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.


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.


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.


Fit for the Pen

Inksetter had one of the largest and worst collections of child pornography that the Ottawa Police Services had ever uncovered. He was found guilty of both possessing child pornography and making it available. Police identified some 28,052 unique images and 1,144 unique videos. The investigation was halted at this point even though 1.2million other images and 40,000 other videos remained to be categorized.

At the sentencing hearing Detective Carr testified that Inksetter’s collection was among the top one or two most difficult collections she had ever had to review. About 95% of the material depicted explicit sexual activity. The youngest of the victims were around a year old. The folders were user organized and labelled commensurate with their contents. Some of the material was downloaded and remained in a shared folder available to others.

At the time of his sentencing Inksetter was 51years old and had no criminal record. The Crown sought a sentence of 4.5years. Defence sought a term of 1year imprisonment followed by probation. The sentencing judge imposed a term of two years less a day followed by three years probation. The Crown appealed. The Court of Appeal agreed that the sentence was unfit: 2018 ONCA 474

First, the appellate court noted that s718.01 makes clear that denunciation and deterrence are primary considerations for any offences involving the abuse of a child.

Second, the Court reminded everyone that probation is traditionally a rehabilitative tool and does not seek to “serve the need for denunciation or general deterrence” @18. The Court of Appeal soundly rejected Inksetter’s argument that probation could fulfill the principles of denunciation and deterrence. The Court framed the argument this way:

The respondent argues that, in this case, probation assists in filling the need for denunciation and general deterrence because the probation order includes a term requiring him to agree to provide access to his electronic devices to the Ottawa Police Service upon demand for the purpose of searching for material related to child pornography before using the internet. The respondent says that this term, which was included as a workable alternative to a blanket prohibition on internet use, permits a significant interference with his privacy rights. @19

The Court held:

I reject this argument. As I indicate above, it is clear from the trial judge’s reasons that his objective in imposing a long period of probation was not denunciation and general deterrence. Moreover, I do not accept that the possibility that such a term might be imposed in a probation order, and that, if imposed, police might search an individual’s electronic devices, serves as a general deterrent or that its imposition meets the objective of denunciation. @20

The Court of Appeal then set about determining a fit sentence. In so doing they noted the following.

First, over the past decade Parliament has increased the legislated range of sentence for these types of offences. @23

Second, as technology becomes increasingly sophisticated the prevalence of child pornography related offences is on the rise. @25

Third, making child pornography available warrants a longer sentence than possession of child pornography. @27

The Court concluded that a sentence of 3years for possession of child pornography and a sentence of 3.5years for making child pornography to be served concurrently was a fit sentence. @28


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.