Porn & Prejudice

Stillwell was charged with distributing, possessing and accessing child porn. A little more than 26 months elapsed between the date the information was sworn against Stillwell and the last day scheduled for his trial. Stillwell brought an application for a stay of proceedings on the basis that his right to a trial without unreasonable delay had been violated.

The trial judge concluded that 12.5 months of delay was attributable to the Crown (5.5 months crown and 7 months institutional) and that this exceeded the 8-10 month guideline established in Morin, 1992 CanLII 89 (SCC). The 5.5 months attributed to the Crown were dedicated to the analysis of Stillwell’s computer and the preparation of the report of that analysis. The trial judge entered a stay of proceedings.

The Crown successfully appealed: Stillwell, 2014 ONCA 563.  The Crown argued that first, given the shear volume of files on Stillwell’s computer additional time was required for the investigator to review and categorize the images. Second, the Crown argued that the trial judge erred in her assessment of the prejudice to Stillwell.

The trial judge commented on the task required of police in preparing a categorization report:

While I am sympathetic to the police and the difficult task they have to perform, it is clear that the resources assigned to the completion of this analysis were woefully inadequate, particularly when the main investigator became unavailable.  It is well settled that decisions on the part of the state concerning the allocation of its resources cannot be used to justify the abrogation of the rights of an accused person. @para 14.

The Court of Appeal accepted that:

(…) child pornography investigations are unique in that the storage capabilities of electronic devices may result in huge universes of information that can only be analyzed after charges have been laid. I also recognize that officers categorizing these types of images need frequent breaks due to the emotional toll associated with the work. @para 39

However the Court rejected the Crown’s argument that the 5.5 months attributed to the Crown for the preparation of the report was neutral. The Court held that allocating it as the trial judge did was appropriate in the circumstances.

The Court of Appeal however did not agree with the trial judge’s conclusion that such an allocation of time periods should result in a stay of these proceedings. The prejudice to the accused was minimal and “his ability to make full answer and defence was unaffected by the delay” [@para 23]. The Court agreed with the trial judge:  

(…) that the Crown delay in disclosing the final report was clearly disproportionate to the time spent preparing it.  In my view, however, this fact should not overwhelm the analysis.  On the trial judge’s own findings, the delay in disclosing the final report accounted for only five and a half months of the total 26 month period.  The bulk of the time was taken up by neutral intake time (nine months), defence delay (five and a half months) and reasonable institutional delay (seven months).  When the five and a half months of unreasonable Crown delay is added to the institutional delay, the total is 12.5 months – beyond the Morin guideline, but not egregiously so.  When this delay is balanced against the minimal prejudice the respondent experienced and the grave seriousness of the charges against him, the delay, while not ideal, was not unreasonable. [emphasis added]

With respect to the gravity of child pornography offences the Court referenced the recent SCC decision in Spencer, 2014 SCC 43 (check out blog on this by Dallas Mack “The Privacy of Anonymity”) as follows:

Society has both a strong interest in the adjudication of the case and also in ensuring that the justice system remains above reproach in its treatment of those charged with serious offences.  If the evidence is excluded, the Crown will effectively have no case.  The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children. [Emphasis added.] @para 63.

Stillwell serves as a significant guide to the balancing required between prejudice to the accused and the mighty public interest in prosecuting child pornography offences. Minimal prejudice which does not impact on the accused’s right to make full answer and defence must not result in a stay. It also marks an important, although in this particular case not significant, acknowledgement of the massive task facing investigators as they process ‘universes of information’ found on computers.

LT

684: Common Sense and Constitutional

PC was charged with manslaughter. During his trial, he was assisted by two legal-aid lawyers and an interpreter. He was convicted. PC filed notice that he would appeal his conviction, but was not granted additional legal aid on the grounds that his appeal lacked merit. He then brought a motion to have counsel appointed for him to facilitate his appeal, pursuant to s. 684(1) of the Criminal Code. The Crown argued such an appointment would not be “desirable in the interests of justice” because PC did not demonstrate his appeal possessed arguable merit. The motions judge dismissed PC’s application. PC responded by challenging the constitutionality of s. 684: 2014 ONCA 577.

PC argued that because persons who can afford to hire counsel can do so whether or not their appeal has merit, indignant accused persons should have the same right under s. 7, s. 10(b), s. 11 and s.15 of the Charter [para 3].

The Court of Appeal rejected PC’s Charter arguments for two reasons:

First, the Court found the Charter does not require an automatic right to publicly funded counsel for appellate purposes, and that s. 684 is an ameliorative program that falls within s. 15(2) of the Charter. PC’s challenge on the basis of s.15 was dismissed [para 11-14].

Second, the court found that ss. 7, s. 10(b) and s. 11 work in tandem to ensure an accused person is always treated fairly, from the point of arrest or detention through to the end of an adjudicative process [paras 16-19]. This includes the appeals process.

In the context of a trial, fairness will sometimes require that counsel be appointed where provincial legal aid has been denied: R v Rowbotham, 25 OAC 321 [para 20].

In the context of an appeal, the Court concluded that if the following criterion is satisfied, fairness will be ensured:

  1. The accused has a full and fair opportunity to exercise any right of appeal, and
  2. The accused is able to effectively present their appeal.

Concerning the first criteria, the court noted that in exceptional circumstances, counsel may need to be appointed to assist an accused in ascertaining whether or not grounds for an appeal exist. A motions judge can appoint counsel for this limited purpose [para 27].

Concerning the second criteria, once a ground of an appeal has been ascertained, for the purposes of effectively presenting the appeal, the appeal must be arguable. The court found that it is common sense to conclude that “appeals which are void of merit will not be helped by the appointment of counsel”: R v Bernardo, 105 OAC 244 [para 29]. An aspect of “rational objectivity” must be imported in order to balance the interests of the accused and the state. Requiring an accused to demonstrate that an arguable appeal exists does not treat the accused unfairly [para 30].  

After articulating these criteria, the Court then highlighted four additional aspects of s. 684 that demonstrate why it withstands constitutional scrutiny:

First, the fact that legal aid has been refused is not determinative of whether or not the “interests of justice” require counsel to be appointed [para 31].

Second, the cost of assigning counsel cannot influence a Court’s determination under s. 684, because these costs are to be accepted as “the price of the proper administration of justice”: Bernardo, supra [para 31].

Third, an indignant accused almost always has the assistance of duty counsel or legal aid to argue a s. 684 motion. Here, the Court went further and commented that this assistance may also include the preparation of an affidavit, which outlines whether an accused can meaningfully exercise his right of appeal, and effectively present it, with reference to relevant considerations such as:

  • the accused’s means,
  • the seriousness of the charge of which the accused was convicted,
  • the sentence received,
  • age,
  • youthfulness,
  • education,
  • ability to speak, understand and write English or French,
  • disability,
  • familiarity or lack thereof with the criminal justice system,
  • the length of the trial,
  • the complexity of the appeal, and
  • the legal principles engaged and the appellants ability or lack theory to effectively relate them to the facts of the case [paras 33-34].

Fourth, a decision on a motion pursuant to s. 684 is not a final one. An accused may seek a panel review of a refusal, or renew an application with the benefit of an expanded record following trial [para 35].

For these reasons, PC’s challenge on the basis of ss. 7, 10(b) and 11 was dismissed.

The Court of Appeal upheld s. 684 of the Criminal Code as constitutional. However, the Court did note that a renewed application in PC’s case could succeed on the basis of the newly expanded record (which included a full consideration of his age at the time of conviction, the seriousness of the crime, his inability to communicate in English except through an interpreter, and his lack of familiarly with the legal system and its principles) [para 35].

SS

Constitutional Jurisdiction

Joseph Lloyd was convicted of three counts of possession of drugs for the purpose, contrary to section 5(2) of the Controlled Drugs and Substances Act [CDSA].  Lloyd had a prior conviction under the same section; as a result, he faced a mandatory minimum of one year.

Lloyd argued that the one-year mandatory minimum violated section 12. The sentencing judge held that the minimum did not violate section 12 as it related to Lloyd but went on to consider whether the provision would violate section 12 in a reasonable hypothetical. The court found that it did. As a result, the court “declared” that the provision was invalid.

The Crown appealed: 2014 BCCA 224.

Two aspects of the appeal are quite interesting.

First, the court considered the jurisdiction of the provincial court to consider the constitutionality of provisions.

In this context, the court noted that while a provincial court has the jurisdiction to consider any constitutional impact of a provision on the offender before it, any ruling is limited in its application to the present case. The court has no jurisdiction to make a general declaration of invalidity: “the judge in this case did, indeed, intended to make a formal declaration that the impugned provision was of no force and effect. He had no jurisdiction to make such a declaration, and, assuming that he was right to have found the impugned provision to be unconstitutional, ought to have confined himself to refusing to apply it in the case before him. I would set aside the declaration” [para 38].

Second, the court considered the proper scope of constitutional consideration by a provincial court.

In this context the court noted two points. One, in light of the fact that a provincial court ruling on the constitutionality of a provision is limited to the case before it, any consideration of the constitutionality in the context of a reasonable hypothetical might be unnecessary and inappropriate. Two, based on the more general principle that courts should restrict their rulings to the case before them it was, in the present case, inappropriate for the court to strike down the provision on the basis of a reasonable hypothetical.

The fact that a party has standing to make a constitutional argument, however, does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases. Professor Hogg puts it this way:
A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided. For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided on a rule of federalism or under the Charter, the federalism ground is the narrower one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.
Peter W. Hogg, Constitutional Law of Canada (5th ed. supplemented) (looseleaf) Toronto: Thomson Carswell, 2007 (updated to 2013), §59.5, p. 59-22
In short, while Mr. Lloyd clearly had standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, the court was not obliged to determine that issue unless that section would have an impact on the appropriate sentence for Mr. Lloyd.
Mr. Lloyd contends that the court is required to determine the constitutionality of s. 5(3)(a)(i)(D), because "no one may be sentenced under an unconstitutional law". While there is some merit in that contention, I do not think that it can be said that Mr. Lloyd would be "sentenced under an unconstitutional law" unless that law in some way affects his sentence. Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [Paras 42-44].

Lloyd is an interesting and helpful decision. Interesting in its consideration of reliance upon a reasonable hypothetical in the context of section 12. As per Lloyd, where a provision would have no possible impact on the present offender reliance on a reasonable hypothetical may be unnecessary. Helpful in that it reminds that provincial courts are limited in their constitutional powers to making a finding about the force and effect of a provision to the case before them; there is no power to make general declarations of constitutional invalidity. 

DGM

Criminal Chameleons

“Our criminal law has its chameleons. Take hybrid offences, for example. Sometimes, indictable. Other times, summary conviction. But capable of change.” [@para 1] In DME although the Crown was capable of changing its election, everyone forgot that one change often necessitates another, in this case the level of court. 

DME was charged with sexual assault and sexual exploitation.  While those charges were before the courts DME was further charged with breaching the undertaking he had been released on. Shortly after he was charged once more, this time with breaching the recognizance he had been released on following the second set of charges.  The Crown elected to proceed by indictment on all three informations and DME elected to have a trial by judge and jury. More than two after the first information was sworn, DME was committed to stand trial.

On the day of trial, following a judicial pre-trial, the Crown re-elected to proceed summarily and DME entered pleas of guilt. The Superior Court judge found DME guilty and sentenced him to a term of imprisonment and a period of probation. 

DME appealed: 2014 ONCA 496 arguing that the proceedings which followed the Crown’s re-election were vitiated by jurisdictional error. First, DME submitted that the Crown was not entitled to re-elect as they did and second, that the Superior Court of Justice had no jurisdiction to take the guilty pleas.

Dealing first with the Crown re-election to proceed by summary conviction Watt JA writing for a unanimous court , highlighted four points rejecting this ground of appeal:

First, the right to elect mode of proceeding for hybrid offences is that of the Crown.
Second, the common law equally permits the Crown, having once elected one mode of proceeding in connection with a hybrid offence, to re-elect later the other mode of proceeding. In some instances consent of the accused and approval of the presiding judge may be required.
Third, unlike an accused's right to elect or re-elect mode of trial, the Crown's right to elect or re-elect mode of proceeding need not be made at any specific place or before any particular judicial officer. Provided any consent and approval requirements are satisfied, it is of no jurisdictional moment where re-election is made.
Finally, that the re-election to proceed by summary conviction took place more than six months after the subject-matter of the proceedings arose is of no jurisdictional significance. The appellant, who was represented by counsel throughout, not only agreed with the change in the mode of proceeding, but also benefited substantially from it. Counsel for the appellant could advocate for a conditional sentence of imprisonment when Crown counsel proceeded summarily, a disposition statutorily unavailable to him when Crown counsel proceeded by indictment. And the maximum punishment to which the appellant would be subject on summary conviction was a term of imprisonment for 18 months rather than for ten years if the Crown proceeded by indictment. It may also be open to question whether re-election of mode of proceeding amounts to institution of proceedings within s. 786(2) of the Criminal Code: Linton, at pp. 536-537. [@paras 42-45]

DME’s second ground of appeal had more traction. Notwithstanding the fact that no one “involved in the case – Crown, defence or judge – query, let alone contest, the jurisdiction of the Superior Court of Justice to proceed as the prosecution played out.” [@para 49] the Court of Appeal held that the “presiding judge had no authority to arraign the appellant, to take his plea of guilty, or to impose what he considered to be a fit sentence.” [@para 67].

Watt JA explained as follows:

First, section 798 of the Criminal Code requires that summary conviction proceedings be adjudicated by a summary conviction court.  A summary conviction court is defined in section 785 of the Code.

Second, the Superior Court is the appellate court for summary conviction offences. “It would be somewhat undesirable to have judges of the same court try and review trials for error.” [@para 69]

Third, no other criminal code sections applied to give the Superior Court jurisdiction in the circumstances of this case.

Fourth, although there are provisions which allow a Superior Court judge to exercise jurisdiction as a justice of the peace and “as a matter of statutory construction a justice of the peace falls within the definition of a summary conviction court”, none of the parties asked the presiding judge to do so. [@para 74]

Fifth, prior decisions of the Court of Appeal make it clear that “superior court of criminal jurisdiction has no authority to try summary conviction offences.” [@para 75]

The Court remitted the matter to the Ontario Court of Justice for pleas of guilt (which the appellant made clear he intended to enter) and sentence.

LT

USB Key Searches

In recent years a steady stream of authority from the Supreme Court of Canada has made clear that specific prior judicial authorization is required to search a personal computer. The most recent example is the decision of the Supreme Court of Canada in R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), which held that computers found while carrying out a search cannot be searched unless specifically authorized by a search warrant.

The Court in R v Vu seemed to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search—items such as USB keys, memory cards for cameras, and similar devices.

The Ontario Court of Appeal appears to have closed the door in R v Tuduce, 2014 ONCA 547 (CanLII).

The analysis in R v Vu

Much of the analysis in R v Vu focused on the difference between a computer and a “receptacle.”

A search warrant issued under s. 487 of the Criminal Code may authorize police officers to search “a building, receptacle or place” for the items named in the warrant, and to seize the items in evidence.  A warrant that authorizes police to search a particular place—such as a house—also authorizes police to search places and receptacles within that house. However, the Supreme Court of Canada in R v Vu ruled that this general principle does not apply to computers. The Court held that ordinary receptacles such as cupboards and filing cabinets are markedly different from personal computers, and that specific prior authorization is required to search a computer.

The Court stated four reasons why computers are markedly different from other receptacles:

  • Computers store immense amounts of information. The scale and variety of the material that can be found on a computer makes comparison with traditional receptacles unrealistic.
  • Computers contain information that is automatically generated, often unbeknownst to the user. A computer is a “fastidious recordkeeper” that documents when and by whom a file was created and accessed; logs a user’s Internet browsing habits; and stores the user’s search histories. In the context of a criminal investigation this data can enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly. This kind of information has no analogue to other types of receptacles found in the physical world.
  • A computer retains files and data even after users think that they have destroyed them. It creates information without a user’s knowledge, and retains information that the user has tried to erase.
  • A search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized. [@ paras 41-44]

The Court concluded:

These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches. [@ para 45]

The above analysis merits two comments. First, none of the four differences discussed in R v Vu is unique to a computer. A traditional receptacle like a filing cabinet, bookcase, or a banker’s box full of papers is also capable of storing a large volume of information. In any event, the volume of information could not have been determinative. It has never been the case that police searching a building would be entitled to search one or two filing cabinets, but would need a search warrant if they happened to find one hundred filing cabinets. A physical document like a log book, leger, or photo album can retain physical evidence (such as fingerprints and DNA) that could enable an expert to identify exactly what pages had been accessed, and by whom. Firing a gun generates new data unbeknownst to the user, such as firing pin marks, bullet striations, and ejector marks. It has always been true that the search of one place can reveal another building, receptacle, or place, including the exact address and the keys or combination needed to access it. However, a charitable reading of the Court’s analysis should not parse the differences in this manner. It is not any one of the differences on its own, but rather the totality of the differences and their magnitude in combination that justifies the different treatment of a computer.

Second, it was not obvious how the analysis in R v Vu would apply to an electronic device that functions exclusively as a storage container. A floppy disk, USB key, or flash memory card does not have its own operating system, does not generate data, and unless it is connected to a computer it cannot connect to a network or the Internet. Most of the differences in R v Vu did not appear to apply to an electronic device that is more like a container than a computer. Thus, R v Vu appeared to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search.

The decision in R v Tuduce

In R v Tuduce, 2014 ONCA 547 (CanLII), the Ontario Court of Appeal considered the warrantless search of a USB key that was seized incidental to an arrest.

In 2012 Adrian Tuduce was convicted of seven credit card fraud-related offences and sentenced to two years less a day’s imprisonment and two years of probation. His participation in the fraud was discovered by accident. A Waterloo Regional Police officer pulled Mr. Tuduce over for speeding. The officer searched Mr. Tuduce on police databases and discovered he was a suspended driver. The officer arrested Mr. Tuduce and conducted a pat-down search, locating USB key and bundle of credits cards in someone else’s name. The officer found other items in the vehicle that caused him to believe Mr. Tuduce was in possession of stolen credit cards. Fraud investigators seized the USB key incidental to arrest and submitted it for forensic analysis. The USB key contained stolen credit card data and photographs of credit card data skimming equipment.

The trial judge held that the warrantless search of the USB key infringed Mr. Tuduce’s s. 8 Charter rights, but admitted the evidence under s. 24(2): 2011 ONSC 2749 (CanLII).

On appeal, Mr. Tuduce challenged the trial judge’s decision to admit the USB key evidence under s. 24(2). The appeal was dismissed: 2014 ONCA 547 (CanLII).

The Court noted that the Supreme Court of Canada in R v Vu reviewed the privacy considerations that apply to searches of personal computers and held that they apply to USB keys, for three reasons:

  • A USB key can store a significant amount of data.
  • Data can be left on a USB key without a user’s knowledge, including information about the date and time a file was created or modified, and information about the user who created or modified the file.
  • A user does not have complete control over which files an investigator will be able to find on a USB key because—like a computer hard drive—the unallocated space in USB key may contain files that could be retrieved by a forensic expert. [@ paras 71-73]

The Court commented that a USB key may not contain personal information such as a list of contacts, the contents of past communications, and information a user’s web searching habit. This makes a USB key different from a home computer or cell phone. On the other hand, a USB key will attract a greater expectation of privacy than a work computer. This is because the two factors that diminish the expectation of privacy in a work computer—that the computer is not actually owned by the user, and the employee’s use of the computer is often subject to terms and conditions imposed by the employer—do not apply to personal storage devices like a USB key. [@ paras 74-75]

Strictly speaking, the Court of Appeal did not rule that specific, prior judicial authorization is required to search a USB key. That is because the trial judge’s ruling on the lawfulness of the search was favourable to Mr. Tuduce and therefore not a ground of appeal.

However, the broader implication of the decision cannot be ignored. The Supreme Court of Canada in R v Vu concluded that certain factors make a computer markedly different from other things that can be searched; and that specific, prior judicial authorization is therefore required to search a computer. The Ontario Court of Appeal in R v Tuduce held that the factors cited in R v Vu also apply to a USB key. This analysis leaves little doubt about how it would have ruled, had the s. 8 issue been properly before it.

The decision of the Ontario Court of Appeal in R v Tuduce is the strongest possible signal that absent exigent circumstances, police will require specific, prior judicial authorization before searching a USB key.

MGM

The views expressed in this post are those of the author, and do not necessarily represent the views or policy of the Ministry of the Attorney General.

The “Mr. Big” Operation: SCC constrains but doesn’t eliminate the practice.

It isn’t every day that the Supreme Court of Canada creates a new common law rule but that is what happened today in R. v. Hart: 2014 SCC 52.

Nelson Hart’s twin daughters drowned while in his care. The police immediately suspected Hart but they lacked evidence to charge him or successfully support a prosecution. Two years after the drowning, the police put a “Mr. Big” operation into place.

Moldaver J. writing on behalf of the majority described the general parameters of what is now commonly known as the “Mr. Big” technique:

When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the “Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.
The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged. [Paras 1 and 2]

In this case, the police recruited Hart into a fictitious criminal organization. At the time Hart was unemployed and socially isolated. As part of the recruitment, Hart participated in 63 “scenarios” with undercover [UC] officers. He was paid more than $15,000 for the work that he did for the “organization” and traveled to several Canadian cities, staying in hotels and sometimes dining in expensive restaurants with the cost covered by his fictitious employer. Over the course of the operation, Hart came to consider the UC officers his best friends and viewed them as his brothers. At one point during the operation, he baldly admitted to having drowned his daughters.

The Mr. Big operation culminated in a meeting between Mr. Big—the head of the criminal organization— and Hart. The meeting was essentially portrayed as an interview. Mr. Big interrogated Hart about the death of his daughters, seeking a confession so that he could be included in further and better activities of the organization. Hart initially denied responsibility but then confessed to the crime. Days later, Hart took a UC officer to the scene and described how he had pushed his daughters into the water. Hart was charged with the murders based on this evidence.

This case was particularly frail: there were internal inconsistencies in the account of the murder and there was no confirmatory evidence to support the confession. It was in this context that the Supreme Court of Canada grappled with the often-criticized Mr. Big technique. Moldaver J. noted the tension arising from the clash between the value of the technique in solving crime and the dangers inherent in the use of the technique:

To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence. Manifestly, the technique has proved indispensible in the search for the truth.
But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.
Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit. And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions — a fact we cannot ignore
The concern about Mr. Big confessions does not end there. The confessions are invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. It also creates credibility hurdles that may be difficult to overcome for an accused who chooses to testify.
Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur.
Finally, Mr. Big operations run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth. [Paras 4 to 9][Emphasis added]

As a result of these inherent dangers, the majority of the SCC held that the appropriate response would be two pronged:

  1. The creation of a new common law rule of evidence
  2. Reliance on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [Para 84]

The New Common Law Rule

Moldaver J. summarized the new rule that seeks to examine both the reliability of the statement and therefore its probative value as well as the prejudicial nature of the participation in the fictitious criminal organization:

Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. [Para 85] [Emphasis added]

Abuse of Process Reinvigorated

In R. v. Fliss, 2002 SCC 16, Binnie J. described the Mr. Big technique as “skillful police work”. Moldaver J. and the majority of the Court distanced themselves from that characterization and chose to reinvigorate the abuse of process doctrine rather than attempting to seek an alternative framework to guard against what they viewed as the very same problem. [Para 114]

Moldaver J. provided the following guidance as to how the reinvigorated abuse of process doctrine should be applied in the context of Mr. Big operations:

It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.

Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253).

Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness — are also highly problematic (see Mack, at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement.

While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided. Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context [Paras 115 to 118]

In the case of Mr. Hart, the Supreme Court excluded all of his statements to the UC officers on the basis that the probative value did not outweigh their prejudicial impact. While not ruling on the abuse of process issue, the Court commented that the police conduct in the case raised significant concerns and might well have amounted to an abuse of process. [Paras 126 to 151]

The Future of the Mr. Big Operation

While Justice Moldaver noted that the Mr. Big technique is most often used in cold cases related to the most serious crimes and is used in ensuring that some of the most serious crimes in our society do not go unpunished, the new rules will surely discourage most future Mr. Big operations. The real concerns regarding wrongful convictions drove the creation of the new common law rules and the reinvigoration of the abuse of process doctrine.

The reality is that most of the cases where the Mr. Big operation is used, it is used because there is a dearth of other evidence. The new rules will make it very difficult to have the confessions ruled to be admissible due to the absence of other corroborative evidence. [See para 105] The Mr. Big technique is alive but only barely.

BCH

Corbett Update: Sexual Assault Conviction need not be Edited

In 2005 Ron Mayers attacked and sexually assaulted a stranger who was alone inside a shop in a commercial plaza. The shop was not open for business at the time. Mr. Mayers entered the shop and confirmed the victim was alone. He then closed the door so that she could not leave, dragged the victim into a back room, and started to pull off her clothes. He tore her bra and exposed her breasts. He held a knife to her throat and forced her to perform oral sex on him. Later he forced her to lie on the floor with objects piled on her back while he searched the business for money. He stole some cash from her wallet and fled the scene. Mr. Mayers discarded a wad of tissues near the scene, which was found to contain the victim’s vomit and his semen. While being seen by paramedics the victim vomited, and her vomit was found to contain Mr. Mayers’ semen.

At trial Mr. Mayers brought an application to prohibit the Crown from cross-examining him on his criminal record pursuant to R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC).

Mr. Mayers has an extensive criminal record. He had been released from prison less than three months before this crime. His criminal record includes two sexual assault convictions that were entered about three or four years before this trial. In the Corbett application he sought to have most of his criminal record redacted for the purpose of cross-examination, including the two sexual assault convictions.

The trial judge dismissed the Corbett application, in part because of defence counsel’s “forceful attack” on the victim’s credibility. Regarding the sexual assault convictions, the trial judge ruled that editing was not required and a strong limiting instruction would address any prejudice.

The Court of Appeal upheld the trial judge’s ruling: R v Mayers, 2014 ONCA 474. The Court held:

R. v. Corbett, [1988] 1 S.C.R. 670, the guiding authority, instructs, at paras. 35 and 50, that trial judges should begin from the premise that juries should receive all relevant information accompanied, where necessary, by a proper and clear limiting instructions. Corbett further instructs that the discretion to keep information about an accused's criminal record from the jury should not be exercised absent clear grounds in policy or law for doing so.
Bearing in mind the approach dictated by Corbett and giving the trial judge’s ruling the appropriate deference, we cannot say that she erred in exercising her discretion against editing the appellant’s criminal record by removing the convictions for sexual assault.  This ground of appeal cannot succeed. [paras 5 and 6]

In trials for sexual offences, trial judges have sometimes ruled that sexual assault convictions should be edited down to assaults, and those rulings have been upheld on appeal: R v Charbonneau, 2012 ONCA 314 (CanLII) at para 29; R v Paul, 2009 ONCA 443 (CanLII) at para 19; R v Batte, 2000 CanLII 5750 (ON CA) at para 51.

The decision in Mayers confirms that editing the accused’s convictions for sexual assault down to assault is by no means required. A strong limiting instruction can address any prejudice, even in a trial for sexual assault.

MGM

Bail Pending Appeal: The Application of the Public Interest Ground in Domestic Violence Cases

Evans Bedzra was convicted of 36 counts in relation to two complainants. In brief, he was convicted of assaulting and abusing two women with whom he had been in a relationship. The charges included assault, assault with a weapon, assault causing bodily harm, criminal harassment, mischief and breach of probation. His unsuccessful defence was a blanket denial. Bedzra was sentenced to a global sentence of three years less pre-sentence credit of one year for 133 days of pre-sentence custody—for a balance of two years less a day.

Bedzra launched an appeal against conviction and sentence and sought bail pending appeal: 2014 ONCA 408.

The Test for Bail Pending Appeal in Manasseri

In Chambers, Lauwers, J.A. commenced his consideration of the application by reviewing the relevant test recently summarized by Watt J.A. in R. v. Manasseri, 2013ONCA647:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;
ii. that the applicant will surrender into custody in accordance with the terms of the release order; and
iii. that the applicant’s detention is not necessary in the public interest.
…
An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.
…
The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.
But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.
The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187. [Emphasis added] [Para. 4]

The Merits of the Appeal and Mootness

In the case, the Crown conceded that the appellant, Evans Bedzra, would surrender in accordance with his conditions of release, if granted. The court accepted this concession leaving the remaining two grounds to be considered.

Lauwers, J.A. then addressed whether the appeal was frivolous or, in other words, whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship to the applicant if he were to be detained in custody.

While Lauwers J.A. largely rejects in seriatim the proposed grounds of appeal against both conviction and sentence, he does note that the practical issue with this appeal is that by the time the proposed appeal is heard, Bedzra will have served a substantial portion of his sentence if not granted bail pending appeal. The refusal to grant bail pending appeal would essentially render the appeal moot thereby causing him unnecessary hardship.

The Public Interest Ground Applied

In relation to public interest ground, the applicant argued that the Farinacci factors [cited above in Manasseri] favoured the immediate enforcement of judgments should only be applied when the sentence imposed is lengthy. The Crown in Chambers responded that “domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.” [Para. 21]

Lauwers J.A. agreed with the Crown’s submission:

…The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.  [Para. 22] [Emphasis added]

After citing the Crown’s concern regarding the unrealistic nature of the plan for release, Lauwers J.A. gave effect to the public interest ground in this case of domestic violence in denying Evans Bedzra bail pending appeal:

In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected. [Para. 24] [Emphasis added]

Interestingly, Lauwers J.A.’s application of the Farinacci factors favours continued enforcement of the sentence in the context of this case of domestic violence where the grounds to be argued are “barely arguable” even where denial of bail will likely render the appeal moot.

BCH

New & Notable: Free to Kill

George Johnstone was married to Erin, the daughter of Mary Lou Wolfe. On January 11, 2006 Ms Wolfe was found lying face down on her bathroom floor covered in blood, naked but for her underwear, which were partially pulled down. She had stab wounds on her face, neck and body; she had been strangled.

The evidence at the scene revealed that Ms Wolfe had been dragged from her bedroom to the bathroom. “Damage to the bathroom door confirmed that Ms. Wolfe had locked the door and taken refuge there. The marks on the inside of the door indicated that Ms. Wolfe had sat on the floor, leaning against the back of the door while bleeding profusely.” [@para 5]

The Crown argued that Johnstone was upset by his mother-in-law’s plans to help her daughter and her two grandchildren move away from Johnstone because of his poor behaviour. Sometime prior to the murder the victim’s daughter told Johnstone of this plan and he responded by saying that he would never allow her to leave with his son. [@para 9]

The murder weapon was a steak knife taken from the victim’s kitchen. Johnstone’s fingerprints were found on a serrated knife and the stove in the kitchen. Johnstone and Ms Wolfe’s blood was recovered from the stove and inside the cutlery drawer.

Following a trial by judge and jury Johnstone was convicted of first-degree murder; he appealed: R v Johnstone, 2014 ONCA 504.  On appeal he argued, inter alia, the trial judge misdirected the jury on constructive first-degree murder by way of forcible confinement.

Johnstone argued that the trial judge erred by framing the forcible confinement as follows:

[T]he Crown argues that the evidence established that the murder was first degree since, according to the Crown, the deceased found herself confined in the bathroom area as a direct consequence of the accused’s actions and that he exploited this position of domination in committing murder. [@para 37]

The accused argued that the marks on the bathroom door were indicative of the accused’s attempt to ‘un-restrain’ the victim, not confine her.

The Court of Appeal rejected this argument:

Ms. Wolfe was unlawfully confined “if for any significant period of time” she “was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59 (CanLII), 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. The only reasonable inference from the evidence led at trial was that the appellant’s attempt to “un-restrain” Ms. Wolfe was to get access to her in order to kill her. There is no suggestion that he sought to open the door in order to allow her to leave. The evidence pointed to Ms. Wolfe having been dragged to the bathroom by the appellant and her being left there while he went to the kitchen to obtain a knife. During this time he stood between Ms. Wolfe and any possible escape. Ms. Wolfe would have locked the door in the hope that it might prevent further assaults. From the moment the appellant left to obtain a knife up until he returned to the bathroom with the knife, there can be little doubt that Ms. Wolfe was not free to “move about according to her own inclination and desire”. The appellant’s submission that she was not confined and that he simply sought to “un-restrain” her is without merit. [@para 39]

Bottom line: ‘freeing’ someone in order to kill them is actually not freeing them at all. 

LT

New & Notable: Sentencing is not a Never-Ending Process

James Sipos is a dangerous offender. He was so designated by a court in 1998. Some 12 years later his appeal was before the Ontario Court of Appeal where he presented fresh evidence; that evidence indicated that he had made much progress in his treatment – “progress that was not foreseen at the time of his sentencing in 1998” [para 48]. His appeal was dismissed by the ONCA and he appealed to the Supreme Court. On appeal it was admitted and recognized that the sentencing judge committed the Johnson error. What remained, however, was whether a new hearing was warranted due to this error and/or as a result of the proposed fresh evidence. Cromwell J concluded that there was “no role for the fresh evidence in relation to the curative power” on appeal [para 41] and dismissed the appeal: 2014 SCC 47.

In addressing the appeal Cromwell J began by noting:

In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made. It follows that a legal error does not necessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result. But there is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had the error not been made. [Para 35].

In the present case, in relation to the proposed fresh evidence, Cromwell J held that there must be some connection between the “fresh evidence and the sentencing judge’s legal error” [para 37]. In this case, the fresh evidence related to the rehabilitative prospects of the offender. Cromwell J’s conclusion on this point:

In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation [para 38].

In coming to this conclusion, Cromwell J held, contrary to the offender’s position – that the issue is what the “outcome might conceivably be today [with the fresh evidence]” – that the issue is “whether the past decision would have been the same notwithstanding the error” [para 40]. Recognizing that it is possible that “after-the-fact evidence” may influence a court on sentencing, Cromwell J noted that “post-sentencing rehabilitative efforts and prospects will only exceptionally” meet the test for intervention and that “generally speaking [these are] matters for the correctional authorities to consider” [para 43].

Cromwell J concluded [at para 48], in relation to the proposed fresh evidence:

This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable. As Doherty J.A. put it:
I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence.  Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant.  We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.]

A final notable point raised by Cromwell J in dismissing the appeal was that “[r]outinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review” [para 30].

DGM