Milling around in the World of Internet Privacy

Sean Mills was chatting online. He thought he was chatting to a young girl. He was, in fact, chatting with a police officer. The officer had created an online profile portraying himself as a 14 year old girl. Mills contacted him and then began to chat. Eventually a meeting was set up. Mills was arrested at the meeting. The police had captured the chats between Mills and the officer. The trial judge explained this process.

[6]        …  In order to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen.  Snagit is a screen shot program that captures video display and audio output.  Constable Hobbs employed the Snagit program on each of his communications with Mr. Mills. 
[7]        The “Snagit” program is a program that is available to the public and commonly used.

Mills was convicted after trial and appealed: 2017 NLCA 12. On appeal to the Newfoundland Court of Appeal the court considered (i) whether Mills had a reasonable expectation of privacy [REP] and (ii) whether there was an "interception" within the meaning of Part VI of the Criminal Code.

With respect to the REP issue, the court rejected the notion that Mills had an objectively reasonable expectation of privacy:

In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills’ subjective expectation of privacy in his communications with “Leann” and whether that subjective expectation was objectively reasonable in the circumstances.  Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm.  On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages.  He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust.  Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable.  In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged. [@23].

With respect to whether there was an intercept, the court held that an "intercept" requires the participation of a third party - the after-the-fact capture of the communication between two parties did not amount to an "intercept".

That language does not alter the ordinary meaning of an interception which requires the involvement of a third party.  Where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication meant for that person. 

Further, the fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.  Viewed from another perspective, if “Leann” had, in fact, been a fourteen year old girl, it could not be said that her receipt of the communications from Mr. Mills constituted an interception. [@13-14].

Mills is one in a series of recent decisions on these issues. The REP ruling is particularly helpful and an important one that helps the continuing body of law considering REP in an internet world post-Spencer. The "intercept" ruling is interesting. It is arguably a narrower interpretation of "intercept" than that advanced in Telus as it requires the direct involvement of a "third party" to constitute an intercept. 

DM

Common Privacy?

Matthew Wawrykiewicz was in a hotel room. There was a complaint. The police were called. They entered the hotel room. Found drugs. Wawrykiewicz was arrested. Later the police were able to identify another address connected to the accused – 105 The Queensway. The police began surveillance at that address. They later obtained and executed a warrant. They located more drugs.

At trial Wawrykiewicz sought to exclude the evidence found at 105 The Queensway – in part he argued that the initial entry into the hotel room was unlawful and thus the subsequent search at 105 was unlawful. The trial judge agreed, but admitted the evidence under s24(2): 2017 ONSC 569.

As part of the defence Charter motion, Wawrykiewicz argued that the police surveillance at 105 The Queensawy – which included surveilling him and Poulter (who was also found in the hotel) in common areas of that building – violated s8: see R v White, 2015 ONCA 508. The trial judge disagreed.    

Prior to White was authority for the proposition that there is little or no expectation of privacy in the common areas of an apartment building: R. v. Piasentini, [2000] O.J. No. 3319 (Sup.Ct.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.).  As Wein J. pointed out in Piasentini, a contextual analysis is required that requires applying the factors set out in R. v. Edwards1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

The court then reviewed rulings in R v Barton, 2016 ONSC 8003 and R v Brewster, 2016 ONSC 4133 noting and adopting, inter alia, the following factors set out in that latter ruling:

  • The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;
  • There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;
  • There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560 (CanLII);
  • There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings.  That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, supra;
  • Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.

Turning to the facts the court noted:

  1. The police conducted surveillance in the elevator, the lobby and on one of the floors
  2. Wawrykiewicz was observed exiting 1905 and using a key to lock the door
  3. Wawrykiewicz was observed using a key fob to gain entry into the building
  4. There was no evidence regarding the actual connection he had to this residence
  5. Wawrykiewicz had bail conditions that required him to reside at a different address

Based on these facts the judge concluded:

I accept that a person may have more than one residence, but in the absence of any further evidence I cannot conclude that Mr. Wawrykiewicz’s expectation of privacy at 105 The Queensway was high.  I therefore find that he had even less of an expectation of privacy in the common areas.
I also cannot conclude that the police engaged in the type of intrusive behaviour that they did White.  They did not cock an ear to a door in order to eavesdrop on a private conversation.  They did not try to determine what Mr. Wawrykiewicz and Ms. Poulter were up to in Unit 1905.  Their sole purpose was to determine whether there was a connection between Mr. Wawrykiewicz and that unit.  As noted by Code J., there is no expectation of privacy in the unit number in a multi-unit building.  I therefore find that there was no stand-alone violation of s. 8 of the Charter in respect of Unit 1905 of The Queensway. @55-56

The Ontario Court of Appeal’s ruling in White has been the subject of much discussion since its release. Putting aside the conduct of the police in that case, the concept of creating an expectation of privacy in common areas is somewhat controversial, or at least subject to much discussion regarding its scope. Wawrykiewicz is a helpful ruling clarify this issue.

DM

Privacy limitations defined

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Nour Marakah sent some text messages to Andrew Winchester. They were discussing the purchase and sale of illegal firearms. The police had begun an investigation into several persons who had legally purchased 45 firearms over a six month period. Ultimately that investigation led to Winchester. Eventually grounds were formed, Winchester was arrested and two phones were seized from him. Both were later searched. Text messages from Marakah were found on Winchester’s phone which demonstrated that he was involved in firearm trafficking.

At trial Marakah sought to challenge the search of Winchester’s phone. The trial judge found that Marakah had no standing:

[102] … Once the message reaches its intended recipient … it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

Marakah was convicted. He appealed: 2016 ONCA 542. The appeal was heard together with R v Jones, 2016 ONCA 543 and R v Smith2016 ONCA 544

In addressing the appeal, the court began with basic principles. First, s8 protects people, not places. Second, the right to challenge a search depends upon the accused “establishing that his personal privacy interests are engaged” – standing @27; R v Edwards, [1996] 1 SCR 128 @34-35. Third, not all privacy interests are protected, only a reasonable expectation of privacy is @28.

With respect to standing, the court considered the impact of R v Telus Communication Co, 2013 SCC 16. The court rejected Marakah’s position that Telus supported was determinative of the standing issue. First, in Telus the Abella J (for the majority) expressly declined to decide whether seizure of historical text messages could be done by way of warrant. Second, Telus did not address standing. In short, the assessment of standing must be determined by the “totality of the circumstances” test, Telus is not determinative @39-43.

Next the court rejected the notion that the Edwards framework was insufficient in the circumstances.

In my view, the appellant’s submission that utilizing the Edwards framework does not adequately engage normative considerations relevant to informational privacy claims is not borne out in the jurisprudence. In particular, the submission misses a fundamental point articulated in virtually all of the cases. The particular facts of each case, and not necessarily the category of privacy right claimed (as they can often overlap), will dictate which contextual factors are most and least relevant to the “totality of the circumstances” analysis. @55

Finally, the court considered whether the trial judge erred in finding that the lack of control and access were significant factors weighing against a finding of a reasonable expectation of privacy. The majority of the Court of Appeal agreed with the trial judge:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.
This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.
It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.
In this case, the application judge properly focused on the factors of control, access and lack of confidentiality. @63-66.

In the end the majority agreed with the trial judge, Marakah had no standing to raise any constitutional complaint about the search of Winchester’s cellphone. Once sent, there was no objectively reasonable expectation of privacy in text messages received by Winchester.

Marakah, along with Jones, has been appealed to the Supreme Court and is on reserve. Soon we will learn if the Supreme Court has a different view of what is objectively reasonable!

DM

ASAP: Constitutional or Evidentiary Requirement, it depends

Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.

DM

Avoiding an otiose and absurd result

Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complexand struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. Bingley appealed to the Supreme Court – his appeal was dismissed: 2017 SCC 12. The majority offered the following points in dismissing the appeal.

First, the language of s254(3.1), in particular, the phrase “to determine”, does not support the conclusion that a DRE is automatically entitled to provide an opinion in court. Unfortunately, the majority did not discuss this point in any detail – there was no statutory interpretation undertaken, an approach advanced by the Crown and accepted at the Court of Appeal.

Second, the majority noted that the concession by Bingley that the evidence of the DRE is logically relevant, necessary and not subject to any other exclusionary rule (3 of the Mohan criteria) was “appropriate” [para 18].

Third, the majority noted that the only issue that remained was whether he was properly qualified. With respect to that issue, the officer, a “DRE” is “literally” a “drug recognition expert” who is certified as such for the purposes of the scheme. This expert receives “special training in how to administer the 12-step drug recognition evaluation and in what inferences may be drawn from the factual data he or she notes”.  It follows that a DRE is a properly qualified expert who “undoubtedly possess[es] expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact” [para 21].

To put it another way, the only purpose of a voir dire in this case would be to determine whether Constable Jellinek has expertise over and above an ordinary person. Normally, the judge determines this on evidence adduced at the voir dire. But s. 254(3.1) and the legislative and regulatory scheme that accompanies it conclusively answer the question of expertise. The DRE is established by Parliament to possess special expertise outside the experience and knowledge of the trier of fact. He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament [para 27].

Fourth, the majority rejected the argument advanced by Bingley that the scheme was for investigative purposes only and did not permit the DRE to provide an opinion in court: “While a DRE’s evaluation certainly has an investigative purpose, their application of the 12-step drug recognition evaluation and determination of impairment is relevant evidence and can assist the trier of fact” [para 21].

Fifth, the majority noted that since the expertise of the DRE is the implementation and interpretation of the 12-step test, the DRE need not be trained in the underlying science [para 22]. More to the point, perhaps, the majority noted that the 12-step evaluation secures its reliability from the statutory framework itself.  

Sixth, any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself [para 25].

Bingley is an important decision. Drug impaired driving is a dangerous and too frequent occurrence in Canada. The legislative scheme created by Parliament and now interpreted by the Supreme Court is logical, principled and effective. As the majority noted, the schemed (and concessions by Bingley) make clear that the common law requirements for admissibility are made out and thus, the DRE’s opinion should be admitted without the need for such a voir dire. “To so require would be otiose, if not absurd, not to mention a waste of judicial resources” [para 28]. 

DM

Cataloging the basis for an Inventory Search

Winston Ellis was driving an Acura. He fled from it. The police searched it - they searched him too. They found a firearm in the car - the keys were in his possession. He sought to exclude the firearm. The trial judge admitted it - having found no violation of s8 but a violation of s10. Ellis appealed. His appeal was dismissed: 2016 ONCA 598.

Ellis was seen street racing in an Acura. The officer who spotted him followed the Acura into a neighbourhood where he briefly lost sight of it. He then spotted the vehicle parked in a shared driveway between two residences – neither of which matched the address for the registered owner of the Acura (who was not Ellis). The officer then noticed Ellis walking away from the Acura. He radioed for back-up. Ellis was stopped by responding officers who placed him under “investigative detention” and advised him of such – they did not however advise him of his right to counsel. During the detention Ellis advised the officers that there was an outstanding warrant for his arrest. The officers also learned that (i) his address matched that of the registered owner of the Acura; (ii) that he was a gang member; and (iii) that he was potentially armed and dangerous and had a previous firearms conviction.

The officers conducted a pat down search for safety during which he asked Ellis to empty his pockets. Keys, two cell phones and cash were discovered. The items were immediately returned to Ellis. With respect to the vehicle Ellis denied driving it, but said his girlfriend had earlier in the night (although he later admitted he had left it in the driveway where police had recovered it).

Ellis was eventually arrested for careless driving. The police decided to impound the vehicle, pursuant to section 221 of the Highway Traffic Act, as it was apparently abandoned. Following from that decision, the police chose to do an inventory search. Sgt Martin also testified that the search was incident to the arrest in order to find proof of ownership and to see if the ignition had been damaged. During the search the police discovered a handgun hidden behind a console panel.

At trial Ellis sought to exclude the handgun arguing, inter alia, that the pat down search and the search of his car violated section 8. The trial judge dismissed both arguments (although the trial judge did find a breach of section 10(b) but admitted the evidence under 24(2)). Ellis was convicted. He appealed.

With respect to the pat down search, contrary to Ellis’ submission, R v Mann, 2004 SCC 52 did not pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets” @28. Where the initial pat down search supports an initial belief that the detainee may be armed a further search is warranted. The further search is logical and constitutionally valid in such situations: R v Plummer, 2011 ONCA 350.

Here the initial pat down revealed objects that could have been weapons, the Court or Appeal concluded:

The officer had a reasonable belief that the appellant might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons. A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety. [@30]

With respect to the vehicle search, the Court of Appeal agreed with the trial judge and rejected that a search incident to arrest could justify the search.

The police knew that the appellant and the owner of the Acura lived at the same address so it was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents.  It is also not clear to me what documentation relevant to the outstanding warrants could be discovered in the vehicle. [@42]

However, the police were entitled to rely upon the statutory authority provided in section 221 HTA to conduct an inventory search. In so concluding the court noted the following principles related to “inventory searches”:

  1. Impounding vehicles under section 221(1) imposes on the police the responsibility to keep property safe. In order to fulfil that responsibility the police must have the corresponding authority to search and inventory the vehicle: R v Nicolosi, 1998 CarswellOnt 2476 (CA) @29-30
  2. The fact the police may have ulterior interests, such as their belief a firearm may be discovered, does not render the search unlawful: R v Wint, 2009 ONCA 52 @11; leave ref’d 2009 CarswellOnt 3494 (SCC)
  3. Inventory searches are not limited to itemizing visible property – the police are entitled to open bags and other containers: R v Wint, 2009 ONCA 52 @14-15; leave ref’d 2009 CarswellOnt 3494 (SCC)
  4. Such inventory searches, however, rely on statutory authority, in the absence of such authority, where searches are conducted for policy reasons they will be unconstitutional: R v Nolet, 2010 SCC 24 @53; R v Nicolosi, 1998 CarswellOnt 2476 (CA) @34; R v Caslake, 1998 CarswellMan 1 (SCC) @30

In the present case the car was apparently abandoned – unlike R v Dunkley, 2016 ONCA 597 – the vehicle was left by the accused at a location and in a manner that supported the conclusion it was “abandoned”.

The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle. [@61]

In the circumstances, the vehicle was properly subject to impound and thus inventory search.

DM

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.   

SS

You are not the Reasonable Person

Berry was charged with the first degree murder of Andrew Christie. Berry testified in his own defence. He admitted to shooting Christie but said he did so in self-defence. Alternatively, he argued provocation.

The jury convicted Berry of second degree murder and the judge set his parole ineligibility of 17years. Berry appealed conviction and sentence- both were dismissed: 2017 ONCA 17.

One of the grounds of appeal related to the trial judge’s instruction on the defences of self-defence and provocation.

As part of his defence Berry called Dr Pollock, a psychologist who testified about Berry’s “reduced cognitive abilities and his personality traits.” [@25]

Dr. Pollock testified that he was of “modest intelligence”, with an IQ in the 5th percentile (meaning that 95% of individuals his age would score higher). In terms of his personality, it was Dr. Pollock’s opinion that the appellant was anxious, self-centred, emotionally detached, socially awkward, and suspicious of other people. Because of these characteristics, persons with the appellant’s profile are easily slighted and are particularly sensitive to perceived threats or provocation; they have a tendency to misinterpret their social perceptions and experience challenges trying to solve difficult problems in times of stress. [@25]

With respect to self-defence the trial judge agreed “to charge the jurors were entitled to consider both the appellant’s diminished intelligence and his psychological makeup on the issue of his subjective state of mind” @68. However, with respect to the objective component of the test the judge instructed the jury that they could only consider Berry’s “diminished intelligence but not his psychological makeup.” [@68]

The Court found no error in this decision. From an evidentiary perspective, the Court held that Dr Pollock’s evidence did not establish:

a sufficient causal connection between the appellant’s “border-line IQ”/“modest intelligence” (5th percentile), and the appellant’s personality characteristics the defence sought to highlight as possible explanations for his reaction (being anxious, excitable, distrustful of others). [@71]

In this case, Berry’s psychological makeup was not attributable to anything beyond his control and as such had no place in the objective component of the self-defence inquiry. Did Berry believe that he had no choice but to shoot the victim and was that belief objectively reasonable? @73  Permitting Berry to rely on the evidence of his psychological makeup as an explanation for his actions would improperly conflate the subjective and objective components of the test. [@73]

The Court reached a similar conclusion with respect to the defence of provocation. The test on the defene of provocation has both a subjective and objective component.

First, was the wrongful act or insult of such a nature to deprive an ordinary person of the power of self-control.

Second, did the accused act on that insult, suddenly, before any time for passion to cool.

The Court summarized the trial judge’s instructions as follows:

In applying the accused person test – i.e., in tackling the suddenness of the reaction and whether the appellant’s passion had time to cool – the trial judge told the jurors they could consider the appellant’s individual characteristics and personal reaction (i.e., both his intellectual limitations and his particular psychological makeup as characterized by Dr. Pollock). But in applying the ordinary person test – i.e. whether the wrongful act or insult was sufficient to deprive the ordinary person of the power of self-control – the trial judge told them they could not do so. [@78]

In finding that the trial judge had not erred the Court referenced Charron J’s decision in R v Tran, 2010 SCC 58 where Her Honour held that: 

Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [@83]

Although the Court in Berry leaves open the possibility that diminished mental capacity could be relevant to the ordinary person inquiry in the provocation analysis [@84] for now the court says that you and the reasonable person are not one and the same.

LT

Settled Law

Lam was convicted of driving with an illegal blood alcohol concentration [BAC] – he was over 80. This was his second trial.  The Crown sought to invoke the presumption of identity and attempted to file the certificate of analysis as evidence of Lam’s BAC at the time of driving. The defence opposed the filing of the certificate and argued that the failure of the police to have the approved instrument inspected in accordance with the Alcohol Test Committee’s [ATC] recommendations was fatal to the Crown’s case.

The trial judge accepted this argument and found that the police failure to send the Approved Instrument for annual inspection for 13 months constituted evidence which tended to show that the instrument was operated improperly. The accused was acquitted. The Crown appealed.

The Summary Conviction Appeal [SCA] judge held that the trial judge erred and ordered a new trial. In particular, the SCA found that:

elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. This error led the trial judge to conclude that the presumption of identity in s258(1)(c) was not engaged and thus could not be invoked to establish the application’s blood alcohol concentration when he was operating his motor vehicle [@6]

Lam appealed to the Court of Appeal. The Court refused to hear the appeal: 2016 ONCA 850

The Court did so for four reasons.

First, leave from summary conviction proceedings are exceptional. Moreover, there is a need for finality. When all is said and done Lam will have had 2 trials, 2 summary conviction appeals and this journey to the Court of Appeal. [@12]

Second, the grounds of appeal are a mix of law and fact. With respect to the law it concerns only “the application of well-settled principles of law in no need of restatement or refinement” [@13]

With respect to the misapprehension of facts, the facts in this case as so many others, rarely “transcend the idiosyncrasies of the case at hand” [@13]

Third:

invocation of the frequency with which alcohol-driving prosecutions populate the lists in the Ontario Court of Justice to fund a claim of wider application proves too much. If frequency of prosecution were the touchstone for granting leave to appeal, leave would become the rule, not the exception in alcohol-driving offences.

Fourth, the substantive issue is in fact well settled law: See St-Onge-Lamoureux, 2012 SCC 57 "(not Jackson, 2015 ONCA 832 as the respondent suggests)" [@15].

LT

Now or Never

Just after midnight in late October 2014 police came across Pociurko standing about 3 metres from his motor vehicle which had obviously just been in an accident. Mrs Pociurko and the couple’s child were also on scene and standing some 10-15meters from the car.

When police spoke with Pociurko he admitted to drinking but denied driving. Mrs Pociurko gave lots of different answers to the question of who was driving. Sometimes she said she was driving, other times her husband, sometimes she said both were driving. Finally she asserted that the accident was as a result of a mechanical failure. None of these versions had any impact on the officer’s legally authority to demand a sample of Pociurko’s breath.

The officer made just such a breath demand of Pociurko who asserted that because he was not the driver he would not blow. The officer let Pociurko know the consequence for refusing to provide a sample. Pociurko again refused and pulled out his cell phone. He told the officer he was calling his lawyer. The officer took the cell phone and placed Pociurko under arrest.

He was convicted at trial of refusing to provide a breath sample. He appealed, unsuccessfully: 2016 ONSC 6691

On appeal Pociurko argued that his refusal was equivocal because he was confused about his obligations. He further argued that his confusion and equivocation was apparent as he was trying to call his lawyer when he was so rudely interrupted by the police. The summary conviction appeal judge disagreed.

Richetti J held that the evidence did not support the defence assertion of confusion. In fact, to the contrary Richetti J found that there was “no confusion about the demand for a breath sample and there was no confusion about Mr Pociurko’s refusal to provide it promptly.” [@24]

Moreover, there is no obligation on police to explain the law. In other words, police did not have to explain to Pociurko that neither his claim of not being the driver nor his desire to speak with a lawyer were reasonable excuses for refusing . The summary conviction appeal judge gave short shrift to the defence assertion that such an obligation exists, instead finding that:

Mr. Pociurko took it upon himself to refuse to do so based on a basis which is not a reasonable excuse for the refusal. Essentially, he now blames the police officer for not explaining the law in much greater detail [@25]

In short, any version of ‘maybe I will later’ in response to a breath demand “constitutes a refusal since it is not providing a breath sample promptly” [@21]

LT