Pending & Prominent: A "Grizzly" Night but "Maybin" a Prominent Legal Ruling

A case which has interested me for some time now, and is currently on appeal to the Supreme Court, prompted me to create a new category for my blog: Pending and Prominent. R v Maybin, 2010 BCCA 527 presents the Court with very interesting legal issues relating to factual and legal causation and to consider the diverging approaches to the particular issue raised in that case that have arisen across the country.
Matthew and Timoth Maybin, two brothers, apparently enjoyed playing pool.  On October 21, 2006 they were playing pool at the Grizzly Bar Pub in Nanaimo when Michael Brophy, who was talking to a young lady, happened to move one of their balls.  The Maybin brothers did not take kindly to this and attacked Brophy.  Their sudden and violent attack left Brophy a "standing knockout" and he fell unconscious on the pool table.  Buddha Gains, a bouncer at the Pub, came rushing over and decided to once again strike Brophy in the head [paras 7-11]. 
Brophy died later that same day as a result of injuries he received from those assaults.  The medical cause of death was determined to be a subarachnoid haemorrhage in the brain [para 12].
All three men were charged and jointly tried.  After trial all three were acquitted.  In acquitting all three men the trial judge held, inter alia:
In order to succeed in proving that Timothy Maybin is guilty of manslaughter, the Crown must prove beyond a reasonable doubt that he struck a blow which was the sole cause, or a significant contributing cause, of the fatal injury inflicted on Michael Brophy.  The evidence does not support the inference that either of those two propositions is true, beyond a reasonable doubt.  As a result, Timothy Maybin cannot be found guilty of manslaughter. 
It must follow that Matthew Maybin cannot be found guilty of manslaughter, because the only way he could be found guilty is by proving that he aided or abetted the commission of manslaughter by Timothy Maybin.
In order to prove that Buddha Gains is guilty of manslaughter, it must be proved beyond a reasonable doubt that the blow he struck was the sole cause, or a significant contributing cause of the fatal injury to Michael Brophy.  As with Timothy Maybin, the evidence does not support either inference beyond a reasonable doubt Buddha Gains cannot be found guilty of manslaughter [para 19 CA].
The Crown appealed.
Ryan JA, for the majority, allowed the Crown's appeal in relation to the Maybin brothers; the appeal in relation to Gains was dismissed.
Dealing first with factual causation, Ryan JA held as follows: 
...the trial judge failed to fully examine the factual cause of Mr. Brophy’s death, ended his factual inquiry early and never reached the question whether anyone should be held legally responsible for the death of Michael Brophy...the trial judge ended his examination of the factual cause of death once he concluded he could not say which blow or combination of blows administered by the Maybin brothers and Mr. Gains caused the death of Mr. Brophy.  This focus was not wrong, but its scope was too narrow.
The Maybins’ punches did more to Mr. Brophy than cause bruising and bleeding to his face and head. Another product of their assault was that Mr. Brophy was rendered unconscious, tumbling face down onto the pool table where he became a target for Mr. Gains. As a result, Mr. Brophy died. Given these facts, it cannot be open to dispute that the Maybin brothers were one of the factual causes of Mr. Brophy’s death. Their blows either killed Mr. Brophy or at the very least rendered him unconscious and exposed to the attack of Mr. Gains. But for their actions, Mr. Brophy would not have died.
Given that Mr. Brophy's death was a consequence of the actions of the Maybin brothers and thus a factual cause, the trial judge was required to ask, but did not, whether they were also legally responsible for that outcome [paras 25 and 26].
Turning to legal causation Ryan JA noted that the respondent Maybin brothers argued that due to the "intervening act" - the assault of Gains - they could not be held liable for the death.  In considering this argument Ryan JA turned to the cases of R v Shilon, 2006 CarswellOnt 9888 (CA) and R v Sinclair, 2009 MBCA 71.  After discussing the applicable tests in those cases, Ryan JA, preferring the approach in Shilon, offered the following conclusion:
...I agree with the Crown that there is a reasonable possibility that a trier of fact could conclude that it was reasonably foreseeable that the Maybins’ assault would provoke the intervention of others, perhaps the bar staff, with resulting non-trivial harm. If that were found to be the case it would follow that their contribution to Mr. Brophy’s death would be outside the de minimus range.
It follows that I am of the view that there must be a new trial on the charge of manslaughter for both Timothy and Matthew Maybin [paras 43-44].
On appeal to the Supreme Court, the central issue will undoubtedly revolve around which of the two approaches to intervening act should be followed. 
The Court will have to consider the Shilon approach which is focused on reasonable foreseeability of future non-trivial harm.  Under this approach the relevant inquiry is, at the time of the first impugned act, did the first actor reasonably foresee that a subsequent act would occur that would inflict non-trivial bodily harm.  If so, than the first actor may be liable for manslaughter.  Under this approach, the precise act need not be foreseen, so long as the first actor foresees that an act might occur which would cause non-trivial bodily harm.
The Court will similarly have to consider the Sinclair approach which is focused on whether the subsequent act was "extraordinary" or "unusual".  In this approach the focus is retrospective - not prospective as in Shilon.  In this approach the Court considers the subsequent act and determines if it was "extraordinary" or "unusual" to the extent that it constitutes an intervening act. 
The Court may also consider if both test can co-exist and apply when and where appropriate.
Maybin presents an interesting issue for the Court to consider and one that is prime for consideration.  Ultimately, in my view, the majority of the Court of Appeal correctly found that the trial judge erred in not considering the issue of legal causation and a new trial should be ordered.  Regardless, Maybin is Pending & Prominent.

 

 
DG Mack

New & Notable: Nikolovski Identification

Identification cases are some of the most contentious and frequently appealed; the recent case of R v Adbi, 2011 ONCA 446 is yet another example.
Mustafa Abdi was in the car business; more specifically, he was in the business of exporting high end stolen automobiles.  The case against Abdi included the evidence of police officers who observed and videotaped a man, they alleged to be the respondent at a freight yard where stolen high end automobiles were being delivered.  The lead investigator and an officer who had been on scene later compared the video images of the male alleged to be the respondent with a digital copy of the respondent's driver's licence photo.  Both men testified that they believed that the respondent was the male in the surveillance video [paras 2-3].  There was also two pieces of circumstantial evidence which were corroborative, at least indirectly [para 2].
At trial the trial judge noted that the evidence "may be sufficient unless there is good reason for me to doubt the accuracy of identification that Police Officer Baxter gave".  The trial judge also viewed the video himself and offered the following:
I have looked again and again at the evidence to discern a number of other things including the height of the accused as opposed to the man in the grey jacket.  I do not have any evidence with respect to it, but my observation tells me it is consistent.  His facial features and structure...The type of haircut - many have it; the skin colour.  All those things are part of it - none determinative.  Glasses or not, as I have said before.
As I say, I am reluctant to substitute my view of that type of evidence for a witness that was there, but I have to tell you that a close observation by me leads me to the conclusion that the person in the digital photograph, the accused and the person in the grey coat are the same [para 5 OCA].
The respondent was convicted and appealed.
On appeal he argued that the video recordings were not of sufficient quality [para 6].  Rosenberg JA, writing for the court, noted that this issue was a question of fact for the trier of fact and the scope of review is limited to a consideration of whether the quality was such that it would be reasonable for a trier of fact to making a finding [para 6]: see R v Nikolovski, 1996 CanLII 158 (SCC).  After reviewing the video in this context, Rosenberg JA concluded:
The second clip, and the clip obviously relied upon by the trial judge, is much shorter in length, just over 30 seconds, but the person alleged to be the appellant is much closer to the camera.  The quality of the video is good and it is possible to make out this person’s features.  I cannot say that the trial judge’s conclusion is unreasonable [para 7].      
In so concluding Rosenberg JA noted that the length of the video does not make it "unsuitable for use in making an accurate identification" [para 8].  Rosenberg JA further noted that although the trial judge might have appeared to have delegated his responsibility to determine the identification issue it is clear when the entirety of the decision is read that the trial judge properly came to his own conclusion [para 9].
Appeal dismissed.
 
DG Mack

New & Notable: Proctecting the Quasi-Judicial Function of the Crown

In a recent blog, Crown Discretion: Exercising, or is it excising, Crown Discretion, I commented on the issue of whether the Crown's discretionary decision to file notice of increased penalty was part of core prosecutorial discretion. In the recent decision of R v Nixon, 2011 SCC 34 the Supreme Court considered the issue of prosecutorial discretion; while it is considered in a different context, the Court's ruling may shed some light on the likelihood of R v Gill, 2011 ONSC 1145 being upheld or overruled if appealed.
Olga Nixon was charged with a number of offences including dangerous driving causing bodily harm and impaired driving causing bodily harm. It was alleged that Nixon “drove her motor home through an intersection without stopping and struck another vehicle, killing a husband and wife and injuring their young son” [para 2]. Nixon ultimately provided breath samples and registered 200mg of alcohol per 100ml of blood. A toxicologist testified that these results extrapolated to the time of the accident would have been between 225mg and 250mg of alcohol per 100ml of blood [para 2].
Nixon elected to be tried by judge and jury and the case proceeded to a preliminary inquiry. The Assistant Crown Attorney who had carriage of the file had concerns about the admissibility of the evidence and in “particular the breathalyzer results and the probative value of the eyewitness evidence that a motor home had been seen driving erratically some time before the accident” [para 7]. Based on this analysis of the Crown’s case the results of the breath samples were not adduced at the preliminary hearing and the presiding judge was informed that the Crown would only be seeking committal on the dangerous driving counts; committal on these counts was conceded by Nixon [para 7].
After the preliminary hearing Crown and defence agreed that Nixon would plead guilty to careless driving under the Traffic Safety Act; a joint sentence of an $1800 fine was agreed upon.  Prior to agreeing to this resolution, Crown counsel sought and was granted approval by his immediate supervisor to proceed with the plea to the TSA offence. In light of the seriousness of the allegations a report was prepared and forwarded to senior officials in the justice department. The report caused significant concern to the Acting Assistant Deputy Minister (ADM); an inquiry was commenced and an adjournment of the plea was obtained.  Defence counsel was not informed of the reason for the adjournment.
Ultimately the ADM concluded that the assigned Crown’s assessment was flawed and that the proposed resolution “was contrary to the interests of justice and would bring the administration of justice into disrepute” [para 10]. The assigned Crown was instructed to withdraw the proposed resolution agreement and proceed to trial on the dangerous driving charges in accordance with the outcome of the preliminary hearing.
As a result of this decision, Nixon brought an application under section 7 of the Charter alleging an abuse of process and requesting an order compelling the Crown to honour the proposed resolution. The application judge granted the application and ordered the Crown to proceed with the plea agreement.  Nixon pleaded guilty to careless driving.  The Crown successfully appealed; the acquittals were set aside and a new trial was ordered on the dangerous driving charges.  Nixon appealed to the Supreme Court. 
At the Supreme Court, Charron J, writing for a unanimous Court, first noted that there was agreement between all parties that the Crown's conduct and decision to enter into a plea agreement was part of the "core" discretion [para 29].  The issue, however, was whether the decision to repudiate that deal also fell within this discretion. 
Although it was not agreed by all, Charron J noted that the question of whether the decision to repudiate also fell within the "core" discretion was as easily resolved:
As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: “. . . is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?” (para. 32). Applying this test, she held that the ADM’s decision to repudiate the plea agreement “fell squarely within the core elements of prosecutorial discretion” (para. 33). I agree. In my respectful view, it is difficult to see how the ADM’s decision could otherwise be characterized. The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM’s decision to repudiate the plea agreement also constitutes an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges [emphasis added] [para 30].

It followed, Charron J held, that the decision to repudiate the deal was only reviewable on a showing of abuse of process [para 31].

Turning to that issue, Charron J held that the Crown’s repudiation of the plea agreement did not amount to conduct that was so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that allowing the Crown to proceed on the Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process. 
...the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate, the decision to proceed with the prosecution is the Crown's alone to make. Reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, in good faith, determined that Crown counsel's assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct [para 68].
It is interesting to note in Nixon the decision by the Crown to repudiate its previous deal had the effect of continuing the proceedings.  At the stage that this decision was made, however, there had previously been decisions to commence proceedings, what charges to proceed with and to terminate proceedings by way of a plea agreement.  These previous decisions, Charron J held, did not change the nature of the ADM's decision - it was part of the "core" discretion. 
In the context of filing notice of increased penalty, the Crown has similarly made a decision to commence proceedings and a decision about what charges to proceed with.  However, these previous decisions and the entering of a conviction does not exhaust the Crown's "core" discretionary powers.  One discretionary option open to the Crown is to stay proceedings, even after conviction.  The decision, therefore, to file notice, is a decision about continuing the proceedings.  The fact that it impacts the accused and the court by narrowing the available sentencing options, should not - and does not in my view -change the nature of the decision. 
 
DG Mack

New & Notable: Roadside Utterances and ASAP

The recent ruling in R v Guenter, [2011] OJ No 2233 is notable for two reasons.  First, it deals with a recent hot topic, roadside statements.  In recent blogs I reviewed the Ontario Court of Appeal ruling in R v Soules, 2011 ONCA 429 [New & Notable: Compelled Roadside Statements] and the decision of Duncan J in R v Parol, 2011 ONCJ 292 [New & Notable/Quotable Quote: Compelled you say...] where Soules was considered.  In Guenter, although Soules is not mentioned - as it had not yet been release - Rutherford J makes the same distinction and point about the breadth and applicability of Soules.
Second, it addresses another recently rejuvenated topic, ASAP in the context of a breath demand.
Peter Guenter was involved in a collision with another vehicle at a T intersection which was controlled by lights.  Another motorist called police to report the collision.  Upon arrival an officer began to speak with Guenter and eventually arrested him for impaired operation.  As part of the grounds for arrest the officer relied upon utterances made by the accused; these included his utterances almost immediately upon the arrival of the officer that his "heart hurts" and that he was the driver.  The accused would later explain that his heart hurt because he hit the car and there was a family in it [para 5].  
In considering the first issue - what, if any use the Crown could make of the utterances - Rutherford J noted that when the utterances were made the police had not yet formulated any belief or grounds about what had occurred or who was involved [para 38].  Rutherford J further considered the applicability of R v White, [1999] SCJ No 28.  On that point he held that there was "nothing in the evidence to suggest that in confirming to Cst. Mathieu that he was the driver of the Pathfinder, Mr. Guenter did so under any subjective belief that he was compelled to do so by the terms of the Highway Traffic Act [para 40].  Accordingly, the utterances were admissible at the behest of the Crown. 
In considering the second issue - was the demand made ASAP - Rutherford J, noted that the demand was made by the arresting officer, after being reminded to do so, approximately one hour after arrest.  This failure, however, was "simple error, inadvertence, and nothing more".  Regardless of this error, however, the Crown had argued that there was a demand made ASAP by the breath technician and accordingly, it need not rely upon that demand [para 33].  Rutherford J noted the decisions cited by the Crown, R v Nassier, [1998] OJ No 2166 (SCJ), R v Dhaliwal, [2005] OJ No 1129 (SCJ) and R v Chilton, [2009] OJ No 3655 (SCJ) and concluded as follows:
In the circumstances of the case before me and in light of these previous decisions in this Court, I see no compelling reason not to find that Cst. Casey's demand that Mr. Guenter provide breath samples constituted lawful demands and suitable preconditions for the taking of the breath samples on which both the certificate tendered and the toxicologist's opinion evidence are based. The breath samples were lawfully taken and the evidence flowing from their analysis is admissible.
DG Mack

Comment: The Curative Proviso; to apply or not to apply, that is the question...

The curative proviso is a powerful tool on appeal; it is also one that often highly contentious. The Supreme Court's recent ruling in R v O'Brien, 2011 SCC 29 is yet another example of this.  In O'Brien the respondent was charged in relation to the robbery of a variety store; the robbery was committed by someone wearing a blue Halloween mask.  During the robbery a knife was also used.  The next morning the police recovered a blue Halloween mask, a large knife and the plastic cover from the store's cash register (that had been taken) near the store; subsequent DNA testing identified the assailant as a match.  
At trial [2009 NSSC 194] the DNA evidence become effectively the only evidence identifying the respondent as the robber.  During the course of the trial, both in chief and cross-examination, the investigating officer made reference to the respondent as a known offender and someone who the police knew well to be involved in criminal conduct [para 26].  No objection was made to this evidence being elicited.  The respondent was convicted and appealed.

On appeal [2010 NSCA 61] the respondent argued that the bad character evidence was inadmissible and impacted on the verdict.  The Crown agreed that it was inadmissible but argued that the curative proviso should apply.  The majority allowed the appeal and ordered a new trial.  Fichaud JA, in dissent, would have applied the curative proviso, noting that the error was harmless:
The trial judge’s written reasons satisfy me affirmatively that the improper evidence had no impact.  This, in my view, satisfies the Crown’s burden under the proviso.  The judge’s words that he relied “entirely on the DNA evidence” to connect Mr. O’Brien to the robbery exclude any imputation to the judge of a veiled line of reasoning sourced in [the investigating officer’s] problematic testimony.  My colleague does not explain how such a veiled line of reasoning can co-exist with the judge’s clear statement that he relied “entirely on the DNA evidence.”  My colleague says that if the judge had “arrived at his conclusion by expressly relying on evidence untainted by the impugned evidence”, he might take a different view of the proviso.  By my reading of the decision, that is what the judge did. . . .
. . . Nothing in the decision suggests, even obliquely, that [the investigating officer’s] improper character testimony figured in the identification. [para 10]
The Crown appealed.  Abella J on behalf of the majority allowed the Crown's appeal.  It was clear, she held, that the trial judge relied "entirely" on the DNA evidence and therefore did not rely on the bad character evidence.  The following comments (an honourable mention for the "quotable quotes" section) are instructive:
The trial judge said in his reasons that he relied “entirely” on the DNA evidence (para. 8).  That meant that he did not rely on the character evidence.  Imputing such reliance into reasons that state the contrary creates a new, unchartable universe of appellate review where even if the reasons reveal a proper grasp of the facts and the law, the trial judge may nonetheless find the integrity of his or her decision undermined by the possibility that judicial silence on an issue will be interpreted as “unconscious” judicial error [para 16].  [Emphasis added]. 
In conclusion, Abella J held that the curative proviso should apply; the error was harmless.
In dissent, Binnie J would not have applied the curative proviso.  In so concluding Binnie J first noted his disagreement with the interpretation of "entirely":
Nor should the Court’s refusal of a new trial hang on the thread of the trial judge’s use of the word “entirely” which — it seems to me — just reflects the fact that there was no other identification evidence before him.  If he had intended by the word “entirely” to distance himself from the inadmissible propensity evidence, I expect he would have said so [para 35].
Based on this, Binnie J found that the error was not harmless as the potential danger of the inadmissible evidence could not simply be ignored based on the reference to "entirely". 
A couple of points are worth noting in relation to this decision.  First, the impending decision in R v Sarrazin (on appeal from the Ontario Court of Appeal 2010 ONCA 577) should be interesting.  Given the differing views the members of the Court appear to have on the applicability of the curative proviso, it will be interesting to see how they handle Doherty JA's refusal to apply the curative proviso on the view that the failure to leave attempted murder with a jury that returned a guilty verdict on murder could have subconsciously impacted on their deliberations and verdict - especially in the absence of any indication that it did.
Second, there is an interesting reference to R v Mars, 2006 CanLII 3460 (ON CA).  In Mars the Ontario Court of Appeal overturned a verdict essentially finding that since the only evidence was a fingerprint found on a pizza box linked to the offence the verdict was unreasonable.  Here, the majority of the Court of Appeal held that the verdict - based "entirely" on the respondent's DNA being on items linked to the robbery - was not unreasonable.  Interestingly, on appeal to the Supreme Court the only issue appears to have been the applicability of the curative proviso.  It would be an interesting exercise - and perhaps the subject of another blog - to compare the ratio of Mars and the NSCA's decision in O'Brien.
DG Mack

Quotable Quote: Why did he recant, well...

On June 22, 1633 Galileo offered his now infamous recantation declaring that he would there forward "abandon the false opinion that the sun is the centre of the world and immovable, and that the earth is not the centre of the work, and moves...".  He did so, as noted in his abjuration, as the Holy Office had pronounced him "vehemently to be suspected of heresy".  One might infer from the circumstances that he did so for other reasons; perhaps to avoid a sentence worse than the prison sentence he did receive. 
In the recent case of R v Snyder, 2011 ONCA 445, Doherty JA reflected upon pressure that might have been placed on a suspected recanting witness, Stuart Burgess; admittedly, Kyle Snyder probably had less sophisticated ways of encouraging Burgess to recant but apparently no less effective. 
Burgess and another fella, Kevin Doucette had broken into a residence intent on robbing a drug dealer.  Unfortunately for them, the drug dealer had moved out about a month earlier; more misfortune befell the two when the drug dealer's brother turned out to be living there and a fight ensued.  Burgess was slashed across the face and Doucette was stabbed.  
Doucette and Burgess were both arrested charged and ultimately pleaded guilty to robbery.  Burgess and Doucette both gave statements to the police that indicated that Snyder had asked them to commit the robbery [para 9].  At trial Burgess testified against Snyder indicating that Snyder promised to clear up a $600 drug debt if Burgess would do the robbery for him.  Burgess gave further details about the plan and the incident.  Snyder was convicted and appealed.
One of the grounds on appeal was based on fresh evidence in the form of a sworn affidavit from Burgess, some two years after the fact, in which Burgess stated that he falsely implicated Snyder and that Snyder in fact had nothing to do with the robbery.  
In considering the admissibility of the fresh evidence Doherty JA looked at whether it could have affected the verdict; in doing so, he noted that it called for "strict scrutiny" [para 63].  When applying that level of scrutiny, Doherty JA offered the following quotable quote in the context of what explanations may exist for the recantation thus demonstrating its lack of value as fresh evidence:
Absent any evidence explaining the origins of the recantation, there are at least two explanations that flow from the circumstances.  Either the witness, who was in custody and is clearly part of the criminal subculture, and who no longer had any reason to cooperate with the Crown, saw the opportunity to help out the appellant, another member of the criminal subculture, or the witness was under physical compulsion to recant his trial testimony.  According to the submissions made by Burgess's lawyer at the time of Burgess's sentencing, Burgess had been assaulted while in jail because of his cooperation with the Crown in this case.  Burgess also acknowledged in cross-examination that he had concerns about his safety in jail if he implicated others in criminal activity.  He related that concern to his refusal to identify the person whom he now claimed had actually asked him to perform the robbery [para 66] [emphasis added].
 
DG Mack

New & Notable/Quotable Quote: Compelled you say?

In a recent post I blogged about compelled statements and the case of R v Soules, 2011 ONCA 429. In that blog [New & Notable: Compelled Roadside Statements] I suggested that the ratio of Soules - that compelled roadside statements were not admissible at hte behest of the Crown not even on the issue of grounds - was limited to only "statutorily compelled statements"; it did not limit the use the Crown could make of other evidence obtained during impaired investigation or other utterances. In the recent decision of R v Parol, 2011 ONCJ 292 Duncan J held that Soules indeed does not affect other utterances, even ones made in the context of an accident, unless those were truly a "compelled report".
In Parol Duncan J considered whether two utterances made by the accused during an investigation into a motor vehicle accident were "compelled statements".  The police had attended and found the accused at the scene of an accident.  The officer asked the accused if was the driver and he replied "No English".  The officer then "charaded" the actions of steering a car and the accused said "yes".  The officer then charaded drinking out of a bottle and the accused said "yes" [para 12]. 
In order to find those utterances to be compelled Duncan J held that the accused must establish, on a Charter motion, that (1) he was compelled by statute to provide a report, (2) that the statements were a "report" and that (3) the "report" was given in a honest and reasonable belief he was compelled to do so [para 7].
Turning to consider those issues, Duncan J held - in relation to the second point as follows:
The Court in White made the distinction between the making of a report pursuant to statute and “ordinary police investigation”. Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a “report” then the “dividing line” drawn by the Court in White would be completely obliterated [para 13].
Turning to the third point, Duncan J offered the following quotable quote:
Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions in order to comply with a known or suspected statutory obligation to report: R v Manley[2007] OJ No 5103. I have no doubt that had the situation involved not an accident but, say, an illegally parked car and the officer asked “Is this your car?” the defendant would similarly have answered the question.
I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident [paras 19 and 20]. [Emphasis added]. 
 
DG Mack

Comment: Exercising, or is it excising, Crown discretion...

Prosecutorial discretion is a vital aspect of the criminal justice system; in the recent case of R v Gill, 2011 ONSC 1145 Kiteley J delivered a significant blow to the its scope.
Richard Gill was stopped by the police after a 911 caller suggested he might be impaired - in part due to noting a bottle of vodka on the passenger seat of the car. The responding officer quickly formed the belief that Gill had alcohol in his body and made a demand for an ASD sample. Gill, however, apparently was not inclined to provide a breath sample and instead chose to attempt to walk away from the officer allegedly to call a lawyer. Gill was arrested and charged. After trial he was convicted [paras 5-13].

On sentencing the Crown filed notice of increased penalty. In response the accused raised two issues. First, he argued that the imposition of the mandatory minimum would violate section 12; this argument was soon abandoned in light of R v Ferguson, 2008 SCC 6. Second, he argued that the Crown's discretion to file the notice should be reviewed [para 7]. Borenstein J agreed. In so doing he held that the filing of the notice was not within the "core prosecutorial discretion" of the Crown and was reviewable on a standard of reasonableness - otherwise, the court held, section 727 would violate section 7 of the Charter. In that case, Borenstein J held the filing of notice was not reasonable [paras 8-13]. The Crown appealed.
On appeal Kiteley J first considered the issue of whether the filing of notice amounts to an exercise of core prosecutorial discretion [paras 31-48]. In doing so, Kiteley J first noted the Supreme Court's ruling in Krieger v Law Society of Alberta, 2002 SCC 65 wherein the Court defined core prosecutorial discretion as going to decisions about the nature and extent of the prosecution. Applying the principles from Krieger and other cases Kiteley J concluded:
...While it must be served before plea, the Notice of Intent to Seek Increased Penalty is an aspect of the sentencing phase of the trial, after the offender has been convicted. There is no longer a question of initiation, continuation or termination of the prosecution. Rather the decision to file the Notice could be characterized as tactical [para 44].
Having decided that the decision to file notice is not a core prosecutorial discretion Kiteley J turned to consider if the discretion was reviewable and on what standard [paras 49-58]. On this point Kiteley J held that where there was a basis to find that filing of the notice would violate section 7 a review as permissible; the standard of review being reasonableness.
Applying that to the appeal, Kiteley J held that it was appropriate for the trial judge to review the Crown's discretion and moreover, that the trial judge correctly found the Crown's exercise of discretion to be unreasonable; Kiteley J concluded: [The trial judge] was simply stating the obvious, namely that a decision based solely on four prior very dated convictions did not constitute a reasonable exercise of discretion [emphasis added].
With respect, I would not agree. Leaving aside for the sake of this comment the difficulty in the conclusion that the Crown's exercise of discretion to file notice based on four prior convictions is unreasonable, the real difficulty lies in the premise underlying the decision to review the Crown's discretion in the first place. The premise appears to be founded in a determination that the filing of notice could constitute a violation of section 7; this violation, in turn is founded on the premise that the sentencing scheme, as the Crown proposes it should be read, "violated a principle of fundamental justice, namely that Parliament or the Courts should be responsible for defining sentence, not the Crown" [para 54].
This premise should be rejected. Consider the instructive analysis of Rosborough J in R v Haneveld, 2008 ABPC 382:
At the outset, it must be recognized that some prosecutorial elections clearly falling within the doctrine of prosecutorial discretion as described in Krieger can have important effects on the sentencing process. An election to proceed by indictment, for instance, can have the effect of increasing the statutory maximum sentence for an offence with which the accused is charged. That, in turn, becomes a relevant consideration on the sentence hearing. See: R. v. Solowan, [2008] S.C.J. No. 55, 2008 SCC 62.
In his work, Due Process of Law (Toronto, Carswell Co. Ltd. 1977), Prof. S. Cohen makes note of the manner in which a Crown Prosecutor's election as to mode of trial can limit the Court's sentencing powers. He states (at pp. 143-4):
In allowing the prosecutor to select the mode of procedure (summary conviction or indictment proceedings) an important function of the judiciary is effectively usurped -- i.e. control over the choice of penalty. This is particularly the case when the offence itself carries a mandatory minimum jail term for proceeding by indictment. True, in the final analysis it is the judge who imposes and selects the appropriate sentence but the mode of procedure itself may deprive him of resort to dispositions which are more appropriate to the particular factual circumstances of a given offence. For example, where a minimum penalty is provided for an offence triable upon indictment (irrespective of whether that minimum penalty involves incarceration or not) the Criminal Code provisions concerning absolute and conditional discharges are not available, no matter how desirable." [Emphasis added].
This reasoning was adopted in R v Bolender, 2010 ONCJ 622. I would similarly adopt it. The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601.
DG Mack