New & Notable: A missed opportunity

Drug impaired driving prosecutions – albeit not common place – are quite contentious. The new legislation, the drug recognition expert (DRE) and disclosure have all been recent subjects of litigation [see for example my recent blog: So what mark did you get in criminal law?]. In the recent case of R v Steeves, 2011 NBCA 88 the New Brunswick Court of Appeal had the opportunity to consider some of these issues and provide some helpful appellate authority. Unfortunately, the court took another route.
Kenneth Steeves was charged with drug impaired operation. At trial the Crown sought to tender evidence of two officers; one to testify in relation to “drug evaluation and classification” and the other to testify as a “drug recognition expert”. The trial judge initially admitted the evidence of both witnesses. Later, however, and without notice, the trial judge reconsidered this ruling and held that the evidence was not admitted. Steeves was acquitted and the Crown appealed.
While it would have been helpful if the court had considered the issue the trial judge had difficulty with – the admissibility of DRE evidence – the court dealt with the appeal in a different way. The court held that while the trial judge was not functus, and therefore could have reconsidered the issue as he did, the trial judge erred by reconsidering it without notice: see R v Pinchak, 2010 ABQB 747. The court held that where the trial judge decides to reconsider an issue “the parties should be put on notice that the matter is being reconsidered and invited to make further submissions” [para 13].  

 

DG Mack

Pending & Prominent: Objective foresight or operative cause...

On July 14 I blogged about R v Maybin, a case that was argued yesterday before the Supreme Court: A "Grizzly" Night, but "Maybin" a Prominent Legal Ruling.  It presents a very interesting legal issue that has received different treatment by appellate courts across the country [see for example: R v Shilon, 2006 CarswellOnt 9888 (CA); R v JSR, 2008 ONCA 544; R v Sinclair, 2009 MBCA 71].  The issue, as it arises from the facts in Maybin, is whether the Maybin brothers are liable for the death of the victim where, as the trial judge found, the factual cause of death could not be directly attributed to their attack.
Briefly, the facts are that Matthew and Timoth Maybin, two brothers, 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].

Yesterday during argument the central - or at least most interesting - discussion was over what test should be applied to determine the possible culpability of the Maybin brothers. 
Crown counsel for the BC AG argued that the test should be one of objective foreseeability.  In other words, was it objectively foreseeable that having attack and left Brophy unconscious, in those circumstances, is it reasonably foreseeable that he might suffer further non-trivial bodily harm.  Put another way, the test was posed as whether the subsequent act (here the attack by Gains) was within the "scope of risk". 

Crown counsel for the ON AG (intervenor) argued that the test should be one of "operative cause".  In other words, relying on the test in R v Nette, 2001 SCC 78 that the accused must be a significant contributing cause of death, the operative test asks whether an intervening act breaks the chain such that the initial act is no longer a significant contributing cause of the death.  In this test the subsequent act need not be objectively foreseeable.

The practical difference between these tests may not be apparent at first blush.  During oral argument yesterday, however, the examples raised from the Justices highlighted the potential distinctions.  One example was that a victim is beating to unconsciousness and left in a building.  There is subsequently an earthquake and the victim dies when the building collapses.  Would either approach impose liability on the attacker in this scenario.  

Under the objective foreseeability test the attacker would not likely be held liable (as conceded by the BC AG).  The earthquake was not objectively foreseeable.  This would even appear to be so where there had been alarms warning of the impending earthquake that permitted others to escape.

Under the operative cause test, however, if others, who were in equal positions in the building to the unconscious victim, were able to escape then the initial attack and unconscious state continued to be an operative cause and could be seen as a significant contributing cause of the death. 

The other example that helps illustrate the difference in these approaches is the drowning example flowing from R v Hallett, [2969] SASR 141.  In that scenario the victim was beating and left unconscious on the beach.  Later the tide came in and the victim drowned.  Under either approach the attacker would be liable for manslaughter in this scenario.  However, change one fact - a tidal wave occurs and drowns the victim.

Under the objective foreseeability test the attacker would not likely be culpable as the tidal wave was not objectively foreseeable.

Under the operative cause test it is not as clear.  If the victim would otherwise have been on the beach but would not have been able to avoid the tidal wave even if conscious, then the tidal wave breaks the chain of causation and the attack and unconscious state are no longer a significant contributing cause.  However, if the others on the beach avoided the tidal wave so too could the victim and the attack and unconscious state could then be seen to be a significant contributing cause of death.

The Supreme Court's ruling in Maybin will be an important one.  It will clarify the law in an area where there are differing views on the legal test to be applied. 

While the objective foreseeability test is easy to understand and apply, it does potentially miss imposing liability in certain circumstances where liability should be imposed.  Should a person whose acts are a significant contributing cause of death avoid liability because a subsequent act was not reasonably foreseeable?  The earthquake example is a good one in this regard.  Despite the earthquake not being reasonably foreseeable, if others in the same position as the victim - in the same area of the building - were able to avoid death in the collapsing building, the attacker's actions could fairly be characterized as a significant contributing cause of death.  In that scenario, it is just to impose liability.  The objective foreseeability test would fail in this scenario and accordingly, the operative cause test should be adopted.
 
DG Mack

News: LAO Launches new and impressive website!

 
A couple of weeks ago I blogged about a new column in the Ottawa Citizen to be authored by members of a local defence firm: Lack of Knowledge is Bad, Imperfect Knowledge may be Worse.  While I applauded the idea - to educate people on their right and obligations under the law - I queried whether that goal could actually be achieved in that form and with that perspective (and perhaps I pointed out how it might not have been achieved).
I recently became aware, thanks to one of my readers, of a new site launched by Legal Aid Ontario: LawFacts.ca.  The site indicates that it "provides information, written in plain language, on bail, guilty pleas, peace bonds, types of sentences and more.  It also provides examples of commonly-used forms, checklists to prepare for going to court and contacting LAO...".
I have visited the website.  It has succeeded in its goal.  The site is user friendly.  It is informative.  It is refreshing to see people working toward the goal of educating the public and making information about the criminal justice system accessible and easy to understand.  While the site is aimed at assisting those charged with criminal offences, as anyone who works in the criminal justice system will appreciate, this site will go a long way in helping all of us who are involved in the criminal justice system. 
As reported in a press release, the Legal Aid Ontario webiste received more than 770,000 last year.  Undoubtedly that number will drastically increase with the launch of this new and very informative website.  Great work!
DG Mack

Pending and Prominent: Niqabs and the Criminal Justice System

Niqabs have attracted much attention in the last few years.  Bans and debates about them are everywhere.  On Thursday, December 8, 2011, the Supreme Court heard argument about whether a witness, NS, should be permitted to wear a niqab while testifying at a preliminary hearing.
NS is the complainant in a sexual assault proceeding of two men, her uncle and cousin.  At the preliminary inquiry the accused sought to have her remove her niqab.  The preliminary inquiry judge conducted an informal inquiry into the reasons for the niqab.  This inquiry took place without NS having had an opportunity to speak to counsel or seek advice - something the Crown suggested should have taken place.  Ultimately the preliminary inquiry judge ordered that she remove the niqab. 
NS sought relief by way of extraordinary remedy in the Superior Court.  While that court quashed the order it also remitted it back to the preliminary inquiry judge for reconsideration: 2009 CarswellOnt 2268 (SCJ).  NS appealed that order to the Ontario Court of Appeal.  That Court also ordered that the initial order of the preliminary inquiry judge be quashed.  That court also, however, sent the matter back to the preliminary inquiry judge for reconsideration: 2010 ONCA 670.  NS appealed to the Supreme Court.  That Court has reserved.  

The interest and controversy over this issue is apparent from the number and scope of parties that had status at the Supreme Court.  In addition to NS, the accused and the Crown, the following "other parties" had status:
  • Ontario Human Rights Commission
  • Barbra Schlifer Commemorative Clinic
  • Criminal Lawyer's Association (Ontario)
  • Muslim Canadian Congress
  • South Asian Legal Clinic of Ontario
  • Barreau du Quebec
  • Canadian Civil Liberties Association
  • Women's Legal Education and Action Fund
  • Canadian Council on American Islamic Relations
The issue is complicated.  The views are extreme and the debate is passionate.  Consider, for example, the view set out by the Muslim Canadian Congress (one of the parties) on their website: 
THE MCC dismissed the argument that wearing of a face-mask by Muslim women is protected by the Charter's guarantee of religious freedom.  The MCC said, there is no requirement in the Quran for Muslim women to cover their faces.  Invoking religious freedom to conceal one's identity and promote a political ideology, is disingenuous.
The ruling could have significant impact.  Its implications will likely go beyond the specific issue before the Court. 
For now, the ruling that governs the issue is from the Court of Appeal.
The Court of Appeal first dealt with the issue of the powers of the reviewing and appellate court.  The court clarified that while only jurisdictional errors are reviewable where the Crown or the accused is the moving party, where a third party is involved the reviewing court may consider both errors of law and jurisdiction:
However, where the moving party on the extraordinary remedy application is a "third party", that is a party other than the accused or the Crown, and the challenged order finally decides the rights of the third party, extraordinary remedy relief will lie on the mroe traditional grounds of both jurisdictional error and error of law on the face of the record: Cunningham v. Lilles (2010), 254 C.C.C. (3d) 1 (S.C.C.), at paras. 57-58; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.), at pp. 864-67 [para 23].
The court further explained that the reviewing standard is correctness. 
Turning to the issue of the jurisdiction or power of the preliminary inquiry judge the court held that the judge did not have remedial jurisdiction under the Charter but could consider Charter values "when exercising statutory powers granted" [para 29].  Accordingly, the court held, the preliminary inquiry judge had the jurisdiction, to control its proceedings, to consider the issue, taking into account Charter values, and decide the issue.
Turning to the correctness of the decision made, the court held that as a first step the court must assess the genuineness of the witness' claim.  If the witness has advanced "a valid religious right claim" then the judge must move to the next inquiry [para 71].  The second inquiry will be to determine the extent, it at all, the wearing of the niqab would interfere with the ability to cross-examine [para 71].  If the court finds that both interests are sufficiently engaged a balance of the competing interests must be undertaken in a contextual manner [paras 73-74].
In the present case the court held that the preliminary inquiry judge erred.  The judge erred by failing to make a full and formal inquiry in the religious belief and failed in not providing the witness an opportunity to consult counsel prior to the inquiry [paras 90-94]. 
The court then ordered the matter returned to the preliminary inquiry judge for the purpose of making the inquiry outlined and a decision based thereon.

 
DG Mack

New & Notable: What is that little box called again...

Kevin Donald made three mistakes on August 13, 2010.  First, he was driving while he was suspended.  Second, he drove poorly; speeding and driving in an erratic fashion which caught the attention of the police.  Third, he was impaired; his BAC at the time of testing was 160 mg%.
When officer Lonsberry stopped Donald it did not take long to form a reasoanble suspicion that Donald had alcohol in his body.  He was unsteady in his walk and had a strong odour of alcohol coming from his breath.  He ultimately failed a roadside screening and later provided two samples of his breath.
At trial Donald argued, inter alia, that the officer did not have reasoanble and probable grounds because the Crown failed to establish, through the officer that the roadside screening device used was an "approved device".  The officer's evidence on this point was that the device was an "approved device", an "Alcotest".  The officer was able to provide the serial number as well.  The officer was unable, however, to provide the precise description of the device.
The trial judge rejected that argument.  Citing R v Gundy, 2008 ONCA 284 the trial judge held that "the only proper inference to draw from the evidence is that Cst. Lonsberry was using an approved screening device..." [para 26].  The trial judge rejected the Charter motion and convicted Donald: 2010 SKPC 123.  Donald appealed.
Ball J sat on the summary conviction appeal: 2011 SKQB 408.  Ball J agreed with the approach taken by the trial judge and dismissed the appeal:
In this case the trial judge also relied on R. v. Gundy, supra, to draw the inference that the Alcotest device used by Cst. Lonsberry was an ASD under the Regulations.  I find that on the evidence before him the inference drawn by the trial judge was reasonable and consistent with recent judicial authorities [para 24].
DG Mack 

 

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: 
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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