New & Notable: 278.1 Restored

The Supreme Court today released its ruling in Quesnelle addressing the scope of section 278.1 and discussing the privacy rights of victims of crime: R v Quesnelle, 2014 SCC 46. The Court unanimously overturned the Ontario Court of Appeal’s ruling (2013 ONCA 180). Two aspects of the ONCA ruling were, in my view, troubling. I commented on them in a blog at the time: A Drastic but Unfortunate Shift in the Law of Disclosure. First, the ONCA’s ruling that there were no privacy interests in police occurrence reports was flawed; and second, the ONCA’s ruling that police reports made in relation to other occurrences were not captured by the exclusionary clause of 278.1 (in other words, other occurrence reports were “records” and subject to privacy protections). The Supreme Court agrees with me (or at least that is how I see it).

In its unanimous ruling, authored by Karakastanis J, the court reviewed section 278.1 and outlined the issue on appeal as “whether these provisions apply to police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted. The question is whether these unrelated police occurrence reports count as “records” as defined in s. 2781. Such that the statutory regime limits apply” [para 1]. In short, the Court answered this issue as follows:

I conclude that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accused.  Privacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters.  Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.
Accordingly, I agree with the trial judge that the unrelated police occurrence reports at issue were “records” within the definition of s. 278.1  and thus subject to the Mills regime.  The trial judge was entitled to conclude that the reports should not be disclosed.  I would allow the appeal, set aside the order for a new trial, and restore the conviction, remitting the sentence appeal to the Court of Appeal. [Emphasis added]; [paras 2-3].

In the analysis of this issue the Court discussed two areas: (i) principles governing disclosure; and (ii) whether “unrelated” police occurrence reports are “records”.

With respect to the principles, the Court noted Stinchcombe, McNeil and O’Connor and then offered the following comments on the Mills regime:

The regime reflects Parliament’s intention to accommodate and reconcile the right of the accused to make full answer and defence with the privacy and equality rights of complainants in sexual offence cases.  In the words of Professor Lise Gotell, the regime was created in order to “to limit what it is that a woman/child complainant must be forced to reveal at trial as the price of her access to the criminal justice system” (When Privacy is not Enough:  Sexual Assault Complainants, Sexual History Evidence, and the Disclosure of Personal Records, (2006) 43 Alta. L. Rev. 743, at p. 745.).  That approach was upheld by this Court in R. v. Mills, [1999] 3 S.C.R. 668, and its constitutionality is not challenged in this appeal. [Emphasis added]; [para 14].

After discussing the procedural aspects of 278.1 the Court noted that the “mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution.  The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials [para 17].

Turning to discuss the impact of McNeil, the Court noted that

The Mills regime governs the disclosure of “records” in sexual offence trials, but does not displace the Crown’s duty to make reasonable inquiries and obtain potentially relevant material (or the police duty to pass on material to the Crown) under McNeil.  As an officer of the court and Minister of Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences, including sexual offences.  The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence. [Para 18].

With respect to whether unrelated occurrence reports are “records” in 278.1, the Court considered two issues: first, whether the records carry a reasonable expectation of privacy; and second, whether they “fall into the exemption for investigatory and prosecutorial documents”.

First, the Court concluded unrelated occurrence reports do carry with them a reasonable expectation of privacy. Such privacy interests must be assessed in relation to the “totality of the circumstances” and are not limited to “trust-like, confidential, or therapeutic relationships” [para 27]. Privacy interests are not “an all or nothing concept”. The Court went on to discuss the “information” in these reports and the “price of disclosure” and concluded:

People provide information to police in order to protect themselves and others.  They are entitled to do so with confidence that the police will only disclose it for good reason.  The fact that the information is in the hands of the police should not nullify their interest in keeping that information private from other individuals.
Fundamentally, the privacy analysis turns on a normative question of whether we, as a society, should expect that police occurrence reports will be kept private.  Given the sensitive nature of the information frequently contained in such reports, and the impact that their disclosure can have on the privacy interests of complainants and witnesses, it seems to me that there will generally be a reasonable expectation of privacy in police occurrence reports. [Paras 43-44].

Second, the Court rejected the notion that unrelated occurrence reports are exempt as prosecutorial and investigative documents in 278.1. Interpreting the section leads to the conclusion that the exempting clause only applies to the records made in the course of the investigation in question. In making this point the Court offered the following practical comments:

If Parliament wanted to exempt unrelated police and prosecution documents from the Mills regime, it is hard to see why it would have excluded only those documents made by some police departments and not others.
This would mean that an accused whose case was investigated by a large police force would be more likely to get easy access to occurrence reports than if the case was investigated by a small force.  For example, where the RCMP is involved in an investigation, the Court of Appeal’s interpretation of the exemption would waive the Mills regime for RCMP occurrence reports from across the country [paras 57-58].

I agree – I similarly noted this anomaly would follow from the ONCA ruling in my 2013 blog:

There is nothing in the language of this exclusionary portion of 278.1 that suggests it should apply as broadly as suggested by MacFarland JA. Indeed, if it did, it would create possible odd and unfair results. Consider whether the records held by other police agencies, not those “responsible” for this investigation, but nonetheless in possession of such information would be subject to 278.1.

In concluding on the point that unrelated occurrence reports are “records” the Court rejected the position of the Criminal Lawyer’s Association of Ontario and the respondent that this interpretation of records would impact on trial fairness – in part, this argument pointed out that the Crown and defence would be on unequal footing in access to such material:

The principles of fundamental justice and trial fairness do not guarantee defence counsel the right to precisely the same privileges and procedures as the Crown and the police (Mills, at para. 111).  Nor is the right to a full answer and defence a right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution.  The right to a full answer and defence is not without limit. [Para 64].

In my 2013 blog on the ONCA ruling I concluded with these thoughts:

Section 278.1 should apply to police occurrence reports. The section is broad enough to capture those reports and the exclusionary clause does not apply.
Ironically, MacFarland JA noted the following – from the preamble of the Bill to introduce the 278.1 provisions – as the “intent” of Parliament.
In the preamble, Parliament recognizes that the compelled production of personal information in accordance with ordinary disclosure principles may deter victims of sexual offences from reporting and seeking “necessary treatment, counselling, or advice”. It also acknowledges that such unconstrained disclosure may detrimentally affect the work of those who provide services and assistance to complainants of sexual offences [emphasis added]; [para 28]. 
If this truly was Parliament’s intent – and it seems quite reasonable to so conclude – it is unlikely to be furthered by this ruling. Indeed, this ruling is likely to have a chilling effect of reporting. If every complainant knew that everything they tell the police and hand over to the police will thereinafter be provided to every accused person on every cause in which she is a witness or victim, it is not hard to imagine some hesitation or concern may arise.
The 278.1 regime is not overly onerous. It does, however, provide a valuable and important level of protection. That protection should apply to police occurrence reports.

With its ruling today the Court has addressed these concerns. The privacy rights of victims and witnesses sought to be protected by 278.1 has been restored.

DGM

New & Notable: Illustrating the need for 24(2)

TGH sexually abused his step-son and step-daughter when they were children. The abuse spanned a period of 10 years. The abuse included acts of oral and anal sex that would give the step-son a direct view of TGH’s anal area. The step-son reported to police (and later testified at trial) that TGH had a flap of skin or “skin tag” over his anus. The step-son provided a detailed description of the skin tag, including its approximate size, appearance, and location.

TGH was arrested, provided with his right to counsel, interviewed, and ultimately released from custody. Ten months later the detective in charge of the case obtained a general warrant pursuant to section 487.01 of the Criminal Code, authorizing her to take TGH to a hospital, examine his anal area, and if a skin tag was found to photograph it. The detective attended TGH’s home and showed him the warrant. She did not advise TGH of his right to counsel when she detained him, or at any time during the execution of the warrant. TGH was brought to the hospital where he was told to bend over or lie on the bed and spread his buttocks. The detective observed a skin tag near TGH’s anus and took three photographs.

At trial the accused applied to exclude the evidence of TGH’s skin tag pursuant to section 24(2) of the Charter, on three grounds:

  1. The search in this case interfered with the bodily integrity of TGH, and consequently was outside of the scope of the general warrant provisions of the Criminal Code, thereby breaching his rights under s. 8.
  2. The search was not carried out in a reasonable manner, in that the detective required TGH to spread his buttocks, which was not expressly authorized by the warrant, thereby breaching his rights under s. 8.
  3. The detective did not advise TGH of his right to counsel when she detained him and brought him to the hospital to be examined, thereby breaching his right to counsel under s. 10(b).

The trial judge found that TGH’s Charter rights were not breached and admitted the evidence: [2012] OJ No 6478 (SCJ).

On appeal, TGH raised only the second and third ground. The Ontario Court of Appeal ruled that the search was carried out in a reasonable manner and no s. 8 breach occurred. The court found that TGH’s s. 10(b) rights were breached, but admitted the evidence under s. 24(2). In the result, the appeal from conviction was dismissed: 2014 ONCA 460 

The search was carried out in a reasonable manner

The Court of Appeal acknowledged that the search authorized by the general warrant was “invasive under any definition of that word,” and agreed that the powers granted to police by such a warrant should be both carefully delineated and narrowly construed [para. 47].

Nevertheless, the Court held that a warrant authorizing police to view a part of a person’s body necessarily includes positioning or bodily movements that allow a full viewing:

Setting aside intrusive measures that could compromise bodily integrity and, therefore, exceed the scope of a general warrant, I regard the authority to view a part of a person’s body as necessarily including positioning or bodily movements so as to allow a full viewing.  For example, if the police were authorized to view the area under a person’s arm for the presence of a tattoo, I have no doubt that the warrant would empower the police to require the subject to lift his arm.  The requirement that the appellant spread his buttocks, while no doubt more embarrassing than lifting one’s arm, is qualitatively no different for the purposes of assessing the reasonableness of the manner in which the police executed the warrant.  [para 48]

Police were required to advise TGH of his right to counsel upon detention

It was not in dispute that TGH was detained when the detective attended his house, showed him the general warrant, and brought him to the hospital to be examined. The arguments on appeal focused on whether, having complied with the right to counsel at the time of initial arrest, a second right to counsel warning was required when TGH was detained 10 months later for the purpose of executing the general warrant.

The Supreme Court of Canada in R v Sinclair, 2010 SCC 35 (CanLII), held that in most cases an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b) [para 2].

The Ontario Court of Appeal disagreed that this principle relieved police of the obligation to provide the right to counsel when TGH was detained for the purpose of executing the general warrant.

First, the Court held that the facts of this case were distinguishable from Sinclair because there were two different detentions separated by a significant period time:

I do not think Sinclair supports the trial judge’s holding that the police were not obliged to advise the appellant of his s. 10(b) rights.  I come to that conclusion for two reasons.  First, the principle enunciated in Sinclair assumes a single ongoing detention and speaks to situations in which the police are obliged to repeat the detainee’s s. 10(b) rights in the course of that single detention.  In my view, Sinclair has no application to a situation like this where the appellant was arrested, advised of his s. 10(b) rights as required, released, and then some 10 months later detained for the purpose of executing the general warrant.  The initial detention upon arrest in January 2011 and the subsequent detention for the purpose of executing the warrant in October 2011 were entirely distinct from each other and must be treated as such for the purposes of s. 10(b).  The question raised on these facts is not whether the police were required to restate the appellant’s s. 10(b) rights in the course of his detention, but rather whether they were required to comply with s. 10(b) when they detained the appellant for a second time many months after the initial detention. [para 37]

Second, the Court held that, in any event, Sinclair requires police to provide the right to counsel a second time when the circumstances are such that the purpose animating the right to counsel requires a repetition of the s. 10(b) rights:

Even if I am wrong and the principle in Sinclair does apply, the appellant’s detention in October 2011 for the purpose of executing the general warrant falls squarely within one category of cases that Sinclair recognizes as requiring a second compliance with s. 10(b).  As Sinclair explains, at para. 50:
The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee.  Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation.  It follows that to fulfill the purpose of s. 10(b) of providing the detainee with information necessary to make a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary. [Citation omitted; emphasis added.]
The examination authorized by the general warrant was about as far from a “routine procedure” as one could get.  No one would suggest that the appellant’s lawyer, when he was advising the appellant at the time of his arrest, could have anticipated an order in the terms of the general warrant and given the appellant the appropriate advice.  It also is irrelevant that the appellant was required to comply with the warrant and that any advice he might have received from his lawyer would not have altered that reality.  The appellant was entitled to legal advice even if that advice left him with few, if any, options other than compliance.  The appellant was entitled to legal advice about the scope of the warrant and exactly what he had to do or, more importantly, not do, to comply with the warrant.  In any event, and assuming the lawyer could do nothing other than tell the appellant to comply with the warrant, that advice could be important in that a reasonable detainee, in the appellant’s position, might well refuse to allow the police to do what the warrant authorized.  Without proper legal advice, a detainee might well refuse to cooperate and find himself in further difficulty with the law. [paras 39-40]

The absence of a causal connection and the nature of the allegations were factors supporting admission of the evidence under s. 24(2)

In its s. 24(2) analysis the Court first noted the absence of a causal connection between the Charter breach and the evidence that was obtained. However, the evidence could still be excluded under s. 24(2) because there was a “clear temporal and transaction link between the breach, the execution of the warrant, and the retrieval of the evidence.” In this case the link was sufficient to trigger the exclusionary power of s. 24(2) [para 52].

Regarding the seriousness of the breach, the Court noted that the detective treated TGH with respect and dignity during the search procedure. Her conduct did not require a court to dissociate itself from the evidentiary fruit of her conduct [para 57]. The seriousness of the breach was also reduced because the detective did not question TGH, thus respecting his right to silence [para 56].

The Court concluded that the impact of the breach on the Charter-protected interests of the accused was tempered by two factors.

First, the police did not attempt to take advantage of the absence of legal advice by attempting to elicit incriminating evidence from the appellant in the form of admissions or other statements [para 59].

Second, there was no causal connection between the breach of TGH’s right to silence and the evidence obtained. Nothing suggested that anything a lawyer may have said would have altered the course of the police conduct:

The police would have taken the appellant to the hospital, executed the warrant as they were entitled to do and the photographs would have been taken.  The absence of any causal connection between the breach of s. 10(b) and the obtaining of the challenged evidence leads me to conclude that the evidence would have been available even if the police had complied with s. 10(b).  This diminishes, to some degree, the significance of the breach on the appellant’s Charter-protected interests: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 69-74; R. v. MacMillan, 2013 ONCA 109, 296 C.C.C. (3d) 277, at paras. 67-72. [para 60]

Finally, the Court held that society’s interest in an adjudication on the merits strongly favoured admission of the evidence. This was true, firstly, because the evidence was reliable.

The Court went further and held that the availability of reliable evidence capable of corroborating the complainants had additional significance in a trial of historical sexual assault allegations:

The negative impact on the administration of justice when reliable evidence is excluded is arguably particularly significant in cases involving allegations of historical sexual assaults.  In many of those cases, there is little evidence independent of the complainant’s allegations and the accused’s denials.  The outcome often turns on difficult credibility assessments.  The availability of independent reliable evidence can be important to the maintenance of confidence in the administration of justice in this kind of case.  To exclude that kind of evidence under s. 24(2) runs a real risk of bringing the administration of justice into disrepute. [para 62]

In the result the Court concluded that the observations and photographs of TGH’s anal area were admissible under s. 24(2).

MGM

New & Notable: Realistic Sentencing Options

Polanco-Gabriel was tried by a judge and jury of two counts of threatening bodily harm, one count of possession of a weapon for the purpose of committing an offence, one count of aggravated assault and one count of assault with a weapon. The jury only returned a verdict of guilty on one count, the possession of the weapon for the purpose of committing an offence. A mistrial was declared in respect of the remaining counts, which the Crown subsequently stayed. Polanco-Gabriel returned before Campbell J for sentencing on the sole count he was convicted of: R v Polanco-Gabrial, 2014 ONSC 3307

The facts of the case were simple. Polanco-Gabriel was at a baseball game in Toronto along with some 80 spectators. During the game he got into a scuffle with Mr Diaz over a woman also in attendance at the game and who was known to both parties. The altercation went from verbal to physical and resulted in Polanco-Gabriel being escorted away by a friend.

Some 10 minutes after being escorted out, Polanco-Gabriel returned to the ball game, this time wielding a machete, and yelling that he had a machete, which was plainly obvious.  The baseball game stopped and a group of people surrounded the accused. Meanwhile, Mr Diaz armed himself with a bat and made his way towards Polanco-Gabriel. The two men yelled at each other in Spanish and swung their weapons. Mr Diaz was hit a few times on his forearm with the machete. The fight ended when Diaz struck Polanco-Gabriel in the head rendering him unconscious.

At the sentencing hearing Polanco-Gabriel argued for a conditional discharge. The Crown sought a reformatory sentence of 4 to 6 months followed by 2 years probation.

In addressing the inappropriateness of a conditional discharge in the circumstances of this case, Campbell J held:

First, while discharges are often in the bests interests of an accused, there is no evidence in this case that suggests, in any specific way, that a discharge would be in the best interests of the accused. Defence counsel fairly conceded that a conviction would have no adverse consequences for Canadian citizenship of the accused. Further, given his history of employment it does not appear that a conviction would likely impact upon the accused's present employment or his future employment prospects. While there is always a possibility that a conviction might inhibit travel to certain other parts of the world, this risk was not one mentioned by defence counsel as being of any concern to the accused.
Second, and in any event, even if a conditional discharge was in the best interests of the accused, I have no hesitation concluding that a discharge would be contrary to the public interest. Given the gravity of the offence committed by the accused, the potential danger it caused to innocent members of the public, and the need to effectively denounce and deter such offences, a discharge is simply not a realistic sentencing option in the circumstances of the present case @paras 39-40.

Ultimately, Campbell J imposed a sentence of 3 months and 18 days, with credit for 12 days of pre-sentence custody. The sentencing judge noted that had the offender not been a mature first offender a longer sentence would have been appropriate @para 45.

LT

New & Notable: Privacy of Anonymity Protected

In a blog posting on February 11, 2013 Brian Holowka discussed the case of Matthew Spencer – a case decided by the Saskatchewan Court of Appeal: 2011 SKCA 144 – which dealt with the issue of whether persons have a reasonable expectation of privacy in their personal identifiers held by their ISP company.

Today the Supreme Court released its ruling on appeal from that decision: 2014 SCC 43. In short, it held that Spencer did have a reasonable expectation of privacy in his name and other personal identifiers as held by his ISP, Shaw Communications, that related to the IP address linked to his computer.

The facts – as set out in the previous post – may be succinctly summarized as follows:

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

An officer with the Saskatoon Police Service used the “LimeWire” program and discovered the child pornography files in this shared folder. The IP address associated with the computer hosting the shared folder was publicly available and easily ascertainable by the police. The police wrote to Shaw Communications, the ISP, requesting the customer information associated with the IP address at the date and time relevant to the discovery. This kind of information is often referred to as customer name and address or CNA. The request was made pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA).

Shaw complied with the PIPEDA request and armed with this information, the police obtained a search warrant to search the home. The computer was located, seized and searched. Child pornography was located on the hard drive of the computer.

On appeal the Court considered whether Spencer had a reasonable expectation of privacy. That consideration began by determining his subjective expectation which was driven by two considerations: (i) the subject matter of the search; and (ii) the nature of the privacy interest potentially compromised.

With respect to the subject matter, the court noted that in some cases this is easily discerned, in others it is more nuanced and complex. In this case, the determination of the subject matter fell into the latter category and in such cases the court should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” [para 26]. In doing so courts should looked “not only the nature of the precise information sought, but also at the nature of the information that it reveals” [emphasis added]; [para 26].

Put another way, the Court held that courts should not look “narrowly at physical acts involved but should consider the nature of the privacy interest impact: para 31.

In the present case the Court concluded on this point with the following:

The subject matter of the search was not simply a name and address of someone in a contractual relationship with Shaw. Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage. As Cameron J.A. put it, at para. 35 of Trapp:
To label information of this kind as mere “subscriber information” or “customer information”, or nothing but “name, address, and telephone number information”, tends to obscure its true nature. I say this because these characterizations gloss over the significance of an IP address and what such an address, once identified with a particular individual, is capable of revealing about that individual, including the individual’s online activity in the home.
Here, the subject matter of the search is the identity of a subscriber whose Internet connection is linked to particular, monitored Internet activity [emphasis added]; [paras 32-33].

With respect to the nature of the privacy interest, the Court first identified the privacy interest at stake as being “informational” and noted:

To return to informational privacy, it seems to me that privacy in relation to information includes at least three conceptually distinct although overlapping understandings of what privacy is. These are privacy as secrecy, privacy as control and privacy as anonymity [para 38].

After setting out the framework for the analysis of each of these privacy interests, the Court identified an intrusion into the “privacy as anonymity” and concluded:

In the circumstances of this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which have been recognized by the Court in other circumstances as engaging significant privacy interests: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 3; Cole, at para. 47; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 40-45.
I conclude therefore that the police request to Shaw for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy [emphasis added]; [para 50-51].

In undertaking this analysis the Court drew the conclusion that Spencer had a subjective expectation of privacy.

Turning to determine whether such an expectation was reasonable, the Court discussed the implications of PIPEDA and the reliance thereon for the disclosure in question. In particular, Spencer argued that the contractual and statutory terms of his agreement with Shaw (the ISP) did not undermine his expectation of privacy. While recognizing that PIPEDA sets outs as a guiding principle that an organization may disclose personal information as they feel appropriate, this principle does not apply where the police seek such information – as opposed to the ISP discovering it and providing it on their own initiative. Where the police request the information they must have a “lawful authority”.

...s. 7(3)(c.1)(ii) of PIPEDA…permits disclosure only if a request is made by a government institution with “lawful authority” to request the disclosure. It is reasonable to expect that an organization bound by PIPEDA will respect its statutory obligations with respect to personal information [para 63].

The Court concluded that Spencer’s expectation of privacy was reasonable:

In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search [para 66].

DGM

New & Notable: Forfeiture not Cruel and Unusual

Richard Montague was charged with numerous firearm offences (including offences under sections 86(2), 91(1), 95(1)(a), 102(1) and 108(1)(b)). Montague was a firearms dealer and manufacturer. Unfortunately for Montague, he allowed his firearm’s licence to expire and subsequently his firearms acquisition certificate.

Subsequent to the expiration of the licence and certificate the police executed search warrants and seized more than 200 firearms and related devices along with 20,000 rounds of ammunition. The amount of weapons and ammunition were “sufficient for a small-scale insurrection”.

Montague was convicted after trial. He was sentenced – but the trial judge expressly held off addressing any forfeiture order until after appeals against conviction and sentence by Montague. Those appeals were heard and dismissed. Noting that the forfeiture orders should have been addressed previously, the Court of Appeal sent the matter back to the trial judge to consider the forfeiture orders. Back before the trial judge the Crown sought mandatory forfeiture orders under section 491(1)(b); Montague sought to have that provision declared unconstitutional as a violation of section 7. The trial judge dismissed that motion and ordered forfeiture of the firearms but declined to order forfeiture of the ammunition; the refusal to grant the order for the ammunition was “on the basis that, in [the trial judge’s] view, the applicants had been convicted under the wrong section and that the forfeiture provision did not apply to the ammunition that was not loaded in any firearm” [para 10]. Montague appealed that ruling: 2014 ONCA 439.

On appeal the Crown argued that there was no right to appeal the order; if the appeal did proceed the Crown sought to have it varied to include the ammunition.

With respect to whether or not Montague could appeal the forfeiture order, the court recognized that the issue was whether or not the order formed part of “a sentence” within the meaning of 675(1)(b). The definition of sentence in section 673 does not include an order under 491(1)(b).; nonetheless, the court held that forfeiture orders under 491(1)(b) are part of sentence within the meaning of 673 [paras 12-27].

Having decided that the order could be appealed, the court considered Montague’s argument that the provision violated section 12. In response to one of the key arguments advanced by Montague – that the forfeiture was grossly disproportionate to the offence – the court offered the following:

In this case, it is most unfortunate for the appellants that they chose to challenge the firearms licensing laws by putting all their firearms at risk. However, in my view, the fact that it was their deliberate action that put so much property at risk is not the full reason why its forfeiture does not constitute cruel and unusual punishment. It is because the forfeiture consequences cannot be viewed as grossly disproportionate or even disproportionate at all. The forfeiture of any one firearm is not going to be an overly serious consequence in comparison to the gravity of any one offence. What the appellants deliberately did in this case was put a large number of firearms constituting a significant amount of their property at risk. That choice does not affect the constitutionality of the forfeiture consequence [para 51].

After applying the section 12 analysis to the facts and circumstances of the forfeiture orders, the court held that the provision does not violate section 12 [paras 59-62].

DGM

New & Notable: Clarifying and Safeguarding Crown Discretion

Frederick Anderson was charged with over 80. He pleaded guilty. Prior to his plea he was served with a Notice of increased penalty. At sentencing the Crown intended to prove that Notice was served; the result being that Anderson would be subject to a minimum sentence of 120 days (Anderson had four prior convictions). 

Anderson sought to challenge the filing of notice alleging it breached section 7 of the Charter. In particular, he alleged that the Crown was obliged to consider his Aboriginal status. The Crown’s position was that the filing of Notice was a matter of prosecutorial discretion reviewable only through a finding of abuse of process. The matter ultimately made its way to the Supreme Court: 2014 SCC 41.

In considering the appeal the Court considered two issues. First, is the Crown required to consider the Aboriginal status of the offender in filing Notice of increased penalty. Second, whether filing the Notice is a matter of “core” prosecutorial discretion and on what basis can the exercise of Crown discretion be reviewed.

With respect to the first issue, the Court rejected the notion that the Crown was required to consider Aboriginal status for two reasons.

First, consideration of the Gladue principles is the responsibility of the judge not the Crown:

Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginal offenders. They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors must consider Aboriginal status when making a decision that limits the sentencing options available to a judge. Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged [para 25].

Second, the argument that Aboriginal status must be considered by the Crown relies on a principle of fundamental justice that the Court held is not valid: “The principle contended for by Mr. Anderson does not meet the second requirement that it enjoy consensus as a principle that is fundamental to the way in which the legal system ought to fairly operate” [para 30]. In concluding on this point the Court noted that accepting this principle would significantly impact on the role of the Crown and “hobble” them in their decision making processes:

We must begin by acknowledging that the principle advanced by Mr. Anderson would enormously expand the scope of judicial review of discretionary decisions made by prosecutors. In doing so, it puts at risk the adversarial nature of our criminal justice system by hobbling Crown prosecutors in the performance of their work and by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis [para 31].

With respect to the second issue, the Court addressed two points.

First, the Court considered the scope of Crown discretion. In doing so it held that there has been a lack of clarity in the law regarding the scope of Crown discretion. The development of “core” discretion is not helpful and should be eliminated. In its place, the Court held that all discretionary decisions are to be treated equally and, importantly, the list of such decisions are not closed or fixed:

In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making [paras 44-45].

Second, the Court considered the issue of when and how the exercise of Crown discretion may be reviewed. In doing so, it noted that “[m]anifestly, prosecutorial discretion is entitled to considerable deference” [para 48]. The review of prosecutorial discretion, the Court held, is reviewable only for abuse of process – which “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” [para 50]. In stressing this point the Court noted that to the “extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed” [para 51].

Having set the standard for review, the Court also noted that before the Crown is required to reply to such allegations, an evidentiary basis must be established [para 55].

In conclusion, the Court held:

Parliament has expressly conferred on the Crown the discretion to tender the Notice at the sentencing hearing through the governing provisions of the Code. This discretion is consistent with our constitutional traditions. As the Crown points out, tendering the Notice is not simply a decision as to what submissions will be made at a sentencing hearing (A.F., at para. 119). Tendering the Notice fundamentally alters the extent of prosecution — specifically, the extent of the jeopardy facing the accused. In this respect, the Crown’s decision to tender the Notice is analogous to the decision to proceed with charges that attract a mandatory minimum sentence when other related offences have no mandatory minimum sentence; the decision to proceed by indictment rather than summary conviction when different mandatory minimum sentences are involved; and the decision to proceed by indictment rather than by summary conviction when that decision precludes certain sentencing options.

For these reasons, I conclude that tendering the Notice is a matter of prosecutorial discretion. As a result, it is reviewable only for abuse of process.  In the complete absence of any evidence to support it, Mr. Anderson’s abuse of process argument must fail [paras 62-63].

Anderson is a very helpful decision beyond the specific issues it addresses for a number of reasons.

First, it has clarified the scope of Crown discretion. It has done away with the “core” dichotomy and it has recognized there is not a closed list of discretionary powers or decisions.

Second, it has held that review of such discretion is only permitted for abuse of process.

Third, it has held that an evidentiary basis is required before the Crown needs to respond to challenges to the exercise of its discretion.

Fourth, the Court recognizes that to the extent a regime results in a disproportionate sentence it can be challenged – short of which it must be applied.

DGM

New & Notable: Possibly is not Probably

Yates’ driving drew the attention of Saskatoon Police Services Cst. Mudasia. Yates was observed speeding some 20-30 km/hr over the speed limit and abruptly veering between lanes.

Cst Mudasia pulled Yates over and approached the driver’s side window whereupon he noticed that the vehicle smelled like alcohol and that Yates had bloodshot, glossy eyes. Cst. Mudasia issued the roadside demand. Yates complied and the Approved Screening Device (ASD) registered a ‘fail’. Yates was arrested, cautioned, read his rights and the Intoxylizer demand and transported to the police station. 

Both Intoxylizer samples revealed that Yates had a criminal blood alcohol concentration when he was driving. The trial judge excluded those results pursuant to section 24(2) of the Charter on the basis that Cst. Mudasia breached Yates’ section 8 and 9 Charter rights.

The trial judge concluded that the Cst. Mudasia did not have the requisite reasonable suspicion for the ASD demand. The trial judge held that although she accepted the officer’s evidence about an odour of alcohol emanating from Yates’ vehicle she could not be sure that the odour was emanating from Yates’ breath. The trial judge found that because the officer could not remember if anyone was present in the vehicle with Yates, the source of the odour of alcohol was undetermined. The Crown unsuccessfully appealed to the Saskatchewan Court of Queen’s Bench. The Crown then appealed to the Saskatchewan Court of Appeal: R v Yates, 2014 SKCA 52.

The Saskatchewan Court of Appeal held that:

(…) the appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body. Specifically, the trial judge found the threshold of reasonable suspicion was not met because the Crown had failed to adduce sufficient evidence to eliminate possible sources of odour of beverage alcohol, which emanated from the respondent’s vehicle, other that the respondent. (…)

In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s.254(2)(b) [paras 37-38].

Both the trial judge and summary conviction appeal judge emphasized the Crown’s failure to establish that Yates was alone in the vehicle. The Court of Appeal gave short shrift to this argument noting that:

[t]here is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol . The Crown need only proved that that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body.

By holding the Crown to dispel speculation that other persons were in the vehicle or to definitively show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed on the Crown and held the Crown to establish the validity of the s. 254(2)(b) demand on a standard greater than “reasonable suspicion” [paras 45-46].

Despite finding no Charter breaches, the Court of Appeal declined to enter a conviction and instead ordered a new trial. 

LT

New & Notable: Officer's Unlawful use of Force doesn't mean you can Punch Him

In response to a disturbance on the Edmonton transit system, police officers searched for a male suspect of a generic description.  Carlan Met was nearby, and was the only male observed to be a loose match.  An officer requested to speak to him, but Mr. Met kept walking.  The officer tried again, to no avail.  Finally the officer grabbed Met’s arm in an attempt to stop him.

Met then threw what was described as a strong “haymaker” punch at the officer, which connected on the shoulder. Met was arrested for assaulting a police officer.

At trial he was convicted of simple assault, but acquitted of assault police.  The trial judge found that the officer was not acting in the lawful execution of his duty when he grabbed Met’s arm, so the latter was convicted only of the lesser assault.

On appeal, Met argued that he was acting in self-defence when punching the officer, and that the officer was not acting in the lawful execution of his duty in arresting Met, even after being punched: 2014 ABCA 157.

On the first point, the Alberta Court of Appeal deferred to the trial judge’s finding that the force of the punch was unreasonable, regardless of whether the officer’s unlawful initial contact was described more strongly as a “grab” or—in the more innocuous description of the trial judge—as a “placing of the hand”.

On the second point, the Alberta Court of Appeal held that, even though there was no initial arrest or detention that would justify the arm grab, and therefore no offence of “assault police” for which Met could be arrested, the punch still clearly gave the officer grounds for an arrest.  A conviction for an included offence (or no conviction at all) does not derogate from the lawfulness of the arrest: R v Biron, [1976] 2 SCR 56.

The appeal was dismissed.

JD

New & Notable: An Illegal Order is No Order at All

Siebenmorgen was convicted of two counts of possession of child pornography. At the time of sentencing the Crown asked that the offender be placed on the Sex Offender Information Registry for a period of 10 years; Rady J so ordered.  As it happens the Crown had inadvertently requested that the Court make an illegal order. Because the offender had been convicted of two counts of a designated offence the period of time he was to remain on the Registry was prescribed by law as life.

Section 490.012(4) provides that:

Failure to make order - If the court does not consider the matter under subsection (1) or (3) [at the time of sentencing], the court

(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;

(b) retains jurisdiction over the matter;

(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

Crown and defence agreed that pursuant to section 490.012(4) the court had the authority to correct the order. However, defence argued that instead of amending the illegal order the Court should stay one of the two counts.

First, Rady J considered that “strictly speaking, it is not the case that "the court did not consider the matter under subsection (1) or (3)" at the time of the original sentencing because an order was in fact made” [para 7].

Second, the Court considered the defence pitch for a stay. Rady J noted that as a general rule “there is no power to amend a judgment which has been drawn and entered, except in two cases: (1) where there has been a slip in drawing it up, or (2) where there has been an error in expressing the manifest intention of the court: Paper Machinery Limited v. J.O. Ross Engineering Corporation, [1934] S.C.R. 186” [para 13].

In dismissing the defence request the Court held that:

Having rendered a verdict and sentenced Mr. Siebenmorgen, I am of the view that the court is functus. What is being requested by Mr. Crawford is not the correction of an error or slip. Rather, the request is for a reconsideration of the sentence, in accordance with new submissions not made at the time of the sentencing hearing [para 16].

The SOIRA order was amended to a period of life as prescribed by the Criminal Code.

LT

New & Notable: Looking for Principles in all the Wrong Places

Singh drove while her blood-alcohol concentration was over 80. Singh’s only argument at trial was that the timing of the breath samples did not comply with the as soon as practicable requirement of section 258(1)(C)(ii).  The only time period in question was the 28 minutes that elapsed between the taking of the first and second samples. Singh argued that this time period exceeded the statutory minimum of 15minutes without any evidence to explain the delay.  The trial judge rejected this argument and held that there was no requirement for the Crown to explain every minute. Singh was convicted and appealed.

The summary conviction appeal judge allowed the appeal and expressly declined to apply the binding decision of the Court of Appeal in Vanderbruggen, 2006 CanLII 9039 (CA) because it “was not a case about unexplained delay between samples.”

The Ontario Court of Appeal restored the conviction and in so doing offered some interesting comments about how binding decisions of the Court must be read: R v Singh, 2014 ONCA 293 (CA).

First, “care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in” a brief endorsement” [@para 12]

To illustrate this point the Court pointed to the trial judge’s reliance on the Court of Appeal’s endorsement in Bulger. That decision was a four sentence oral endorsement which “does not articulate any proposition of law” [@para 11] nor does it contain “a recitation of the facts that would enable a reader to understand the overall circumstances of the case” [@para 10].

Second, the purpose of such a brief endorsement is “to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning”[@para 12]

Third, “[w]hen the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment” [@para 12].

By way of example the Court highlighted Vanderbruggen as just such a case [@para 12].

The Court of Appeal concluded that the:

(…) trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" [@paras 14-15].

LT