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.


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.


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 accusedPrivacy 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.


New & Notable: Accountability and responsibility for public funds

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


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

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

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

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Current & Curious: It's a "no brainer"...oh but you should decide on your own!?

Denroy Berbeck attempted to smuggle some cocaine into cocaine by swallowing capsules full of cocaine. He was caught. At trial he claimed he acted under duress. He was acquitted. The Crown appealed. The appeal was dismissed by the Court of Appeal, which held that the trial judge was merely offering advice, not direction, in telling the jury was a "no brainer": 2013 ONCA 241.


While ‘vacationing’ in Jamaica, Berbeck swallowed a bunch of capsules filled with cocaine. He then got on a plane and returned home to Toronto. Canada Border Services Agency (CBSA) officers were suspicious when they discovered that a visibly nervous Berbeck had gone to Jamaica for only four days, that he was travelling alone and that he had purchased his ticket with cash. An ion scan of some of Berbeck’s personal effects revealed the presence of cocaine. After several hours in CBSA custody, a couple of calls to duty counsel and after numerous interactions with CBSA officers Berbeck finally admitted to having swallowed the cocaine capsules. Berbeck was arrested and taken to hospital as a precaution. Shortly after being discharged from the hospital Berbeck expelled the pellets of cocaine.

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Current & Curious: A drastic but unfortunate shift in the law of disclosure

Vincent Quesnelle was charged with several offences including sexual assault on two different complainants, TR and LI; the assault on TR was alleged to have occurred on December 29, 2006 and the assault on LI was alleged to have occurred on March 5, 2007.


Prior to trial there was a radio documentary created about TR “and the prosecution of certain alleged assaults against her”. TR and one of the detectives who assisted in the present case were interviewed for the show. That detective indicated that she came across “four or five occurrences in relation to sexual assaults” related to TR.

The defence learned of this radio documentary and sought the occurrence reports related to TR. The trial judge held that those records were “records” within the meaning of section 278.1 and where not subject to disclosure under the Stinchcombe regime.

Quesnelle was convicted. He appealed: 2013 ONCA 180.

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New & Notable: A thinly veiled argument

What happens when the constitutionally protected right of an accused to confront his accuser conflicts with the constitutionally protected right of a citizen not to be discriminated against on the basis of her religion?


According to the Supreme Court - it depends: R v NS, 2012 SCC 72 [see previous post on NS by Dallas: Niqabs and the Criminal Justice System].


M---D S. & M---l S. were charged with sexually assaulting N.S.  The parties were N.S.’ cousin and uncle, respectively.  The Crown elected by indictment and a preliminary hearing commenced.

At the preliminary hearing the Crown sought to call N.S. as a witness.  N.S., a Muslim, wished to testify while wearing her niqab.  Both accused sought an order forcing her to remove her niqab when testifying so that they could they could effectively cross-examine her and so that the court could assess her demeanour.  A voir dire was conducted.

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New & Notable: Unsavoury witnesses and debt collectors

Kevin Pelletier was convicted of several offences related to his involvement in a beating and shooting. He appealed his conviction and sentence; the appeal was dismissed: 2012 ONCA 566.


Watt JA, in his distinct, concise and poignant way explained the circumstances of Pelletier’s appeal as follows:

The relationship between debtors and creditors is common to both licit and illicit commerce. Debtors owe. Debtors are expected to pay. Creditors are owed. Creditors expect to be paid.

Some debtors pay their debts on time and in full. Others lag behind and require reminder or encouragement to discharge their obligations. The methods used to remind debtors of their obligations and to encourage repayment vary. Some follow conventional methods. Others take different approaches.

In this case, some drug purchasers fell behind in their payments to their suppliers. To remind them of their indebtedness and to encourage repayment, their suppliers shunned dunning letters and threats of litigation in favour of a more direct approach: a baton and a handgun.

A judge found Kevin Pelletier (the appellant) guilty of several offences arising out of his role in a beating and a shooting, about a week apart, of two drug purchasers who got behind in their payments.

The appellant says that his convictions were flawed because the judge at his trial didn't take sufficient care in assessing the reliability of evidence of disreputable characters and untrustworthy eyewitnesses in reaching his conclusions of guilt. The appellant also contends that the sentence imposed by the trial judge was unfit because the judge failed to take into account that the appellant is Aboriginal [paras 1-5].

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New & Notable: What to do with an eye-rolling juror?

Most trial lawyers occasionally, but inevitably, encounter a juror who demonstrates through the raising of an eyebrow or the roll of the eyes what he or she is thinking about a piece of evidence or a position taken in court. Like most murder cases, Jonathan Cioppa was being tried before a judge and jury but on Mr. Cioppa’s jury was a particularly opinionated and, even more importantly, demonstrative juror.


Just before the judge’s final instructions to the jury, the defence brought an application for an inquiry to be held under section 644 of the Criminal Code regarding whether the demonstrative juror should be discharged. Nordheimer J. declined to conduct an inquiry and dismissed the application: R v Cioppa, 2012 ONSC 6832.

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New & Notable: The Dangers of Not Confronting a Witness in Cross-Ex: The "Rule" in Browne v Dunn Applied

Paul and Michelle Frost were married at one time. They were partners in life and according to the Crown’s case, partners in various sexual assaults against three young girls who lived in their home from time to time.

Some of the charges involved Mr. Frost alone, some involved Mrs. Frost alone and some involved both. They were tried together before a judge alone and were convicted of most of the offences. They both appealed both the convictions and the sentences: 2012 ONCA 807.

During the course of the trial Paul Frost testified. He denied the allegations of one of the complainants stating that there was no sexual activity. In relation to the allegations of the second complainant, he explained that the touching was inadvertent. In response to the third complainant he testified that not only was the sexual activity consensual but that some of it had been initiated by the complainant.

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