Don't take your guns to town son, leave them at home

Darteh was hanging out in front of his residence. Police had received a complaint from the property manager that there had been a lot of trespassers especially after 8pm. Police spotted Darteh; it was after 8pm. Darteh spotted the police and quickly walked away; he stopped at the first apartment, knocked on the door and tried the handle to get in.

Police found this all to be quite suspicious and approached Darteh.  Darteh was carrying a partially consumed bottle of liquor and he reeked of booze. He had blood shot eyes- the officers felt this was a strong indication that Darteh had been drinking in the courtyard where they had first spotted him.

The officers asked Darteh for ID and he handed it over with a trembling hand; this officers found his level of nervousness suspicious. As Darteh was speaking with the officer he stood with his knapsack, which he wore on his back, pressed firmly against the wall; the officers suspected there was something in the bag that Darteh didn’t want them to see.

When the officers inquired about the backpack, Darteh shoved and kicked one of the officers and ducked into his apartment. The officers entered the apartment the scuffle continued as they tried to arrest Darteh. Police then searched the backpack and discovered a handgun. Darteh was charged with numerous firearms related offences and assaulting a police officer.

At his trial Darteh argued that his section 8 and 9 Charter rights had been violated and as such the firearm should be excluded and that the assault against the police officer was lawful. Justice Code dismissed the Charter motion and convicted Darteh of the offences: 2014 ONSC 895.

Darteh appealed. He argued that the police arbitrarily detained him and that the trial judge erred in finding otherwise.

The Ontario Court of Appeal dismissed the appeal: 2016 ONCA 141. The Court held that when considered cumulatively the following set of factors provided the officers with the requisite subjective suspicion grounded in objectively discernible facts:

  • The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.
  • The appellant did not have a key to the unit that he was trying to enter.
  • The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.
  • The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.
  • The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in. [para 6]

Of note is that the constellation of factors related to a lawful detention under the Trespass to Property Act and the Liquor License Act, and not in relation to the officers believing that Darteh was committing any Criminal Code offence. This is so notwithstanding the fact that the officers were suspicious of how Darteh was angling his backpack away from the officers.  In contrast in R v Grant, 2009 SCC 32 and R v Le, 2014 ONSC 4288 the accused’s body language (fidgeting and blading) led the officers to believe that they might be concealing a weapon.

The distinction about the basis for the detention, that is the Criminal Code or a provincial act, matters little. What does matter however is how the officers articulate the basis for the detention and the “constellation of discernible facts” that lead them to detaining someone.

Although Darteh was not licensed to possess that firearm under any circumstances, he should have heeded Johnny Cash and left his gun at home, where the test for a lawful search requires far more than what the officers had in this case. 

LT

Don't believe everything you see on the internet

Daryl Argent posted two ads on Craigslist. The ads indicated that Argent was looking for a woman between the ages of 18 and 30 interested in smoking marijuana and more. Lest there be any doubt about what Argent meant by ‘more’ he thoughtfully included a picture of his genitals and to seal the deal a pic of him holding a bud of marijuana.

To the layperson such an ad may have simply taken at face value: a guy looking for a girl to get high and have sex. To Det Brien Smith of the Child Pornography Unit at the Hamilton Police Service the ad held some potentially hidden meaning. In his training Det Smith had learned that people who are seeking sexual activity with children will often mention the age 18 in their ads. This is because Craigslist does not allow personal erotic ads to specify an age less than 18. Det Smith honed in on Argent’s ad because of his mention of the age 18.

Det Smith posing as a 14year old girl named Carlee responded to Argent’s ad. The response read:

Hey..cool pix! im not sure which is bigger…the bud in your hand or your bud! lol!…smoked for first time at my gr8 grad a few weeks ago..yeah! lemme know when you r smokin again some time…luv to try again [para 4]

The two exchanged messages and Carlee revealed that she was 14yrs old, a virgin, in the eighth grade and inexperienced with drugs and sex.  Argent responded with talk of oral sex and condoms for vaginal sex.

Argent was arrested and charged with luring a child to engage in sexual activity. Argent was convicted. He appealed. One of the grounds of appeal was that the trial judge erred in dismissing Argent’s request for a stay of proceedings on the basis of entrapment. The Court of Appeal found no error: 2016 ONCA 129.

Argent argued that the police lacked the reasonable grounds to suspect that criminal activity was taking place. He argued that the fact that the ad specified the age of 18 did not on its own provide the requisite level of suspicion. Moreover, Argent argued that it was ‘Carlee’ and not him who sexualized the content of their communication since she made the double entendre reference to Argent’s bud.

The Court of Appeal rejected these arguments and held that:

[t]he ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.
We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended.  It was the appellant who pursued the discussion of sexual activity. These facts support the officer’s suspicion that criminal activity was underway [paras 12-13]

It is hard to imagine that the Court could have found anything less than sexualized content in Argent’s ad given that he had posted a picture of his genitals along with his request for female pot smoking company. However, an interesting feature in this case is the Court’s acceptance of the fact that the specified age of 18years could in fact mean an age less than 18. Given that the website does not allow ads with the age of less than 18, the court had no difficulty accepting that not everything on the Internet should be taken at face value. Argent wasn’t the victim of entrapment he simply got caught. 

LT

Get your conjunctions right and/or don't - Doesn't Matter

LB was killed in his own home by a single gunshot to the chest. Van Every was convicted of second degree murder in the death of his friend who was also the second in command of his drug dealing business.

The Crown’s theory was that Van Every murdered his friend because LB had disrespected him earlier that evening. The Crown argued that it was a planned and deliberate murder. The defence on the other hand argued that JG, another friend and drug dealer who was also present in the home on the night of the murder was the real killer but that if Van Every was the shooter, well he was too drunk to form the requisite intent.

Over the course of his charge to the jury Whitten J misstated the requisite intent for murder. Several times throughout the charge the trial judge stated that to find that Van Every had the intent for murder the jury would have to be satisfied that: Van Every intended to kill LB or to cause bodily harm that he knew was likely to cause death OR was reckless whether or not LB would die.

The correct wording for the intent for murder is as follows; Van Every intended to kill LB or cause bodily harm that he knew was likely to cause death AND was reckless whether or not LB would die.

Van Every appealed his conviction and sentence: 2016 ONCA 87.  One of the grounds of appeal was the trial judge’s misstatement of the requisite intent for murder. 

van Rensberg writing for a unanimous Court dismissed the appeal. As a starting point the Court noted that something more than a legal error is required before there is appellate intervention. The test is “was there a substantial wrong or miscarriage of justice caused by this error, on this evidence at trial.” [citing Watt JA in R v Moo, 2009 ONCA 645 at para 68]

The Court concluded that when the instructions were considered as whole and given the positions taken by the Crown and the defence “it is inconceivable that the jury would have understood the instruction the way the Appellant now contends – that they could find the appellant guilty of murder if he had recklessly caused LB’s death, and that they would have found him guilty of second degree murder on that basis.” [at para 52]

van Rensberg offered four reasons for this conclusion.

First, the incorrect words must be read in context of the instructions on intent as a whole. In every instance that the judge described the intent for murder he correctly framed the intent as having two alternatives: the intent to kill or the intent to cause bodily harm likely to kill. In fact on several occasions the trial judge referred to each of these alternatives by a shorthand “intent to kill or intent to cause bodily harm. This, the Court of Appeal held “is inconsistent with a third and freestanding intent for murder, that of “recklessness”, which the trial judge did not further explain.” [at para 53]

Second, no one noticed the mistakes at trial, even though it was made repeatedly. The Court of Appeal noted this in the context of concluding that the mistake was immaterial. [at para 54]. In fact counsel had draft copies of the charge which contained the erroneous wording. “There was no objection to that part of the charge at any time during the trial: not in the pre-charge conference, not when the trial judge reviewed the draft decision tree with counsel and repeated the erroneous wording three times, not when the trial judge solicited comments from counsel during one of several breaks in reading his charge, and not after the charge was given.” [at para 56]

Third, both the closing addresses and the balance of the jury charge clearly indicate that recklessness as an independent route to establishing the mens rea for murder was simply not in play.  [at para 57]

van Rensberg concluded the analysis by looking at the parole ineligibility recommendations of the jurors as a gauge for their views on the level of intent. The Court noted that:

although one can never know precisely how the jury arrived at its verdict in the present case, its recommendations on parole ineligibility shed some light on how they viewed the case. Five jurors recommended 25 years before Van Every was eligible for parole. Two recommended 20 years. Three recommended between 15 and 18 years. Two abstained. As the trial judge noted at the sentencing hearing: “Now obviously from that statistic, the jury, the members of this community were of the view that this was a serious second degree murder and it would indicate seriousness which became closely akin to that associated with first degree murder”. This belies appellate counsel’s suggestion that the jury “may well have” convicted Van Every based on mere recklessness. [at para 67]

Being nitpicky about grammar isn’t going to overturn a murder conviction… unless maybe you were nitpicky the first time around too.

LT

 

No Free Downloads

Jeremy Glenfileld was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a sample of his breath.  Shortly before Christmas in 2011, Glenfield was alone in his car when he ran a stop sign and struck the Huber family, husband and wife and their two young sons, who were proceeding lawfully through the intersection. Glenfield struck the driver’s side passenger door where 11 year Jeremy was sitting; he died the next day.

At the time of the accident it was snowing lightly and the roads were wet. Witnesses smelled alcohol on Glenfield’s breath. Within 6 minutes of arriving on scene police issued a roadside demand, which Glenfield failed. Later at the police station Glenfield refused to provide a sample of his breath.

Glenfield elected to have a preliminary hearing; he was committed to stand trial. Glenfield then elected to have trial by judge and jury. At the start of his trial and with the Crown’s consent Glenfield re-elected to have a trial by judge alone. The trial proceeded in a blended fashion with Glenfield’s two applications to have evidence excluded heard along with the trial evidence.

One of the applications concerned the “Event Data Recorder [EDR]” seized from Glenfield’s Jeep at the scene of the accident: 2015 ONSC 1304.  Cst Stotts arrived on scene nearly an hour after Glenfield had failed the roadside demand. Stotts was assigned to collect “roadway evidence.” Stotts had no idea who the Jeep belonged to and if any charges had been laid. Stotts entered the Jeep and downloaded the information on the EDR. Stotts testified that he did so in order to avoid having the EDR reset by the jostling that would be caused by towing.

To get to the EDR, Stotts forcibly removed a cover in the front passenger area of the console and using a Crash Data Retrieval system he downloaded some of the data. It is that information that Glenfiled sought to have excluded on the basis that his right to be free from unreasonable search and seizure had been violated.

Hambly J held that “the owner of the damaged vehicle in a collision has a reasonable expectation of privacy in the contents of the EDR” [para 46]. Since the police had neither Glenfield’s consent nor a warrant they were trespassing when they entered Glenfield’s vehicle.

Hambly J held that there was no evidence that police:

knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.6. Biographic Core Test [para 51].

After concluding that the police had violated Glenfield’s section 8 Charter rights the court then turned to whether the evidence should be excluded. Hambly J held first, that the seriousness of the breach was at the low end of the spectrum [para 74]. Second, that the impact on Glenfield’s Charter protected interest was low. [para 75] Third, that the exclusion of the evidence would effectively gut the crown’s case. [para 76]

In balancing the factors the Court concluded that Glenfield had failed to establish administration of justice would be brought into disrepute by the admission of the EDR evidence. [para 78]

One important aspect of this decision is Hambly J’s instruction to police on how they could have lawfully secured and searched for the data on the EDR.  Hambly J explained that “police could have entered the vehicle for the sole purpose of deactivating the power to the EDR”. By deactivating the power they would have protected the information on the EDR while they secured a warrant. [para 51] 

LT

Reliable Co-Accused

Jeffrey Woodman was out shoplifting with a group of friends.  They left the scene of their crime in a car. When a police officer approached the vehicle, the car accelerated towards the officer, struck him and sped off.   The officer sustained serious injuries. The principal issue at trial was the identity of the driver at the time the officer was struck. Woodman was convicted by a jury of his peers; the Ontario Court of Appeal dismissed his appeal of both conviction and sentence: 2016 ONCA 63. 

Woodman testified at trial. He admitted to shoplifting with his friends. He admitted to that he got into the driver’s seat and that he was the one who was driving when the car fled from police. However, Woodman maintained that that he was not driving the car when it struck the officer. 

The officer could not identify the driver and of the males in the vehicle only one came forward and offered information about who was driving the vehicle. 

At 3am a few hours after the officer was struck, Stinson provided a video recorded statement to police.  Stinson identified Woodman as the driver of the vehicle. The statement was unsworn. When called upon to testify at trial Stinson claimed to have no recollection of the events because he was under the influence of heroin. 

The trial judge admitted Stinson’s statement to police for the truth of it’s contents. Woodman argued on appeal that this was an error worthy of granting Woodman a new trial. The ONCA disagreed. 

The Court held “the trial judge properly exercised his role as gatekeeper in admitting Mr Stinson’s statement that met the twin threshold requirements of necessity and reliability: R v Youvarajah, 2013 SCC 41 at para 21.”

First, the Court found that the necessity criterion was made out on the basis of Stinson either failure or refusing to adopt his prior statement [para 8].

Second, the trial judge did not err in finding that threshold reliability criterion was met based on the following factors: 

  • The statement was given to police within hours of the incident
  • The statement was video recorded
  • Stinson’s demeanour and credibility at the time the statement was given could be assessed by the trier of fact 
  • Stinson appeared to be coherent, responsive to questions and not under the influence of drugs or alcohol
  • The declarant was available for cross-examination 
  • Several aspects of the statement were corroborated and/or confirmed by other evidentiary sources including the injured officer and video surveillance from the store where the group was shoplifting [para 9]

Woodman argued that the Supreme Court’s relatively recent decision in Youvarajah was determinative of this appeal. In Youvarajah the trial judge declined to admit a recanting co-accused’s statement notwithstanding the fact that the co-accused was available for cross-examination. Woodman emphasized that Stinson had a powerful motive to lie: saving his own hide and thus his statement to police should not have been admitted. 

The Ontario Court of Appeal distinguished Youvarajah from the circumstances in Woodman explaining that: 

(…) in our view, the circumstances of R. v. Youvarajah are distinguishable from the case at bar. In R. v. Youvarajah, the Court noted the absence of the following indicia of reliability that are present in the case at bar: the statement in issue was an agreed statement of facts prepared by the co-accused’s lawyer rather than the witness’ own spontaneous words, for use at his own separate youth trial as part of a plea agreement; the co-accused testified that he did not understand everything that he read in the statement; the statement was not videotaped so that there was no opportunity to assess the co-accused’s demeanour or credibility; and the co-accused not only recanted his previous statement but admitted at the appellant’s trial the acts in which he had implicated the appellant in his previous statement.  Most important, cross-examination of the co-accused would be effectively precluded by his invocation of solicitor-client privilege. None of these factors features in the present case [para 11].

Finally the Court noted that in addition to having properly exercised his gatekeeping function with respect to the admissibility of the statement, the trial judge also properly instructed the jury on how they were to evaluate the statement [para 13].

Woodman was sentenced to 4years and 8months in prison after having been credited with 1 year and 4 months pre-sentence custody. The Court dismissed his sentence appeal. 

LT

En-Gendered Arguments on Incest

Section 155 of the Criminal Code prohibits the act of incest. The section reads as follows:

Everyone commits incest who, knowing that another person is by blood relationship with his or her parent, child, brother, sister, parent grandparent or grandchild, as the case may be, has sexual intercourse with that person.

Sexual intercourse is defined in section 4(5) of the Code; it states: 

For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that the seed is not emitted.

KH was charged with a number of sexual offences including incest all perpetrated against his underage sister. Numerous incidents were alleged which included forced fellatio and several acts of KH penetrating his sister’s anus.

At the close of the Crown’s case, KH brought an application for a directed verdict on the incest charge. KH argued the following:

  1. The purpose of section 155 is to prevent “sexual intercourse between persons who have a blood relationship” in an effort to “prevent genetic mutations that can result from inbreeding” and to protect of vulnerable family members. [at paras 6-7]
  2. The fact that section 4(5) includes the phrase “notwithstanding that seed is not emitted” indicates that what is contemplated is penetration of a vagina by a penis.
  3. That Parliament also enacted (the now unconstitutional) section 159 prohibition against anal intercourse, further supports the defence position on the definition of sexual intercourse.

Barnes J dismissed the application: 2015 ONSC 7760 and held that:

The defence argument falls apart when considered in the context of the second legislative intent, which is the protection of vulnerable members of the family. A definition of sexual intercourse limited to penile penetration of the vagina means that a male can only commit incest if he uses his penis to penetrate the vagina of a blood relation. Under this circumstance, the "vulnerable family member" is only protected from incest if she is female and if the penis is inserted into her vagina. The same female blood relation is not protected from incest if her male blood relation inserts his penis into her anus.
Another consequence of restricting sexual intercourse to the penile penetration of the vagina is that a vulnerable family member cannot receive the protections provided by s. 155 of the Criminal Code simply because he is not female. On the defence theory, if a male places his penis in the anus of a vulnerable family member who is male, he cannot be charged with incest. The protection of vulnerable female family members to the exclusion of vulnerable male family members could not have been the intention of the legislature. [at paras 16-17]

Barnes J’s common sense approach to this issue is in accordance with the principles of statutory interpretation which the court reviewed prior to reaching its conclusions. 

LT

Likely Relevant, but Inherently Unreliable

Katlin Cousineau died at the hands of her housemates. Katlin was 23yrs old and developmentally delayed. When the two first met Katlin and Susan Balogh were neighbours and when Katlin and her husband separated she moved in with Balogh and her partner. In 2004 Paul Bradey and Balogh started an affair. Balogh left her partner and moved in with Bradey- taking Katlin with her. Thereafter the three moved into a new place and were joined by Balogh’s friend Matthew Sitte.

Katlin died in the basement of that shared residence. She had blowtorch burns all over her body. Katlin was viciously abused by Sitte and Bradey- Balogh also participated in the abuse.  Katlin was assaulted physically and sexually and on numerous occasions drugged. She was deprived of the necessities of life- forced to sleep on the concrete floor with a sheet and a pillow and made to use a bucket instead of a toilet.

The blowtorch burns covering Katlin’s body were inflicted over a number of days while she was alive. When she finally succumbed to the injuries Balogh, Bradey and Sitte hatched a plan to burn the home down to conceal their crime and collect the insurance money from the ‘accidental’ fire.

Forensic investigation quickly unraveled the plot and the three were charged with Katlin’s murder.

Sitte pled guilty to second degree murder. Balogh pled guilty to criminal negligence causing death. Both testified at Bradey’s trial for the Crown.

Bradey was found guilty of first degree murder, arson and rendering an indignity to Katlin’s body.

Bradey appealed his conviction: 2015 ONCA 738. One of those grounds of appeal was that the trial judge erred in denying Bradey’s application for Balogh’s psychological records from the correctional facility she was being held.

Brady’s application for these records arose mid-trial. In chief Balogh was asked whether she had ever told anyone the truth about what happened before telling the jury. Balogh responded that she had told her psychologist.

The psychologist in question was the psychologist at Grand Valley where Balogh was serving her sentence.

Bradey sought production of the records from Grand Valley that included statements Balogh had made:

  1. About the offence
  2. About her relationship with Bradey
  3. About her plea to the lesser included offence of criminal negligence causing death

Counsel was appointed to represent Balogh. Both Balogh and the Crown resisted the application.

On the application the Crown called a psychologist from Grand Valley but not the one Balogh had dealt with. The witness testified that:

  1. Psychologists are not required to note everything a patient says and patients are not consulted about the accuracy of what has been recorded
  2. Releasing such notes could damage a therapeutic relationship and impede an inmate’s rehabilitation

Bradey argued that production of the records would allow him to challenge Balogh’s assertion that she had told the whole truth to the jury.

The trial judge dismissed the application finding that Bradey had failed to establish the likely relevance of the records.

The trial judge’s findings were summarized by the Court of Appeal as follows:

the mere fact that a witness has spoken to a counsellor about matters touching the issues at trial does not make a record of those observations "likely relevant to a fact in issue or the witness' credibility";
the records only pass the likely relevance threshold if there is some basis to conclude that the statements have the potential to provide an accused with some added information not already available to him or to have some impeachment potential;
confidentiality is paramount in the relationship and a high expectation of privacy attaches to the records with the result that unsupported, at large assertions of likely relevance fail to meet the threshold standard for review; and
the witness' statement about the consistency between the account to her psychologist and that provided to the jury demonstrates no inconsistency [para 62].

 

On appeal Bradey argued that the trial judge erred in dismissing the application. The Court of Appeal held that the trial judge erred in ruling that the test for likely relevance was not met however upon review of the records the Court of Appeal ruled against production.

Watt JA writing for a unanimous court on the issue of production noted the following important points:

First, the records themselves contain onlygeneralized and references to the offence and the guilty plea which were not inconsistent with her testimony [para 1-7].

Second:

the principal purpose for which the records were sought was to impeach Balogh's credibility and the reliability of her evidence on the basis of statements inconsistent with her trial testimony. At trial, she was cross-examined for several days. A prominent feature of the cross-examination was her impeachment by statements made elsewhere -- to investigators and at the preliminary inquiry -- relative to, but said to be inconsistent with, her trial testimony. These statements were accurately recorded and, in some instances, under oath. Her testimony at trial was the subject of a Vetrovec caution.
In light of this, it is difficult to see how the production of these records would have furthered the appellant's ability to make full answer and defence. That difficulty is compounded as the casual reference to relevant events in summary form in a single document affords no basis for cross-examination under s. 10(1) or, for that matter, under s. 11 of the Canada Evidence Act.
 Moreover, the records are sought in relation to collateral issues -- the credibility of Balogh and the reliability of her evidence. Information relating to collateral issues, more accurately, failure to direct its production, does not impair an accused's right to make full answer and defence: O'Connor, at para. 161 [paras 107-109].

Third, the fact that the records originated in a therapeutic context is a relevant consideration.  Such records have been found to be inherently unreliable. “there is no requirement that the notes accurately record any statements.”  Such notes are generally not reviewed by the patient for accuracy, such was the case here.

Fourth, “despite the reduced expectation of privacy inherent in the correctional context, the Clinical Progress Notes originated in a therapeutic relationship. Disclosure of information revealed in that relationship may be injurious to the relationship and stunt its rehabilitative purpose.” [para 111]

As such the appeal on this ground (as well as the others) were dismissed.

LT

Can't Breach or Waive what hasn't been Invoked

Owens was driving his pick-up truck. He was driving it badly. So badly that other motorists called 911. When police found Owens he had run out of gas and was pulled over on the side of the road- still sitting in the driver’s seat. Police formed a reasonable suspicion that Owens had been boozing. They issued a roadside demand; Owens failed. Upon arrest Owens was read his right to counsel. He told the officers he understood that right. Owens told the officers that he did not wish to speak to a lawyer right now.  Owens was taken to the police station and registered a blood alcohol concentration of twice the legal limit. After providing samples Owens was asked once more by the arresting officer if he wished to contact a lawyer. Owens responded that “the cat was out of the bag.”

At trial Owens argued that the breath samples should be excluded from evidence as his right to counsel was violated. Owens was convicted. Morneau J held that Owens had never invoked his right to counsel.

He appealed. The summary conviction appeal court disagreed with the trial judge. Miller J held that since Owens “did not unequivocally waive his rights, the collection of breath samples by the police before the respondent had a meaningful opportunity to contact counsel amounted to a violation of the respondent’s s. 10(b) rights.” [@para 12] Miller J concluded that the admission of the samples taken in this matter would bring the administration of justice into disrepute. Thus, she allowed the appeal, set aside the conviction and entered an acquittal. [@para 13]

The Crown successfully appealed to the Court of Appeal: 2015 ONCA 652.

Before turning to the issue on appeal the Court first considered whether leave should be granted. The Court found that the case was worthy of their consideration on both aspects of the test for granting leave:

First, it is important that lower courts have guidance regarding the correct analytical approach to applications under s. 10(b) of the Charter. The issue raised in this appeal, specifically, concerns whether a detainee is obligated to establish an invocation of his or rights as prerequisite to a consideration of the issue of waiver. This is an issue that frequently arises in the context of drinking and driving offences, but has broader implications for any investigation in which a properly informed detainee elects not to invoke his or her right to counsel. Thus, the proposed question of law has broad significance for the administration of justice in Ontario. [@para 19]

Second, the appeal is meritorious.

Turning then to the merits of the appeal the Court noted that “the issue of waiver of s10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel. [@para 22]

A finding of invocation (or not) is “essentially a question of fact”. [@para 28]

The Court held that: “[o]n the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “No, not right now” did not qualify as an invocation of the right to counsel.” [@para 29]

So the answer to the question of law with a broad significance for the administration of justice in Ontario is: you can’t breach or waive what hasn’t been invoked.

LT

Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
[. . .]
An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases. 

LT

All Talk and No Action

Marshall and Wong were both found guilty conspiracy to commit robbery: 2015 ONSC 4593. There was no evidence that the conspiracy was ever carried out.

As part of a larger police investigation Marshall and Wong’s telephone conversations and text messages were being intercepted. Sixteen of those intercepts were filed as exhibits at trial. A police officer with expertise in coded language and slang testified about some of the words and language used in the recorded conversations. That said the ‘code’ used was neither sophisticated or particularly difficult to understand, essentially Marshall and Wong don’t use the term firearm but instead say ‘it’ or ‘one’ or ‘that thing’ or ‘the girl’.  Justice Code summarized the first of the sixteen intercepts as follows:

The first of the sixteen intercepts is the most important one. The parties agreed that the subject matter of this initial telephone discussion is a robbery. The call was made by Wong and it was received by Marshall on May 8, 2013 at 4:14 p.m. Wong immediately told Marshall that a man is "counting fifteen stacks right now". Marshall clearly understood Wong's reference to "fifteen stacks" and he replied by asking "where?" It is agreed that this exchange about a man "counting fifteen stacks" is a reference to money and I infer, in the context of all the evidence, that it likely means $15,000. Wong then asked Marshall, "you don't thing it, you don't have it?" Marshall replied, "I can get, I'm going for that right now". It is agreed that these cryptic terms -- "thing", "it", and "that" -- in the context of all the evidence, are references to some kind of offensive implement that Wong and Marshall needed in order to carry out the robbery that was under discussion. I am satisfied that these references, which are repeated and added to in the subsequent intercepts, are to a weapon of some kind and that they likely refer to a firearm, although the exact kind of weapon is not an essential element of the offence and it is unnecessary to decide whether it is a firearm or some other kind of weapon at this stage of the proceedings. [@para 9]

Another 15 exchanges took place between Wong and Marshall setting out their difficulties and frustrations as they tried and failed to find a weapon. There are spats between Wong and Marshall as they grow concerned that each is telling others of their score.

Their communications wind down and the two expressed their frustration at not having capitalized on the opportunity: “Marshall stated, "I'm cheesed ... we could've did something with that right here". Wong replied, "I know".” [@para 31]

Ultimately no robbery was ever committed. The only issue at trial whether the offence of conspiracy had been perpetrated.  

Code J stated the essential elements of the offence of conspiracy as follows:

it is now settled law that three essential elements must be proved by the Crown in a conspiracy case: first, an intention to agree; second, the completion of an agreement to commit an indictable offence; and third, an intention to carry out the agreement (which is sometimes referred to as the common design or as an intention to put the common unlawful design into effect [@para 40]

Defence argued “that the evidence disclosed mere talk, discussion and negotiation about a robbery, none of which can amount in law to an agreement.” [@para 41]

Code J rejected this argument and convicted Marshall and Wong. The Court held:

(…) that Marshall and Wong did reach an agreement to rob the man who had been seen counting money. Their agreement was conditional or was premised on Marshall securing a weapon that he had access to and it was conditional or premised on Wong checking with his "girl" in order to learn the present whereabouts of the man. In other words, it was an agreement to rob the man "if it is possible or propitious to do so", as explained in Mills and Root. The two conditions or premises -- concerning the weapon and the man's whereabouts -- related only to the parties' ability to successfully carry out the agreement. These conditions did not detract from the existence of an "overall dominant plan" to commit a criminal offence.[@para 49]

Although 16 intercepts were tendered Code J found that:

By the end of the second intercept, I am satisfied that an agreement had been reached to rob the man who had been seen counting money. The only rational inference from these two discussions between Marshall and Wong is that they were enthusiastically committed to a common goal of acting together in order to carry out a robbery. They assumed that Marshall would and could get his weapon, Wong had made inquiries as to the present whereabouts of the target of the robbery, and they agreed to meet in order to attempt the robbery. There was uncertainty as to the present location of the money but this was simply a contingency related to the ultimate success of the planned robbery. In all these circumstances, I am satisfied that there was an agreement between them to act together and carry out a robbery. [@para 51]

All talk and no action…. Still guilty. 

LT