MCLNugget: Haevischer SCC

R v Haevsicher, 2023 SCC 11 

The Issue

What is the standard to be applied when a judge is asked to summarily dismiss an application without hearing it on the merits. In this case, the more precise question is “when is it appropriate to summarily dismiss an application for a stay of proceedings for abuse of process”.

The Answer

Applications should only be summarily dismissed, without a hearing on the merits, where it is determined that the application is manifestly frivolous. The Court explained:

Thus, the “manifestly frivolous” standard, which connotes the obvious necessity of failure, is the appropriate threshold for the summary dismissal of applications made in the criminal law context. If the frivolous nature of the application is not manifest or obvious on the face of the record, then the application should not be summarily dismissed and should instead be addressed on its merits. [Para 71].

 The Details

The Court began with a review of the history and development of the summary dismissal power. Naturally, as the case originated from BC, the Court discussed R v Vukelich, 1996 CanLII 1005.

In coming to the conclusion that “manifestly frivolous” was the proper standard, the court explained the impact of this terminology”

The “frivolous” part of the standard weeds out those applications that will necessarily fail. This Court has previously stated that the “‘not frivolous’ test is widely recognized as being a very low bar” (R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20). Having reviewed the case law on the “not frivolous” threshold, inevitability or necessity of failure is the key characteristic of a “frivolous” application.

[…] 

However, I add the word “manifestly” to capture the idea that the frivolous nature of the application should be obvious. “Manifestly” is defined as “as is manifest; evidently, unmistakably, openly”, and “manifest” is defined as “[c]learly revealed to the eye, mind, or judgement; open to view or comprehension; obvious” (Oxford English Dictionary (online)). Just like the civil standard for striking a claim requires that it be “plain and obvious” that the claim discloses no reasonable cause of action (or, in French, “évident et manifeste”), the addition of the word “manifestly” adds another layer to the “frivolous” standard and helpfully indicates that a summary dismissal motion should be based on that which is clearly revealed. [Paras 67-69].

The Court offered several points of guidance in relation to the scope and application of this test. First, the judge on the application must assume the facts alleged to be true and take the argument at its highest [para 83].

Second, the judge should generally assume the inferences suggested are true [para 84].

Third, as a rule, given the approach set out in these first two points, an application will generally only be manifestly frivolous where there is a fundamental flaw in the “legal pathway”. As an example, if the application relies on an argument already rejected or seeks a remedy unavailable [paras 85-86].

Fourth, the judge’s power to summarily dismiss a motion is ongoing.

Fifth, the party seeking dismissal bears the onus of convincing the judge the application is manifestly frivolous.

Sixth, as a “preliminary matter, the party filing the underlying application must ensure that their application complies with the local court rules and the applicable practices, directives and procedures” [para 94]. The Court noted, as an example, that Ontario “incorporated the power to summarily dismiss an application into its rules of criminal procedure” [para 94].

Seventh, the judge has discretion to determine how the summary dismissal process will be determined - as well as how the actual motion will be considered [para 103]. 

MCLNugget: Ching ONCA

R v Ching, 2019 ONCA 619

The Issue

When does the transferred intent provision in s 229(b) apply to a planned and deliberate first-degree murder pursuant to s 231(2). Put differently, where an accused kills someone other than the intended target of their planning and deliberation, will they be guilty of first-degree murder.

The Answer

In order for the murder of a person, who was not the intended target of a planned and deliberate murder, to constitute first-degree murder as a planned and deliberate killing pursuant to s 231(2), the killing occur by accident or mistake during the course of carrying out the plan [Ching at para 26].

The Details

Willy Ching and his wife were separated. Ching believed she had an affair. On the date of the offence Ching tracked down Ms Ching at the home of Ernesto Agsaulio. Ching had brought with him a knife and hachet.

When Ching arrived at the home Agsaulio opened the door but refused Ching entry. He told Ching that he was not allowed in and could not see Ms Ching. Ching attacked Agsaulio. Pulling out his knife and hachet. Mr Agsaulio and his son managed to restrain Ching and Ching never got any further – he never saw Ms Ching.

Agsaulio later died from the injuries inflicted by Ching. He was charged with first-degree murder. He was convicted. He appealed. The Ontario Court of Appeal overturned the conviction for first-degree murder. The court held that the trial judge erred in the charge to the jury in relation to how the murder might constitute first-degree murder. The court held:

  • Section 231(2) (planned and deliberate murder) is clear in relation to what will constitute first-degree murder, it is the murder which was planned and deliberated that will be captured by this section. Accordingly, for the murder of Agsaulio to be first-degree murder it must have been planned and deliberated. It was not [Ching at para 21].

  • The transferred intent provision in s 229(b) can only apply where the murder occurs during the course of carrying out the planned and deliberate murder, by mistake or accident [Ching at paras 22-26]. Put differently, “where person B is killed while the accused was carrying out the planned and deliberate killing of person A such that the transferred intent provision in s. 229(b) applies to make the killing a murder, the plan was, in effect, executed and it is only by accident or mistake that someone else died. As the planned and deliberate murder was executed, it attracts the higher level of moral culpability required for first degree murder” [Ching at para 27].

  • This distinction means that where an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A they will be guilty of second-degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target of that act, they will be guilty of first-degree murder [Ching at para 30].

MCLNugget: Bajich ONCA

R v Bajich, 2019 ONCA 586

The Issue

Can confidential informant information be substantially relied upon to justify an arrest?

The Answer

If the information from the CI is sufficiently credible, compelling and corroborated it may be sufficient to support reasonable grounds for an arrest. Notably, with respect to corroboration, the evaluation is contextual. It is not the number of observations/information that determine if there is sufficient corroboration, but whether the observations/information are capable of rebutting innocent explanations.

The Details

Kresimir Bajich was dealing drugs out of a bathroom in a bar in Oshawa. Someone knew about it. They decided to tell the police. The information included that Bajich was dealing drugs, the type of drugs, the location and Bajich’s nickname, “Big Mouth Chris”. They did so as a confidential informant [CI]. The officer who received the information was advised that the CI had on at least two occasions provided information that resulted in arrests and charges and that the informant had no prior criminal record for crimes of dishonesty.   

On the basis of this information the police set up at the bar and put Bajich under surveillance. During the surveillance, about two hours, Bajich was observed “texting and speaking on his cell phone. He went outside, approached a Jeep Liberty, and had a one minute conversation with the female driver, during which he put his hands into the vehicle. He went into the bathroom twice, on each occasion followed by another patron. He was also seen smoking outside, where he spoke with a female and counted a large amount of cash and coins. After one call, he was observed pulling out a pill vial and counting out the pills in his hand. He then approached and leaned briefly into a large white boom hydro truck” [para 13]. Coupled with the CI information, the police viewed this to support grounds and Bajich was arrested.

At trial Bajich challenged that arrest, arguing that it violated section 8 of the Charter (insufficient grounds). The trial judge dismissed the Charter motion. Bajich was convicted and appealed. The Court of Appeal held that the trial judge did not err in reaching this conclusion. The CI information was sufficiently compelling, credible and corroborated. The police had grounds to make an arrest. In particular, the Court of Appeal noted the following in relation to corroboration:

  • What is critical to the analysis of whether an arrest is objectively reasonable is not the number of incidents observed during police surveillance, but “the nature of the information derived from the surveillance, taken in the context of the totality of the circumstances and weighed through the perspective of the experience of the arresting officer”: R. v. Anang, 2016 ONCA 825 (CanLII), 367 C.R.R. (2d) 289, at para. 22.

  • The police need not corroborate every detail, nor do they need to confirm a tip to the extent of having observed the commission of the offence: R. v. Rocha, 2012 ONCA 707 (CanLII), 112 O.R. (3d) 742, at paras. 22-23.

  • The question is not whether there could be an innocent explanation for each of the activities or interactions observed by the police. Rather, when considering the objective reasonableness of the subjective grounds for arrest, the court must look to the totality of the circumstances, and not consider each fact in isolation: R. v. Labelle, 2016 ONCA 110 (CanLII), at para. 10.

MCL Nugget: Dhami ONCJ

R v Dhami, 2019 ONCJ 10

The Issue

How does the Mentuck/Dagenais test intersect with section 486.5 regarding the issuance of a publication ban?

The Answer

The Mentuck/Dagenais test requires consideration of the following two factors regarding the issuance of a publication ban:

(i)             The order is necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and,

(ii)            The court considers whether the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial and the efficacy of the administration of justice.  

In 2015 Parliament amended section 486.5, removing the requirement that such an order be “necessary for the proper administration of justice” and replacing it with the requirement that the order be “in the interest of the proper administration of justice”. The determination of whether the order is in the interest of justice is governed by, inter alia, a consideration of the factors set out in section 486.5(7).

The consideration of a publication ban request is governed by this statutory test.

The Fine Print

Two comments of the court that are helpful in today’s modern age of “media” and the modern recognition of victim vulnerability and rights are worth noting. First, on the need to recognize victims and the impact on them:

As a society, we recognize the vulnerability of persons with a disability and the need to remove barriers that impede them from leading productive, meaningful lives and discourage them from engaging in the court system. These values are not insignificant. Nor is the risk for harm to be downplayed. The importance of protecting vulnerable members of society, their right to privacy, encouraging witness participation and promoting a sense of fairness within the criminal justice system is of considerable importance in our society.  Multiple provisions in the Criminal Code endeavour to minimize harm and protect the privacy of victims and witnesses. See for example ss. 486.4, 486.1, 486.2, s. 278, s. 276. [Para 30]. 

Second, a comment on the modern day media:

It is worth noting that media and internet attention today does not exact the same toll on an individual's privacy that it did 25 years ago.

Today, searching through traditionally printed newspaper articles for information is not possible without a great deal of effort and time. By contrast, information about an individual is immediately available with only a few strokes on a key board on a smartphone held in the palm of anyone’s hand. 

Previously, a newspaper article may have sparked an editorial comment or two or several, from passionate readers. Opinions would be filtered before being published, subject to editorial scrutiny and may or may not see the light of day in print. Today, individuals can weigh in and comment on the news on-line, anonymously, in real time, with very few restrictions.     

All to say, in coming to a decision in this case I have factored in the impact of indefinitely memorializing the victim's name and mental health information on the internet to his dignity, privacy and well-being. The ease with which anyone can search the internet for information about an individual, or this incident and learn the victim’s diagnosis (when one would not otherwise be entitled to this private medical information) weighs in favour of granting the order. [Paras 49-52]   

MCL Nugget: Smithen-Davis ONCA

R v Smithen-Davis, 2020 ONCA 759

The Issue

Can an appeal be re-opened following submissions and completion of argument but before the appellate court has rendered judgement? Does the principle of functus officio prohibit such an application? If re-opening is permitted, what is the scope of the jurisdiction to permit this? 

The Answer

The parties and the court all agreed that the court has jurisdiction to permit re-opening of an appeal. However, there was disagreement about the scope of the court’s jurisdiction:

…whether it extends to appeals heard and decided on the merits, and if it does, when that jurisdiction ends. Upon delivery of reasons for the decision? Or only when the formal order recording the disposition is entered? [Para 28].

The court held it is not functus officio until formal judgement has been drawn up and entered [para 40]: see R v Adams, [1995] 4 SCR 707 at para 29.

The interests of justice do not, in this case, prohibit the re-opening:

To succeed in quashing the respondent's application to re-open the appeal, the Crown must be able to establish on the record, as it currently exists, that the application to re-open has no reasonable prospect of success. On this issue, the Crown fails, as it did in advancing a similar argument in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, leave to appeal refused, [2018] S.C.C.A. No. 258. [Para 68]. 

The Fine Print

Two aspects of the court’s ruling offer guidance for future cases. First, the court offered the following considerations on deciding whether to permit re-opening:

Among the relevant factors a court might consider in deciding whether to permit re-opening of an appeal previously argued and decided on the merits are:

i.     the principle of finality;

ii.    the interests of justice including finality and the risk of a miscarriage of justice;

iii.   whether the applicant has established a clear and compelling case to justify a re-opening;

iv.  whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and

v.    whether the error alleged concerns a significant aspect of the case. [Para 36]

Second, in relation to the interest of justice test the court noted:

The re-opening decision requires consideration of all the circumstances. Two competing principles are at work. The need for finality in criminal litigation favours a restrictive approach. Prevention of potential miscarriages of justice, on the other hand, supports a more expansive approach: Hummel, at para. 17. The “interests of justice” includes both the interest of the accused in having their guilt adjudicated on the basis of all the available evidence, and that of the state in the integrity of the criminal justice process including its finality and order: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401 at para. 200, leave to appeal refused, [2016] S.C.C.A. No. 513. [Para 56]

MCL Nugget: MRS ONCA

R v MRS, 2020 ONCA 667

The Issue

Was the jury charge “overlong and needlessly complicated” in a manner that impacted the fairness of the trial [para 4]? Was the jury charge “excessively long and so laden with unnecessary information” that it diverted the jury’s attention in the manner discussed in R v Rodgerson, 2015 SCC 38 at paras 50-52.

The Answer

Albeit in obiter, the court noted two points. First, the lengthy recitation of evidence heard by the jury was unnecessary and ran the risk of taxing “the powers of the jurors’ concentration, increasing the risk of confusion and inattention” [para 108].

Second, use of large extracts of model jury charge instructions, some on points not in issue, was unnecessary and contrary to the guidance in R v Rodgerson, 2015 SCC 38 at paras 51-53.

The Fine Print 

The Court of Appeal offered some correction and guidance related to how trial judge’s should develop their jury instructions – important guidance perhaps where so many jury trials result in successful appeals related to impugned instructions:

First, “a bulk recitation of all the evidence heard at the trial, without discrimination or analysis, is of no assistance to the jury”: Barreira, at para. 30. Indeed, as this case shows, it is apt to do more harm than good. The jury charge was unnecessarily long in what was a straightforward case. Close to half of the charge, 84 of the 192 transcript pages, was dedicated to summarizing testimony that the jury had heard directly. This not only taxed the powers of the jurors’ concentration, increasing the risk of confusion and inattention, it resulted in the prejudicial repetition of a significant amount of collateral bad character evidence. The trial judge would have been better advised to have forgone this part of the charge and focussed instead on the summary she offered of the material evidence relevant to the issues.

Second, instead of identifying the legal issues that required explanation, the trial judge included large extracts from a model charge manual relating to matters not in issue. In Rodgerson, at paras. 51-53, Moldaver J. counselled against doing so and urged trial judges to isolate relevant legal instructions. Legal directions are often conceptually challenging. In the interests of efficiency and focus, jurors should not be taxed with legal instruction on matters that are not in issue, as occurred in this case.

Indeed, one of the legal issues discussed in the charge was not only not a live issue but was not properly before the jury. The children complainants were minors, legally incapable of consenting to the alleged assaults, yet the jury was educated in the law of consent relating to the assault charges against the children, including factors that vitiate consent, none of which applied. [Paras 108-110].

The Wild West

R v West, 2020 ONCA 473

The Issue

What is the standard for issuance of a Production Order pursuant to s487.014; and where that standard is not properly articulated and met what are the consequences.

The Answer

Section 487.014 requires reasonable grounds to believe (not a reasonable suspicion). Where the Informant asserts only a reasonable suspicion in the ITO and the issuing justice authorizes the Production Order, there will be a violation of section 8 and likely exclusion of evidence under section 24(2), as there was here.

The Fine Print

Section 487.014(2) explicitly requires that the issuing justice or judge be “satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe…”. In the ITO in this case the officer asserted only “grounds to suspect”. This lower standard did not support issuance. The issuing judge erred, as did the trial judge who found the ITO to be valid. The proper interpretation of s487.014 was recently set out in R v Vice Media Canada Inc, 2017 ONCA 231 at para 28 (aff’d 2018 SCC 53):

A production order under s. 487.014 of the Criminal Code is a means by which the police can obtain documents, including electronic documents, from individuals who are not under investigation. The section empowers the justice or judge to make a production order if satisfied, by the information placed before her, that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. If those three conditions exist, the justice or judge can exercise her discretion in favour of granting the production order. [Emphasis added.]

In this case, the result of this error, which had no valid explanation, was the exclusion of evidence under section 24(2): see paras 30-42.

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: 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.