News: MCLB Issues 12 and 13 now online!

Issues 12 and 13 of Mack's Criminal Law Bulletin, published on Westlaw's criminal source database are now online.  In Issue 12 I discuss the definition of Serious Personal Injury Offences in the context of section 752.1 of the Code (order for DO/LTO assessment).  One of the cases discussed, R v Smith, 2010 ONSC 4725 is on its way to the Ontario Court of Appeal - let's see if they like my analysis of the issue.
In Issue 13 I discuss compelled roadside statements and the Supreme Court's recent dismissal of leave in the case of R v Soules, 2010 CarswellOnt 4183 (CA).
Take advantage of a special offer to get a free four month subscription to Mack's Criminal Law Bulletin!
DG Mack

News: New ASD

The Attorney General of Canada recently amended the Approved Screening Devices Order to recognize a new Approved Screening Device (for the purposes of section 254(2)).  The new device is the Drager Alcotest 6810. 
On its webiste Drager notes the following as one of the 6810's benefits:
The electrochemical sensor (fuel cell) of the Dräger Alcotest® 6810 reacts specifically to alcohol and excels with very short response times. Even with a very high alcohol content, the devices ensures quick measurements.
Another important feature of the 6810 is noted on another website (electrogasmonitors) to be its ability to obtain readings with "low" respiratory volume:  
Even with high alcohol concentration, the Dräger Alcotest 6810 reacts within a short period. Blowing resistance is low, therefore the test can also be used if the test person has a low respiratory volume. The automatic adjustment measures the respiratory flow and adapts the minimum volume in such a way that air is taken from deep inside the lungs. Manually triggered collection can even be used for people who are not consciously in a position to provide a breath sample. The device displays the test results on a backlit graphics display with LEDs in different colors and, with acoustic signals.
This feature will be helpful in rebutting the argument - to the extent it has any validity - that a person has a reasonable excuse for not providing a sample due to some medical issue.

DG Mack

 

 

Comment: There is life in Mars, but just not as much as some suggest

What do a roll of duct tape and a pizza box have in common?  Apparently they are both good sources for the discovery of fingerprints.  However, the discovery of a fingerprint on them likely wont give rise to the same inferences a recent Ontario Court of Appeal has held.
Thomas Wong and Paulo Stein broke into a home and confined the occupants.  At trial the only issue was identification.  They were convicted.  Their appeal was recently dismissed: R v Wong, 2011 ONCA 815.
On appeal they argued that their convictions should be overturned.  The central piece of evidence against them was the discovery of Stein's fingerprint on the inside of a duct tape roll used to bind the victim and Wong's DNA on a construction mask matching the description of the one worn by one of the assailants.  The appellants argued that this was not sufficient to justify a conviction.  In support they relied upon R v Mars, 2006 CarswellOnt 722 (CA).
In dismissing their appeals the Court of Appeal offered the following explanation and distinction of Mars:
The other evidence, which he reviewed carefully, included the fact that the descriptions of the perpetrators generally conformed to the appearance of the appellants; the mask containing Wong’s DNA matched the description of the mask worn by the Chinese perpetrator; and considered the pristine condition of the mask and where it was found in relation to the position of the back door and yard gate. He also considered where the duct tape was found and where the fingerprint was located in the context of all the evidence about the duct tape and strands of duct tape.
The facts of this case are quite different to those in Mars. There is a great difference between a construction mask and the inside cardboard of a roll of duct on one hand and a pizza box on the other. Several people sharing a pizza may leave their prints on the pizza box, before two of them use it in a home invasion. The circumstances in which Wong's DNA could come to be innocently deposited on the inside of the pristine construction mask or Stein's fingerprint could be impressed on the inside of a roll of duct tape used in the crime, in our view, are in the realm of speculation rather than reasonable inference.
In addition, it is significant in Mars that the force of the fingerprint evidence was diminished by exculpatory identification evidence. Here, we do not accept that the descriptions of the perpetrators were exculpatory. In our view, the trial judge's finding of fact that the victims' descriptions of the perpetrators generally conformed with the appearance of the appellants was supported by the evidence [paras 4-6].
This explanation and distinction of Mars is an important one; especially coming from the very court that rendered the decision.  Mars is a case which is often cited in support of this type of argument.  In O'Brien, for example, it was cited on appeal as support for the argument that DNA found on a mask used in a robbery could not support a conviction.  That argument was rejected on appeal: 2010 NSCA 61; aff'd on other grounds 2011 SCC 29. 
Similarly in Samuels, Mars was cited on appeal to support the argument that a "palm print and fingerprint on the lower driver's side corner of the front windshield of the car parked two houses away" was helpful in supporting a conviction for, inter alia, robbery and aggravated assault.  That argument was also rejected on appeal: 2009 ONCA 719.  The following conclusion in that regard is instructive:
However, unlike Mars, there is other evidence capable of permitting a reasonable inference that the palm print and fingerprint on the windshield were placed there when one of the invaders fled the scene:
(a)              The evidence of Mr. Barreira that the last man out of the house ran down the street and leapt over the front of the car;
(b)            The evidence of Mr. Barreira that the man grabbed the car as he jumped over it;
(c)            The palm print and fingerprint faced a direction that was consistent with Mr. Barreira’s description of the invader’s flight path.  The opinion of the expert witness that the impressions exhibited movement from the driver’s side toward the passenger’s side of the car is also consistent with the description of the flight path;
(d)            The footprint in the mud approaching the car, the fresh dent and the mud on the car are consistent with Mr. Barreira’s description of the flight; and
(e)            The evidence of the owner of the car that it was undamaged before he went to bed on the night of the home invasion.
Mars is a helpful and important decision which reminds us about the limits of fingerprint and DNA evidence in establishing identification.  However, the attempt to rely upon Mars in cases like Samuels, O'Brien and Wong are misplaced; they ignore the fact that the reasonableness of a verdict will depend upon the the particular facts of a given case and must be assessed in light of all the facts.  The caution offered by Doherty JA in Mars is an apt conclusion to this comment:
As reasonableness is ultimately a fact-based determination, prior decisions, even those made in similar cases, cannot have binding authority [para 5].
DG Mack

New & Notable: Unsavoury witnesses come in different shapes and sizes too

Zacky Deleon, Michael Allen and Jamie Restrepo were all convicted of first-degree murder.  The murder involved the execution style killing of Mauricio Castro.  The Crown's theory was that Restrepo was the leader of a drug network that owed approximately $1 million to Castro.  Restrepo arranged for the murder of Castro, Allen was the shooter and Deleon was involved in the enterprise.
During the trial the Crown relied upon, inter alia, three witnesses: Jorge Restrepo (Jamie's brother); Jorge Acosta (alleged to be the get away driver); and Ronny Khananisho (connected Restrepo to Allen).
On appeal the appellants took issue with the Vetrovec warnings; the Court of Appeal dismissed the appeals: 2011 ONCA 752.
 
In dismissing the appeal the court addressed the argument that the trial judge erred in not providing Vetrovec warnings for all three of these witnesses and also for comparing the witnesses and giving varying levels of warnings.  While the court noted that it would be preferable not to use comparisons it concluded there was no error in the charge:
In this case, we can see no error in the continuum adopted by the trial judge in his treatment of the three main Crown witnesses.  The warning about Acosta was very strong indeed.  The appellants do not challenge it.  The warning about Restrepo was milder but encompassed all four elements of the standard Vetrovec warning.  The absence of a warning about Khananisho was justified by his very peripheral role in the murder enterprise (he provided Allen’s phone number to the Restrepo network and attended a meeting with Allen during which Deleon spoke to Jaime Restrepo) and the absence of a history of lying or other dishonest behaviour.  In our view, it may be preferable to give discrete Vetrovec warnings that do not specifically involve a comparison – particularly in the positive terms employed by the trial judge.  However, given the nature and extent of the trial judge’s references to the unsavoury characteristics of these witnesses, the jury would clearly understand that they had to examine their evidence with caution [para 7].
The court also addressed the argument that the trial judge erred in his handling of the confirmatory evidence.  In dismissing this ground the court noted that simply because evidence was not disputed did not mean it could not be confirmatory.  The court offered the following passage from R v Kehler, 2004 SCC 11 at paras 15-16 in support:
The appellant wrongly equates “relevant” with “disputed”.  Mr. Greenwood’s detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission.  And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.
As the appellant himself concedes, it is clear from Vetrovec, supra, that independent evidence, to be considered confirmatory, does not have to implicate the accused.  There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness. [Emphasis in original.]
 
DG Mack

New & Notable: Voluntariness and Right to Counsel

Robert Reeves stabbed his father. His mother fled the house and called police. Reeves stayed in the house with his father. Shortly thereafter police arrived. Sgt Wadelius - who had been trained in hostage/crisis negotiations began to call the residence attempting to make contact with Reeves. On the third call Reeves answered.
At the time of the third call the police did not know (1) Reeve's mental and physical state; (2) if the victim was alive or the extent of his injuries; and (3) what other weapons may be in the house.
Very shortly into the conversation Sgt Wadelius elicited from Reeves that "...Reeves believed that Brian Baker [his father] was dead" [para 6]. Reeves continued to provide more information to Sgt Waledius.
At trial the Crown indicated its intention to rely upon the statement of Reeves during this conversation. The defence sought to bar the Crown from doing so as the statement was not voluntary and was obtained in violation of section 10(b).
Koenigsberg J ruled on the application: 2011 BCSC 1513.
With respect to voluntariness, the court first considered the argument that the record was not complete. While most of the conversation was recorded, the first few minutes were not. The court noted, however, that concerns flowing from this were attenuated by the following facts: (i) Sgt Wadelius repeated back what Reeves was saying; and (ii) Sgt Wadelius took notes. Koenigsberg J also considered the argument that Reeves did not have an operating mind and concluded:
(…) a careful review of the whole of the statement which took place over an hour and a half must be undertaken. A review of the content of the whole call indicates that Mr. Reeves was oriented in time and place and relationships. He knew he was talking to an RCMP officer. Mr. Reeves appeared to be intelligent and very self-absorbed. He also appeared to suffer from paranoid-type delusions. He seemed to be possessed of a number of delusions or delusional explanations for various and severe aches and pains involving burning sensations in his feet and other parts of his body, severe headaches, arthritis and gastrointestinal problems. He had grievances against the government and some minor ones against his step-father who he had allegedly stabbed to death. I find he did say the words -- I killed Brian -- within a minute or two of the beginning of the telephone communications. However, unlike either Whittle or Partridge, his delusional thinking had no causal relation to either why he may have killed his step-father, nor why he was speaking openly to the police officer [para 23]; [emphasis added].
Koenigsberg J concluded that the statement was voluntary.
With respect to the Charter issue, found that there had been a violation of section 10(b) at the point when Reeves would have felt psychologically restrained [para 56]. Despite the violation, however, Koenigsberg J held that the statement could be admitted under section 24(2):
The Crown had a very strong case both circumstantial and direct evidence pointing to Mr. Reeves as the person who stabbed Brian Baker. On the other hand, as set out in the courts analysis of the "Operating Mind" issue on this voir dire, on balance, both the initial relatively calm and rational incriminating expressions of Mr. Reeves that he killed Brian coupled with his many statements indicating he was not in the grip of delusions nor fear of the police, militate in favor of the reliability of the statement.
In addition, there is one other factor this Court considers particularly in looking at the "truth seeking" goal of a criminal trial, this statement, given Mr. Reeves "memory loss" is the only evidence of his state of mind at the time of the stabbing and shortly after.
This evidence was of some importance in relation to such issues as "intent" and whether Mr. Reeves was "criminally responsible" for this act.
Thus, the circumstances dictating that Mr. Reeves should not be given his Charter rights and warning during the negotiation to get him out of the house were not of the police making. Further, Sgt. Wadelius' conduct in how he spoke and what he said to Mr. Reeves remained non-manipulative and fair.
The reliability of the statement is unaffected by police conduct, and its importance in any evaluation of central issues in the trial, all taken together create that unusual set of circumstances where the presumption of inadmissibility of a statement taken in breach of s. 10(b) rights is overborn [paras 76-81].
DG Mack

New & Notable: Always double check your math!

Cuong Luong pleaded guilty to possession of a loaded restricted firearm.  The mandatory minimum sentence for this offence - as it was his second - was five years.  A joint submission was put before the sentencing judge of five years.  Luong had spent 16.5 months in jail prior to sentencing.  After giving Loung credit - at 2 for 1 - the sentencing judge intended to impose a sentence that would equate to five years.  However, in following the joint submission, the sentencing judge also followed the erroneous math of the Crown who said the remaining time would be 17 months.  In fact it should have been 27 months [five years = 60 months; 60 - (16.5 X 2) = 27].
The Crown brought an application before the sentencing judge to correct the error; the sentencing judge held that he was funtus officio.  (As an aside, it is not clear that the sentencing judge was in fact funcus officio; there is authority that a judge can clarify a sentence after it is imposed: R v Malicia, 2006 CarswellOnt 5539 (CA)).   Given the judge's view that he was functus, the Crown brought an appeal: 2011 ONCA 780.
On appeal the Court of Appeal agreed that the sentence was illegal.  The respondent argued, however, that he would be prejudiced by the addition of 10 months.  Even if that were so, the court held the error must be corrected. 

The Court of Appeal corrected the sentence and added 10 months.

DG Mack

New & Notable: Another interesting causation case

The Ontario Court of Appeal released its decision in the case of R v Kippax, 2011 ONCA 766 on December 7, 2011.  It was a unanimous decision.  Watt JA wrote the decision.  Karakatsanis JA (as she then was) was also on the panel.  Karakatsanis J (as she is now) sat on the appeal in R v Maybin, 2010 BCCA 527 last week; a case I have blogged about in the past: Objective foresight or operative cause and A "Grizzly" night, but "Maybin" a prominent legal ruling.  Both cases present interesting causation issues.
Alan Kippax was driving his car, a Mercedes, on the evening of June 3, 2006.  His cousin Peter Kippax was following him driving his own car, a Porsche.  The two came to an intersection and came to a stop.  Allan was in front, Peter was behind.  The two cars then sped away from the intersection at a high rate of speed.  Alan abruptly changed lanes and Peter followed.  Peter lost control, however, his car slammed into another car.  Peter was killed instantly.  Alan was ultimately charged with two counts of dangerous driving causing bodily harm and two counts of dangerous driving causing bodily harm.
Alan was convicted and appealed.   

One of the grounds of appeal related to a complaint about the trial judge's finding on causation and specifically on factual causation [para 14].  That ground of appeal was dismissed.
In dismissing the appeal Watt JA explained that factual causation is concerned with how the victim died and has nothing to do with "intention, foresight or risk" [para 22-23].  With respect to factual causation, Watt JA concluded: "The Crown need only prove that an accused's conduct was a significant contributing cause of the death..." [para 24].
Turning to legal causation, Watt JA explained that this has to do with whether an accused should be held responsible for one's death.  In negligence based offences Watt JA held that reasonable foreseeability is a relevant consideration (citing R v Shilon, 2006 CarswellOnt 9888 (CA)).  While independent intervening acts can break the chain of causation, it will not be broken "where an accused intentionally produced the outcome, reckless brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R v Maybin, 2010 BCCA 527 at para 35".
Based on this approach to the law, Watt JA dismissed the ground of appeal.  There was no palpable or overriding error in the finding of factual causation.  Factual causation was supported by the findings that the "cumulative force of evidence of excessive speed, inclement weather, compromised road conditions, inherently dangerous driving manoeuvres and the close physical proximity of the two speeding vehicles" [para 31].  In conclusion Watt JA noted there could be no complaint about the finding that factual causation had been made out and that the argument was more properly one relating to legal causation: "It may also be debatable whether what is now advanced as a flaw in the analysis of factual causation is not more appropriately a consideration of legal causation" [para 33].
DG Mack

News: The 2011 Clawbies

Yes its that time of year again.  No, not Christmas, the Clawbies!  The Clawbies, now in its sixth year, presents awards to recognize "the interesting, innovative, and informative sites that are the Canadian legal blogosphere's best and brightest". 
The Clawbies present awards for the best Canadian law blog, the best new blog and the best practitioner blog. 
Last year Michael Geist won the award for best Canadian law blog.  His blog focuses on copyright and related issues in the law.  Very informative yet easy to read.  A very impressive site indeed.
The award for the best practitioner blog was handed out to three blogs including the "Trial Warrior Blog" by Antonin Pribetic.  The range of topics on this blog is diverse but very interesting.  Check out the latest blog entitled Wrongfully Convicted Man Released Thanks to "Spectacularly Incompetent" Lawyers.
The award for best new blog was also handed out to three blogs.  One of them is Adam's Law Blog.  A very to the point and interesting blog for criminal lawyers written by Adam Goodman.   
Its impressive to see so many informative and quality Canadian law blogs and nice to see them recognized.  Good luck to everyone for the 2011 awards!
 
 
DG Mack