Current & Curious: A Little Step Back from Morelli?

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Justice Fish in R v Morelli, 2010 SCC 8 wrote: “It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer” [para 2]. Since Morelli, it has often been taken as a given that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer infringes an accused’s s. 8 rights.

Not necessarily so, says the Ontario Court of Appeal in R v Little, 2014 ONCA 339.

Christopher Little murdered his ex-wife and another woman in his home and then called 9-1-1 in the early morning hours of February 12, 2007. When police arrived they found his cell phone on the bed in the master bedroom. The phone was seized because it had blood on it, and because police wanted to confirm it was the phone that was used to call 9-1-1. Once in police custody, however, the phone was subject to an extensive search. Police copied the user data, call logs, contacts, text messages, videos, and photos.

The next day police officers interviewed Little’s employer. They obtained his verbal consent to seize Little’s workplace computer. Police officers then obtained a warrant to search the contents of the computer. The warrant authorized police to examine the computer for “communications” between certain people, and only during a 6 ½ hour period on a particular day. The computer search did not begin until after the warrant expired, and lasted months. Officers searched the entire contents of the computer for other kinds of evidence such as videos and Internet search histories. They did so in spite of advice from a detective that the warrant only authorized a search for “communications” and further searches were beyond the scope of the warrant.

The trial judge found that the cell phone and workplace computer searches violated Little’s s. 8 rights: 2009 CanLII 41212 (ON SC).

The trial judge admitted photos obtained from the cell phone and an Internet search obtained from the workplace computer under section 24(2) of the Charter: 2009 CanLII 42594 (ON SC). The accused was found guilty of two counts of murder.

On appeal, Little challenged the trial judge’s decision to admit evidence obtained from the search of the workplace computer. In particular, he argued that the trial judge erred by describing the impact of the breach as “the lowest end of the scale.”

The Ontario Court of Appeal rejected this argument—implicitly rejecting a general proposition that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer breaches an accused’s s. 8 rights.

The Court held:

Cases from the Supreme Court of Canada subsequent to the trial judge’s ruling, e.g. R. v. Vu, [2013] 3 S.C.R. 657 and R. v. Cole, [2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the privacy interest engaged and the impact of the s. 8 breach on that privacy interest.  As made abundantly clear in Vu and Cole, this case-by-case approach applies to searches of computers. [para 8, emphasis added]

In R v Cole Justice Fish, writing for the majority of the Supreme Court of Canada, distinguished his own earlier decision in Morelli by ruling that evidence obtained from the warrantless search of a workplace computer should be admitted. The computer in Cole was owned by the accused’s employer. Workplace policies stated that personal use was permitted, but any data was the property of the employer and could be accessed by the employer. Justice Fish held that when assessing the impact of a s. 8 breach the focus is on the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity [para 91]. He concluded that the impact of the breach was attenuated by both the diminished privacy interest and the discoverability of the evidence [para 97].

In R v Vu Justice Cromwell, writing for a unanimous Supreme Court of Canada, ruled that evidence obtained from the warrantless search of two personal computers should be admitted. Police executed a search warrant on a house believed to be the site of a marijuana grow-op. Police officers found two personal computers in the house and manually viewed their contents. One of the computers was connected to a security camera system, and contained video of the accused’s vehicle coming and going from the house. The video was copied to a disc. The other computer contained the accused’s resume. Justice Cromwell noted that the search was not as intrusive as a full forensic examination. He also found that the police did not gain access to any more information than was appropriate, given the fairly modest objectives of the search as defined by the terms of the warrant. Justice Cromwell concluded that the impact of the breach favoured exclusion, but not strongly so [para 72].

The Ontario Court of Appeal’s decision in Little confirms a more nuanced approach to the impact of the breach on the Charter-protected interests of the accused when a computer has been searched in breach of s. 8. The impact of the breach will be assessed on a case-by-case basis and may not weigh in favour of exclusion where the reasonable expectation of privacy is diminished.

MG

New & Notable: Commendable Efforts but not Worthy of Lesser Sentence

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Shortly after midnight, Kristopher Clarke, 19 years old, walked into a convenience store wearing a skeleton mask and pulled out a starter’s pistol, which he pointed at the head of the victim. He demanded cash and cigarettes.  He threatened to shoot if his demands were not met. Clarke plead guilty and was sentenced by Moore J who accepted a joint submission of two years less a day.

The joint submission was premised and accepted on the basis of the following factors. First, Clarke was a youthful first offender, who pleaded guilty.

Second, Moore J described Clarke as having “an incredible amount of potential” given the family support and prospect for rehabilitation [@para 5].

Third, Clarke was released on bail pending disposition and had abided by all of the release conditions.

Fourth, at the time of the robbery Clarke was suffering from depression but had stopped taking his anti-depressants because he could no longer afford them. A detailed psychiatric report was filed.

On appeal, however, Clarke argued that in light of fresh evidence, which revealed that he had taken significant steps towards rehabilitation following disposition, the sentence should be reduced. The Ontario Court of appeal disagreed: 2014 ONCA 296.

Before declining to admit the fresh evidence, the Court of Appeal first set out the categories of proposed fresh evidence, which included:

• Letters of support from people who have known Clarke for many years
• Letters of support from Clarke’s employers from various subway restaurants where Clarke worked on a part-time basis.
• Letters relating to Clarke’s education post sentencing, which included the completion of high school credits and enrolment in a college program.

Although the Court commended Clarke for his efforts in both education and employment ultimately they determined that the fresh evidence did not:

significantly alter the picture presented to the sentencing judge. Then, as now, the appellant is a youthful first offender who committed very serious offences and who shows good potential for rehabilitation. Then, as now, he has the full support of his friends and family.  Then, as now, he has the full support of his friends and family. While the appellant appears to have made progress with his education since he was released on bail pending appeal we cannot say that the fresh evidence demonstrates a significant change of circumstances sufficient to permit us to reduce the sentence imposed by the sentencing judge [para 19].

Moreover, in concluding that the sentence was fit the Court highlighted that:

given the gravity of the offence, the governing law, and the fact that the sentence was at the low end of the range and imposed following a joint submission, we consider that in law we must uphold the sentence [para 20].

This approach is consistent with the comments of the Saskatchewan Court of Appeal in R v Stonechild, 1995 CanLII 3925 (CA), where the Court stressed that:

(…) crimes violence will be visited with a significant term of imprisonment. Robbery with violence is the type of crime from which the public is entitled to be protected and the sentence imposed must leave no doubt that such conduct cannot be tolerated.

Service stations and other places of business that remain open during the night (often with only one attendant) are particularly vulnerable. Taxi drivers are often in a similar position. Robbery is particularly serious because of its inherent danger to human life. Any escalation of violence toward a victim as well as resistance to the offender can easily result in death or serious bodily harm [paras 7-8].

LT

New & Notable: Maxwell - not so smart after all

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Norman Maxwell thought he had a clever scheme. His scheme involved defrauding the Bank of Montreal to the tune of $375,000; he did so through several transactions occurring over the period of about one month. 

Maxwell was charged and ultimately found guilty after trial. The trial judge imposed a sentence of 4 years jail and made two ancillary orders: (i) restitution in the amount of $293,205; and (ii) a fine in lieu of forfeiture in the same amount to be paid within 30 days prior to the appellant’s release from custody, and in default of payment, a further term of imprisonment of four years to be served consecutively to the principal sentence. Maxwell was not happy - he had sought a conditional jail sentence or in the alternative, a sentence in the range of 2 years. He appealed. The Court of Appeal dismissed his appeal: 2014 ONCA 316.

On appeal two issues were raised.

First, Maxwell took issue with the length of sentence. The court rejected this ground of appeal. 

A custodial sentence of four years in our view falls within the range of sentence appropriate for the offence and the offender who committed it. The scheme involved several individual transactions that took place over a period of about a month. The amount of money involved, $375,000, was significant. That the bank manager breached bank procedure in the hope that the appellant’s promise of significant future business does not diminish the appellant’s moral blameworthiness. Nor are we persuaded that the trial judge’s consideration of the significant personal consequences for the manager resulted in the imposition of an unfit custodial sentence.

The reasons of the trial judge reflect consideration and application of the controlling sentencing principles including denunciation, deterrence and, secondarily, rehabilitation. The appellant is a mature adult, with related but dated convictions. At the time of sentencing he continued to solicit funds from others for a highly secretive project that the trial judge was satisfied did not exist [paras 5-6].

Second, Maxwell took issue with the fine in lieu of forfeiture. The court held that the "imposition of a fine in lieu of forfeiture...reflects no error in principle" [para 8]. However, the court did vary the order by allowing 2 years (rather than 30 days) to pay and reduced the imprisonment in default from 4 years consecutive to 3 years.

DGM

New & Notable: Hoping for Rehabilitation does not Protect the Public

Mr. Ogbamichael touches women in a sexual manner while riding public transit. He has done so for many years. Most recently he was convicted of sexually assaulting a young woman on the Toronto public transit system: 2014 ONSC 1693. At the time of the offences Ogbamichael was bound by a probation order which barred him from being on Toronto Transit Commission [TTC] property.

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Ogbamichael’s victim was asleep on the bus when she woke to the offender rubbing her leg and crotch. He tried to put his hand down her pants and she fled the bus.

The victim described feeling disgust and shame at the attack and an ongoing fear of using the public transit system.

Trotter J held that he had no doubt that the offender has made many other women feel the same way over the years as this was his seventh conviction for a similar sexual offence.

An earlier pre-sentence report [PSR] one prepared prior to this most recent crime, described the offender as being at a low risk to re-offend, despite suffering from the paraphilia “toucherism”.  The PSR’s prediction turned out to be wrong as this sexual assault was perpetrated shortly after the offender’s release from custody. Ogbamichael offered no expression of remorse nor any real insight into the impact his crimes have had on his victims.

Before sentencing Trotter J noted that the offender’s undeterred conduct “leaves a sentencing judge with little choice but to increase the severity of responses to his re-offending. At this stage, a disposition focused on rehabilitation would delicately rest on little more than hope, leaving young women travelling the TTC to bear the risk of this approach” [@para 16].

Ogbamichael was sentenced to an 18-month jail term for the sexual assault and 12-months consecutive for the breach of probation, followed by a three year probationary period. In so doing Trotter J recognized that:

this custodial sentence, for a single over-the-clothing subway groping might strike some as severe. However, given Mr. Ogbamichael's persistent pattern of offending, which seems to be impervious to jail sentences and court orders, a significant jail sentence is required in an effort to protect the public and to put an end to this behaviour [para 22].

 LT

New & Notable: Screaming, Shouting and Swearing at police: Obnoxious, but is it Criminal?

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On July 30, 2011, Justin Kukemueller was at his rural property north of Peterborough with his girlfriend, Caitlynn Wiles, and several other young people.  Ms. Wiles crashed her car into a tree, setting it on fire, and firefighters were called to the scene.  The group seemed to have been drinking, and firefighters called police to assist.

Police learned that the wreck may have been caused by playing a game of “demolition derby”.  Kukemueller and Wiles smelled of alcohol when speaking to police, and Wiles was arrested for dangerous driving.

The crowd got angry, and police requested backup.  Along with police, Kukemueller’s father arrived on an off-road vehicle to support the group, leading to his own arrest for impaired driving.

Kukemueller then “reacted with a loud, profane and angry tirade against the police”.  There was ultimately a group of about 22 people present during the outburst, including police, firefighters, family and friends of the accused.  Kukemueller was arrested and charged with causing a disturbance in or near a public place, under section 175(1)(a)(i) of the Criminal Code:

175. (1) Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

…

is guilty of an offence punishable on summary conviction.

 Kukemueller was convicted of the offence at trial, where the judge found that his “behaviour had an effect on the other family and friends who were present and contributed to raising the tension at the scene amongst those people as well as the police” [emphasis added], and that he “made things worse”.  The summary conviction appeal court agreed, and upheld the conviction.

The Ontario Court of Appeal allowed the appeal and set aside the conviction: 2014 ONCA 295.

At issue was whether Kukemueller’s outburst was causing a “disturbance”.

The Supreme Court in R v Lohnes, [1992] 1 SCR 167 defined this standard, finding that a disturbance “constitutes an interference with the ordinary and customary use by the public of the place in question”.  It is not enough to cause mental or emotional annoyance; courts must consider the public’s ordinary use of the place and whether that use has been interfered with.

For example, the majority of the Ontario Court of Appeal in R v Swinkels, 2010 ONCA 742 found that a group gathering and even shouting anti-police insults at officers is not, in and of itself, a disturbance; there must further be an “externally manifested disturbance of the public peace”.

The Court of Appeal similarly found that Kukemueller did not interfere with the “public’s normal activities” at the time and place in question.  Merely “raising the tension at the scene” or “making things worse” by screaming and swearing is insufficient.

The upshot: if a mob in the woods screams insults at the police and nobody else is around to hear them, have they caused a disturbance?  The answer is no.

The implications may seem unusual.  Does this mean that police just have to accept some high-volume verbal abuse as part of the background noise of the job?  Unfortunately, yes.

There are, of course, other tools available if such a targeted outburst rises to the level where the officer’s duties are interfered with, without even the slightest public interference.  Such conduct runs the risk of obstructing an officer in the course of duty, a separate offence under section 129(a) of the Code.

JD

New & Notable: Anesthesiologist Abusing Sedated Patients

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Until the Ontario Superior Court’s decision in R v Doodnaught, 2014 ONSC 1196, there have been no reported cases in Canada on sentencing of an anesthesiologist who sexually assaulted his sedated patients during various medical proceedings [para 26].

Doodnaught was convicted of sexually assaulting 21 female patients. The victims were between the ages of 25 to 75. The sexual acts perpetrated on them included kissing, fondling, and forced fellatio. Although three formal complainants were made during the time period in the indictment, Doodnaught had faced no repercussions; the effects of the anesthesia were blamed and Doodnaught denied the allegations. McCombs J found that the dismissal of these complaints emboldened Doodnaught and escalated the frequency of his crimes. In fact, in the ten days prior to his arrest, no less than four women were sexually assaulted; three of them by forced fellatio. 

McCombs J found held that “the power imbalance between” Doonaught “and his victims was absolute” [para 8]. Sedated but aware of what was happening to them, the impact on the victims has been devastating.   The victim impact statements described profound psychological effect, sexual dysfunction and a distrust of the medical profession [para 13].  

At the time of sentencing Doodnaught was 65 years old with no prior criminal record.  McCombs J held that the “court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients” [para 29].

Doodnaught was sentenced to 10years.

In March of 2014 Doodnaught sought release pending the hearing of his appeal. The notice of appeal alleges some 100 errors by the trial judge - all of which challenge the correctness of the findings of fact [2014 ONCA 172 @paras 7-8].

The Crown argued that Doodnaught’s ongoing detention was necessary and in the public interest. LaForme JA agreed and noted the following:

(…) on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable.  In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest [ONCA para 24].

Doodnaught submitted the same 49 letters of support that were filed on sentencing. The point was to illustrate that some small segment of the public believed in his innocence.  LaForme JA held that:

These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates.  The letters thus do not assist very much in gauging the public interest in this case [ONCA para 19].

 LT

Current & Curious: Practical - but perhaps not precise - Interpretation

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Tassandra Whyte was charged with accessory after the fact to murder. She wanted to be released on bail pending her trial. She applied for bail and had a hearing in Superior Court; her application was denied and she was detained on the secondary grounds.

Whyte renewed her application for bail in Superior Court, alleging there had been a material change. The changes included her living arrangements and the fact that the trial was now likely to occur some significant distance in the future.

At that second bail hearing the court declined to consider the matter on the basis that it lacked jurisdiction; the court held that a renewed bail application based on change in circumstances could only be heard by the Court of Appeal. .

Whyte sought a review under section 680(1) to the Court of Appeal: 2014 ONCA 268.

The Court of Appeal considered the issue of whether the Superior Court could entertain a second bail hearing. It offered the following overview of the law on this issue:

The relevant practice in Ontario can be summed up as follows:  Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of theCode, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant’s grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of theCode: R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.), at p. 746. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 5; R. v. Klymchuk (2007), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), 252 C.C.C. (3d) 521 (Ont. S.C.). This second avenue reflects the “considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release”: R. v. Boyle, [2006] O.J. No. 5094 (C.A.), at para. 3.

The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application, however: see Daniels, at p. 747; Boyle, at paras. 3-4. In other words, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release [paras 21-22].

The court then turned to consider what amounts to a “change in circumstances” and noted:

In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material [para 26].

In the present case the court accepted that a change in the trial date, arising from severance of the accused, and other delays, such that the accused may spend more time in custody then they would even if convicted, is a material one. In so concluding the court cited the following comments of Hill J in R v White, 2010 ONSC 3164:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted [para 10].

Interpreting section 522 as permitting a second bail hearing where there is not a material change in circumstances is, with respect, not the most compelling work of statutory interpretation. Indeed, in the past there has been divide about the proper interpretation. The Court of Appeal has clearly endorsed, the “purposive” [read practical] interpretation which permits successive bail hearings in Superior Court (rather than reviews at the Court of Appeal) where there is a material change. Practical, indeed, but precisely interpreted?

At any rate, at least in Ontario, there is no ambiguity; section 522 permits successive bail hearings in Superior Court where there is a material change in circumstances.

DGM

New & Notable: Voyeurism or Just a Guy with a Camera?

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Toronto has a clothing optional public beach - designated as such by city bylaw in 2002. Some people exercise this option to participate in the nudist or naturalist lifestyle; some just for the fun of the experience. It is, not surprisingly, a popular beach with many simply in attendance to ogle.  In 2005 Parliament enacted Bill C-2 which saw the creation of the criminal offence of voyeurism.

On Labour Day weekend 2012, HL took his 9-month old son and camera and set out for the clothing optional beach. He was arrested later that day for having taken dozens of pictures of nude women. He did so in plain view and when confronted by one of his muses he agreed to delete the photos he had taken of her.

HL was charged with voyeurism; Green J was tasked with deciding if his conduct amounted to same: 2014 ONCJ 130.

The essential elements of voyeurism as charged in the information required that HL:

1. Surreptitiously have made the visual recording
2. Of nude persons
3. In circumstances that gave rise to a reasonable expectation of privacy.

There was of course no dispute that HL had taken the 47 nude photos of women filed as exhibits in the trial. At issue was whether the photos were shot surreptitiously and whether the there was a reasonable expectation of privacy at the clothing-optional beach.

The Crown argued that despite the fact that HL's conduct was carried out in plain view, it was nonetheless surreptitious because all of the photos were taken from behind, with the women facing away from the camera. Thus, the effect was that HL's conduct was surreptitious to the women he was photographing.

Green J was dismissive of this argument holding, inter alia, that HL's conduct was “if anything, public (if not in fact conspicuous) — the antithesis of "surreptitious" [para 26].  He further noted that “neither the absence of consent or awareness on the part of the person observed or recorded is an expressly requisite feature of the offence set out in s. 162” [para 28].

Furthermore, HL testified that he intentionally and conspicuously photographed women from behind “so as to capture them in natural rather than contrived attitudes” [para 32]. That testimony was accepted by Green J.

Despite finding that the offence had not been made out due to the ‘conspicuous’ rather than surreptitious nature of the making of the visual recordings, Green J nonetheless addressed the issue of reasonable expectation of privacy.

Green J was prepared to infer that the woman who asked HL to delete her photos had a subjective expectation of privacy and that other beach-goers may have been displeased with his conduct. However, the court concluded that the circumstances did not give rise to a reasonable expectation of privacy for the following reasons:

• The beach is public
• The beach is open to both clothed and unclothed
• Those who do go nude do so knowing that they will be observed
• Those who remove their clothing know that many on the beach carry cameras
• No rules or by-laws prohibited the taking of photographs
• No sign discouraged the use of cameras
• The photographs taken were of mature females
• The photographs revealed no more nudity than would have been observable to any other beach goers
• There was no concern that the photography was to be distributed in any way [@para 40].

Green J concluded by offering the following:

Without pre-deciding the issue or endeavouring to influence any other jurist, I venture to suggest that a change in circumstances — such as the installation of prohibitive signage and appropriate by-law amendments — could lead to a recalibration of "where the 'reasonableness' line should be drawn" with respect to the visual recording of nude beachgoers at the (beach) [para 41].

Of note since the summer of 2013 the clothing optional beach has had a “photography prohibited” sign.

LT

New & Notable: A Continued Battle with an Intractable Offence

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Bonita Purtill had a prior conviction for impaired driving. Sadly that conviction did not fully deter her. On Thanksgiving day 2008, while impaired, she slammed her truck into another vehicle, killing a 5 month-old child inside and breaking the back of the mother. Purtill later refused to provide a sample of her breath.

Purtill was ultimately convicted of criminal negligence causing death, impaired causing death and refusal to provide a breath sample. The trial judge imposed a sentence of 6 years for the criminal negligence offence and impaired driving and 1 year consecutive for the refusal. Purtill appealed: 2013 ONCA 692.

In recent years the Ontario Court of Appeal has made clear that this type of offence has proven intractable and that increased sentences are not only warranted but necessary to send a strong message of deterrence and denunciation: R v Kummer, 2011 ONCA 39; R v Junkert, 2010 ONCA 549 - something I discussed in a recent blog: Fighting an Intractable Problem?

In response to the appeal in Purtill, the Court of Appeal reiterated this message and added a helpful point regarding the consecutive sentence for the refusal charge:

There is no fixed upper limit for criminal negligence causing death or impaired driving causing death. The facts of the case must govern...In this appeal, a five-month-old baby was killed and his mother's back was broken as a result of the appellant's offences. While the appellant showed remorse, she had a prior, albeit dated, criminal record for impaired driving. Furthermore, there was no error in the sentencing judge's imposition of a consecutive sentence for the offence of refusal to provide a breath sample. Counsel acknowledges that a consecutive sentence for this offence was appropriate. The seven year sentence was not unduly long or harsh in the circumstances and we are satisfied that the sentence does not offend the totality principle [para 4].

Given that an offence of refusal knowing death was caused (or bodily harm and death ensued) is now available, the guidance about the consecutive nature of that offence is notable. The battle with this intractable offence will undoubtedly continue; hopefully all courts will take note.

DGM