny to the defence evidence and it inured to the benefit of the accused. What is more, the trial judge did not err in his original charge when he instructed the jury that the accused must be acquitted if they found that the loss of control was “entirelycaused by mechanical failure,” as it was evident that this was not the only basis for acquittal (emphasis added). This is because the second and third arms/prongs of the W.(D.) instruction made it clear that an acquittal was possible via other paths. Thus, when the entirely instruction is reviewed in as a whole, the jury charge adequately conveyed to the jury that they were not engaged in a credibility contest.
In the recharge, the trial judge similarly did not err by providing an exculpatory interpretation to the statement. However, the trial judge failed to contextualize the recharge and identify that he was correcting a previous error. In addition, the trial judge also said nothing about the second and third branch of W.(D.)in the recharge. That served to only served to confuse the jury. Due to the foregoing, this constituted a non-direction amounting to misdirection with respect to a crucial aspect of the defence. The Court stated: “In these circumstances the jury is entitled to instructions which were clear, correct and comprehensive,as S.(W.D.) mandates. Unfortunately, the last word that the jury heard was an incorrect and incomplete instruction on critical issues.”
The defence appeal was allowed, the conviction was overturned, and a new trial was ordered.
If you have been charged with impaired driving causing bodily harm and/or a similar criminal driving related offence, contact Mr. J. S. Patel, Barrister for an initial consultation at 403-585-1960.
Sexual Assault and Credibility findings in a Criminal Trial: How Credibility can be assessed in Criminal Trials in Canada
In Reginav. J.L., 2018 ONCA 756the OntarioCourt of Appeal set aside the accused’s conviction for sexual assault and ordered a new trial At trial, the case that turned largely on credibility. This case is just one example of a flaw credibility assessment of testimony in a sexual assault cases results in a conviction being overturned on appeal
The accused was convicted of sexually assaulting the complainant at a dance. . The key issues raised in this conviction appeal are (a) the sufficiency of the trial judge’s reasons, (b) whether he properly relied on a behavioural assumption, and (c) on the complainant’s post-occurrence demeanour in convicting the appellant. This case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.
The Court of Appeal agreed and found that the trial judge did not engage in any analysis of the testimony of the complainant and the accused other than to note “inconsistencies and many lapses of memory.” In fact, the judge essentially relied on two (2) facts to explain why the complainant’s version of the events accepted, namely that: (i) she did not consent to sexual contact; and (ii) that the accused pressed on with attempted intercourse: the complainant’s demeanour after the incident and the finding that it “defied common sense” that a young woman would go outside in a dress in mid-December and consent to sexual activity on the ground.
The court held that the trial judge failed to consider the similarities in the complainant’s emotional state before and after the alleged assault. Her physical state was also consistent with the possibility of having engaged in consensual sexual activity. The trial judge’s assumption about what a “young woman” would or would not do could not be taken as a fact, and yet the trial judge relied on it to reject the accused’s evidence. There was a danger that this reasoning affected the trial judge’s conclusion as to whether the Crown had proven its case. The Appellate Court stated the following in relevant part:
[46] The second basis for the trial judge’s conclusion depended on an assumption about what a “young woman” will and will not do. As mentioned, the trial judge said: “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.” In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that, young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.
[47] Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. In R. v. Mah, 2002 NSCA 99 (CanLII), [2002] N.S.J. No. 349, at para. 75, Cromwell J.A. (as he then was) stated: “Assumptions about the ways of the world appear to have contributed to the judge’s failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt”. Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge’s reasoning, his finding of guilt was tainted by error.
Again, this case is a good example of the subtleties that may be unearthed in cross-examination during the course of the trial that may not be transparent prior to the commencement of the same.
If you have been charged or are about to be charged with sexual assault under section 271 of the Criminal Code of Canada, contact Mr. J. S. Patel, Criminal Lawyerin Calgary or Toronto at 403-585-1960 for an initial consultation.
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.
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The Court of Appeal in Regina v. 
