New & Notable: Gladue Reloaded!

Sentencing is a difficult if not enigmatic beast. Perhaps not surprisingly given the myriad of considerations together with the uniqueness of every offence and every offender. The recent cases of Ipeelee and Ladue illustrate this point: R v Ipeelee, 2012 SCC 13. Both were aboriginal offenders; both were sentenced for breach LTSOs; both received 3 year sentences at first instance; Ipeelee appealed to the Ontario Court of Appeal unsuccessfully; Ladue successfully appealed to the British Columbia Court of Appeal (reducing his sentence to 1 year). The Supreme Court held that one year sentences were appropriate for both.
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New & Notable: Emergency! Emergency wiretaps are unconstitutional

Section 184.4 of the Code permits a peace officer to intercept private communications, without prior judicial authorization, if there are reasonable grounds to believe it is necessary to prevent an unlawful act which would cause serious harm and authorization could not be obtained with reasonable diligence.  In 12 months, absent actions by Parliament, that section will no longer exist.  The Supreme Court has found it to be unconsitutional in R v Tse, 2012 SCC 16.
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So now what do you do with your local bawdy house?

Three sections of the Code which deal with prostitution related offences were recently considered by the Ontario Court of Appeal in R v Bedford, 2012 ONCA 186.  The consequences of that section will have some direct impact on policing in this context.  

First, section 213(1)(c) - which criminalizes communicating for the purpose of prostitution - was held to be constitutionally valid.  That offence, therefore, remains unchanged.  Policing and prosecution of the offence should continue as it has in the past.

Second, section 212(1)(j) - which criminalizes living on the avails of prostitution - was held to be constitutionally valid with a modification.  The section will now read as follows (underlined portion new):

Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence...

The thrust of this change appears to be aimed at not criminalizing those who, in a business, fair and transparent manner, lives off the avails of prostitution.  Assuming this is possible, it creates some difficult questions for policing and prosecution of this type of offence.  Clearly traditional "pimps" will be seen as being exploitive, but what about those who run bawdy houses and pay the prostitutes.  Will it depend on what percentage they pay, will it depend on what rules or regulations there are, will it depend on other "contractual" aspects between the prostitute and the employer?  

Third, section 210 - which criminalized keeping a common bawdy house - has been struck down. Further, the term "prostitution" has been struck out of the definition of bawdy-house in section 197.  This ruling, however, has been stayed for a period of 12 months.

New & Notable: Promises Promises

In the recent case of R v DAI, 2012 SCC 5 the Supreme Court tackled the issue of what test and standard is to be applied under section 16(3) - testimony on promise to tell the truth - in the context of sexual assault charges. The complainant in that matter was 22 years of age at the time she testified at trial, however, she had the mental age of a three to six year old. At trial her capacity to testify was challenged. After an inquiry the trial judge refused to permit her to testify. Ultimately, DAI was acquitted. The Crown appealed unsuccessfully to the Ontario Court of Appeal: 2010 ONCA 133. The Crown pursued an appeal to the Supreme Court.
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New & Notable: Assessing Credibility

LCT was charged with sexual interference and sexual exploitation of his stepdaughter. She was 8 or 9 when the abuse began and it continued until she was 14. In 2002 (after the abuse had started) the complainant was interviewed by the CAS as a result of an allegation of abuse made against LCT by another family member. She denied any abuse was or had occured. In 2005 her allegations of abuse came out. LCT was convicted after trial of four counts of sexual interference and one count of sexual exploittation. He was acquitted of some counts, primarily on the basis of alibi evidence. LCT appealed: 2012 ONCA 116.
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What's that bulge in your pocket?

Investigative detention is undoubtedly one of the most complex and troubling area of the law for police officers.  The ever changing face of the law in this area and the infinite number of scenarios that exist make it difficult for officer's to understand and properly apply the law.  Likely this is one of the reasons by these detentions are usually one of the top generators of complaints by the public.

Fortunately - or perhaps not - the Supreme Court is set to reconsider investigative detention in R v Aucoin, 2011 NSCA 64. 

Brendan Aucoin was stopped by the police because the plate on his car was registered to a different kind of car.  After speaking with Aucoin during the stop the officer noted an odour of alcohol.  As a result he made a roadside demand.  Aucoin sat in the backseat of the officer's cruiser with his feet outside the car to provide the demand.  He passed, but did have alcohol in his system.  Given he as a newly licenced driver he was in violation of the Motor Vehicle Act which required newly licenced drivers to have zero BAC.  As a result the officer decided to give him a ticket.  The officer decided it would be safest to put Aucoin in the backseat of the cruiser to issue the ticket as the vehicle was being towed and there was a lot of traffic. 

Before placing him in the cruiser the officer did a pat down for safety reasons.  During the pat down search the officer felt something in Aucoin's pocket.  Aucoin said it was Ecstasy.  He was arrested.  A subsequent search revealed cocaine.

At trial Aucoin sought to exclude that evidence arguing that the officer was not entitled to do the search.  The trial judge dismissed the motion citing the seminal decision of R v Mann, 2004 SCC 52.

Aucoin appealed.  The appeal was dismissed.  The Court of Appeal held:

The issuance of the motor vehicle ticket to Mr. Aucoin was the final step of Cst. Burke’s investigation into Mr. Aucoin’s breach of the MVA. He had a duty to complete this stage of the process. He had to do this in a situation where he had essentially no back-up, it was late at night, he needed the light in the front seat of the police car to write the ticket, he could not place the appellant in the car he had been driving because it was being removed, and because it may be a continuing offence given the alcohol in the appellant’s blood, and he was concerned the appellant may take off if left on his own outside the police car. In such circumstances, the brief detention of the appellant in the back seat of the police car is within the scope of the doctrine of investigative detention and is reasonable.

Having decided to place Mr. Aucoin in the back seat of the police car, it was also reasonable for the officer to do a pat-down search to ensure that the appellant had no weapons that he could use to harm the officer or himself [paras 26-27]; [emphasis added].

Importantly the court noted that this practice would not necessary be permitted in every circumstance.  But, in the present case, where the officer articulated the basis for the search - that he had safety concerns and was effectively on his own late at night, the search was justified.

This case seems to be largely a reply of Mann and if so, Aucoin's appeal should be dismissed. 

DGM