Intentionally Present

Joseph Kennedy and Donald Schaeffer attacked a fellow inmate while in custody. Keith O’Loughlin decided to join in. He was convicted by a jury after trial, and appealed from conviction and sentence: R v O’Loughlin, 2017 ONCA 89.

The case for the Crown at trial was simple: video surveillance of the assault. The video depicted O’Loughlin first watching the assault intently, and then purposefully walking toward the bathroom, where the assault had moved. O’Loughlin was then seen peeling back a hand clutching the doorframe, and then moving his leg in a manner consistent with a knee strike: @paras 4-8.

After brief deliberations, a properly instructed jury convicted O’Loughlin. Trial counsel agreed that the jury could find O’Loughlin guilty as either a joint principal or as an aider: Section 21(1), Criminal Code of Canada. The jury was instructed that their verdict need only be unanimous in finding guilt, not as to the nature of O’Loughlin’s participation:  R v Thatcher [1987] 1 SCR 652.

At trial, the principal assailant –Kennedy– testified for the defence. He testified that O’Loughlin was not involved in the attack. Kennedy testified that O’Loughlin intervened to stop him from stomping on the victim’s head, saying, “Joe, that’s enough, that’s enough”. The defence position at trial was that while O’Loughlin was present for the assault, he was not participating: @ para 9. This position was rejected by the jury.

The Ontario Court of Appeal reviewed the video surveillance evidence. They found no basis to interfere with the verdict. The video formed a sufficient basis on which the judge could instruct that O’Loughlin could be found guilty. As such, the appeal was dismissed. The appeal from sentence was allowed, but also dismissed: @paras 18-28.

Comment

In writing for a unanimous court, Watt J. highlighted that O’Loughlin’s presence was not accidental. This was not a case of simply being “in the wrong place at the wrong time.” His presence during the assault was “intentional”, and his involvement was “active”: @para 16. While “mere presence” or “passive acquiescence” is not enough to establish criminal liability as a party (see R v Kirkness, 1990 3 SCR 74; R v Dunlop, [1979] 2 SCR 881), in this case, the takeaway point from the Court of Appeal is clear: presence itself during a crime does matter, and it is not necessarily innocent.   

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Looked like a gun, walked like a gun, quacked like a gun

Dirie and Omar were both convicted of weapons possession offences. The sole issue at trial was identity. An apartment building equipped with a surveillance system captured the crime in progress. The trial judge found, beyond a reasonable doubt, that the two men in the footage were Dirie and Omar. She compared the men in court to the security footage, and gave some weight to the evidence of a police officer who had encountered Dirie on many occasions and who also recognized him in the footage. His posture and the way he spoke out of the side of his mouth were notable features. The trial judge also concluded the objects brandished by Dirie and Omar in the footage were loaded, restricted weapons.

Dirie and Omar appealed their convictions for a number of reasons: R v Dirie, 2016 ONCA 502.

In relation to the footage, both Dirie and Omar argued that the quality was too limited for identification purposes, and that it was an unreasonable finding of fact that the objects held by the individuals in the video were determined by the trial judge to be loaded restricted firearms. Dirie argued that the distinct features which the officer testified about should not have been considered by the trial judge in identifying him. Omar argued that the trial judge ignored the fact that no clothes matching the clothes in the footage were discovered after a search warrant was executed: @ paras 4, 5.

The Court of Appeal, in a brief decision, rejected all of Dirie and Omar’s arguments. The Court found it was clear from the trial judge’s reasons that she was “alive to the risks inherent in identification evidence”, and that she properly instructed herself in accordance with the principles articulated in R v Nikolovski, [1996] 3 SCR 1197. The trial judge determined the video was of sufficient clarity and quality for comparison purposes, she reviewed the footage multiple times, and, in comparing the images to Dirie and Omar, she was entitled to rely on the relevant police evidence at trial: @ para 7.

The trial judge also recognized the significance of the footage to the Crown’s case, and did so by expressly averting to the fact that the search executed did not assist the Crown: @ para 8.

Regarding the trial judge’s finding that the objects in possession of Dirie and Omar were loaded and restricted weapons, the Court of Appeal concluded there was “ample evidence” to support the trial judge’s finding, including “the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, which was captured on video”: @ para 10.

Comment

This is another recent case from the Court of Appeal (see also R v Benson, 2015 ONCA 827) which highlights the increasing importance of surveillance footage as effective (and, as in this case, sometimes critical) evidence for the Crown to lead in cases where identity may be difficult to prove. The utility of such footage is obvious: not only can it sometimes assist the trier of fact in reaching a possible determination as to identity, but it may also assist in the possible identification of other crucial details, including the possession of weapons.

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Sexual Assaults are Acts of Power, Aggression and Control

On November 8, 2011 Christopher Edgar forced his way into a woman’s apartment. He put her in a chokehold. He ordered her not to scream. Once he had forced his way in, he locked the door and released the complainant. He started ranting about a police chase and drugs. Edgar was red and sweaty; possibly high - he paced angrily and erratically between the complainant and her front door while making telephone calls. The complainant was terrified. She asked if she could smoke cigarettes and drink tea on the balcony. Edgar allowed it. The balcony was the only place, aside from her front door, where the complainant could possibly go.

When first on the balcony, Edgar told the complainant that before he left, they had to have an agreement – but first, he needed her to come inside and watch him masturbate. The complainant complied. She sat on the couch near Edgar while he masturbated by putting his hands down his pants. He did not expose his penis or touch the complainant. After a few minutes, Edgar asked the complainant when her husband was going to be home. She told him soon.

By this point, Edgar had been in the complainant’s apartment for about an hour. The complainant’s terror had mounted. In fear of being raped or killed, she ran out on the balcony, and dove over the railing. She fell 12 feet to the ground, and broke both of her ankles.  She screamed for help and tried to run away [@ paras 5-6].

Edgar was found guilty after trial of sexual assault. On appeal, he argued that because there was no overt interference with the complainant’s sexual or bodily integrity, the trial judge erred in convicting him.

The Court of Appeal did not agree: 2016 ONCA 120. To commit a sexual assault, it was not necessary for Edgar to have touched or even verbally threatened the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity.  Coupled with a present ability to carry out the threat, this conduct can amount to a sexual assault [see R v Cadden (1989) 48 CCC (3d) 122 (BCCA) and R v Johnson, 2006 CanLII 37519 SCJ)]. 

The Court of Appeal rejected giving Cadden and Johnson a narrow interpretation that required overt acts combined with verbal demands made of the victims. Rather, the Court found that Edgar’s act of masturbation was elevated from an indecent act to a sexual assault because of the surrounding circumstances of sexualized violence, control, and confinement that he created, and to which he deliberately subjected the complainant. The Court of Appeal held that it was those same types of circumstances that informed the decisions in both Cadden and Johnson [@ paras 12-15].

Further, the Court went on to emphasize, as was done in Cadden, that sexual assault is “an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act” [@ para 16]. In this case, Edgar had intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her [@ para 16].

The Appeal was dismissed. Viewed in the context of the entire circumstances, Edgar’s acts indeed constituted a sexual assault [@ para 17].

Comment

Sexual assault prosecutions are difficult prosecutions for complex reasons. It is an area of criminal law that faces a myriad of legal nuances and engrained biases that are absent from other types of criminalized conduct. The Court of Appeal’s comments in Edgar highlights that the focus in sexual assault cases is largely centred on the integrity and subjective experiences of the complainant, and in this case, the surrounding circumstances which inform those experiences. The sexual integrity of the complainant is a paramount consideration, and the intent is only general. The Court’s reasons in Edgar are very clearly aligned, and properly so, with the Supreme Court’s decision R v Chase [1987] 2 SCR 293.

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The silent witness sees it all

John Benson and Brian Timmons were neighbours. At first, they were friendly. It didn’t stay that way. Things deteriorated. One day, Timmons was working on fixing a borrowed truck. Benson set it ablaze. Timmons suffered minor burns, and property damage.

Unfortunately for Benson, he was caught on video. At trial, there was video of Benson approaching the truck with something in his hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back. This evidence was critical. The sole issue was identity. Timmons watched the video, and testified that the man was Benson. Benson was convicted of four arson related charges.

On appeal, Benson raised three issues: 2015 ONCA 827. Two of those arguments concerned the surveillance footage. Benson argued that the trial judge:

  1. Did not consider the effect of the evidence of the Crown’s expert forensic video analysis on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.
  2. Failed or refused to engage in any analysis concerning Timmons’ credibility, based on animus, his history of criminal misconduct, and that he lied to the trial judge about that misconduct.

The appeal was dismissed with reasons.

The Background

Timmons testified that he and Benson had known each other for at least six years. On the day of fire, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The fire department was called by a passerby. When they arrived, Timmons insisted he had set it on fire accidentally. He testified that he did not want the hassle of involving the authorities. A surveillance system had been installed by Timmons, which he had forgotten about. Timmons was reluctant to turn over the tapes. He believed he had caused the fire himself. Once he reviewed the video with police, Timmons immediately identified Benson as the fire starter [@ paras 8-12].

The Expert Video Evidence

With respect to the first issue, the Crown had adduced the video evidence at trial. The police expert who tendered the video evidence was called as a forensic video analyst. His evidence was relevant as to whether or not the video was in any way compromised or altered. When it is determined the video was not altered or changed and that it accurately depicts the scene, the video may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events [@ para 13-15, see R v Nikolovski, [1996] 3 SCR 1197 @ para 28]. 

In regard to video quality, the pixilation of the video was noted. It could not be further enhanced, which the trial judge took note of. However, whether the video was of sufficient quality to form the basis for identification was a question of fact for the trial judge, and of limited jurisdiction for review [@ para 16-18, see R v Abdi, 2011 ONCA 446 @ para 6]. In this case, the quality of the recording was relevant to the trial judge’s consideration of the content of the video, when determining what weight to give Timmons’ observations and identification of Benson. There was no need to give further consideration to the expert’s opinion, as those who are not acquainted with the accused are in no better position to identify persons in video evidence [see R v Leaney, [1989] 2 SCR 393]. The trial judge did not make a positive identification of Benson. He relied on his own observations and those of Timmons’ in making his decision on Benson’s guilt.

The Video Identification Issue

With respect to the second issue, the trial judge found Timmons to be a credible witness. While appellate courts retain power to reverse decisions where credibility assessments made at trial are not supported by the evidence, this is done sparingly. Interference with these rulings happens only in exceptional circumstances [@ paras 19-21; see R v W(R), [1992] 2 SCR 122 @ para 131, R v Burke, [1996] 1 SCR 474 @ para 5-7).

Specifically on the issue of Timmons identifying Benson, the trial judge noted a number of observations in the video in conjunction with Timmons’ evidence that he was 100% sure that the person in the video was indeed Benson:

  • The way he moved his arms;
  • The way he walked;
  • The way he limped as he was moving;
  • His Einstein hairstyle;
  • His face;
  • His body shape;
  • His thinning hair;
  • His age;
  • His build;
  • His enlarged stomach; and
  • The plaid shirt he always wore [@ para 23-24].

In cases of recognition evidence, such as this, the caution regarding the frailties of eyewitness identification still applies [@ para 25; see R v Olliffe, 2015 ONCA 242 @ para 39]. However, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. The reliability of the evidence was enhanced by their relationship and familiarity with one another [@ para 25]. Further, the ability of a witness to point to a unique identifiable characteristic or idiosyncrasy is a concern better resolved when determining ultimate reliability, not admissibility [@ para 26; see R v Behre, 2012 ONCA 716 @ para 22].

Comment

This case again highlights the powerful nature of video evidence, especially when combined with the observations of witnesses. Although eyewitness identification evidence can be problematic, it remains important and forward-thinking law that witnesses who recognize persons captured by camera ought to be able to testify as to that knowledge – even in cases where the quality of the footage itself is less than ideal. In this case, Timmons clearly pointed out unique, distinctive, and recognizable features that signalled, to him, the person was Benson. These features were noted by the trial judge to be badges of reliability of identification. The trial judge’s own observations, when watching the video, were consistent with that of the witness [see paras 26-27]. Video evidence is an integral part of the truth-finding process. The impartiality it offers as a silent witness cannot be understated. 

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Burning Down the House (Generally Speaking)

Paul Tatton had a drinking problem. On September 10, 2010, he grew upset and jealous that his ex-girlfriend would be away in Kingston. At the time, he was living in a guest room at her home. Mr. Tatton began to drink heavily that day, and continued drinking into the evening. Eventually, Mr. Tatton passed out. When he awoke in a drunken state, Mr. Tatton placed a pan with vegetable oil on the stove, set the burner to high, and left the house to get a coffee at Tim Horton’s. When he returned, the house was up in flames. Although the home was salvaged, the fire destroyed all of the contents inside [para 1-7].

Mr. Tatton was charged with arson causing damage to property under s. 434 of the Criminal Code. At trial, he insisted the fire was an accident. He thought he had set the temperature to low, and did not intend or foresee the consequences of his actions. A central issue at trial was whether Mr. Tatton had the requisite intent to commit the offence, and more particularly, if the court could consider his state of self-induced intoxication [para 8].

The trial judge determined that s. 434 was a specific intent offence, which allowed for the defence of intoxication to be raised. Mr. Tatton was acquitted. Although the majority of the Court of Appeal upheld his acquittal, Goudge J. dissented, and would have allowed the appeal and ordered a new trial. The Crown then appealed to the Supreme Court of Canada as of right: R v Tatton, 2015 SCC 33.

The main issue squarely before the Supreme Court was whether arson is a specific or general intent offence. This required the Court to undertake a review of how the distinction between these types of offences should be drawn. Ultimately, the Court adopted the Crown’s position, finding that arson is an offence of general intent. As a result, self-induced intoxication falling short of automatism is not available as a defence [paras 8-20. See generally R v Daviault, [1994] 3 SCR 63 and R v Bernard, [1988] 2 SCR 833].

In writing for the majority, Moldaver J. recognizes that drawing the distinction between general and specific intent offences “continues to perplex counsel and trial courts alike…the task has proved formidable to those who have been schooled in criminal law, and daunting to those who have not” [paras 22, 35]. The Court highlights that legislative intervention is “sorely needed” to spell out the mental element of offences to address this confusion [paras 22, 25].

In beginning his analysis, Moldaver J. relies on R v Daviault as a starting point. Daviault outlines that distinguishing between general and specific intent offences is a two-step process:

First, there is an examination of the nature of the mental element and its relative      importance to the crime in question.
Second, there is a consideration of the social policy sought to be attained by criminalizing the particular conduct [para 26, citing Daviault].

In Daviault, Sopinka J. specified that general intent crimes involve “the minimal intent to do the act which constitutes the actus reus”, and also tend to be “offences that persons who are drunk are apt to commit.” In contrast, specific intent crimes are those which “require a heightened mental element” and often include “the formation of further ulterior motives and purposes.” On the one hand, as more complex thought and reasoning processes are required for specific intent offences, it is more readily understandable how intoxication short of automatism may negate the require mental element for these types of crimes. On the other hand, allowing intoxication to operate as a defence to general intent crimes would contradict the social policies underlying them [paras 27-28].

Relying heavily on the principles set out in Daviault, Moldaver J. then offers the following further clarification in identifying the type of intent of a particular offence:

  • The starting point is determining the required mental element. This is an exercise in statutory interpretation, not a factual assessment [para 30].
  • The next question is determining whether the crime is one of general or specific intent. This is not a precise science – logic, intuition, and policy all play a part [para 31].
  • Existing jurisprudence may have already determined the appropriate classification of a particular offence. Where done so satisfactorily, there is no need to examine the question again [para 32].

Moldaver J. then turns to addressing two additional questions left unanswered by the court in Daviault [para 33]:

  1. What is meant by the “importance” of the mental element?
  2. Do policy considerations always come into play, or only if an examination of the mental element leaves the classification of the offence still unclear?

First, in addressing “the importance” of the mental element, Moldaver J. clarifies that what was meant was an assessment of “the complexity of the thought and reasoning processes that make up the mental element of a particular offence.”

General intent crimes require little mental acuity. They are straightforward, and do not require an intent to bring about certain consequences external to the actus reus [paras 34-26].

In contrast, specific intent offences involve a heightened mental element. While in Daviault the court limited its discussion to specific intent crimes where an ulterior motive is involved, Moldaver J. clarifies that an ulterior motive is not always required. Instead, there could be knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes [para 37-40].

Second, Moldaver J. writes that only if the analysis of the thought and reasoning processes required fails to yield a clear answer should policy considerations come into play. The nature of the mental element itself is already intertwined with policy considerations. If no clear answer is apparent, assessing whether alcohol consumption is habitually associated with the crime in question may be of assistance. If it is, then allowing an accused to raise self-induced intoxication as a defence would seem counterintuitive, and the offence is likely one of general intent. If it isn’t, then the offence would likely be one of specific intent.  Other residual policy considerations, such as the inclusion of a lesser included general intent offence and judicial sentencing discretion, may also come into play.

In the context of determining the intent requirement for arson causing damage to property, Moldaver J. makes the general observation that alcohol habitually plays a role in crimes involving violent or unruly conduct, and that alcohol also tends to be prevalent in crimes involving damage to property. While there are exceptions (such as murder), the Court concludes that it makes little sense from a policy perspective that self-induced intoxication is a defence available where people or property are harmed or endangered. [41-45].

Applying the legal framework set out in the Court’s decision, the Supreme Court ultimately concludes that the offence of arson causing damage to property is one of general intent. The actus reus is the damaging of property by fire. The mental element is the intentional or reckless performance of the illegal act – the causing of damage to property. No additional knowledge or purpose is needed. The level of intent required would appear to be minimal. Having determined the intent requirement as being general, the Court then moves on to provide a thorough assessment of how the intent required under s. 434 should be made out, given it “can be a tricky exercise” [paras 48-54].

In Mr. Tatton’s case, the Supreme Court also determined that the trial judge’s erroneous conclusion that the offence was one of specific intent, and that intoxication was an available defence, played a material role in the outcome [see R v Graveline, 2006 SCC 16]. For these reasons, the appeal was allowed, the acquittal set aside, a new was trial ordered.

Comment:

Tatton is a two-fold decision. Not only does the Court expressly offer a detailed review of the framework for assessing how to distinguish between general and specific intent offences, the Court’s reasons for why s. 434 is a general intent offence is bound to have a broader impact on the intent requirement for the other arson-related provisions in the Criminal Code.

Further, while the Court did not set down a “general rule”, the express reference to the common intersection between alcohol use and crimes of violence was notable; suggesting that allowing self-induced intoxication to be raised in such cases would be illogical and counter-intuitive to good public policy.

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Prelim Evidence Not to be “Shorn of Context”

Along with his co-accused, Jeremy Hall was committed to stand trial on a charge of second-degree murder. At the preliminary inquiry, the Crown properly established that there was circumstantial evidence upon which a trier of fact could find that it Hall's actions satisfied the elements of second-degree murder and he was committed to stand trial.

Hall sought to have his committal quashed. The Superior Court of Justice refused to do so. Hall then appealed: 2015 ONCA 198.

On appeal, he advanced two arguments. Each alleged that the preliminary inquiry judge misapprehended the evidence adduced, and drew impermissible inferences about the actus reus and mens rea of second-degree murder.

As the case for the Crown included circumstantial evidence, the Court of Appeal recalled that the preliminary inquiry judge was entitled – indeed, obliged – to engage in a limited weighing of all the evidence adduced, in order to determine if on the whole of the evidence, it would be reasonable for a properly instructed jury to infer guilt This limited weighing involves an assessment of the reasonableness of the inferences to be drawn. [See para 5, emphasis added. See also R v Arcuri, [2001] 2 SCR 828].

The Court of Appeal emphasized the importance of considering the whole of the evidence in this weighing exercise, stating:

The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be [emphasis added]. [para 6]

For these reasons, Hall’s appeal was dismissed. Whether a properly instructed jury would ultimately convict him, in the opinion of the Court of Appeal, is beside the point.

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Cutting No Slack on Quantum in True Crime Sentencing

Andre O’Mar Slack was sentenced to eight years imprisonment in a federal penitentiary for weapons-related offences. His convictions included the possession of a loaded restricted firearm, and the unauthorized possession of a firearm – contrary to sections 95(1) and 91(1) of the Criminal Code. His 95(1) conviction was stayed in accordance with Kienapple.

Slack appealed from sentence based on two grounds.

First, Slack argued the sentencing judge erred in failing to grant enhanced credit at the rate of 1.5:1 for pre-sentence custody.

Second, Slack argued the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Code as a “sentencing floor”, when the mandatory minimums in both R v Nur, 2013 ONCA 677 and R v Charles, 2013 ONCA 681 (both cases subsequently heard and reserved on November 7, 2014 at the Supreme Court of Canada) were held to unconstitutional [paras 5-6].

Slack’s first ground of appeal was successful. Based on Slack’s institutional conduct, the sentencing judge had declined to grant any enhanced credit for pre-sentence custody, finding that enhanced credit was not necessary to achieve a fair sanction based on the Court of Appeal’s decision in R v Summers, 2013 ONCA 147. However, the sentencing judge did not have the benefit of the Supreme Court’s decision in Summers (2014 SCC 26). Writing for the Supreme Court, Karakatsanis J outlined that pre-sentence custody is generally sufficient to give rise to the inference that the offender has lost eligibility for parole or early release, which in turn justifies enhanced credit. It falls to the Crown to challenge this inference. The Crown can advance such a challenge by demonstrating that the offender’s bad conduct renders it unlikely that parole or early release will be will be granted: see Summers, supra and R v Houlder, 2014 ONCA 372 [para 10-15].

Here, it fell to the Crown to counter the available inference. While Slack had three documented incidents of misconduct during his pre-sentence custody, the Court of Appeal concluded the sentencing judge fell into error by denying enhanced credit based solely on this evidence. Slack’s institutional record was thin, and the Crown was unable to demonstrate such misconduct would disentitle him to parole or early release. Further, the authority to deny statutory release is narrow, and unlike the regime which applies to provincially-incarcerated inmates, loss of credit towards early release is not a sanction that may be imposed for misconduct under the Corrections and Conditional Release Act (CCRA). The minor incidents which took place in pre-sentence custody did not give rise to the type of reasonable grounds required to demonstrate a denial of parole ineligibility or early release [paras 16-20].

Although the Court of Appeal set aside the sentencing judge’s determination of credit and substituted credit to be granted at 1.5:1, Slack’s second ground of appeal failed, regarding the quantum of sentence imposed.

The Court of Appeal clarified that while the mandatory minimums in Nur –three years for a first conviction under s. 95(1) – and the companion case Charles –five years for a second or subsequent conviction under s. 95(2)(a)(ii) and s. 95(1)– were both struck down, nothing in those cases displaced the developed sentencing range applicable to offenders convicted of a second or subsequent s. 95(1) offence. Both Nur and Charles affirm that offenders convicted of “truly criminal conduct” in relation to firearms offences must receive exemplary sentences that emphasize deterrence and denunciation [para 23].

Slack’s case was just that: one of true crime. It was his second s. 95(1) offence. He had a lengthy criminal record, which included convictions such as the use of an imitation firearm during the commission of a robbery, assault, trafficking in a scheduled substance, and breaching a firearm prohibition order [para 24].

Further, the Court highlighted that Slack was in unauthorized possession of loaded, restricted firearm in circumstances that posed a real and immediate danger to the public. The gun was readily accessible in an unlocked, running car; which Slack had abandoned in a public parking lot, in broad daylight. Given his serious and lengthy record, the nature of the predicate offences, and the four-year sentence received for his first s. 95(1) offence, the Court of Appeal concluded that Slack’s conduct could only be viewed as falling at the “true crime” end of the s. 95(1) spectrum discussed in Nur and Charles. The convictions cried out for a substantial penitentiary sentence [paras 25-26].

For these reasons, there was no basis to interfere with the eight year sentence imposed by the sentencing judge for the firearms-related offences. Therefore, the Appeal was only granted in part, with respect to the pre-sentence custody.

Comment

This case highlights that the impact of the Summers decision on the granting (and challenging) of enhanced credit is necessarily different depending on whether the offender is serving a provincial or federal sentence - different regimes govern early release. Still, while Slack was found to be entitled to this credit, the Court was unequivocal that the quantum of sentence imposed was justified given the “true crime” nature of both the offences, and Slack’s consistent pattern of criminal conduct. The striking down of the mandatory minimums in Nur and Charles, which the Supreme Court has yet to rule on, does nothing to negate the often serious penitentiary sentences required in cases such as these.

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Pop Bottles, Pizza Boxes, and Powerful DNA: R v Mufuta

Muamba Mufuta was caught peering down at an unsuspecting woman in a bathroom stall. The only issue at trial was identity. He did not testify at his trial. His sole ground of appeal was whether the verdict was unreasonable: 2015 ONCA 50.

The complainant could not identify the perpetrator, other than by providing a generic description of him as being black with a shaved head. Shortly before the incident occurred, three black men entered the restaurant and ordered food and drinks. They all fit the general description of the voyeur: para 4-5.

After the incident, police seized a partially full bottle of pop from the top of the toilet tank in the washroom stall where the victim had seen the perpetrator. On subsequent testing, the appellant’s DNA was identified and found on the mouth of the pop bottle. A DNA expert testified at trial that forensic examination of the bottle yielded only a single source of DNA. She also testified that Mufuta was the last person to drink from the bottle: paras 6-7.

The restaurant washrooms were cleaned daily, and so the bottle would have been placed there sometime on the day in question. Only one of three scenarios could have occurred: Mufuta was the voyeur, Mufuta left the pop bottle in the bathroom earlier that day, or another man, of similar appearance, carried the pop bottle into the washroom and committed the offence. The trial judge concluded that the latter two scenarios were speculative, unlikely, and totally lacking in evidentiary support: paras 12-13.

On appeal, Mufuta primarily relied on R v Mars, (2006) 206 OAC 387 and R v Wills, 2014 ONCA 178, to argue that the DNA evidence, standing alone, was not capable of supporting the inference that he was the man who was the man seen by the complainant. Further, he argued that the trial judge erred in presuming that the mere presence of his DNA on the pop bottle was highly inculpatory: para 21.

The Court of Appeal upheld the trial judge’s decision.  The Court found Mufuta was understating the significance of the presence on DNA, and that it was a powerful piece of evidence linking him to the scene of the crime. Further, while it was the centrepiece of the Crown’s case on identification, it did not stand alone: para 24.

The Court went on to distinguish the case at bar from both Mars and Wills, commenting that their reference was misplaced.

In Mars, the victim heard a knock at his door and observed an unmasked man holding a pizza box. When he opened the door to decline the pizza, three men swarmed into the house. The victim could not identify the man holding the box, but a neighbour saw “three black youths” running away from the house. The pizza box contained three fingerprints, one of which matched that of Mars. However, at trial, it was established that the date of the fingerprint was indeterminable, and that because Mars was white, the neighbour’s evidence effectively excluded him as one of the robbers: paras 28- 32.

In Wills, two men wearing bandannas forcibly entered a home. One of the men attacked one of the occupants with a baton. During the attack, the victim pulled a white bandanna from the assailant’s face. The police later found the white bandanna, and upon testing, the DNA of at least three people was found on it. At trial, a DNA expert testified they were unable to estimate how long the DNA had been on the bandanna, and that it was also possible no DNA could have been left behind by the intruder wearing it. The home occupants could not identify their attackers. While the Court concluded that the inference it was Wills who wore the bandanna could not be based exclusively on the DNA evidence, the inference of guilt was otherwise supported on the facts. Unlike in Mars, there was also no exculpatory description of the assailants: paras 33-39.

After reviewing these cases, the Court concluded that the fact that only Mufuta’s DNA was found on the pop bottle increased the probative force of the DNA evidence, connected him to the scene of the crime, and supported the inference that he left the bottle in the washroom. It also rendered less reasonable any inference that someone other than Mufuta used the pop bottle: para 40.

Further, in contrast to both Mars and Wills, there was evidence that supported the inference that the DNA had been deposited around the time of the offence:

  • Mufuta was the last person to drink from the bottle.
  • The bottle was part-full, suggesting recent deposit of the DNA.
  • Given the washroom cleaning schedule, it had to have been left in the washroom that day.
  • The pop bottle was in the women’s washroom, a place Mufuta had no right to be.
  • The bottle was found in the exact stall used by the voyeur [para 41].

The Court found the case to be analogous to the decisions of R v Dewar, 2003 CanLII 48229 (ONCA) and R v Gauthier, 2009 BCCA 24. In Dewar, a pop bottle was found with the accused’s DNA on it, along with his co-accused. The co-accused pled guilty. There was no innocent explanation for the presence of Dewar’s DNA on the bottle in the manager’s office of a burglarized shop. In conjunction with the other facts in Dewar, the trial judge’s reasoning was not speculative and the verdict was not unreasonable: paras 43-44.

In Gauthier, the accused advanced only speculative exculpatory hypotheses for how a beer bottle with his fingerprint on it was found on the victim’s bed. Again, in conjunction with the other available evidence, the only reasonable explanation was that Gauthier had been the intruder: paras 45-46.

Ultimately, the Court of Appeal found that the trial judge expressly considered whether Mufuta’s guilt was the only reasonable inference to be drawn from the facts established on the whole of the evidence: R v Cooper, [1978] 1 SCR 860. There was no basis to interfere with the trial judge’s conclusion. On the totality of the evidence, there was no evidentiary foundation for any explanation of the presence of a partially-consumed pop bottle, bearing Mufuta’s DNA, in the exact washroom stall used by the perpetrator, other than that he was the voyeur. Mufuta’s appeal was dismissed.

SS

Manslaughter & Sentence: Riskiness is Aggravating

Toronto florist Felicia Hosany died a horrific death at the hands of Nevin Joseph and Andre Clarke. The two men stormed Hosany’s flower shop in the winter of 2008. They were wearing masks, and their purpose was to rob her. During the attack, Clarke bound Hosany’s entire face so tightly with duct tape that she died of suffocation.

A jury convicted Clarke of manslaughter. Dambrot J, of the Superior Court of Justice, sentenced Clarke to a global sentence of 18 years imprisonment, less pre-trial custody. Clarke appealed from both conviction and sentence: 2014 ONCA 777.

With respect to his sentence appeal, Clarke advanced two arguments.

First, Clarke argued that the trial judge erred by attributing a specific state of mind to him – recklessness as to the likelihood of death – that was at odds with the jury’s verdict of manslaughter.

Second, he argued that a sentence of 18 years was outside the typical range for manslaughter [para 15].

Concerning the first argument, Clarke submitted that the jury must have accepted only one of two facts in reaching their verdict: that Clarke either did not bind the victim, or, that he bound her, but left a hole in the duct tape for Hosany to breathe through [para 16].

The Court of Appeal rejected these submissions. At trial, Dambrot J concluded that “the circumstances of the case lead…inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing put her at risk of death – but he did not care” [para 18, emphasis added]. The Court of Appeal concluded the trial judge was permitted to make such a finding, and did not err in citing Clarke’s knowledge of the risk of death as an aggravating factor [paras 18-19].

Clarke’s acquittal from first degree murder implicitly demonstrated that the jury was not satisfied beyond a reasonable doubt that Clarke either intended to kill the victim, or that he knew that what he was doing was likely to cause death. As such, these conclusions would not have been open for the trial judge to reach [para 21].

The mens rea for manslaughter is the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required: R v Creighton (1993), 83 CCC (3d) 346 (SCC). Although a foreseeability of the risk of death is not required, such a mental state is not precluded for a manslaughter conviction [para 24]. In fact, as what occurred in this case, the foreseeability of the risk of death can be an aggravating factor in the imposition of a harsher sentence for manslaughter [para 24].

The Court of Appeal accordingly concluded that the trial judge was entitled to make such a factual finding. Further, in using the term “inexorably”, it was clear to the Court of Appeal that Dambrot J was satisfied of this factual finding beyond a reasonable doubt, as is required for aggravating factors upon sentence [para 25].

Concerning the second argument, the Court of Appeal concluded that the trial judge gave extensive and compelling reasons for the sentence imposed. While it was outside of the “normal range”, it was not demonstrably unfit. The trial judge was entitled to deviate from the range, based on circumstances that distinguished this case significantly. The offence was one of extreme gravity; Clarke was an offender of high moral culpability. There were callous, aggravating features, including the horrifying and intimidating treatment of the victim [para 31, 34 and 37].

For these reasons, Clarke’s sentence appeal was dismissed. The trial judge did not err in the crafting of his sentence. A global sentence of 18 years imprisonment, less pre-trial custody, was upheld.

SS

Big is Back: R v Mack

A few months back, fellow MCL blogger Brian Holowka reviewed the latest pronouncement from the Supreme Court of Canada in R v Hart regarding Mr. Big operations: The Mr Big Operation: The SCC constrains but does not eliminate the practice.

In the Hart decision, the Supreme Court created a new common rule that now governs whether or not the results of a Mr. Big undercover operation should be admitted into evidence: R v Hart, 2014 SCC 52.

Hart was heard with a companion case:  R v Mack, 2014 SCC 58. Mack was convicted at trial of first-degree murder. During the course of an undercover Mr. Big operation, Mack confessed to killing his roommate. He provided the undercover officers with a number of details about the murder, including the reasons he did it and the location of the body’s remains – which Mack had reduced to ashes. The Mr. Big confessions went to the jury for consideration, with an instruction from the trial judge that addressed any concerns about the confession’s reliability and potential for prejudice [para 56].

Mack appealed from conviction to the Alberta Court of Appeal, where his conviction was affirmed: 2012 ABCA 42.

On appeal to the Supreme Court, Mack advanced three arguments. Two of the three were concerned with the evidence gleaned from the Mr. Big operation. Mack argued that:

  1. The trial judge should have excluded the confessions he made to the undercover officers pursuant to s. 24(2) of the Charter; and,
  2. If the confessions were admissible, the charge to the jury was inadequate as to the dangers associated with them [para 2].

With respect to the first argument, the Supreme Court began by recognizing that Mack did not have the benefit of advancing an argument that the confessions should have been excluded pursuant to the new Hart framework. The two-pronged Hart rule dictates that a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative value, or where it is the product of an abuse of process [para 32].

The Court applied the Hart framework to Mack’s case. The first prong involves a balancing of the probative value of the confession against any prejudicial effect.

Concerning the confession’s probative value, the Court found:

  • The inducements provided by the officers were modest;
  • The Appellant had well-paying, legitimate work readily available to him;
  • The Appellant was not threatened by the officers;
  • The Appellant was told that he could decline to say anything, an option he initially accepted [para 33].

Further, the Court concluded that there was “an abundance of evidence” that was potentially confirmatory. This included:

  • The testimony of two other witnesses that described the same motive for killing that Mack had told the undercover officers;
  • The fact that the Appellant led the undercover officers to a fire pit where his roommate’s remained lay yet undiscovered; and,
  • The fact that shell casings fired from a gun found in the Appellant’s apartment were found in the same fire pit the Appellant led the officers to.

These factors, taken together, made the confession “highly probative” [para 34].

Concerning the confession’s prejudicial effect, the Court found any prejudice was limited. The Court considered that:

  • Mack did not partake in any scenarios that involved violence;
  • The operation did not reveal prejudicial facts about the Appellant’s past history; and,
  • Mack’s role was limited to assisting with the repossession of vehicles and delivering of packages [para 35].

The Court concluded that “any prejudicial effect arising from the Mr. Big confessions is easily outweighed by their probative value” [para 35]. Under the first prong of the Hart test, the confessions would have been admitted.

The second prong of the Hart framework involves determining whether the police officers conducting the Mr. Big operation engaged in any improper conduct, that could ground an application for abuse of process [para 36]. Here, the Supreme Court found that:

  • Mack was not presented with overwhelming inducements;
  • Mack had legitimate prospects for work, that would have paid even more than what the undercover officers were offering;
  • The officers did not threaten Mack with violence if he didn’t confess ; and,
  • The officers made it explicitly clear that Mack did not have to speak with them [para 36].

The Supreme Court found that at most, the officers created “an air of intimidation” by referring to violent acts committed by members of the fictional organization, but this did not mean that Mack was coerced into confessing [para 36].

Under the second prong of the Hart test, the confessions would also have been admitted.

Although the Court ultimately dismissed Mack’s first ground of appeal for the exclusion of evidence based on s. 24(2) of the Charter, the Court also concluded that the confessions would “clearly be admissible under [the Hart] framework” [para 32]. As such, Mack’s first argument was dismissed.

With respect to the second argument, the Court reiterated that there are two major evidentiary concerns arising out of Mr. Big operations: the reliability of such confessions, and the bad character evidence that invariably accompanies them [para 43].

The Court found that while the Hart rule is intended to respond to these concerns, it does not purport to erase them entirely. It falls to the trial judge to adequately, but not perfectly, instruct the jury as to how to approach these confessions in reaching a verdict [paras 44, 48].

The approach taken by the British Columbia Court of Appeal in both R v Terrico, 2005 BCCA 361 and R v Fry, 2011 BCCA 381, was endorsed by the Supreme Court. Jury instructions that pertain to Mr. Big operations should be subject to a contextual, case-by-case review. There is no “magical incantation” that must be read to juries in all Mr. Big cases; the nature and extent of instruction will vary from case to case [para 49].

The Court did offer some additional guidance, but no prescriptive formula, for trial judges to consider when instructing a jury. Juries should be informed that the reliability of such a confession is a question for them to answer, and will necessarily be impacted by both the circumstances in which the confession was made and the details contained in the confession itself [para 52].

As articulated in Hart, the trial judge should alert the jury to:

  • The length of the operation;
  • The number of interactions;
  • The nature of the relationship established;
  • The nature and extent of inducements offered;
  • The presence of any threats;
  • The conduct of the interrogation itself; and,
  • The personality of the accused [para 52, citing Hart at para 102].

Further, the trial judge should discuss that the confession itself may contain markers of reliability or unreliability. Juries should consider whether the confession led to the discovery of additional evidence, whether it identified any elements of the crime not publicly known, or whether it described mundane details of the crime the accused would likely not have known had he not committed it [para 53, citing Hart @ para 105).

Finally, the Supreme Court emphasized that the jury should be reminded that such a confession is admitted for the limited purpose of providing context for the confession, and cannot rely on the confession to determine whether the accused is guilty. The jury should also be reminded of the state’s role in simulating and encouraging criminal activity [para 55].

On the second ground of appeal advanced by Mack concerning Mr. Big operations, the Court found that trial judge’s instructions were adequate and revealed no error [para 58]. As such, Mack’s argument was again dismissed.

Comment

In reviewing the Hart decision for MCL, Mr. Holowka properly highlighted that Mr. Big operations are often spawned due to a dearth of other evidence, the results of which may now be difficult to admit if corroborative evidence is lacking. However, the Mack decision places important emphasis on the fact that it is not to be presumed that prejudice, coercion, or abusive tactics are necessarily present in all Mr. Big operations. Courts must still be alive to the significantly probative evidence that this investigative technique can generate. Although Hart may have left the Mr. Big technique alive, but only barely; Mack offers vital resuscitation.

SS