Investigating our Research Habits and Tools: Poll #1

I spend a lot of time researching and writing. As a litigator I spend hours reading cases, highlighting passages, cutting and pasting. I spend hours (too many) on sites like WestlawNext reading cases and citing them up. As an author, I spend a lot of time jumping between cases and researching related issues that are discussed in those cases. Over the years the tools we have at our disposal for this work have become more intuitive, more user friendly and more inline with the type of work we do as lawyers and authors. In the coming weeks I am going to be conducting some of my own research into these tools and resources. Please help me by answering my poll questions as I post them. 

In addition to learning about the effective habits of others, I am interested in exploring what resources are out there that I might not be using and what resources may be missing!

Thanks for your support. Poll #1:



Harm without Physical Contact

Walters was designated a dangerous offender and given a determinate sentence of 5 years (3year presentence custody) and a 10 year long term supervision order. Walters appealed both the designation and the custodial sentence. The appeal failed: R v Walters, 2018 ONCA 391.

The predicate offence was a single count of criminal harassment. Walters emerged “from the bushes in the dark, on a lonely street. He was close enough that the complainant could feel his breath. He was masturbating as he followed her.” @6

On appeal Walters first disputed that the criminal harassment conviction qualified as a serious personal injury offence. And, second argued that the sentencing judge erred in concluding that the necessary statutory pattern had been established for the purposes of the dangerous offender designation.

With respect to the offence of criminal harassment as a serious personal injury offence [SPIO] the sentencing judge found that:

the offence was not “violent in the usual way”, because there was no physical touching, she concluded that it was “physically and psychologically violent in all other circumstances”. @5

This finding was predicated on the trial judge’s factual finding that the complainant sustained severe psychological damage. This finding was based on the judge’s acceptance of the victim’s evidence including the fact that:

she panicked, was scared and terrified, could no longer go out without fear, and now hears footsteps when she is outside. As she said, her “life flashed before [her] eyes … not knowing if [she] would be seriously harmed or killed”. She maintained in her victim impact statement that the crime had changed her. @6

The Court of Appeal found the record to amply support these findings.

With respect to the requisite statutory pattern Walters argued that “the nature of his prior conduct [fell] largely at the lower end of seriousness for sexual and other violent misconduct” @8. Walters maintained that his prior criminal history was more along the lines of indecent exposure types of offences and that there was no evidence of severe psychological harm from prior victims.

The Court of Appeal held that the sentencing judge properly considered a variety of factors including:

  1. The expert evidence including the assessment as to the future likelihood of severe psychological damage; and
  2. The appellant’s prior record of 15 sexual offences and 19 prior non-sexual offences and 21 breaches of court orders

Moreover, the Court concluded that:

trial judge properly approached her task of sentencing the appellant, after he had been found a dangerous offender, in a manner that emphasized the least intrusive sentence required to achieve the primary purpose of the statutory scheme: R. v. Boutilier, 2017 SCC  64, [2017] 2 S.C.R. 936, at para. 60. In particular, the trial judge had regard to the need for the appellant to be in a penitentiary setting in order to access necessary “high intensity sexual assault programs”. The trial judge determined this to be necessary treatment to address the significant threat posed by the appellant to the community. @13

The decision of the ONCA in Walters, particularly with respect to the SPIO is in line with recent jurisprudence from that Court.

In 2016 the ONCA found that a sexual assault was made out where an accused broke into a young woman’s home and forced her to watch him masturbate. The victim, fearing for her safety, fled her home by leaping from her balcony some 12 feet from the ground: R v Edgar, 2016 ONCA 120.

The decision in Walters is consistent with Edgar in that the violation of someone’s sexual integrity can occur even in the absence of physical contact. Although Walters was charged with criminal harassment the findings made by the sentencing judge and the Appellate Court clearly demonstrated it was considered as part of a pattern of sexual offences which had a profound impact on the victim. 


Expecting Privacy?

Frederic Dwayne Wilson was convicted of five drug related offences. The offences arose out of police surveillance of a rented suite in Vancouver. The police believed it to be a stash house. The trial judge ultimately agreed. After five months of investigation the police arrested Nguyen, co-accused to Wilson, as he left the suite.

A search incident to arrest of Nguyen revealed four kilograms of cocaine and a loaded handgun. This information was used to obtain a warrant to search the suite and Wilson’s home in Surrey. The fruits of those searches provided the evidence that supported the conviction of Wilson. Wilson appealed. The British Columbia Court of Appeal dismissed the appeal: 2017 BCCA 327.

On appeal Wilson argued, inter alia, that:

…the trial judge erred in ruling that Mr. Wilson did not have a reasonable expectation of privacy in the common areas of the condominium complex in which the suite was located or in the video surveillance footage of those common areas. He submits the judge therefore erred in concluding the warrant and the seizure of the video surveillance footage by the police was not a search or seizure within the meaning of s. 8 of the Charter. [@3].

The trial judge dismissed this ground (and the other ones raised). The Court of Appeal agreed with the trial judge that Wilson did not have a reasonable expectation of privacy that was infringed by the police in the common areas. Further, access to the video surveillance footage of these areas did not infringe s8.

In coming to this conclusion the Court of Appeal noted that the trial judge permitted Wilson to argue, in another ground of appeal, that the arrest of Nguyen was unlawful. Citing conflicting authorities in BC on the issue of standing (R v Brown, 2014 BCSC 1872 and R v Todd, 2015 BCSC 680) the trial judge chose the path of “least mischief” and permitted the argument. The Court of Appeal chose not to resolve this issue.

Wilson has filed an application for leave to the Supreme Court: 2018 CanLII 30063. If granted, this case presents two important opportunities for the SCC. First, it presents the Court an opportunity to address the standing issue – an issue which, since R v Marakah, 2017 SCC 59 has left many uncertain about the issue and the scope of standing in Charter litigation.

Second, it presents the Court with an opportunity to add some clarity and certainty to the law in relation to reasonable expectation of privacy in common areas. Since the Ontario Court of Appeal in R v White, 2015 ONCA 508 this issue has been debated and dissected. The law in this area is somewhat fractured. There is undoubtedly well reasoned and principle rulings that support the conclusion that reasonable expectation in common areas is far from certain and in many situations, there is no such expectation – the route to this conclusion, however, remains fluid (see for example R v Wawrykiewicz, 2017 ONSC 569; R v Barton, 2016 ONSC 8003; and R v Douale, 2016 ONSC 3912; R v Dhaliwal, 2017 BCSC 2510 – see also Mack’s Criminal Law Bulletin, issue 2017.08) and the SCC will hopefully take the opportunity to add some concrete footings to the issue.


The Digital Era in our Criminal Justice System

The collection and management of evidence in the criminal justice system is changing. Check that, it has changed. While remnants of the past remain, the capture, management and disclosure of evidence in criminal proceedings is moving toward an exclusively digital format. Eldon Amoroso, Technical Advisor, ICT Committee wrote about this change in his article, Warning: A Tidal Wave of Digital Evidence is Coming. This change comes at a time when the collection and capture of evidence is producing a significant amount of electronic data. Phone dumps can be in the GB size and major cases require significant storage and management capacity. Most prosecution services and defence law firms are ill-equipped to manage this. As Lance Valcour notes in his article, Digital evidence management in Canada: How R. vs Jordan is changing the game, many police services and prosecution offices are still relying on internal storage solutions and DVDs for evidence sharing and disclosure. Some companies have recognized this and stepped in with solutions. Their solutions are well suited to the needs of the justice system and undoubtedly are welcomed by front line workers (police, prosecutors and defence counsel). As Valcour comments, it is “great news” that police and prosecution are “collaborating with Canadian companies to let them provide these kinds of services” so police and prosecutors can do their jobs for our communities.

Axon is one of those companies. The company has developed a digital evidence management system for prosecution services and reports having more than 100,000 licences for prosecution office around the world. This management system includes Axon Convert, which “is a standalone software solution that converts and views unplayable file formats, including proprietary CCTV files, with ease. It ingests and converts files in minutes with only a few clicks, making manual conversion a thing of the past”. With the increasing number of surveillance cameras, both publicly and privately owned, this tool will no doubt be an invaluable asset. The company ensures the authenticity of evidence with Axon Detect which allows the user to “determine whether an image is an unaltered original, an original generated by a specific device, or the result of manipulation with photo editing software”. Most notably, perhaps, with the increasing volume of digital disclosure, the storage and evidence management capacity of the Axon’s cloud storage/evidence management is exactly the sort of innovation and support needed – Axon makes their case for moving digital evidence to the cloud.

Intrensic is a similar company. They also offer cloud based storage and as with Axon, offer “unlimited, secure storage”. They too, like Axon, offer police and prosecution models. Police models aimed at more efficient digital first capture of evidence and storage and management solutions.

VeriPic is another company offering similar solutions. Their solutions appear to be more focused on police and less clear and unique models for prosecution services. Nonetheless, their police suite of products include body worn cameras and mug shot systems.

Axon and companies like it are moving in to offer solutions for police forces in the capture and management of their digital evidence. Similarly, for prosecution services, they offer storage and evidence management software solutions. The next logical and much needed steps is to see this kind of technology in the court management system. Most courtrooms in Canada maintain an antiquated process of collecting and managing exhibits and court Indictments and Informations. The time has come to find online solutions to store and manage this material. As Amoroso points out in his article, “[t]he real tragedy would be if we fail to leverage all the capabilities of innovative technology, such as coloud based platforms, in our future digital evidence management solutions”.

The criminal justice system is changing. Check that. It has changed. But the changes are not over. And that is good news.


Grant revived

Steven Jennings was driving his motor vehicle with a blood alcohol concentration above the legal limit. He was stopped by police. They noticed. He was arrested. He later provided samples of his breath proving this fact. At trial he sought to exclude that evidence, alleging a violation of section 8. He succeeded. The Crown appealed. The Ontario Court of Appeal allowed the appeal, entered a conviction and remitted the matter for sentencing: 2018 ONCA 260.

The trial judge had found that there was a violation of Jenning’s section 8 rights. The basis for this was the identified failure of the OPP officer to following steps set out in a manual regarding the proper procedure for administering the approved screening device [ASD] – namely that he failed to:

  1. perform a self-test of the ASD at the beginning of his shift;
  2. record the particulars of the ASD calibration check in his notebook; or
  3. perform a second self-test after the respondent provided his breath sample.

The Court of Appeal disagreed. After a review of each step, and its impact on the objective reasonableness of the officer’s belief, the Court of Appeal held:

The uncontested evidence was: (i) the constable observed the respondent’s vehicle swaying into the wrong lane; (ii) the constable detected alcohol on the respondent’s breath; (iii) the respondent admitted to having consumed alcohol; (iv) the constable followed the procedures for use of the ASD, with the exception of those noted above; (v) the results of the self-test and the calibration check indicated the device was working; and (vi) the breath sample provided by the respondent registered over .80. [@ 22].

Although finding there was no violation of section 8, the Court turned to consider section 24(2). In particular, the court took aim at the second head of the Grant test. In doing so the court noted there were two divergent lines of authority on the interpretation of this head of the test.

The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung, the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent’s being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.
The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy, 2013 ONSC 7374; R. v. Marchi, 2016 ONCJ 757; R. v. Ho, 2014 ONSC 5034, rev’d on other grounds 2015 ONCA 559. [@27-28]

Having identified these divergent lines of authority, the court clearly rejected the former.

The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.
This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543,116 O.R. (3d) 721, where Watt J.A. refers to “the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness” (at para. 100)  and, citing Grant at para. 111, says that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted.”
Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that “[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant, at para. 111.”
To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission. [@ 29-32].

It is somewhat peculiar that the Au-Yeung approach to the second head of the Grant analysis had developed and been relied upon. It is also unfortunate, as many cases, relying on this approach, likely excluded evidence that should not have been excluded – Jennings would have been one more example of this. Fortunately, the Ontario Court of Appeal took the opportunity in Jennings to soundly reject this approach. It is unfortunate that such a ruling was necessary in light of the dicta in Grant – but fortunate it has been made.


Why Governments Fear Blockchain Applications

One of the most powerful tools available to governments – be they democratic or totalitarian – is their control over currency. Today, access to the economic system is regulated by a huge number of intermediaries, all of whom have an interest in keeping the its workings opaque. A lack of economic freedom entails a lack of political freedom, as everyone from Milton Friedman to Kanye West has noted.

One of the most promising recent developments in democracy has been decentralization. Since the internet took off in the 1990s, the mainstream media has rapidly lost ground to the opinions of individuals. Today, a tweet has more power than a New York Times op-ed, shifting power away from an entrenched establishment and toward the people.

Blockchain technology promises a similar revolution in access to currency. By decentralizing the creation and control of finance, it has the power to democratically empower individuals in both the West and in developing countries. According to blockchain expert Derin Cag, the fact that blockchain systems are transparent, inherently trustworthy, and require no paid intermediaries means they have the potential to liberate mankind from elitist, and anti-democratic, forms of governance. Blockchain is a world without middlemen and, therefore, a world without entrenched power.

Unsurprisingly, the middlemen don’t like this.

               How Not To Do It: China

To see this, just take a look at a country that has both the desire and means to limit democracy: China. Faced with an explosion of blockchain activity in recent years, the Chinese government has recently banned the creation and selling of digital currencies to finance start-up projects. The government claims, of course, that this is a temporary ban, and that cryptocurrency research will still be conducted.

However, leaked documents suggest that this ban is just the beginning of a process to eventually ban the use of blockchain in the country. As Ars Technica argues, it is clear what happened: the Chinese government, scared of losing its centralized power over currency, reacted in the way totalitarian states tend to in such situations — by criminalizing individuals.

This process is visible far beyond the boundaries of blockchain: it seems that the Chinese government is scared of the power of the internet more generally. The “Golden Shield” project, also known as the “Great Firewall of China”, has long blocked access to foreign websites in the country, including most social media sites. Designed to limit the opportunities for Chinese citizens to build protest communities online, this huge project works in a similar way to the criminalization of blockchain: it allows the government to maintain control over the media, which was traditionally a tool of totalitarian regimes until the dawn of the internet.

This does not mean that the Chinese government is stuck in a pre-internet age. In fact, the Chinese government seems to identify and shut down new risks to their power pretty quickly after they come onto the market. This is seen most prominently in their criminalization of VPN software, which would otherwise allow internet users to maintain their anonymity, and their sponsorship of “home-grown” (for which read “government controlled”) analogues to Facebook, Twitter, and YouTube.

What is most shocking in this whole affair, however, is the way in which the US media supported the ban of blockchain in China. CNBC likes it, Fortune think it’s a great idea, and even Fred Wilson, normally bullish on cryptocurrencies, was supportive, saying that the Chinese were just playing for time to come up with regulations.

Call me cynical, but I’m skeptical about this explanation. I think, rather, that the US government has realized that blockchain is also a threat to their own power, and will seek a similar ban in the coming years.

               How It Should Work: Nigeria

In countries with a less reactionary and oppressive central administration, blockchain is showing its potential to liberate citizens. Economist Hernanda de Soto has commented that in order to economically empower the citizens of developing nations, two things are required: bank accounts, and audit trails.

Blockchain provides both of these. The World Bank estimates that there are 2.5 billion people who do not have a bank account because they can’t afford one. In addition, the fact that blockchain transactions are automatically and permanently recorded means that auditing them is easy, which is extremely useful in developing nations. As Ryan Singer, CEO of Blockchain Health Company, told Voice of America: “for the first time ever, you have records on the internet that are more auditable than paper. And that’s crucial.”

In Nigeria, blockchain has been very successful in this regard. Peter Nichol, CIO Healthcare Business and Technology Executive, has noted that the remittance platform Oradian means that “over 300,000 people already can transfer money,” and that 90 percent of them are projected to be women.

Nigeria is hardly an example of good governance, but with respect to blockchain, the government is taking a pragmatic approach that has allowed the potential of the technology to be realized. Though the Central Bank of Nigeria (CNB) issued a notice in January 2017 banning banks from holding cryptocurrency, they quickly backtracked. A report in The Guardian recently revealed that the CNB is now actively assigning resources to study cryptocurrency.

The reason for this is clear enough, but it is startling to hear a Central Bank admit it – the CNB said that they simply “cannot stop the tide of waves generated by the blockchain technology.”

               What Is To Be Done?

It seems that the governments of both China and Nigeria realized the same thing: that blockchain technology has the potential to radically decentralize power over currency. That, as Primavera de Filippi told CryptoCoins News, “Blockchain makes it possible to change the model of top-down hierarchical organizations with a system of distributed, bottom-up cooperation. This shift could change the way wealth is distributed in the first place, enabling people to cooperate toward the creation of a common good, while ensuring that everyone will be duly compensated for their efforts and contributions”.

For the state, this represents a huge threat to its power, and this is clearly why China is trying to ban blockchain. Nigeria, however, seems to have realized that the technology also the power to liberate individuals, and therefore to boost the economy. As the Harvard Business Review points out, in theory blockchain allows developing countries to leapfrog advanced economies by allowing developing nations to go straight to advanced technologies.

It remains to be seen how the US government will react. Though the US government signaled its openness to cryptocurrency this year, don’t expect that to last: ultimately, the government will only allow blockchain to exist if it can be placed under the same level of control as the rest of the economy. In a sign of things to come, the Securities and Exchange Commission issued a warning in July that they are about to toughen up their stance.

The approach to cryptocurrencies in the US follows a familiar pattern. The long-standing adherence to ideas of “freedom and liberty” prevents the Federal government from overtly stating its opposition to technologies that challenge its power, lest it be accused of infringing individual rights.

Instead, lawmakers tend to empower obscure agencies to pass incrementally tighter restrictions on technologies that threaten to de-centralize power. This is seen in everything from the FBI trying to stop Apple from encrypting iPhones to the way in which Colleges have been able to overturn federal rulings on campus carry.

The government will seek to control the next great decentralization, will be defeated by technology, and then will claim the credit for the revitalization of democracy that it brings. Handling blockchain correctly, if you are a government, therefore means doing precisely one thing: nothing. Let the people liberate themselves.

Limited Use Doctrine Defined...again


Brett Guillemin crashed his car. A witness heard the crash. Police were called. So too was an ambulance. The ambulance arrived first. They began to treat Guillemin. When the officer arrived on scene she went to stand by the ambulance as the paramedics worked on Guillemin. While at the ambulance the officer noted that Guillemin was “a bit out of it”, his speech was “slightly slurred” and he had a “very blank look” on his face. When he walked to the ambulance the officer noted that he was “moving very slowly” and was “unsteady on his feet”. By the time Guillemin finished with the paramedics the officer formed the opinion he was impaired. An arrest was made.

Guillemin was convicted of impaired after trial. He appealed. His appeal was dismissed: 2017 BCCA 328.

Guillemin’s principle point on appeal was that “the judge relied on inadmissible evidence of the police officers observations in concluding that the Crown had proven impairment beyond a reasonable doubt. He says that reliance on that evidence violated the ‘limited use doctrine’” [para 14].

In considering the limited use doctrine and its scope, the court discussed R v Visser, 2013 BCCA 393 and R v Milne, 1996 CanLII 508 (ONCA). In relation to the treatment of the doctrine in those cases the court noted:

I have quoted at length from Visser because it seems clear to me that nothing in the judgment detracts from the comments of Moldaver J.A., as he then was, in Milne endorsing the admissibility of observational evidence obtained while an officer is carrying out other authorized activities. The focus is on the limited use that can be made of evidence that could not have been gathered without compelled direct participation of a motorist in response to an impaired driving investigation. [Para 21].

As the court in Visser noted, while this may be a difficult line-drawing exercise at times, it is one that courts can and must do – no bright line rule will suffice, facts will dictate whether evidenced is compelled or merely observed. In the present case the court concluded:

On my review of the record, it is clear that the police officer made the observations on which the judge relied while she waited in the ambulance with the appellant as he was being assessed by the paramedics. At that time she was engaged in another authorized activity; namely, ensuring the appellant’s well-being. She made her observations and formed the opinion the appellant was impaired before asking him whether he had been drinking. This is the view, as I see it, that the judge took. During the argument, for example, to test the facts, the judge asked pointed questions aimed at clarifying when in the chronology the officer made observations as a result of the investigation that she had not otherwise made.
The trial judge correctly understood the scope of the limited use doctrine and the circumstances in which evidence would be inadmissible on the impaired charge. In substance, he made it clear that he concluded that the evidence was admissible because of the timing of when the observations were made. That finding was open to him on the evidence. In my view, the evidence given by the officer in her direct evidence of when she made the important observations is clear. I do not accede to the argument that it was undermined or a material discrepancy relating to it arose in cross-examination. There is nothing to suggest that the judge misapprehended the evidence. Given the way in which the submissions unfolded, I see no error in the fact that he did not refer to the issue again in his reasons for judgment. Rather he proceeded to analyze what he had in substance determined to be admissible evidence to decide whether the Crown had proven its case.
The judge did not err in relying on the evidence of the officer’s observations of impairment. The evidence, on the facts of this case, was admissible to prove impairment. I would not accede to this ground of appeal. [Paras 23-25].

Guillemin is a helpful decision. It illustrates the issues that can revolve around identifying limited use evidence in this context. In doing so, Guillemin clarifies, if there was doubt, that Milne and Visser are ad idem in the approach to this doctrine.


Effective Assistance - Tactical Dispute


Anthony Regnier was charged with assault with a weapon, to wit, his dog. During police attendance he had allegedly “sicced” his dog on the police. He was convicted after trial. He was sentenced to 90 days jail and 12 months probation.

Regnier appealed. He alleged ineffective assistance of counsel and his sentence was unfit. His appeal was dismissed: 2017 SKCA 83.

The Court of Appeal outlined the background to this complaint as follows:

Taking these appeals in turn, Mr. Regnier’s notice of appeal against conviction alleges “defence lawyer conflict” and that his “defence was not properly heard.” Particularising these allegations in the hearing before us, Mr. Regnier said he had wanted his trial counsel to call two witnesses to corroborate his own testimony to the effect that he had not “sicced” his dogs on a police officer, which had given rise to the assault with a weapon charge. He says his trial counsel persuaded him to believe the Crown’s case was weak and, therefore, he reluctantly agreed not to adduce further evidence. The fact a discussion of this general sort occurred between Mr. Regnier and his trial counsel, although not its detail, is borne out by the transcript of trial. [Para 2].

To succeed, Regnier would have to “first establish that his trial counsel’s advice not to call the two witnesses in question constituted incompetence and, second, that a miscarriage of justice resulted”: see for example R v GDB, 2000 SCC 22.

The court noted further that it is important for a reviewing court to start with the “strong presumption” of counsel competence.   

An appellant must establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. In assessing that conduct, “the wisdom of hindsight” has no role to play—that is, the adverse result of a trial strategy or decision does not of itself diminish the reasonableness of the strategy or decision when it was made or taken. [Para 5].

Turning to apply this law, the court noted there was:

...nothing in the court record that, on its face, suggests Mr. Regnier’s trial counsel acted incompetently. There are many reasons why an accused might decide to call or not call a witness. In this case, we are not privy to the details of the discussion between Mr. Regnier and his trial counsel in that regard—or, indeed, to what the two witnesses in question might or might not have said had they been called. We only have what Mr. Regnier says occurred because his trial counsel was not notified of this allegation of ineffective representation and Mr. Regnier has not waived his solicitor-client privilege, which would have allowed his trial counsel to defend against it. In short, the evidence falls far, far short of displacing the presumption of trial counsel competence. [Para 6].

The court further noted, for sake of completeness no doubt, that there was no apparent miscarriage of justice.

With respect to the 90 day sentence, it was not demonstrably unfit and no error of law or principle was occasioned by the sentencing judge. Appeal dismissed.

Regnier is a welcome decision reinforcing the presumption of competence and limiting success on appeal alleging incompetence when the true request is to permit another trial with a different tactical approach.


Holding back the hands of Jordan


John Baron was charged with 28 counts of fraud. He was convicted and sentenced to 6 years jail. Prior to trial Baron brought an application to stay the proceedings based on a violation of s11(b), unreasonable delay. The trial judge dismissed the application. Baron appealed. His appeal was dismissed: 2017 ONCA 772.

Baron was charged with two others, McGill and Houle. In all 59.5 months passed before the conclusion of their trial. The trial judge found no waiver nor any delay attributable to the Crown. The total institutional delay was 18.5 months (8 months in OCJ and 10.5 months in SCJ). The remainder, bulk of the delay, was almost entirely neutral time under Morin – 6 months was attributed to defence delay.

In reviewing the ruling and impugned delay the Court of Appeal agreed with the trial judge that there was no violation of s11(b). A few points are particularly notable.

First, the court agreed that time arising from the removal of counsel was attributable to defence delay. The court further did not entirely reject the position of the Crown that the delay from the removal of counsel to the start of the second dates for the preliminary inquiry should be defence delay – a position which might in other circumstances be accepted. The court explained:

I would allocate the entire time between the date set for the start of the first preliminary inquiry (August 2, 2011) and the date set for the commencement of the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel’s removal (April 13, 2011) until the second preliminary inquiry (February 13, 2012), namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6 ½ months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors. [@48].

Second, delay occasioned by the co-accused was treated as neutral by the applicaton judge under the transitional exception and thus justified delay beyond the ceiling. The Court of Appeal agreed:

Operating within the Morin framework, the application judge was correct to treat the delay caused by the co-accused as neutral time: see Whylie, at para. 24; and L.G., at paras. 62-63. He also recognized the importance in trying co-accused together, a principle that was recently endorsed by this court in R. v. Zvolensky2017 ONCA 273 (CanLII), 135 O.R. (3d) 401, per Watt J.A., at paras. 245-255.
This case is not like R. v. Vassell2016 SCC 26 (CanLII), [2016] 1 S.C.R. 625, in which Mr. Vassell’s persistent and proactive efforts to have a trial as soon as possible were thwarted by the delay caused by his six co-accused.
Here, the appellant was content with the pace of the proceedings, never raising the issue of severance. Severance was not appropriate in any event, given the complexity of the case, the nature of the allegations, and the evidence common to all three accused. [@62-64].

Third, on the issue of complexity the Court of Appeal rejected the notion that because the trial only took 8 days it was not complex – this approach to complexity is mistaken and has been rejected:

In gauging the complexity of the case, it is an error to focus exclusively on the end product – the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para. 62:
A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

Fourth, the court noted that the transitional exception was created to avoid the very result sought by Baron – a stay relying on a new regime where the parties were proceeding reasonably under the law that existed before Jordan. In support the Court of Appeal cited the following passage from Pyrek2017 ONCA 476 @32:

Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was [not] caused by… "repeated mistakes or missteps".

Baron is another case in a recent string of cases where the Court of Appeal has rejected s11(b) claims in transitional cases. It is a welcome and principled approach to Jordan.


Public Interest is Not Dead


Kim Madsen was convicted of aggravated assault. He was sentenced to 40 months in jail. He appealed. He sought bail pending appeal. That request was denied: 2017 SKCA 73.

The Court of Appeal first considered whether the appeal was “frivolous” pursuant to s679(3)(a). It noted that the test represents a “very low bar”: see R v Oland, 2017 SCC 17; and R v Gill, 2015 SKCA 96 @para 15. Noting the grounds of appeal, the court concluded that the appeal was not frivolous – but, notably the court held that the merits of the appeal could also be considered under public interest:

While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very serious consideration to Mr. Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews the evidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Having regard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appeal from conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal as presently put to me as part of my assessment of the public interest criterion. [Para 8].

Turning to the public interest ground pursuant to s679(3)(c), the court reflected on Oland and noted the following [see para 10 and 12]:

  • Not every application for bail engages public confidence: Oland @para 29
  • The more serious the crime the more public confidence will be undermined if the accused is released pending appeal: Oland @para 37
  • There must be a balancing of the relevant factors including the strength of the appeal and the seriousness of the offence: Oland.

Taking into account these factors the court denied Madsen’s release pending appeal concluding that it would be contrary to the public interest. In part, this was so due to grounds of appeal which were not particularly compelling and the seriousness of the offence – as described by the court:

As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losing all function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medical expert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr. Peeepeetch will remain “essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neck being forced up and down” (T691). [Para 11].

Madsen offers a helpful example of circumstances, albeit they seem rare, where bail pending appeal may be properly denied.