Comment: Lack of Knowledge is Bad, Imperfect Knowledge may be Worse

Knowledge can be antithetical. As Francis Bacon Sr onced noted, knowledge is power. Yet, a little knowledge is a dangerous thing; imperfect "knowledge" can be disasterous.
There can be no doubt that a lack of knowledge about one's fundamental legal rights is problematic; educating and providing such knowledge is a laudible pursuit and should be applauded. This pursuit, however, is one frought with danger as providing imperfect or incomplete knowledge can be dangerous.
It is with this in mind that I read with great interest a new column in the Ottawa Citizen: "Law, justice, lack of knowledge a bad mixture" by Michael Edelson.  In his introductory column Mr Edelson, a prominent local defence lawyer, explains that the column (which will be authored by him and members of his firm) is intended, at least in part, at educating people "on their rights and obligations...under the law".  This is a laudable goal.  Yet, one must wonder, perhaps be concerned, whether this can so easily be achieved in this context; the law is dynamic and its application is dependant on an infinite set of possible factual circumstances.  More importantly, however, often lawyers and judges do not agree on what the law actually is on any given point. 
With this in mind, I waited with great interest for the first installment of this column.   
 
The first issue of this new column came out on Friday: "Right to Know: Meeting the police: An informed citizen won't be intimidated" by Solomon Friedman.  These concerns about the potential pitfalls of purporting to educate the public on the law are borne out in this first article.
In this first column Mr Friedman discusses the "casual" interaction with the police which he suggests is a "regular feature of our lives". Regular, perhaps, is a bit of an overstatement but this type of interaction indeed is one that people should understand and be informed about.  Unfortunately, with respect, I am not sure that is what Mr Friedman has achieved.  Two examples will illustrate this point. 
 
First, in discussing "investigative detention" Mr Friedman advises readers that "while the police may be able to perform a 'pat-down' for weapons, an investigative detention does not give the police the right to search you or your belongings" [emphasis added].  There are, in my view, some problems or ambiguities with this statement of the law. 
 
First, a "pat-down" will be permitted where officers have "reasonable grounds to believe that his or her safety or that of others is at risk": see R v Mann, 2004 SCC 52 at para 45. 
 
Second, a "pat-down" is a search. The suggestion that the police cannot "search you" seems to imply that the "pat-down" is not a search.  It is.  The purpose of it, where it is permitted, is to determine if their are weapons.  If the police feel what they believe is a weapon a more intrusive search will be permitted.   
 
Third, and most importantly, the suggestion that the police are not permitted to "search you or your belongings" seems to be in error.  In R v Plummer, 2011 ONCA 350, for example, the Ontario Court of Appeal commented on the search of Plummer, while under investigative detention, and a bag in the car in which he was seated.  In finding that both were permissible the court noted the following:
there is nothing in Mann confining a search incidental to an investigative detention to only the person detained... 
If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity [paras 53 and 58]; [emphasis added].
A similar outcome was reached in R v Peters, 2007 ABCA 181 where the Alberta Court of Appeal found that the search of the accused's backpack by an officer was a justifiable search incident to investigative detention. 
Mr Friedman's advice to the reader of his column that the police are not permitted to search "you or your belongings" may lead some to resist such efforts by the police.  Based on Plummer and Peters, such resistance would be ill-advised and potentially criminal.
 
Second, the suggestion that "the longer the detention, the more likely it is that you are constitutionally entitled to consult a lawyer and seek legal advice" is ambiguous and not entirely accurate.  In R v Suberu, 2009 SCC 33 the Supreme Court reviewed the right to counsel (section 10(b) of the Charter) and its application in the context of investigative detention.  The majority offered the following:
Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention [para 42]; [emphasis added].
The length of the detention is not determinative.  According to Suberu, if there is an investigative detention then officers are obliged, subject to safety concerns, to immediately inform and implement rights to counsel.
Educating the public about their fundamental legal rights is a laudable pursuit.  Perahps, however, this pursuit must be undertaken with caution and a warning: the law is not static, it is fact specific and sometimes, it is not settled. 
Knowledge can be power so long as it is fully informed knowledge.
 
DG Mack

New & Notable: Logic and Common Sense do Occasionally Collide with Criminal Law

William Pereira was charged with impaired and "over 80".  At trial the breath technician testified.  During his evidence he identified the lot # for the alcohol standard that was used in the approved instrument.  During cross-examination it was elicited that the lot # provided by the breath technician - as recorded in his alcohol influence report - was different that the lot # recorded on the certificate. 
The accused submitted that if the Crown was seeking to rely upon the presumption of identity - section 258(1)(c) - then it needed to prove, inter alia, that the instrument was being operated properly.  The discrepancy in the lot # was evidence, the accused argued, that the instrument was not operated properly.  The trial judge accepted that argument and acquitted the accused.
The Crown appealed: R v Pereira, 2011 CarswellOnt 3208 (SCJ).
On appeal Sproat J commented on the discrepency:
While logic and common sense do not always dictate the result, there appears to me to be only one explanation for the discrepency.  The qualified breath technician testified that he was recording the number for the alcohol standard from a sticker of some sort that was on the Intoxilyzer machine itself.  The only explanation I can think of is the qualified breath technician made a regrettable but human error in writing down the lot number and/or transposing it to the certificate.  I can't think of any scenario in which this error could cast the slightest doubt on the validity of the reading [para 5].
Sproat J noted that the Crown had called the breath technician and therefore was not relying upon 258(1)(g).  Accordingly, this error is not fatal unless it caused some doubt that the instrument was not operated or operating properly.  Sproat J rejected that argument and held:
...the fact that there may be that slight discrepancy in the identified for the standard certainly doesn't raise any doubt that there was an alcohol standard in the machine.  If Parliament intended that in order to invoke the presumption it was necessary for the witness to be able to definitely identify the alcohol standard, Parliament would have said so as it did in s. 258(1)(g) [para 9].
Sproat J allowed the Crown appeal.
 
DG Mack

News: The Ever Changing Face of the Supreme Court

Prime Minister Stephen Harper announced this week the appointment of Mr Justice Michael J Moldaver and Madam Justice Andromache Karakatsanis to the Supreme Court of Canada.  In doing so he offered the following praise of the new appointees:
Justice Moldaver and Justice Karakatsanis are both highly intelligent, greatly experienced and eminently qualified for their new roles as Supreme Court justices...I have every confidence both justices will serve all Canadians faithfully and with distinction.
These appointments also mark the loss of Madam Justice Louise Charron and Mr Justice Ian Binnie. 
Any change to the Supreme Court is a significant one, but this change is particularly notable as it marks the loss of one criminal law luminary and the gain of another. 
 
The Loss:
Justice Charron has been a powerful force on the Court for the last several years.  She has authored some of the most significant decisions of the past decade and drafted reasons that will be cited for decades to come.  Her writing style is clear and her legal analysis is second to none.  A short list of some of the most notable decisions make the point: R v Nixon, 2011 SCC 34; R v Sinclair, 2010 SCC 35; R v Pickton, 2010 SCC 32; R v Suberu, 2009 SCC 33 (see my article on Suberu: A Death on the Way to Rome); R v Grant, 2009 SCC 32; and R v Dinardo, 2008 SCC 24.
 
 
The Gain:
Justice Moldaver has similarly been a powerful force at the Ontario Court of Appeal.  His decisions are legally sound and logical and he is certain not afraid to disagree with his colleagues and stand by his decisions.  A shot list of some of his recent rulings illustrate this point: R v Woodward, 2011 ONCA 610 (see my Bulletin comment on this case in MCLB Issue 8: Sentencing: Internet Luring); R v Sarrazin, 2010 ONCA 577 (in which he wrote a brilliant dissent, now being considered by the Supreme Court; see my Bulletin comment on Sarrazin Issue 1: The Curative Proviso); R v Phillion, 2009 ONCA 202; and Re Truscott, 2007 ONCA 575 [Moldaver J was part of the panel for the per curiam decision].
 
DG Mack

Current & Curious: Procedural Peculiarity

Tina Deveau was charged with impaired and "over 80". Prior to her trial she filed a Charter motion to exclude evidence based on alleged violations of her rights under sections 8, 10(a) and 10(b).  The Crown apparently did not file a response. 
At trial a debate ensued over how the motion and trial should proceed. The defence insisted that the Crown had to call evidence to establish a prima facie case before it was required to call evidence on the motion. The Crown argued that the defence had to call evidence to establish the breach and it would decide thereafter if it would call evidence. Ultimately Deveau testified on the Charter motion.  The Crown then sought to call evidence on the breach and the defence objected.  The trial judge outlined the defence objection:
So therefore, at this point in time, having heard the Defence’s evidence, the Crown ought to be estopped from calling evidence, viva voce evidence, on the matter. 
The trial judge then held the Crown was precluded from calling evidence:
So the Crown, having heard what the Appellant had to say, in my view, having not given the Applicant any notice of what its position was through a brief cannot now call a witness to present its position. To me that would be procedurally unfair, and I will not admit that.
The trial judge granted the motion and Deveau was acquitted.
The Crown successfully appealed and Deveau appealed to the Nova Scotia Court of Appeal: 2011 NSCA 85. The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal court, and concluded as follows:
The Crown had provided disclosure of its evidence for the prosecution proper. The Crown had made it clear that the Crown would decide whether or not to call evidence on Ms. Deveau’s Charter motion after the Crown heard Ms. Deveau’s evidence for that motion. The Crown was entitled to take that position. The Provincial Court judge’s view was that, before the respondent to a motion hears the applicant’s evidence, the respondent must file a pre-motion brief which commits the respondent to particular evidence for the motion. Failure to comply, according to the judge, precludes the respondent from calling evidence. That view is not a principle of law. No authority for such a preclusion or estoppel has been cited. Had the Crown been permitted to lead evidence in response to the defence motion, the defence would have been entitled, in appropriate circumstances, to an adjournment or to lead rebuttal evidence [para 10[. 
Two aspects of this case are curious.  First, on an alleged section 8 violation, in the context of "over 80" cases, the onus is on the Crown as there is a warrantless search which is presumed unreasonable. 
 
Second, it is odd that the matter did not proceed by way of a blended trial/voir dire. In cases such as this the usual course is to proceed in that manner.  It is efficient and effective.  Having not proceeded in that fashion in this case - for some inexplicable reason - has resulted in three different judicial proceedings and now will result in a new trial.  Absent some compelling reason, the trial judge should have queried why the matter did not proceed in that fashion. 

 

DG Mack

Pending & Prominent: Retrospectivity of Bill C-2

Samuel Dineley undoubtedly had no idea that he was about to become embroiled in one of the most litigated issues in recent memory and embark upon a legal journey that would take him to the Supreme Court when he jumped a curb in his parent's car and struck a parked car with over 90 mg of alcohol/100 ml of blood in his body. 
In November 2010 the Ontario Court of Appeal allowed the Crown's appeal and held that the amendments to the "Carter" defence - as set out in Bill C-2 - applied retrospectively.  In doing so, MacPherson JA offered the following:
I acknowledge that in support of his argument that Bill C-2 applies prospectively to offences committed on or after July 2, 2008, the respondent relies on Angus v Sun Alliance Insurance Co, 1988 CanLII 5 (SCC)and R v Boucher, 2005 SCC 72.  In both cases, when considering the temporal operation of legislation, the Supreme Court of Canada commented on legislation that has the effect of altering the content of an existing common law defence: see Angus at para. 21 and Boucher at para. 22.  In my opinion, however, read in their entirety, neither case stands for the proposition that legislation which merely alters the evidentiary content of a defence, rather than removing or eliminating an existing defence, compels a prospective application [para 27].
On Thursday the Supreme Court heard the appeal in this matter.  As noted by the Ontario Court of Appeal in October 2010 - when it heard the case - there was then over 3000 cases in Ontario dealing with that issue and dozens of decisions going both ways.  The Supreme Court's ruling will, regardless of what it decides, have significant impact.  More importantly, however, it will resolve this issue - finally.

DG Mack

New & Notable: How you Say it Can be as Important as What you Say

Janet Smith has asthma and suffers from anxiety and panic attacks.  This conditions can be exacerbated during times of stress.  When she testified about this during her trial for failing to provide a breath sample the trial judge believed her.  The trial judge did not believe, however, that these conditions were a reasonable excuse for her failure to provide a breath sample.  Smith was convicted of failure and appealed.  MacDonnell J heard the summary conviction appeal: R v Smith, 2011 ONSC 5377.

Smith was involved in a motor vehicle accident which was investigated by the police. During the investigation the police formed grounds to believe she was impaired and arrested her. She was transported to the police station where she began to exhibit signs of distress and insisted she was have trouble breathing. She was transported to a hospital.
A breath technician then attended the hospital along with an approved instrument. Despite 11 attempts, Smith failed to provide a suitable sample. She was charged with failure.
At trial Smith testified that the medical conditions she suffered from made it impossible for her to provide the sample as she did the best she could. The trial judge, although accepting her conditions existed, held that she “intentional [failed] and that she exaggerated her symptoms at the relevant time in order to avoid providing a sample” [para 4].
At trial the trial judge had the opportunity to view a DVD of Smith recorded on the day of the incident at the police station. The trial judge further had the opportunity to observe Smith as she testified in her own defence. In convicting Smith the trial judge concluded that her “in-court observations and the events shown on the DVD greatly contribute to my findings that [Smith] exaggerated her symptoms in order to avoid providing a sample” [para 4].

On appeal Smith argued (i) that the trial judge erred by giving undue weight to the observations of Smith on the DVD and in-court; (ii) that it was also an error to do so without giving Smith notice or the opportunity to explain her behaviour; and (iii) that in the absence of medical or other expert evidence the trial judge’s observations had no probative value [para 5].

MacDonnell J considered each of the issues. 
 
First, MacDonnell J noted that it is not improper for a trial judge to consider demeanour on the issue of credibility - citing inter alia: R v Jabarianha, 2001 SCC 75 at paras 30-31; R v Devine, 2008 SCC 36 at para 28 [para 9].  In the present case the trial judge did not err or place undue weight on DVD or Smith’s in-court behaviour, it was merely “one factor among many that was of assistance in assessing the credibility of the appellant’s assertion that medical difficulties prevented her from complying with the breath demand” [para 6].

Second, MacDonnell J found that the trial judge was not required to give Smith notice or an opportunity to explain her behaviour [paras 11-15]: “[a] judge might well choose to bring the accused’s in court behaviour to his or her attention before acting on it, a judge is not required to do so” [para 12].

 

Third, with respect to the need for medical evidence, MacDonnell J rejected the submission:

The trial judge was not purporting to diagnose the appellant's condition. She was simply noting that both on the DVD and in the course of the trial the appellant had demonstrated that she was capable of turning on or off, at will, the symptoms that, she asserted, had interfered with her ability to comply with the breath demand. The judge did not have to hear medical testimony in order to make that observation or to assess its significance. [Emphasis added]; [para 16].
DG Mack

Current & Curious: Speaking out of Both Sides of Your Mouth

In the recent case of R v Farrah, 2011 MBCA 49 the Manitoba Court of Appeal considered an curious situation.  David Farrah was charged with robbery and other related offences.  On January 31, 2007 two patrons had entered a bank to use the ATM when they were confronted by a male armed with a sawed-off shotgun.  The patrons were able to flee although the male shot at them as they drove away. 
 
Police were called and a K9 track commenced.  The K9 track eventually led to an apartment building.  Inside the K9 tracked to suite 16, paused, then moved on to suite 12 and indicated an entry.  Ultimately the police entered and searched both suites 12 and 16.  In suite 12 Farrah was found hiding.  In suite 16 a shotgun with one discharged shell was found.
 
At trial Farrah sought to exclude the evidence of the gun based on a violation of his section 8 Charter rights.  In doing so he asserted (as he needed to in support of his motion) a reasonable expectation of privacy in that suite - something he did by questioning the police about utterances he made at the scene to that effect.  The motion was dismissed.
 
At trial Farrah testified.  In doing so, he disavowed any interest in suite 16 indicating he no longer lived there and had no access thereto.  Farrah was convicted and appealed.
On appeal the Court of Appeal considered this curious approach taken by Farrah.  The court noted that at trial neither counsel or the judge commented on this "evidentiary discrepancy".  The court continued:
Nevertheless, this contradiction is troublesome.  The concern and unease are clear: an accused should not be able to successfully argue a position at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial based upon a change in his evidence [para 20]. 
The court further noted that this fluctuating position puts the judge in a "difficult, if not impossible, position" and raises "ethical questions" [para 21].   
 
The court then considered what the trial judge could have done in such a situation.  First, the court noted that the trial judge was not functus officio and could have revisited the Charter motion [paras 22-23].  Second, the trial judge could take it into account in assessing the credibility of the accused [para 25].
 
Either way, this curious approach is one that should not be permitted.  As the Court of Appeal noted the maxim quod approbo non reprobo [see definition at para 20 or at The Free Dictionary] comes to mind [para 20].
 
  
DG Mack

New & Notable: 10 Years Imposed on Roks by OCA

Adrian Roks recently had his second-degree murder conviction overturned by the Ontario Court of Appeal: R v Roks, 2011 ONCA 526.  I blogged about this case in a post entitled "The Paperback Novelist Strikes Again". 
The Court of Appeal has now exercised its power under section 686(3)(b) of the Code and imposed a sentenced for the manslaughter conviction it substituted in place of the second-degree murder conviction: R v Roks, 2011 ONCA 618.  Roks received the equivalent of a ten year sentence less pre-sentence custody and time served prior to the Court of Appeal's ruling [paras 27-28].
 
DG Mack