News: Special Offer on Mack's Criminal Law Bulletin

 
There is one thing that all prosecutors, defense counsel, and judges have in common – the need to be up-to-date in the face of a rapidly changing legal landscape. That is why I have partnered with Carswell in producing a new criminal law service offering commentary on current issues in the criminal law. Mack’s Criminal Law Bulletin, published bi-weekly, will help readers track important developments in this area of law in a timely manner.
 

 

Mack’s Criminal Law Bulletin features: 
  • Insightful commentary on current criminal law topics
  • Each issue focuses on a specific criminal law topic - to date, the topics covered include the curative proviso, filing notices of increased penalty, the tertiary ground for detention, and the probative value of post-offence conduct

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Sincerely,
DG Mack

New & Notable: Deciding the matter on the merits

Nicole Hubek forgot to attend her trial.   She was charged with assault with a weapon.  She apparently just forgot about it.  As a result of missing her trial date a warrant was issued for her arrest.  She was subsequently charged with failing to attend.  The specific charge read as follows:
On or about the 2nd day of June 2004, at or near Calgary, Alberta, bein a person named in an appearance notice that was confirmed by a justice, did fail, without lawful excuse, to attend court in accordance therewith, contrary to section 145(5) of the Criminal Code of Canada.

Hubek was convicted at trial on that charge.  She appealed successfully based on an argument that she had been charged under the wrong section - 145(5) as opposed to 145(2).
The Court of Appeal reversed that ruling and restored the conviction: R v Hubek, 2011 ABCA 254.  In doing so it offered the following conclusion:
On its proper interpretation, there is no ambiguity in s. 145(5). By its express terms it applies to "the time and place stated" in the appearance notice, and it also expressly applies to attendance "in accordance therewith", which includes appearances under Form 9 "thereafter as required by the court". The Crown in many cases like this has the option of proceeding under either s. 145(2)(b) or s. 145(5). 
We observe, in any event, that the summary conviction appeal judge should not have assumed that an error in reciting the proper section in the information was automatically fatal. Where errors of that type occur, amendment of the information is available under s. 601 of the Criminal Code, in the absence of any prejudice to the accused that cannot be cured by an adjournment of the trial: R. v. Sourwine (1970), 72 W.W.R. 761 at pp. 764-6, 10 C.R.N.S. 380 (Alta. Dist. Ct.); R. v. Royka (1980), 52 C.C.C. (2d) 368 at p. 371 (Ont. C.A.); R. v. Carey, 2011 MBQB 174 at para. 28. Where it appears an information charges an offence under an incorrect section of a statute, the Crown should be given the opportunity to apply to amend prior to the conclusion of the trial. In this case, that did not occur; the alleged error in the information was raised for the first time during the summary conviction appeal [paras 13-14]; [emphasis added].
DG Mack 

Quotable Quote: Context is everything

Robert Julien pleaded guilty to, inter alia, possession of cocaine for the purposes of trafficking.  During submissions the Crown argued that the prevalence of this type of offence in the Cornwall area should be an aggravating factor.  The Crown did not call any evidence to support this submission.
In rendering his decision on sentence Pelletier J considered this threshold issue: R v Julien, 2011 ONSC 5989. Pelletier J concluded that "emperical [sic] or statistical evidence is required to advance, as an aggravating factor, that a given offence is prevalent in the community as to be [sic] merit a sentence which may be more punitive than it might otherwise be" [para 4]. 

Pelletier J continued, however, and added, "a Court is capable, as an observer of its own process, to consider whether the prosecution of a particular crime represents either an isolated or frequent occurrence" [para 5]. His Honour continued with the following quotable quote:
While the recurrence of a certain type of prosecution cannot be viewed as an aggravating factor absent evidence showing that it is disproportionately frequent, it can nonetheless be examined and, if appropriate, considered as one factor in balancing the various sentencing objectives. Stated otherwise, a Court dealing with an offense seldom before the Courts may be less inclined to consider denunciation and deterrence as primary sentencing objectives, depending of course on the seriousness and nature of the offense. Conversely, a Court dealing with the disposition of an offense that is frequently before the Court would, logically, consider that the public safety objectives of the sentencing exercise call for a sentence with a sufficient denunciatory and deterrent effect. In all of the circumstances, I have concluded that there is no factual foundation for concluding that the possession of cocaine for the purposes of trafficking represents a societal problem in Cornwall and the surrounding area beyond what is being experienced in other communities in Ontario and the rest of the country. That said, offenses of trafficking in hard drugs are frequently before the Courts in this community. In addition, the Court is regularly confronted with cases involving serious offenses against the person, including homicides, where drugs are a central feature of the commission of the offense. Cases involving drug trafficking are not isolated matters before this Court, nor are cases where drugs figure prominently in related property and serious personal injury offenses. 
Accordingly, the determination of an appropriate sentence in the present case takes into consideration, along with other factors, that the use and sale of addictive and destructive drugs is a societal problem that has not escaped the City of Cornwall and the surrounding area; and one which must be confronted having regard to need to denounce and deter the conduct as a means of promoting a safe and peaceful community [paras 6-7]; [emphasis added].
Pelletier J sentenced Julien to 15 months incarceration and 18 months probation.

DG Mack

New & Notable: Getting the police car to the station

Thusyanthan Selvarajah was driving his Honda on the 401 around 1:30 am. Others were also driving on the 401 and saw the Honda. Those witnesses observed Selvarajah attempt to exit the 401. His attempts were unsuccessful as he exit around 140 km/hr. His vehicle "went over the curb, into the air and crossed both the Warden exit - and entry-ramps, crashing through the latter's guard rail and landing in a field or ditch beyond" [para 4]; [emphasis in original].

 

The witnesses called the police. Shortly thereafter officer Halimi arrived and began to deal with Selvarajah. The officer noted indicia of impairment and arrested Selvarajah for impaired. The demand was made at 2:08 am and the officer left the scene with Selvarajah at 2:09 am. The two arrived at the Toronto OPP detachment at 2:20 am. 

At trial two issues arose: 2011 CarswellOnt 9721 2011 ONCJ 468.  First, whether the Crown could rely upon the presumption of identity as, alleged the accused, the samples were not taken as soon as practicable. Second, whether or not the Crown had proven the accused was impaired.

With respect to the first issue, Green J noted that the argument centred around what the accused alleged was an unexplained 11 minutes - from 2:09 to 2:20. The accused argued that there was no evidence about what transpired during those 11 minutes, whether another detachment was closer and whether the officer took the shortest route. 
Green J rejected this argument.

As said in Vanderbruggen, "there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody". In any event, an explanation was proffered: the defendant was driven to the OPP detachment. It is due west on the 401. The entire trip consumed only eleven minutes. Massaging Sopinka J.'s famous metaphor in R. v. Morin, [1992] 1 S.C.R. 771 at 791, "[j]ust as the firetruck must get to the fire, so must" the police car get to the station. Further, the first test was taken well within the permitted window of two hours and no risk of prejudice has been suggested. Indeed, Halimi was never cross-examined in this area. In the end, I am satisfied that the police acted reasonably and that the tests occurred within a reasonably prompt time in all the circumstances [para 11].
With respect to the second issue, the accused argued that the evidence fell short. The accused argued that the accident accounted for his behaviour and that his conduct in the breath room belied the allegation he was impaired. Notably, both the Crown and defence submitted that the court could not consider the breath readings; relying on R v Letford, 2000 CarswellOnt 5034 (CA). 

Green J held that despite the accident and the behaviour in the breath room, the totality of the evidence established impairment beyond a reasonable doubt; Green J pionted to the evidence observed at the roadside and the driving evidence.  

Turning to Letford, Green J disagreed that it prohibited reference to the breath readings. Citing R v Haas, 2011 ONSC 4529 and R v Nandlall, 2009 CarswellOnt 4844 (SCJ) Green J explained how the breath results could be relied upon:

To be clear, absent qualified expert evidence relating BAC readings to a defendant's ability to drive (and there is none here), consideration of Breathalyzer test results in the requisite assessment does not permit a trier to speculate as to the qualitative impact of the documented readings on the ability at issue. It confirms, however, that the defendant had alcohol in his system and not only on his breath - a factor (here already conceded by the defence) that weighs in the circumstantial inference-drawing exercise [para 17]; [emphasis added].
DG Mack

 

New & Notable: If it walks like a duck...

Kuldip Dhanjal was convicted of impaired operation.  Dhanjal unsuccessfully appealed that conviction before Miller J sitting on summary conviction appeal.  Dhanjal sought leave to appeal to the Ontario Court of Appeal.  That application was dismissed: R v Dhanjal, 2011 ONCA 666.
In dismissing the leave application, the Court of Appeal commented, albeit briefly, on the evidence and findings of the trial judge - impugned in the Notice of Appeal.
...Contrary to the submission of duty counsel, there was evidence from which the trial judge could conclude that the appellant’s alcohol consumption and its effects were greater than claimed by the appellant. In particular, we note that the appellant stopped to make a left hand turn for a prolonged period and then executed his turn in front of an oncoming car without activating his left turn signal. His car collided with that car. After the accident, the appellant stopped for only a few seconds, claiming that he did not see the other car or its driver although he had collided with it and it was parked nearby.

Finally, it was a cold November evening and he parked his car after the accident with the windows open, an indication that he likely intended to air it out from the smell of alcohol in the car. We add that the evidence of the appellant and his statements to the police gave further support to the conclusion that the appellant consumed more alcohol before the accident than he admitted [paras 5-6]; [emphasis added].

DG Mack 

New & Notable: There's Nothing Comical about Officer Safety

On January 14, 2010 members of the Fredericton Police Force, with warrant in hand, used a battering to conduct a "hard entry" into an apartment where Kevin Sexton was located and arrested.  The evidence gathered by the police once inside that residence became the subject of a Charter motion brought by Sexton and ultimately granted by the trial judge.  The judge found that the execution of the warrant, including the hard entry, was unreasonable.  The Crown appealed: R v Sexton, 2011 NBCA 97
Kevin Sexton was apparently trafficking in cocaine.  In the month leading up to January 14, 2010 (following the police attendance at Sexton's apartment for a domestic involving Sexton's brother) the police obtained information about Sexton and his trafficking business.  This led to a plan to execute the warrant at Sexton's apartment without notice - a "hard entry".  The reason for this type of entry was noted as follows: (i) concerns about office safety; (ii) concerns about the safety of neighbours; (iii) and preservation of evidence [para 12]. 
During the Charter motion the Crown led evidence about Sexton's criminal record which included weapons offences, drug offences and an outstanding charge for assault police; the Crown also led information from CPIC that he was believed to be "armed and dangerous". 
In rejecting this as a basis for conducting the hard entry the trial judge held:
The police also state they were somewhat at risk. They rely on Exhibit P3 [the CPIC report containing the cautions for violence and armed and dangerous] to justify their basis for that risk. Quite frankly, and with all due respect to the police, that suggestion is absolutely comical when one reviews in detail Exhibit P3. It is ripe with numerous errors. And states “Caution – this is not a criminal record”.Furthermore, when you review the alleged crimes previously committed by Mr. Sexton, and in particular, the various sentences handed down for those crimes, it is obvious that Mr. Sexton could not be considered a risk of violence under Exhibit P3. [Underlining in Court of Appeal ruling]. 
In addition the trial judge objected to the use of balaclavas by the entry officers. 

On appeal Bell JA, for the court, considered the trial judge's finding that reliance on CPIC was "comical".  Bell JA offered the following in rejecting this finding:
In deconstructing the Provincial Court judge’s reasoning, I would first consider his observation that police reliance upon CPIC cautions that Mr. Sexton was violent and armed and dangerous was“absolutely comical”. In addition to judicial and legislative dictates, there are two very practical reasons why police must take very seriously the search of someone else’s residence. First, it is highly likely that suspects will know the layout of the place being searched much better than the authorities. They will know potential means of escape and potential sources of weapons. Second, the person whose residence is being searched will, in most cases, have a better knowledge of who is present in the premises. The two unknowns of layout and occupancy provide a practical advantage to the person whose residence is being searched in the event that person wishes to destroy evidence or obstruct, evade or cause injury to police.   Those two very practical observations were at play on the day Mr. Sexton’s residence was to be searched. In addition to those factors, police knew Mr. Sexton possessed a criminal record for weapons and drug offences and was awaiting trial on a charge of assaulting a peace officer. Information appearing in CPIC, a national database, maintained by the Royal Canadian Mounted Police, constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it. While the Provincial Court judge was correct to state that the CPIC report does not constitute a criminal record, that fact does not render the cautions contained therein unreliable. Furthermore, even if Mr. Sexton had established that the CPIC cautions were unreliable, that fact would have had no impact upon the right of police officers to use the information unless they had doubts about its reliability. There is no evidence of any such doubts.
...As noted by Justice Cromwell in Cornell, after the fact assessments are unfair and inappropriate when applied to situations like this where officers must exercise discretion and judgment in difficult and fluid situations [paras 26-27]; [emphasis added]. 
Turning to the trial judge's criticism of the police use of balaclavas, Bell JA again disagreed with the trial judge and concluded as follows:
 
In assessing the reasonableness of the search, the Provincial Court judge expresses particular disdain because the police officers were dressed in full emergency response gear, including tactical weapons, goggles, helmets and balaclavas. 
With respect to the use of masks, Constable Haines testified their purpose was to protect police officers "if there happens to be any glass, shattering of glass for whatever reason, or flame, it's flame retardant.  It's basically to protect, give our faces some protection if was happen to encounter anything".  As Justice Cromwell observed, courts should not be micro-managing the police force's choice of equipment.  To the extent the Provincial Court judge relied upon the presence of balaclavas to conclude the search was conducted in an unreasonable fashion, he erred [paras 29 and 30]; [emphasis added].
DG Mack

News: MCLBulletin, Issue 10 now online!

Issue 2011-10 of Mack's Criminal Law Bulletin is now online.  In this issue, Common Law Police Powers: Search Incident to Arrest (cell phone), I discuss whether the police are permitted to search a cell phone incident to arrest under the traditional common power.   
…the question is simple: Does the scope and nature of the biographical core of information on a cell phone require prior judicial authorization before it may be searched, or can the police rely upon a modified common law power of search incident to arrest?
The issue is admittedly complex….

News: New Issues of Mack's Criminal Law Bulletin

Two new - and exciting - issues of Mack's Criminal Law Bulletin are online.  In Issue 8 I discuss the recent Ontario Court of Appeal ruling in R v Woodward, 2011 CarswellOnt 9823 (C.A.) and the issue of sentencing in internet luring cases.  In Issue 9 I discuss the interesting case of R v Jaycox, 2011 CarswellBC 1237 (SC) which found section 254(2) to be unconstitutional but saved it by reading in. 

DG Mack

Comment: At Least Three Agreed...

Well at least three got it right.  On November 4, 2011 the Supreme Court released its decision in R v Sarrazin, 2011 SCC 54.  I had predicted that the Court might agree with the insightful dissent of Moldaver J at the Court of Appeal.  I was wrong about that.  I take solace in my company (Moldaver, Deschamps, Rothstein and Cromwell JJ).  I also take solace in the fact I still think I am right. 
In Mack's Criminal Law Bulletin, Issue 1, I wrote at length about the Court of Appeal's ruling in Sarrazin, 2010 ONCA 577.  I also blogged about the curative proviso in a recent post: The Curative Proviso, to apply or not to apply, that is the question...  In my Bulletin I was of the view that Moldaver JA (as he then was) got it right in his dissent.  The trouble with the majority's ruling at the Court of Appeal and Supreme Court was succinctly encapsulated by Cromwell J:
Respectfully, this is an elegantly understated way of expressing what to me is an unacceptable proposition: appellate courts should assume that a jury might relax the standard of proof of causation because the alternative would be to let the accused walk. I cannot agree, on such speculative grounds, to set aside a jury verdict of 12 citizens who are presumed to have honoured their oath and who received impeccable legal instructions on the very issue in contention [para 52].
This is an important point.  As I argued in Issue 1 of my Bulletin, there was no complaint here about the charge to the jury on causation; there were no questions on that issue from the jury.  Given that the jury is an integral part of our criminal justice system, it is "an unacceptable proposition" to find they may have been subconsciously impacted by this error. 
In the end I maintain my view which was eloquently offered similarly by Cromwell J: 
No one questions that the trial judge gave the jury complete and accurate instructions on causation. The jury’s verdict necessarily means that they were persuaded beyond a reasonable doubt that the gunshots caused the deceased’s death. The admitted error was failing to provide instructions on attempted murder. Those instructions would only have been relevant if the jury had a doubt about causation, which, as their verdict unambiguously attests, they did not. In those circumstances, in my respectful opinion, the error clearly had no impact on the verdict [para 41]; [emphasis added].
The error was a serious one.  Yet, it in fact had no impact.  The verdict could not possibly have been different.  The Court should have, with respect, respected the jury's verdict.
DG Mack