MCLNugget: Burke NLCA

R v Burke, 2018 NLCA 31

The Issue

The standard and appropriateness of imposing a restitution order under s738 of the Code.

The Answer

Stand-alone restitution orders are constitutionally valid. They are discretionary and such discretion must take into account an offender’s ability to pay: R v Zelensky, [1978] 2 SCR 940. However, where there is a breach of trust, ability to pay is not a predominant consideration: R v Castro, 2010 ONCA 718.

The Fine Print

In the present case there was a breach of trust. The evidence did not support an inability to pay. The $35,821.85 restitution order was upheld.

DM

MCLNugget: WDAZ

R v WDAZ, 2018 BCCA 180

 The Issue

Can a complainant adopt her s715.1 statement if her viva voce evidence is inconsistent with her video statement; and what impact do leading questions have on admissibility of such a statement.

The Answer

The test for admissibility of a s715.1 statement was set out by the court:

The video statement is admitted on the basis that young children cannot be expected to clearly remember events that occurred months or years prior to trial and the statement “will almost inevitably reflect a more accurate recollection of events than will testimony given later”: R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at para. 19. This is especially true when the child retains no memory of the incident and the video is the only way to bring the child’s evidence before the court: F.(C.C.) at para. 21.
To be admissible at trial, the statement must be properly adopted, meaning the child must recall giving the statement and testify that she intended to be honest when she gave the statement: F.(C.C.). The child does not need to remember the specific events discussed in the statement, although the inability to cross-examine the child on this evidence should necessitate a warning to the trier of fact about convicting on this evidence alone: F.(C.C.) at para. 44. [@52-53]

The Fine Print

The Court of Appeal upheld the trial judge’s ruling admitting the statement.

In this case, the use of leading questions within the s. 715.1 statement went to the issue of weight to be given to the evidence at trial and not to the admissibility of the statement. The judge did not err by failing to address the issue of weight at this stage. In my view, he properly exercised his discretion to admit the s. 715.1 statement as evidence at the trial. This decision is reasonable and entitled to deference. [@64]

DM

MCLNugget: LeBreton NBCA

R v LeBreton, 2018 NBCA 27

The Issue

Does 724(3)(e) ) of the Code allow a sentencing judge to infer a disputed aggravating fact from the undisputed facts presented at an informal sentencing hearing?

The Answer

In short, yes. The NBCA cited R v Gardiner, [1992] 2 SCR 368 where the SCC held as follows:

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. [Gardiner @111].

The Fine Print

The NBCA held that the sentencing judge could, in this case, draw the impugned inference:

In this case, the dispute centres on the sentencing judge’s inference of premeditation, a state of mind which is a question of fact. In my view, the judge was entitled to draw the inference if she was satisfied beyond a reasonable doubt it was the only reasonable inference to be drawn from the facts. On this point, although Mr. LeBreton admitted to planning and taking the steps necessary to implement his plan, as noted, his dispute rested with whether the plan was for the purpose of scaring or killing his victim, which raised a question of his state of mind. I conclude his state of mind could be inferred from the facts. Applying Gardiner, it is easily concluded the sentencing judge had the right to rely on admitted facts to infer Mr. LeBreton’s state of mind. It is for this reason I am of the view the sentencing judge’s interpretation of s. 724(3)(e) was consistent with the framework set out by the Supreme Court in Gardiner. [@18]

DM

MCLNugget: George-Nurse ONCA

R v George-Nurse, 2018 ONCA 515

The Issue

Where the Crown’s case is entirely circumstantial in relation to an element of the offence (or the all of them), what if anything can a trier of fact do with the fact that an accused has not testified.

The Answer

Where a case is entirely circumstantial, an inference of guilt must only be drawn if it is the only reasonable inference: see R v Villaroman, 2016 SCC 33. When assessing if there is another reasonable inference, the lack of evidence from the accused permits the court to reject innocent inferences – the “failure to testify negates the alternative inference” [para 32].

Where there is a “strong case to answer” the court is entitled to “consider the appellant’s failure to testify in assessing whether an innocent inference was available: Noble, at para. 103” [@35].

The Fine Print

There was a dissent – the matter is likely headed to the SCC. In dissent Hourigan JA offered the following:

The fact that the appellant did not testify to offer a plausible alternative version of events is of no assistance to the Crown in this case. Appellate courts may refer to an accused’s silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal. However, the accused’s failure to testify is generally relevant only in cases where the Crown has adduced a compelling body of evidence: R. v. Noble1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 103.
In R. v. LePage1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, at paras. 29-30, a majority of the Supreme Court of Canada endorsed the following statement from R. v. Johnson (1993), 1993 CanLII 3376 (ON CA), 12 O.R. (3d) 340 (C.A.): “No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify.” See also R. v. Hay2009 ONCA 398 (CanLII), 249 O.A.C. 24, at para. 37[1]; and R. v. Tremble, 2017 ONCA 671 (CanLII), 354 C.C.C. (3d) 27, at para. 98.
Thus, while the jurisprudence makes clear that the accused’s failure to testify may be taken into account in assessing whether there is an innocent inference available, it would make little sense to factor in that failure when reasonable innocent explanations are already apparent by looking at the gaps in the Crown’s case. In the case at bar, the evidence against the appellant that he had counselled the SUV driver to shoot at Mr. Foster was weak. It would have been foolhardy for any competent defence lawyer to advise a client to testify in these circumstances. There was simply no need to call evidence to support an alternative version of events.
In my view, there was a lacuna in the evidence such that no trier of fact acting reasonably could have concluded that there was no reasonable inference other than guilt. [@17-20]

MCLNugget: Notaro ONCA

R v Notaro, 2018 ONCA 449  

The Issue

Does the failure by an officer to consider the presence of residual mouth alcohol make it unreasonable for the officer to rely on an ASD fail result in forming reasonable and probable grounds for an arrest and evidential breath demand?

The Answer

The answer is no. “There can be reasonable grounds even where an officer fails to consider the presence of residual mouth alcohol…The existence of reasonable and probable grounds does not turn upon whether an arresting officer has considered the possibility of residual mouth alcohol or its effects” [@22 and 23].

First, “it is settled law that arresting officers do not have a duty to inquire into the presence of residual mouth alcohol; it makes no sense to treat a failure to consider something that there is no duty to inquire about to be a Charter violation” [@24].

Second, “the reasonable and probable grounds test does not turn on the quality of the inquiry, such as whether the arresting officer asked herself all of the questions that a prudent person would. It turns, instead, on whether the arresting officer subjectively has an honest belief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief” [@25].

The Fine Print

First, there is not duty to inquire into the presence of residual mouth alcohol and failure to ask about last drink is not fatal: “Reasonable and probable grounds is determined, instead, according to the subjective belief of the arresting officer, and whether, on the information known to the officer, that belief is reasonable” [@33].

Second, “the effect of the law relating to the objective component of the reasonable grounds test can be put this way”:

  • If the information known to an arresting officer about a suspect’s residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
  • If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.

DM

MCLNugget: Hunt ONCA

R v Hunt, 2018 ONCA 480

The Issue

Does late disclosure, delaying a bail hearing and causing “unnecessary and prolonged uncertainty [regarding his bail status] for the appellant and his family that he supported”.

The Answer

Credit may be provided for state conduct as per R v Nasogaluak, 2010 SCC 6. In this case, however, the trial judge properly rejected the request:

In the view of the sentencing judge, the alleged misconduct did not have anything to do with the circumstances of the offence or the offender so as to warrant consideration in sentencing: see Nasogaluak, at paras. 3 and 49. We agree. Moreover, even if the late disclosure can be described as state misconduct, it does not rise to the level of being a mitigating factor in this case. [@17].

DM

MCLNugget: Groia SCC

Groia v Law Society of Upper Canada, 2018 SCC 27

The Issue:

What is the standard of review of a Law Society’s misconduct findings. Related, and case specific, what can be said, and how often, in pursuit of one’s position in the criminal justice system.

The Answer:

Frist, the standard of review is reasonableness – per the majority:

In this regard, I agree with Cronk J.A. that “the application of the reasonableness standard of review in cases like this one in no way intrudes on a presiding judge’s authority to control the process in his or her courtroom”: para. 67. Courts and law societies enjoy concurrent jurisdiction to regulate and enforce standards of courtroom behaviour. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court.
To be clear, the location of the impugned behaviour is unquestionably relevant to the misconduct analysis itself. As I will explain, the fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review.
In sum, the Appeal Panel’s decision is reviewed for reasonableness. [@55-57]

Second, what Groia said and how he said it was not professional misconduct:

Mr. Groia’s allegations were made in good faith and they were reasonably based. As such, the allegations themselves could not reasonably support a finding of professional misconduct.
[…]
law societies should not sanction lawyers for sincerely held but mistaken legal positions or questionable litigation strategies.
[…]
In assessing “what” Mr. Groia said, the Appeal Panel reiterated that misconduct allegations or other challenges to opposing counsel’s integrity cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. The Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in good faith. It based its finding of professional misconduct primarily on the fact that his allegations lacked a reasonable basis. However, contrary to its own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous legal beliefs to reach this conclusion — one which, as I have explained above at paras. 88-91, cannot be reasonable.
Once the allegations of impropriety — what Mr. Groia said — are no longer in the mix, it becomes apparent that the other factors in this case cannot reasonably support a finding of professional misconduct against him. As I will explain, the frequency of Mr. Groia’s allegations was, to some extent, a product of the uncertainty surrounding the manner in which abuse of process allegations should be raised — a factor the Appeal Panel did not consider.
[…]
The Appeal Panel’s finding of professional misconduct against Mr. Groia was unreasonable. The Appeal Panel used Mr. Groia’s sincerely held but mistaken legal beliefs to conclude that his allegations of prosecutorial misconduct lacked a reasonable basis. But, as I have explained, Mr. Groia’s legal errors — in conjunction with the OSC prosecutor’s conduct — formed the reasonable basis upon which his allegations rested. In these circumstances, it was not open to the Appeal Panel to conclude that Mr. Groia’s allegations lacked a reasonable basis. And because the Appeal Panel accepted that the allegations were made in good faith, it was not reasonably open for it to find Mr. Groia guilty of professional misconduct based on what he said. [@7, 85, 122-123, 159]

The Fine Print:

Takeaway points. First, the criminal justice system is no tea party:

To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.
By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.] @2-3]

Second, the bar for misconduct has been set, arguably quite high. Putting the conduct that the majority condoned in context is helpful to appreciate just where (or how high) that bar lies. The Appeal Panel characterized the conduct this way:

Taken as a whole, the submissions we have excerpted can best be described as a relentless personal attack on the integrity and the bona fides of the prosecutors. It is important to emphasize that the examples we have selected provide some flavour, but it is difficult to convey the cumulative effect of the unabated repetition over the course of 10 hearing days of Mr. Groia's vehement and very lengthy attacks on the prosecutors.
These attacks were personal in nature. ... Taken together, in context, over the course of this lengthy trial, it is very clear that they were decidedly personal.
These attacks were aimed at the integrity of the prosecutors, by repeatedly asserting that they had broken their 'promises' and could not be relied on to do what they represented to the court and were, in a word, untrustworthy.
These attacks also included numerous allegations of deliberate prosecutorial misconduct: that the prosecutors intended to 'win at all costs', that their conduct offended the ethical principle that the duty of the Crown is not to seek a conviction, that they were deliberately putting the evidence though a 'conviction filter', and, most troubling, that they were intentionally acting so as to ensure that Mr. Felderhof did not obtain a fair trial.
Nothing the prosecutors did justified this onslaught. These attacks on their integrity and bona fides did not have a reasonable basis.
. . . . .
Likewise, we conclude that Mr. Groia had no reasonable basis on which to attack either the integrity of the prosecutors or their motives. The prosecutors had not promised that they would introduce all relevant documents, regardless of the rules of evidence. They were under no obligation to call evidence favourable to the defence. They had not resiled from their promises. Their positions on evidentiary issues were not improper and were often correct.
. . . . .
[A]ccepting that Mr. Groia was not deliberately misrepresenting the law and was not ill-motivated, we are nevertheless satisfied that Mr. Groia's misconduct had a serious adverse impact on the trial, by causing numerous delays in the evidence of the trial's first witness, by distracting the prosecutors from the presentation of the evidence, and by forcing the trial judge to become involved in many unnecessary disputes.

The ONCA, 2016 ONCA 471, agreed:

Having reviewed the relevant parts of the record, described in part above, I conclude that these critical findings were amply justified. Mr. Groia's remarks on the days in question, quoted above, were uncivil and discourteous and exceeded even the most broadly defined reasonable boundaries of zealous advocacy. They struck, without a reasonable basis, at the heart of the OSC prosecutors' duties to the court, to opposing counsel and to the administration of justice — in short, at their most basic duties as 'ministers of justice' and officers of the court. They also affected the orderly progression of the trial and the dignity of the proceedings and contributed to the delay in the completion of the testimony of the first witness at trial. [@211]

The dissent at the SCC commented on their concerns about the fallout from the ruling including citing possible impacts by “immunizing accusations based on honestly believed legal errors; validating uncivil conduct; and undermining the administration of justice:

Condoning Mr. Groia’s conduct risks eroding civility in courtrooms and increasing the pressures on an already strained system. Moreover, setting aside the decision of the Appeal Panel has the potential to undermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culture change we need. Through their enabling legislation, they are provided with the authority to sanction lawyers who commit professional misconduct and, in turn, promote efficiency in our system. They should be empowered to do that, not undermined through second-guessing by the courts. Their decisions respecting professional misconduct should be approached with deference. [@231]

DM

MCLNugget: Colling SCC

R v Colling, 2018 SCC 23; affirming 2017 ABCA 286

The Issue

Whether the trial judge intervened in the trial in a manner that undermined the fairness of the trial or led to a reasonable apprehension of bias, warranting a new trial. First, by intervening in and limiting cross-examination. Second, by “entering the fray” and creating a reasonable apprehension of bias. Third, by limiting submissions on a defence raised.

The Answer

With respect to the intervention in cross-examination, the ABCA set out the test:

Interjections during the cross-examination of the prosecution’s witness may amount to trial unfairness, either actual or perceived. The test to determine whether such interventions compromised trial fairness is an objective one. “The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial”: R v Valley, [1986] OJ No 77, 26 CCC (3d) 207 at 232, leave to appeal to SCC dismissed [1986] SCCA No 298 (QL). [@21]

With respect to entering the fray and creating an apprehension of bias, the ABCA set out the test:

When undue intervention is advanced as a ground of appeal, the ultimate question is whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. A trial judge must not question a witness in such a way as to convey an impression that the judge aligns himself or herself with the case for the Crown or the defence; question a witness in such a way as to make it impossible for counsel to present their case; or intervene to such an extent in a witness’s testimony that it prevents the witness from telling his or her story. Context is critical in assessing whether trial unfairness through undue intervention or a reasonable apprehension of bias have been made out. The impugned comments and interventions that are alleged to have compromised trial fairness or showed a reasonable apprehension of bias must be analyzed in light of the surrounding context and the particular facts of the case. [@39]

With respect to limiting a defence, no test was expressly set out.

The Fine Print

The Supreme Court agreed with the majority of the ABCA. That court held as follows.

With respect to the interventions in cross-examination, the court held that the trial judge is obligated to manage the trial and in this way is permitted to asked counsel to focus or move along. Here the relevance on the impugned line of questions was not clear and the trial judge’s interventions were not inappropriate. A reasonably minded person present throughout the trial would not consider the interventions to have rendered the trial unfair.

With respect to entering the fray and creating an apprehension of bias, the court held that trial judge did so on multiple occasions but must were largely for the purpose of clarifying the evidence. The interventions do not suggest a bias on the part of the judge. While it may have been preferable to adopt a more “restrained approach” the interventions do not give rise to a reasonable apprehension of bias.

With respect to limiting a defence, the ABCA held that the accused was not prevented from relying on a defence (honest but mistaken belief) and the trial judge ruled on it.

DM

Failing to Provide the Necessary Jury Instruction

Ezekiel was 18months old when he fell ill. His daycare contacted his parents. His symptoms included fever, lack of appetite and trouble breathing. Both parents were concerned. Neither sought medical attention for their child. Instead they contacted a family friend, a nurse, by phone. They had her listen to Ezekiel’s breathing over the phone and the friend suggested that the child might have croup. Over the next several days Ezekiel got much worse. No medical attention was sought. The parents ‘treated’ Ezekiel with a number of naturopathic remedies. The nurse friend suggested that Ezekiel had meningitis and recommended that a doctor be consulted. The parents did no such thing. Instead the mother took to the internet and concluded that her child had viral meningitis not the more serious bacterial meningitis. A receptionist at the naturopathic clinic told the parents to bring their child to a doctor. The parents did no such thing. Instead their child stopped breathing at home about a week after his first symptoms appeared. It was only after Ezekiel had been revived by his father that  his parents called 911. He was resuscitated again by paramedics but never regained consciousness and died 5 days later.

Both parents were charged with failing to provide the necessaries of life. A jury found them guilty. They appealed to the Alberta Court of Appeal. The majority of the appellate court dismissed the appeal: 2017 ABCA 380. Justice O’Ferrall, however dissented and would have granted the appeal. A unanimous Supreme Court of Canada agreed with Justice O’Ferrall and ordered a new trial: 2018 SCC 21.

On appeal the Stephans argued that the trial judge erred:

  • by failing to limit the expert evidence called by the Crown
  • by limiting the defence expert evidence
  • by failing to qualify the accused father as an expert
  • in rejecting the accuseds’ 11b motion; and finally
  • in a number of ways in the instructions to the jury

Only one gained any traction with Justice O’Ferrell and ultimately the Supreme Court; this was with respect to the trial judge’s charge to the jury.

Justice O’Ferrell concluded that:

the jury charge was confusing, misleading, and deficient in describing a key element of the offence. Furthermore, the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence. The cumulative effect of the jury instructions may have been an unsafe or suspect verdict.
(…)
The instructions tended to give the impression this was a strict liability offence. That is, if a parent does not take his or her sick child to the doctor and the child dies, the parent is guilty of failing to provide the necessaries of life. Even in strict liability regulatory offences, due diligence is a consideration. Section 215 has been interpreted to require objective fault, but such fault must be assessed in terms of the reasonableness of the accused’s conduct. @213-214.

The Supreme Court held that the “learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.” @2.

Of note, defence had no objection to the charge at the time of trial (ABCA @84). Though certainly not determinative the absence of such an objection is sometimes a helpful way for appellate courts to get the pulse of the charge in the context of the trial, but, as this case illustrates, is not always determinative.

LT

MCLNugget: Wong SCC

R v Wong, 2018 SCC 25

The Issue

What is the proper approach for considering whether a guilty plea can be withdrawn on the basis that the accused was unaware of a collateral consequence stemming from that plea, such that holding him or her to the plea amounts to a miscarriage of justice under s. 686(1)(a)(iii) of the Code.

The Answer

An accused must be aware of the criminal consequences of a plea as well as the legally relevant collateral consequences – one which bears on sufficiently serious legal interests of an accused. The assessment of this must be done on a subjective basis. That is, the accused must establish subjective prejudice by establishing (normally via an affidavit) that they were unaware of the consequence and would have either (1) opted for a trial and pleaded not guilty, or (2) pleaded guilty, but with different conditions. This subjective inquiry does allow, however, for an objective assessment of the credibility of the claim.

The Fine Print

First, the ineffective assistance of counsel framework has no relevance. That framework focuses on the source of the misinformation (or incomplete information) rather than the misinformation itself. Assessing whether prejudice arises from misinformation does not depend upon its source.

Second, in the present case Wong’s plea was uninformed as he was unaware of the immigration consequences. To establish prejudice, however, the accused seeking to withdraw a guilty plea must show a reasonable possibility that, having been informed of the legally relevant consequence, he or she would have either pleaded differently, or pleaded guilty with different conditions. Mr. Wong has not met this burden.

Though he filed an affidavit before the Court of Appeal, he did not depose to what he would have done differently in the plea process had he been informed of the immigration consequences of his guilty plea. There was therefore see no basis to permit him to withdraw his plea.

DM