New & Notable: Use of Drug Sniffing Dogs - The Reasonable Suspicion Standard Elucidated

Two RCMP officers were monitoring traffic from their marked cruiser on the Trans-Canada Highway just west of Caronport, Saskatchewan. Benjamin MacKenzie was travelling in a car on that highway a mere two kilometres per hour over the posted speed limit but the officers observed the front of the vehicle pitch forward as it rapidly decelerated as it passed by the cruiser. The officers went after the vehicle intending to deliver a warning about speeding. By the time the officers had caught up to the vehicle, they found it pulled over on the side of the road.

 

Mr. MacKenzie apologized for speeding and promised to slow down. Unfortunately for Mr. MacKenzie, things took a bad turn because the police officer dealing with him made a number of the observations that would culminate in the officer deploying his drug-sniffing dog.  The officer believed that MacKenzie might be involved in an offence under the CDSA. The officer observed that:

  • MacKenzie’s hands were shaky—trembling when he handed over this licence and registration.
  • He was sweating—beads of sweat were forming on his forehead.
  • His breathing was very rapid and his carotid artery was pulsing very rapidly. This rapid breathing did not decrease even after he used his asthma medication. Indeed, his nervous reaction continued even after he was advised that the reason for the investigation was minor speeding infraction.
  • This level of nervousness was extremely high given the nature of the investigation.
  • The pinkish colour of MacKenzie’s eyes was suggestive of possible marijuana use.
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New & Notable: Here's to Auld Lang Syne, when it was actually cold on New Year's Eve...

It was unusually warm on New Year’s Eve 2010.  This added to the celebratory air around Spadina and Queen Streets in Toronto as revellers walked in light jackets or no jackets at all.  Not so, Rowan Atkins.  Three officers driving down Spadina in an unmarked van noticed him walking because he was wearing a heavy, baggy winter coat over a hoodie and he was withdrawn, hiding in the crowd and skirting the walls of buildings as he walked.  The officers were suspicious and stopped to talk to him.  After being called over by the officers, Mr. Atkins took a couple of steps towards them but then started running.  After a brief foot pursuit the police discovered the likely reason for Mr. Atkins change of heart; the loaded handgun he was carrying.  The trial judge ruled that Mr. Atkins’ s. 8 and 9 Charter rights were not infringed.  The Ontario Court of Appeal agreed:  2013 ONCA 586.

One officer initiated contact with Mr. Atkins by calling “hey” to him out of the window of the unmarked van.  Mr. Atkins glanced back but kept walking.  The van moved further along the street and the officer called “hey buddy” a little louder.  Mr. Atkins then turned towards the officer and she waved for him to come over.  She then got out of the van with another officer, both in full uniform.  Mr. Atkins took steps towards them as though he was going to speak with them but then ran.

The Court of Appeal endorsed the trial judge’s finding that at the time Mr. Atkins decided to run; he knew full well that it was the police who had summoned him.

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New & Notable: Mr Able's Fable

In November of 2007, Mr. Able was found guilty of a number of offences, including possession of a restricted firearm with ammunition, contrary to s.95 (1) of the Criminal Code. He was sentenced as a youth under the YCJA.

Apparently, Mr. Able did not learn his lesson nor did he give up his interest in guns.

In February of 2009, police got a tip about a small group parked in a car with a gun. The police approached the car. Suddenly, a door flung open. Mr. Able jumped out and ran as fast and as far as he could.

The police followed. They saw Mr. Able toss an object into a nearby dumpster. Inside the dumpster, the police found the object Mr. Able tossed: a 45-calibre semi-automatic firearm with a capacity for 12 rounds. Eleven of the 12 rounds were chambered and ready to fire.

Shortly after the police found the gun, police dogs found Mr. Able. He was charged with possession of a restricted firearm with ammunition. Back at the station, Mr. Able confessed.

In October of 2009, Mr. Able pled guilty and he was sentenced in January of 2010. The sentencing judge imposed a sentence of 9 and one-half years. All parties agreed that Mr. Able’s finding of guilt under the YCJA in 2007 on a charge under s.95(1) made this conviction under s.95(1), “a second or subsequent offence”, for the purposes of determining the mandatory minimum under s.95(2).

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New & Notable: Reasonable and sufficient

Jean-Charles Lengelo has a van. He had some friends too. He and his friends conspired to rob Bobbie's Pizza. The robbery did not go as hoped. Victims of the robbery called the police. A nearby police constable responded. He spotted the robbers. He began moving toward them in his cruiser - by driving over a "grassy median and onto hte Silver City parking lot" [para 2]. He saw them head to a van and they appeared to try and get in the van. The officer noted the licence plate of the van. The men then fled. The officer gave chase.
The van also fled but was stopped nearby a short time later. Lengelo was driving the van. Identification belonging to one of the robbers was found in the van.
Lengelo was tried by a judge alone. He did not testify. He was convicted. He appealed: 2013 ONCA 609.
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New & Notable: Confining Constructive Murder to its Actual Elements

Andrae Parris and Cleavon Joseph killed Jermaine Malcolm. They were both convicted of first-degree murder. They appealed. Their appeal was dismissed: 2013 ONCA 515. In his usual fashion, Watt JA introduced the characters and backdrop:

Andrae Parris and Cleavon Joseph sold drugs. Joseph was an experienced trafficker, a veteran of the trade. Parris was new to the business. Their currency was crack cocaine.

 Jermaine Malcolm was a crack addict, a customer of Andrae Parris.

One night in September, 2007, Malcolm arranged to buy $30 worth of crack from Parris. When Parris arrived with the crack at the front door of Malcolm’s residence, a unit in a Mississauga housing complex, Malcolm, drugs in hand, went inside to get the money to complete the transaction. Parris waited at the front door. Malcolm did not return.  No drugs. No money. Parris was not a happy man.

Parris, the victim of the front door-back door ploy, a common evasion of payment technique among drug purchasers, told his friend Joseph about what had happened.

A little while later, Parris and Joseph returned to recover payment from Malcolm.  Joseph went to the front door. Parris went to the back.

Within two hours of the original drug deal, Malcolm was dead of multiple stab wounds [@ paras 1-5].

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New & Notable: No need to bring a knife to a fist fight

On April 3, 2010 Anthony Larose and his friend were waiting for a bus. Larose got angry and threw a rock through the glass of the bus shelter. Hanna, drunk, took issue with Larose and confronted him. A heated verbal exchange followed and Hanna sucker punched Larose in the nose.

 

While on the ground Larose’s friend handed him a 20cm knife; armed, he got up and saw that Hanna had been joined by his friend Marshall. At his trial, Larose testified that the two men rushed him and he stabbed Hanna twice in the chest and once in the gut. Hanna and Marshall backed away. At some point during the fight the knife was knocked to the ground and Larose went to retrieve it, as he did so, Hanna and Marshall moved towards Larose ultimately rushing him. Larose lashed out striking Hanna in the face and slicing Marshall’s neck. Both men sustained life threatening injuries and Larose fled.

At trial Larose argued that he had acted in self-defence. The trial judge found that there was no air of reality to Larose’s claim of self-defence and refused to leave it with the jury. The British Columbia Court of Appeal agreed with the trial judge: 2013 BCCA 12.

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New & Notable: Accountability and responsibility for public funds

The Criminal Lawyers Association and Lawrence Greenspon believe that the court could – and should in four particular cases – order the Attorney General to pay rates of remuneration, above the legal aid rates, where counsel were appointed as amicus. A majority of the Supreme Court disagreed.

 

Karakatsanis J, writing for the majority, held that the appointment of amicus, while within the inherent jurisdiction of the Superior Court, does not carry with it the power to set rates of remuneration; “[a]bsent authority flowing from a constitutional challenge or a statutory provision, exercising such power would not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds” [para 15].

Karakatsanis J explained this conclusion by first outlining and concluding that the Superior Courts possess inherent jurisdiction, which she outlined as follows:

Thus, the inherent jurisdiction of superior courts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution.  It includes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner — subject to any statutory provisions.  I would add, however, that the powers recognized as part of the courts’ inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation [para 26].

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Current & Curious: The truth driven by circumstances?

Yousanthan Youvarajah and DS were involved in the killing of another man after a failed drug deal. DS pleaded guilty to second-degree murder. As part of the plea agreement he signed an agreed statement of facts. In that statement he implicated Youvarajah as the one who provided the handgun to him, directed him to shoot the victim and demanded the gun back [para 7]. When he pleaded he acknowledged the accuracy of this statement of facts.

 

At Youvarajah’s trial DS was called by the Crown as a witness. DS was asked to adopt the agreed statement of facts. Shockingly, he testified that he did not remember signing the document (although he accepted it bore his signature). Further, he testified that the statement was not true. He indicated, instead, that the gun was his own and that he threw the gun into the river after the shooting. Regarding his plea, he indicated that he “did not understand the words ‘acknowledged’ or ‘accurate’ as used by his counsel” and that one of the reasons he pleaded guilty was that he was told he would not have to give any further statement [para 9].

The Crown sought to tender the statement under the principles of KGB. The trial judge denied the Crown’s application on the basis it did not meet threshold reliability. Karakatsanis J outlined the trial judge’s reasons as follows:

None of the safeguards identified in this Court’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (K.G.B.), for reducing the dangers associated with hearsay had been undertaken.  The statement was not videotaped; there had been no recital of an oath or affirmation; and the transcript of the guilty plea proceedings was not a suitable substitute to assess D.S.’s demeanour and credibility at the time the statement was made.  Furthermore, the statement had been drafted by counsel; it was not offered spontaneously and was not in D.S.’s own words [para 12].

 

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