New & Notable: SCC at odds over "intercepting" text messages

In the area of electronic search and seizure, the criminal law struggles to keep pace with technological change. Police investigators are frequently called upon to apply, and lawyers and the courts to interpret, sections of the Criminal Code that do not reflect modern technology. In Telus Communications Co. the Supreme Court was called upon to interpret the law in exactly such a context. The concurring majority reasons depart from the conventional interpretation of the relevant wiretap and general warrant provisions in order to bolster the privacy of electronic communications by requiring the police to obtain a wiretap authorization to prospectively seize text messages stored by Telus: 2013 SCC 16.
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New & Notable: Strip searches and reliance of police on internal policy

Sang Eun Lee was arrested by the police and taken to the local station for breathalyzer tests. When a pat down search was conducted and it was discovered that she was wearing an underwire bra, she was told to remove it. She complied with the request, taking off her shirt and sweater along with the bra exposing her breasts for a brief period of time to the female officer who was present.

 

At trial, Ms. Lee was unsuccessful in establishing that the police conduct amounted to an unreasonable strip search contrary to section 8 of the Charter. She appealed her conviction and the finding of the trial judge: 2013 ONSC 1000.

Contrary to the trial judge, Fuerst J., sitting as a summary conviction appeal court judge, found that the conduct of the police did amount to a strip search:

Unfortunately, the trial judge failed to consider that the court’s definition of a strip search is not limited to removal of clothing to inspect a person’s private areas. The court’s definition of a strip search is two pronged: “[T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas…or undergarments” [emphasis added]. On the trial judge’s own findings, Constable Martin directed the appellant to remove her bra so that the police could visually inspect that undergarment, and then store it. This is not a case like R. v. Backhouse (2004), 194 C.C.C. (3d) 1 (Ont. C.A.) where the accused’s clothing was seized because it might yield forensic evidence of the crime charged. Constable Martin’s direction to the appellant to remove her bra fell squarely within the definition of a strip search [para 37].

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New & Notable: If it ain't broke, don't fix it...

Like many people in this modern age, Kevin Fearon carried a cell phone. Unlike many people, the police discovered this fact when they arrested him for robbery while armed with a firearm. A search of the cell phone was conducted which resulted in the police discovering photographs of a gun and cash. The police also discovered an incriminating text message.

 

The initial search by the police was followed by further searches of the phone over the next two days and, periodically, over the following months. At trial, the Crown relied only upon the results of the initial search incident to arrest.  On appeal following his conviction, Mr. Fearon argued that the conduct of the police in searching his phone was outside the ambit of a lawful search incident to arrest. Additionally, Fearon asked the Ontario Court of Appeal to carve out a cell phone exception to the doctrine of search incident to arrest: 2013 ONCA 106.

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Pending & Prominent: SCC to consider ISP privacy

The Supreme Court of Canada has granted leave to appeal from the decision of the Saskatchewan Court of Appeal in Spencer: 2011 SKCA 144. The appeal will provide the Supreme Court with the opportunity to clarify whether there exists a reasonable expectation of privacy in certain basic information held by Internet service providers (ISPs). Spencer was released concurrently with Trapp: 2011 SKCA 143. Together, they are the leading appellate authorities in this area of the law.

 

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

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New & Notable: SCC sends message on new offence of terrorism

Mohammad Momin Khawaja designed what he called the “hifidigimonster”. It was a remote arming device for explosives. He offered to people, that he believed were terrorists, that he would smuggle it into the United Kingdom and provide training in its use. In addition to making other offers of support to these people, he provided money for explosives for an operation in the United States or in Europe and for other projects. In a nutshell, Khawaja had become obsessed with Osama Bin Laden and his cause, and took steps to offer and provide assistance.

 

At trial, while Khawaja’s defence partially succeeded in challenging the constitutionality of several of the terrorism offences, he was nevertheless convicted of a number of terrorism offences. The trial judge sentenced Momin Khawaja to ten and a half years in the penitentiary and declined to provide any credit for time in custody prior to the imposition of the sentence on the basis that it would be incompatible with a denunciatory sentence. Parole ineligibility was set at five years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values.

 

As often happens when a new criminal offence goes to court, the matter ultimately goes on to appellate review.  The Ontario Court of Appeal granted the Crown’s sentence appeal and imposed a life sentence on a non-terrorism explosives offence found in the Criminal Code. The Court also imposed a ten-year period of parole ineligibility and a series of consecutive sentences on the terrorism offences of which Khawaja was convicted: 2010 ONCA 862.

 

Ultimately, when Momin Khawaja appealed from this decision, the Supreme Court of Canada was presented with the opportunity to send a message regarding the gravity of the new terrorism offences: 2012 SCC 69.

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Current & Curious: Is the merit of a prosecution a factor in determining unreasonable delay?

Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.
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New & Notable: What to do with an eye-rolling juror?

Most trial lawyers occasionally, but inevitably, encounter a juror who demonstrates through the raising of an eyebrow or the roll of the eyes what he or she is thinking about a piece of evidence or a position taken in court. Like most murder cases, Jonathan Cioppa was being tried before a judge and jury but on Mr. Cioppa’s jury was a particularly opinionated and, even more importantly, demonstrative juror.

 

Just before the judge’s final instructions to the jury, the defence brought an application for an inquiry to be held under section 644 of the Criminal Code regarding whether the demonstrative juror should be discharged. Nordheimer J. declined to conduct an inquiry and dismissed the application: R v Cioppa, 2012 ONSC 6832.

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New & Notable: The Dangers of Not Confronting a Witness in Cross-Ex: The "Rule" in Browne v Dunn Applied

Paul and Michelle Frost were married at one time. They were partners in life and according to the Crown’s case, partners in various sexual assaults against three young girls who lived in their home from time to time.

Some of the charges involved Mr. Frost alone, some involved Mrs. Frost alone and some involved both. They were tried together before a judge alone and were convicted of most of the offences. They both appealed both the convictions and the sentences: 2012 ONCA 807.

During the course of the trial Paul Frost testified. He denied the allegations of one of the complainants stating that there was no sexual activity. In relation to the allegations of the second complainant, he explained that the touching was inadvertent. In response to the third complainant he testified that not only was the sexual activity consensual but that some of it had been initiated by the complainant.

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New & Notable: Justice delayed...to avoid the penitentiary

Daniel McCue was sought by the police.  Shortly after they found him McCue fled from them. The chase took them through several back yards but he was eventually apprehended. A search of the route of the chase led to the discovery by the police of a loaded nine-millimeter semi-automatic handgun. 

 

The accused was charged with numerous firearm offences including two breaches of separate firearm prohibitions. He was also charged with a mischief to property from earlier the same day unrelated to the possession of the gun. After a trial, the accused was sentenced to two years less a day in the reformatory having been given credit on a 1:1 basis for 367 days of custody prior to sentencing. The Crown launched a sentence appeal.

R v McCue 2012 ONCA 773 raises a few interesting questions. One is whether it is appropriate for a court to adjourn a case to allow an in-custody accused to accumulate further “dead time” in order to avoid a penitentiary-length sentence. Another is how this offence should be characterized.

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New & Notable: There is not really an offence of armed robbery

Jerome Moore was acquitted after a judge alone trial in the Superior Court. The indictment specifically charged that he “did, while armed with a firearm, to wit: a handgun, rob Steve Howland, contrary to Section 344 of the Criminal Code.” In light of the limited opportunity of the witness to observe the accused, the trial judge was not satisfied beyond a reasonable doubt that Moore pointed the firearm or was even armed and on this basis acquitted him of the charge.

 

In R v Moore, 2012 ONCA 770, the Court of Appeal confirmed that the Criminal Code does not actually create an offence of armed robbery. Rather, s.343 creates an offence of robbery and describes the four ways that robbery may be committed. In order to engage the mandatory minimum provisions, the Crown is simply required to prove, as mater of sentence that the accused used a firearm in the commission of the robbery.

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