MCL Nugget: Goddard BCCA

R v Goddard, 2019 BCCA 164

 The Issue

Were certain conditions attached to the appellant’s probation vague, overbroad and unreasonable because there was an insufficient nexus between the conditions and the protection of the public and the appellant’s rehabilitation?

The Answer

Of the 23 conditions imposed by the sentencing judge, the British Columbia Court of Appeal struck conditions 17 and 18 as a violation of the Appellant’s rights under the Charter.

The Fine Print

This was a complicated case where the 29-year-old Appellant pleaded guilty to breaching several conditions of his sentence. His criminal record dated back to 2010 and the offences included sexual offences against minors where the internet was used to contact the young victims.

This matter related to a breach of probation where the Appellant pleaded guilty to possessing a mobile phone capable of accessing the internet contrary to section 733.1(1) of the Code. He was sentenced to 1 day in jail followed by 3 years of probation which included 23 conditions. The defence contended that some of the conditions imposed should not be enforceable as they were unauthorized by government legislation and infringed the Appellant’s Charter rights.

At para 19, the BCCA noted the sentencing judge’s wide discretion in determining conditions on probation and that the appellate court will only intervene should there be an error in principle or a condition that is clearly unreasonable/manifestly inappropriate/renders the sentence unfit.

Under section 732.1(3)(h) of the Code, the sentencing judge is able to impose reasonable probation conditions that are considered desirable for “protecting society and facilitating the offender’s successful reintegration into society.” Along with these purposes, the conditions must also be reasonable and compliant with other provincial and federal legislation, including the Charter. “Reasonable conditions” will generally be linked to the particular offence but that is not an absolute requirement. What is required is a nexus between the offender, the protection of the community and the offender’s reintegration into the community: R v Duguay, 2019 BCCA 53 at para 65. R v Proulx, 2000 SCC 5 also held at para 32 that probation has typically been viewed as a rehabilitative sentencing tool and while it may have punitive aspects of effects, punishment will not be the primary purpose of its imposition.

The impugned conditions read as follows (at paras 33 and 34):

Condition 17: You shall, upon your consent, allow any peace officer and/or probation officer to examine any device in your possession and permit any peace officer to bring any device in your possession to the police department to verify compliance with this order. You shall provide any peace officer and/or probation officer any passwords, access codes and manuals associated to any device in your possession to enable examination of the device. If you do not consent, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer decides that daily reporting is not necessary [Emphasis added].

Condition 18: You shall, upon your consent, allow any peace officer and/or probation officer to access your residence to confirm your compliance with the conditions of this order. If you do not consent to allow a peace officer and/or probation officer access to your residence to confirm compliance with conditions of this order, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer determines that daily reporting is no longer necessary [Emphasis added].

The Court noted at para 41 that, “[the Appellant] can refuse to provide consent to these searches. Significantly, however, his refusal comes at the price of daily reporting to his probation officer for as long as the probation officer deems necessary.” The Court found that the threat of daily reporting, should the Appellant not consent to a search, to be extraneous to the purpose of preventing him from using the internet to prey upon children. At para 48, the Court noted about the condition, “[…] it is, in its effect, a retaliatory and punitive measure that appears to be designed to pressure the appellant to waive his constitutional right.”

As noted at para 49, “[f]or a waiver of constitutional rights to be valid it must, among other things, be voluntary, meaning that the individual can choose one course of conduct over another, free from coercion.” The Court stated at para 53 that without the daily reporting provisio, the conditions would likely be acceptable. However, the conditions would simply state that the Appellant could consent to a search and this was unnecessary. Both of the conditions were struck from the Appellant’s probationary order.

MCLNugget: Ibrahim ONCA

R v Ibrahim, 2019 ONCA 631

The Issue:

Is a W.(D.) instruction required (or can it be modified) where the mens rea test is objective (rather than subjective).

The Answer:

“The classic W.(D.) formulation will not always be appropriate; it depends on the context” [para 37] - indeed, it may be that it is not required at all [para 37]. In the case of an offence with an objective mens rea, such as dangerous driving, “[f]actual assertions in an accused person’s evidencde - about things observed, actions performed, the sequence of events, etc. - may be helpful to a jury in determining whether the Crown has proved the fault requirements” [para 32]. In the present case, the trial judge erred in the W.(D.) instruction. The Court of Appeal noted:

In these circumstances, the first prong of the classic W.(D.) formulation is inapplicable. However, whether accepted as true or not, evidence of an accused person’s state of mind may be capable of raising a reasonable doubt on whether any of the elements of dangerous driving have been established by the Crown. This is precisely the point that a W.(D.) instruction is meant to bring home to the jury – that the verdict must be based on the whole of the evidence, and the jury must consider whether the evidence as a whole raises a reasonable doubt: Watt’s Manual of Criminal Jury Instructions, at pp. 272-273; Dinardo, at para. 23. [Para 49]

The Fine Print:

In coming to this conclusion, the court discussed the mens rea for dangerous driving (the unlawful act supporting a manslaughter conviction). As part of this review of the law the court noted that issue of the difference between careless driving (under the Highway Traffic Act) and dangerous driving (under the Criminal Code). Rejecting the notion of bright lines to define momentary inattention the court held:

Consequently, the fact of the conduct having occurred in a three to five second interval is not determinative of guilt. What matters is what occurred within that interval, framed by the overall nature of the accused person’s driving and the standard expected of a reasonable driver in the circumstances. [Para 26].

MCLNugget: CC ONSC

The Issue

Under section 715.1 of the Criminal Code, what is a reasonable amount of time for a videotaped statement alleging sexual assault against a minor complainant to be made following the alleged offence?

The Answer

In the case at bar, the court determined that the videotaped statement was made at least 3 years and 5.5 months after the 15-year-old complainant was alleged to have been sexually assaulted. The court stated at paragraph 27 that, “it is not unusual for a victim of sexual assault to be reluctant in reporting the incident” and admitted the statement as sufficiently contemporaneous in the circumstances.

The Fine Print

Section 715.1 establishes a statutory exception to the hearsay rule for videotaped evidence and sets out criteria to be met which include: 

  • The victim in the video recording was under 18 years old when the alleged offence occurred;

  • The video recording was “made within a reasonable time after the alleged offence”;

  • The video victim “describes the acts complained of” in the video recording;

  • The victim can testify and “adopts the contents of the video recording”;

  • The judge does not believe that the admission of the video recording “would interfere with the proper administration of justice”.

The court noted at paragraph 28 that one of the reasons for this section was to reduce the likelihood of further trauma on the complainant.

The defence had relied upon the Ontario Court of Appeal case of R v S(P), 2000 CarswellOnt 1341 (CA) where a 2-year delay in making a videotaped statement after a sexual assault was determined to be “borderline” but reasonable. The complainant there was 8-years-old at the time of the alleged incident and 12 when the trial commenced. The defence argued several indicia, such as intimidation and embarrassment were present in that case, but not at the case at bar and thus the statement cannot be justified as reasonable after such a delay.

Ultimately the court grated the Crown’s application, stating at paragraph 28 that, “[t]his is a Judge alone trial and the defence will have the usual rights to cross-examine the complainant on all of her evidence including the videotaped evidence.”

How do you Choose the Best Divorce Lawyer?

Description: Finding the right divorce lawyer for your filing isn’t easy. Do you know what to look for when it comes to divorce attorneys in Denver?

Divorce is never easy, but the legal portions of a divorce filing are possibly the most difficult. Even a divorce between two middle-class people that don’t own businesses and have no children can be tricky to handle. That’s why, no matter what your personal situation is, you should find a divorce lawyer once you decide to finalize your separation.

However, actually choosing a lawyer is easier said than done. There are plenty of divorce lawyers out there, and high-quality lawyers like those at Burnham Law can be hard to find. When you’re looking for a Denver divorce attorney, keep these things in mind.

How Far Can You Travel?

When you’re getting divorced, your schedule is probably going to be pretty full. You’ll need to be compiling legal documents, communicating with your spouse, and going through the rest of your life all at the same time. Travel time is an important part of determining which lawyer you choose, because it can have a real impact on your divorce case and the rest of your life. If you have a car, you’ll probably be able to go farther than if you rely on public transit, but if you have prior obligations near an existing law firm, you might want to take a look into their services.

What’s the Lawyer’s Specialty?

Because the law is so vast, you’ll want to look at cases that individual lawyers specialize in. Divorce law is its own entire section of the law, and there are plenty of specializations inside that specialization. Whether you’re dealing with post-decree modifications, child custody, alimony, or any other special circumstances, it’s important to make sure you check their specialty before signing on with them. Some law firms may have different attorneys that cover different specializations, so you may have multiple choices within a single firm.

What Reputation Do They Have?

This goes for both the law firm and the exact lawyer you’re hiring. It’s important to make sure you’re hiring a lawyer with a good reputation and a good track record, because a Denver divorce attorney could end up making a significant impact on how the rest of your life turns out.

The law firm you choose is important because it’s going to be where you do most of the technical work. Not all lawyers work with firms, but many do because it provides a more professional environment. Do some research on the firm you’re interested in — see what other people had to say about the way the firm resolves disputes, the firm’s accessibility, and whether they had any issues with fees or payment.

The actual lawyer you end up working with is also important. Although the firm will usually be your point of contact for fees and general information, the lawyer is going to be the one that actually talks to you and helps lead you through this difficult time in your life. You want a lawyer who’s communicative, emotionally intelligent, and good at coming up with innovative solutions for problems that you may run into.

What Are the Fees Associated With the Lawyer?

Whether you want to think about it or not, money will be an important part of the divorce proceedings. If you didn’t sign a prenuptial, you’re going to have to divide up your assets, which can get very tricky and can easily lead to emotional outbursts. If you have children, one spouse may be obligated to provide child support. In addition, it’s also important to pay the lawyer who walks you through all these steps for their valuable work.

Both law firms and lawyers that work along will generally have some fee information on their websites. This can give you an idea of the fee structure for your divorce filings. If there isn’t any information on the website, try calling the customer service line; even without giving your personally identifying information, you may be able to get a basic pricing structure that can give you an idea of how much this lawyer will cost.

The Right Lawyer, Every Time

The right lawyer for one person may not be the same as the right lawyer for another. A completely great lawyer may not just be the right type of personality for you to work alongside. But by paying attention to these important pieces of information, you can find the right Denver divorce attorney to help you file your divorce proceedings.

MCLNugget: PN ONCA

R v PN, 2019 ONSC 2858  

The Issue

When examining a potential surety during a bail hearing, should the Crown be allowed to question this individual about conversations that s/he had with the accused related to the accused’s charges? 

The Answer

The court found that yes – asking a potential surety whether the charges had been discussed with them by the accused is acceptable. Justice O’Marra reasoned that such questioning was not improper here as 1) such questions do not imperil the fair trial interest of the accused; 2) the presiding justice has an overriding discretion to limit such questions to prevent abusive or protracted proceedings; and 3) such questions may be relevant to the strength of the Crown’s cases and potentially the protection of the public.

The Fine Print

The Defence objected to the questioning of the prospective surety, citing R v KK, 2019 ONSC 1578 which prohibited questioning in the following situations:

  1. The question is an attempt to unfairly exploit the bail hearing to discover the defence’s position and elicit evidence of the accused’s admissions;

  2. The bail hearing cannot be used for the ulterior purpose of augmenting the Crown’s case, but only to determine whether and on what conditions the accused should be held on.

Justice O’Marra did not find that these situations applied to the case at hand for three reasons:

  1. The questions asked would not violate the accused’s right to a fair trial.

  2. A justice overseeing the bail hearing is not restricted to evidence that would be admissible at trial but to a broad scope of evidence as classified under section 518 of the Code. The Justice has the authority to control questioning that is irrelevant.

  3. Section 518(1) (d.2) of the Code provides that the Court shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim or of a witness to an offence. Questions to prospective sureties related to information received from the accused since arrest may be very relevant to the protection of the public. 

 

The Mistake of Fact and Criminal Defence

* The following is a guest post by John Adams. NOTE: It is written in the context of US law *

In criminal cases, there are a number of defenses that the accused person can use in the court when facing criminal charges. ‘Mistake of Defense’ is a type of defense that refers to a misunderstanding by someone about the facts of a situation, and this misunderstanding leads a person committing a crime or an illegal act.

The person did not mean to commit the crime, but did accidentally - this defense is considered valid for the intent of crime and for the charges when the person is required to intend or know that he or she is going to commit a crime.

As a Criminal Defense:

When a person uses a mistake of fact as a defense, he or she has little understanding as well as knowledge about the law at the time of the crime occurred. The person does not have an understanding of legal issues nor the intent of committing a crime or has a lack of awareness between right and wrong at that time.

Although, these defenses are valid, however, there are very rare and are not much permitted by the court. The person using the mistake of fact must have circumstances present at the time of the crime or sufficient proof that it is purely a legitimate mistake and not a defense strategy.

When Mistake of Fact is Usable?

The defense of mistake of fact is usable when the defendant was not aware of the fact that his or her actions could result in a crime. In case the person faces charges of larceny but believes that the property he or she took belonged to him or her, this means that there is a valid misunderstanding that can deny the aspect of the intent of committing the crime.

As many theft crimes require the intent of theft, such misunderstanding could separate the prosecution’s case. The defendant can be awarded a not-guilty verdict if the criminal defense attorney lawfully argues and convinces the court that there was a misunderstanding.

The Mistake in the Case:

Usually, given the seriousness of the mistake, it can deny a part or complete charges against the person. For the intent crimes, the absence of intent is an important matter that can remove the particular intent charge and results in the acquittal of the accused.

In theft crimes, the intent is to deprive the owner of his or her property permanently, lack of intent and returning the item upon realizing leads to the removal of the charges of the criminal activity. This mistake is valid, honest and reasonable.

Example:

Katie takes her Labrador to the dog park every day. One day she loses the sight of her dog for a few minutes. Upon relocating him, she takes her back home. Later during the day, she notices his collar where the name of some other Labrador is written. Since both looked alike, she mistook someone else’ dog as hers and realized later when she was at home. This is a reasonable mistake of fact.

Using the Mistake Later in the Case:

While there are various ways that the defendant can think of as a defense against criminal charges, the accused cannot use the mistake in later stages of the case. The mistake has to be honest and reasonable. In case of any contradiction provable in the court, the defendant will not have a valid claim of committing a mistake of fact. Willfully taking the property of another person is not a mistake but intentional theft.

The Assistance of an Attorney:

Many accused persons, faced criminal charges, don’t know how to use this defense or don’t understand it at all. In order to use this defense, the person will need to have a criminal defense lawyer who will explain the mistake as valid. The lawyer can present the case with the mistake of fact and can argue against the charges that do not fit. But that is on the condition that accuses have enough proof to show in the courtroom. This way the attorney, can show the lack of knowledge or misunderstood information the person had at the time of the illegal activity.

How to Find the Ideal Lawyer to Deal with your Case

** The following is a guest post from John Pallister **

Every year, many people find themselves in need of a lawyer with specialist knowledge when it comes to particular areas of the law. Finding the right lawyer is something that can make a big difference when it comes to the outcome of your case, which is why it is so important to find the right legal expert for your case.

For instance, if you have been involved in a car accident that was not your fault, you can go online to access an accident guide and find out what you need to do. However, if you are making a claim for compensation due to personal injury stemming from the accident, you may need the services of a specialist lawyer with the right amount of experience and expertise with this area of the law. In this article, we will look at some of the main considerations when you are selecting a lawyer to help with your case.

Key Points to Consider

So, what are the key points to consider when it comes to finding the ideal lawyer? Well, experience is one of the most important things, as you naturally want a legal professional with lots of relevant experience to boost your chances of success. You need to look at how much experience the lawyer has in terms of general law but also how much experience they have when it comes to dealing with the relevant legal sector that your case falls under. The more experience the professional has when it comes to dealing with cases that are similar to yours, the better it will be.

You should also consider the cost of the legal service, as this can vary based on various factors. The legal firm or professional you choose can have an impact on what you pay. However, the type and complexity of your case coupled with your financial circumstances can also have an impact. In addition, legal firms sometimes employ different pricing structures. For instance, some may charge a flat fee, some will charge hourly, and some may work on a contingency fee basis based on the type of case it is. You should not base your decision solely on cost, as you also need a lawyer with experience and relevant expertise. However, you need to take cost into consideration so you can ensure it fits in with your budget.

Finally, make sure you look at how reputable and reliable the individual or law firm is before you make your decision. The easiest way to do this is to go online and look at what past clients have to say about the service they received. This will also enable you to get an idea of what the outcome of cases similar to yours was, which means you can then make a more informed decision.

By taking all these factors into consideration, you will find it much easier to find the perfect legal expert to help with your case.

MCLNugget: Montesano ONCA

R v Montesano, 2019 ONCA 194 

The Issue

What reference, if any, may be made to a prior discharge of an accused or offender. Put differently, can the Crown rely on a discharge during sentencing submissions and disclose such information to the court.

The Answer

Section 6.1(1)(1)(a) of the Criminal Records Act provides that “no record of a discharge…shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if (a) more than one year has elapsed since the offender was discharged”: Section 6.1(1)(a) CRA.

This language is plain. This provision prohibits disclosure not only of the record, but also of the existence of fact of a discharge beyond one year [para 9].

The Fine Print

Notwithstanding this absolute prohibition on disclosure, the Crown is “entitled to put before the court the factual reality of the incident – the fact that this was not the first incident – but nothing more” [para 4].

MCLNugget: McGuigan ONCA

York (Regional Municipality) v McGuigan, 2018 ONCA 1062

The Issue

Are the excerpts of a user manual related to the “testing and operation” of a speed measuring device subject to disclosure under the first party regime or production under the third party regime – as well as the related issue of relevance of such records.

The Answer

The “testing and operation” instructions contained in the user manual for speed measuring devices are subject to disclosure under the first party regime. While they are not fruits of the investigation, they are “obviously relevant” and thus disclosable.

The Fine Print

The issue came to the Court of Appeal via an appeal from a certiorari decision – of interest is that in a footnote in the ruling the court commented that the “writ of certiorari is no longer issued We use the phrase the “certiorari order” as shorthand for the more cumbersome “order in lieu of certiorari” [footnote 2]. The Justice of the Peace [JP] had ordered disclosure. The Crown succeeded in quashing that order on the review. The Court of Appeal reinstated the initial order. The notable points include:

First, here the JP had the jurisdiction to “determine disclosure issues and to grant or deny disclosure order…[and] to determine whether the disclosure sought fell within the first party or third party disclosure regime” [para 63].

Second, on the issue of the availability of certiorari, the court noted that s141(4) of the Provincial Offences Act limits such a review to cases where there is a “substantial wrong or miscarriage of justice” [para 58]. Properly considered, certiorari should not have been granted.

Third, the manual related to operation and testing is “obviously relevant” and falls under first party disclosure in line with the principles of R v McNeil, 2009 SCC 3.

MCLNugget: Prystay ABQB

R v Prystay, 2019 ABQB 8

 

The Issue

Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:

  1. Did the segregation amount to a violation of sections 7 or 12

  2. If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate

The Answer

The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.

The Fine Print

In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:

It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing.  Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26, [2014] 1 SCR 575; R v Adams, 2016 ABQB 648 at para 29, [2017] 4 WWR 741. [Para 19].

 

Second, with respect to segregation, the court arrived at the following conclusions:

Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells.  They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall. 

[…]

Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]

 

Third, the court discussed limits and expectations regarding the length of segregation:

To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim. 

Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].

 

Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:

I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.   

Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury. 

Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].

 

Finally, in terms of remedy, the court found a stay was not appropriate:

Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].