Manslaughter & Sentence: Riskiness is Aggravating

Toronto florist Felicia Hosany died a horrific death at the hands of Nevin Joseph and Andre Clarke. The two men stormed Hosany’s flower shop in the winter of 2008. They were wearing masks, and their purpose was to rob her. During the attack, Clarke bound Hosany’s entire face so tightly with duct tape that she died of suffocation.

A jury convicted Clarke of manslaughter. Dambrot J, of the Superior Court of Justice, sentenced Clarke to a global sentence of 18 years imprisonment, less pre-trial custody. Clarke appealed from both conviction and sentence: 2014 ONCA 777.

With respect to his sentence appeal, Clarke advanced two arguments.

First, Clarke argued that the trial judge erred by attributing a specific state of mind to him – recklessness as to the likelihood of death – that was at odds with the jury’s verdict of manslaughter.

Second, he argued that a sentence of 18 years was outside the typical range for manslaughter [para 15].

Concerning the first argument, Clarke submitted that the jury must have accepted only one of two facts in reaching their verdict: that Clarke either did not bind the victim, or, that he bound her, but left a hole in the duct tape for Hosany to breathe through [para 16].

The Court of Appeal rejected these submissions. At trial, Dambrot J concluded that “the circumstances of the case lead…inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing put her at risk of death – but he did not care” [para 18, emphasis added]. The Court of Appeal concluded the trial judge was permitted to make such a finding, and did not err in citing Clarke’s knowledge of the risk of death as an aggravating factor [paras 18-19].

Clarke’s acquittal from first degree murder implicitly demonstrated that the jury was not satisfied beyond a reasonable doubt that Clarke either intended to kill the victim, or that he knew that what he was doing was likely to cause death. As such, these conclusions would not have been open for the trial judge to reach [para 21].

The mens rea for manslaughter is the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required: R v Creighton (1993), 83 CCC (3d) 346 (SCC). Although a foreseeability of the risk of death is not required, such a mental state is not precluded for a manslaughter conviction [para 24]. In fact, as what occurred in this case, the foreseeability of the risk of death can be an aggravating factor in the imposition of a harsher sentence for manslaughter [para 24].

The Court of Appeal accordingly concluded that the trial judge was entitled to make such a factual finding. Further, in using the term “inexorably”, it was clear to the Court of Appeal that Dambrot J was satisfied of this factual finding beyond a reasonable doubt, as is required for aggravating factors upon sentence [para 25].

Concerning the second argument, the Court of Appeal concluded that the trial judge gave extensive and compelling reasons for the sentence imposed. While it was outside of the “normal range”, it was not demonstrably unfit. The trial judge was entitled to deviate from the range, based on circumstances that distinguished this case significantly. The offence was one of extreme gravity; Clarke was an offender of high moral culpability. There were callous, aggravating features, including the horrifying and intimidating treatment of the victim [para 31, 34 and 37].

For these reasons, Clarke’s sentence appeal was dismissed. The trial judge did not err in the crafting of his sentence. A global sentence of 18 years imprisonment, less pre-trial custody, was upheld.

SS

May the Odds be Ever in Your Favour...

Riesberry was a gambling man who wanted the odds to be ever in his favour - so he cheated. He used his position as a licensed trainer of standardbred horses to inject them with performance enhancing drugs. Riesberry was charged with criminal offences including fraud and cheating. He was acquitted. The Crown successfully appealed: 2014 ONCA 744.

The facts were as follows: on a race day in September 2010 Riesberry was caught via hidden camera injecting something into the trachea of horse at the Windsor Raceway.  The injected horse finished sixth in that race. Just over a month later Riesberry was arrested as he was heading into the Raceway grounds. A search of his truck revealed a syringe filled with performance-enhancing drugs.

Testing of the contents of the syringe revealed that it was a combination of drugs which, when not administered on a race day, are perfectly legal and have a therapeutic purpose. However, because the side effects of combination include a performance enhancing effect, administering it on race day is prohibited. Additionally, regardless of the contents of a syringe, no trainer is permitted to possess a loaded syringe at a racetrack.

Riesberry was charged with:

  1. defrauding the public of money wagered on the outcome of a horserace exceeding $5,000;
  2. cheating while playing a game with the intent to defraud members of the public engaged in wagering money on the outcome of a horserace;
  3. attempting to defraud the public of money to be wagered on the outcome of a horserace exceeding $5,000; and
  4. attempting to cheat while playing a game with the intent to defraud members of the public who would be engaged in the wagering of money on the outcome of a horserace.

The wording of these charges was of some significance at trial. The trial judge held that the use of the term “members of the public” meant that the Crown could not rely on fraud or cheating directed at other racers.

The trial judge concluded that Riesberry had injected performance enhancing drugs in to the horse in the incident captured on camera and had attempted to do the same on the day he was apprehended. The trial judge further concluded that Riesberry:

  • was not using the drug for therapeutic purposes
  • knew of the ban on syringes on race days
  • had tried to sneak a loaded syringe into the track
  • and had done the forgoing with the intent to give his horse an unfair advantage.

Notwithstanding these findings the trial judge acquitted Riesberry. On the fraud counts the trial judge found that the Crown had failed to establish a deprivation. The trial judge held that:

  • no evidence had been called about whehther any member of the betting public placed or did not place a bet because of the injection
  • the betting public did not participate in the rage, rather they only wagered on the outcome
  • the real victims, if any, would have been the participants in the race (but the indictment wasn’t particularized that way)
  • there was no evidence about the amounts of the bets on the races at issue.
  • even if the public had suffered a deprivation is was too remote

On the gaming counts the trial judge found that horseracing not a game captured by section 197 of the Code as it is a game of pure skill that does not include an element of chance.

A unanimous Ontario Court of Appeal held that horseracing bettors are in a similar position as investors:

Just as investors were entitled to rely on the accuracy of the financial statements, bettors were entitled to assume compliance with the regulatory scheme. What occurred in this case was not a minor breach or minor non-compliance with the regulatory scheme. Where there is an attempt (successful or not) to affect the outcome of a race through the use of banned performance-enhancing substances, such a significant breach of the regulatory scheme necessarily places bettors at risk of being deprived of their bets. Indeed, as the trial judge found, the very purpose of the injection was to create “an unfair advantage” for the respondent’s horse. It is obvious that a horse injected with performance-enhancing drugs could run differently than if it was not so injected; in fact, that appears to be at least part of the reason for the prohibition. @para 21

The Appellate Court found that the trial judge had also erred in finding that horseracing was not a game as contemplated by section 197 of the Code. In fact horseracing, the Court of Appeal found is precisely the type of game of mixed of skill and chance that the section provides for.

Moreover the Court gave short shrift to the trial judge’s assessment of the remoteness of the risk of deprivation, holding that:

bettors were entitled to rely on compliance with the regulatory scheme. It is no answer to say they also relied on other factors in making their bets. As the trial judge observed in this section of his reasons addressing cheating while playing a game, had they known about the doping, some bettors would likely have changed their behavior, while others would not. Thus, as a group, the betting public was deprived of information about the race that they were entitled to know; they were also deprived of an honest race run in accordance with the rules. As we said in the previous section of these reasons, in our view, the trial judge erred in law in failing to consider the regulatory scheme in relation to the issue of deprivation. @para 33

In a relatively unusual step the Court of Appeal substituted verdicts of guilt on the fraud charges. The Court of Appeal found that the trial judge had made all of the necessary findings of fact to support a conviction for fraud and attempted fraud but had used the wrong legal test in reaching his conclusion. Thus, the convictions were entered and the matter back to the trial judge for sentencing.

A different remedy however, was imposed on the cheating and gaming counts. The Court found that “while the respondent could reasonably have been convicted if the correct legal test were applied” the necessary findings of fact had not been made to enter convictions. The trial judge did not conclude that the race even met the section 197 definition of a game or whether a particular form of cheating had impacted on the game. Since these necessary findings of fact had not been made, a new trial was ordered on those counts.

LT

You've been served

Redford had a criminal blood alcohol concentration (BAC) while driving. The Crown established this by calling the qualified breath technician to testify about the breath testing procedure and results. Redford had no substantive defence for his crime, rather he argued that the Crown had not satisfied the Court beyond a reasonable doubt that they had complied with the notice requirements found at section 258(7) of the Code. The trial judge disagreed and convicted Redford who in turn successfully appealed to the summary conviction court. In a 2-1 decision the Alberta Court of Appeal restored the conviction: 2014 ABCA 336.

Section 258(7) stipulates that “no certificate shall be received into evidence … unless the party intending the produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.”

At trial the qualified breath technician testified that after completing the breath testing “he took a document containing the Certificate of Analyses and Notice of Intention to Produce Certificate, completed the portion of the document consisting of the Notice of Intention to Produce, and gave a copy of the certificate to” Redford. The breath tech handed the paperwork to Redford and explained its contents. Because Redford was facing other charges and was going to be taken into custody, the officer then took the certificate back and placed it with Redford’s other property. The officer testified that he completed a Personal Property Report where he itemized Redford’s personal effects including the certificate; Redford signed this report. The officer completed an affidavit of personal service on the back page of the certificate.

No evidence was adduced at trial about whether upon his release Redford had ever received his personal property, including the certificate.

At trial Redford argued that it had not been proven beyond a reasonable doubt that section 258(7) had been complied with.  The trial judge was satisfied on a balance of probabilities that section 258(7) had been complied with, however also indicated that if he was in error and the applicable standard of proof was beyond a reasonable doubt, he would not have been so satisfied.  The summary conviction appeal court held that the trial judge had erred in concluding that the Crown had only an evidentiary burden to meet and that the applicable standard was beyond a reasonable doubt.

The Alberta Court of Appeal framed the issues as follows: first, did the trial judge err in concluding that the standard of proof for the service of the Certificate of Analyses under section 258(7) was a balance of probabilities. Second, was that section complied with?

With respect to the first question the majority of the Court held that:

(t)he purpose of s 258(7) is to provide an accused with reasonable notice of the Crown's intention to introduce into evidence the Certificate of Analyses and to provide a copy of the certificate to the accused. The provision governs only admissibility; it does not, without more, trigger any presumption. It is purely procedural. To take the benefit of a presumption, the Crown must go on to prove compliance with the prerequisites under s 258(1)(g) and then compliance with the prerequisites under s 258(1)(c). Section 258(7) does not establish facts which trigger a presumption with respect to a vital issue relating to innocence or guilt. It is only the threshold for admissibility. @para 35.

Thus, the trial judge was correct in concluding that the burden was no higher than a balance of probabilities.

The Court then turned its attention to whether in the circumstances of this case section 258(7) had been complied with.

The Court held that the breath tech had served Redford with the Certificate and Notice when he sat down handed it to him and explained the contents. They went on to note that:

(w)hat transpires with the documents after that does not render service invalid. The law does not require the respondent to retain personal control or possession of the certificate. What is important, functionally, is that before trial, the respondent receives a copy of the certificate and reasonable notice that it will be tendered as evidence by the Crown. This requirement is to ensure that the accused can make full answer and defence. Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, [1991] 3 SCR 326.
Beyond this, the Crown has no addition evidentiary burden under s 258(7) to establish that the respondent retained the certificate in his possession for a certain period of time, or received it again after he was released from custody. To suggest otherwise is to confuse the issue of standard of proof with the legal requirements of the section, adding the requirement of possession to that of notice for some uncertain amount of time, requirements that currently do not exist. @paras 41-42

Thus, even if the trial judge had found that Redford had not been properly served at the station, so long as the Crown provided the Certificate at some reasonable point before trial (which would usually be done in the normal course of the disclosure process) the Crown would have complied with the section 258(7) requirement. 

LT

Public Interest Post-Conviction

RB was charged with two separate sets of charges related to sexual assaults. One set of charges (the first charges) related to allegations made by a three-year old complainant who was the daughter of a friend of RB's then girlfriend. The other set of charges (the second charges) related to a complainant who was four to six years old at the time of the alleged offences and was the daughter of the person he was living with.

The second set of charges came to trial first. RB was convicted. He was sentenced to 28 months. He obtained bail pending appeal.

RB was then convicted in relation to the first set of charges. in relation to those charges RB was sentenced to four years.

RB once again sought bail pending appeal: 2014 ONCA 722. 

In considering the request for bail pending appeal, the court noted the test:

  1. his appeal is not frivolous;
  2. he will surrender in accordance with the terms of the release order; and
  3. his detention is not necessary in the public interest.

The court then cited the governing principles from R v Manasseri, 2013 ONCA 647:

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 stake:  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.

The court reviewed the merits of the appeal and concluded that while it was not frivolous, it was a weak appeal. In considering the public interest the court offered the following:

In my view, as expressed above, the applicant has a weak appeal. I balance this view against the fact that the accused was convicted of serious crimes against vulnerable young children and that the applicant has received a fairly lengthy sentence.
I find that the combination of convictions for serious offences, a fairly lengthy sentence, and a weak appeal, demonstrate that the immediate enforcement of the judgement below should be of paramount concern. Therefore, the public interest balance required by Farinacci favours immediate enforcement of the sentence rather than judicial interim release. [@22-23].

The court denied the application for bail pending appeal.

DGM

When is a "bike" a motor vehicle?

Ricky Pizzacalla's legal saga appears at an end. The issue that began his legal saga was whether the "e-bike" he was operating, at time he was stopped by police, was a "motor vehicle" - something he was prohibited from operating due to an earlier impaired conviction. Pizzacalla had argued at trial that it was not a motor vehicle, in part because he did not require a licence to operate it. As noted by the Court of Appeal, that argument did not succeed at trial:

held that the device Mr. Pizzacalla was driving was not a power-assisted bicycle as, under the Highway Traffic Act, at s. 1(1), such a machine is defined, among other things, as having “affixed to it pedals that are operable” and as being “capable of being propelled solely by muscular power”.   
The device Mr. Pizzacalla was driving did have two pedals.  However, neither was operable.  One was attached to the device but not in a way that would allow the driver to propel the device by muscular power.  The other pedal was not attached to the device at all; it was in a storage compartment on the device.
The trial judge went on to find that, as the device Mr. Pizzacalla was driving was not capable of being propelled by muscular power, it fell within the definition of a “motor vehicle” in s. 2 of the Code.  A motor vehicle is defined in that section as “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment”. [@4-6].

Pizzacalla launched a summary conviction appeal and renewed his argument. That appeal was dismissed. 

Pizzacalla then sought leave to appeal to the Court of Appeal. That court dismissed his leave application: None of Mr. Pizzacalla’s arguments raise an issue of law alone.  They do not provide a basis to grant leave to appeal. [@11]: 2014 ONCA 706.

It appears that Pizzacalla's legal saga is now over. His "device" was indeed a motor vehicle within the meaning of section 2 of the Criminal Code.

DGM

Denouncing Animal Cruelty

Craig Wright abused six dogs over a period of 17 months, while operating a dog training business in Oshawa. After a trial Mr. Wright was convicted of five charges of animal cruelty and one charge of neglecting an animal.

The trial judge imposed a suspended sentence and gave Mr. Wright 95 days of credit for pre-sentence custody. The trial judge also ordered a section 447.1 prohibition order, prohibiting Mr. Wright from having control or possession of an animal for five years. However, the trial judge refused to prohibit Mr. Wright from residing with an animal. Mr. Wright owned a dog and the trial judge was concerned that a prohibition against living with an animal would punish his wife and children.

On appeal, the Court of Appeal allowed the appeal and varied Mr. Wright’s sentence: 2014 ONCA 675. In a brief endorsement the Court found the trial judge’s sentence to be “manifestly inadequate,” imposed a nine month jail sentence, and varied the prohibition order to prohibit Mr. Wright from residing with an animal:

Having regard to the gravity of the specific charges, the number of convictions, the respondent’s criminal record which demonstrates both a propensity for violence and a disregard for judicial orders (the appellant was on probation at the time of these offences), the respondents abject failure to accept the criminality of his conduct and the amendments to the Criminal Code in 2008 which signal an added determination by Parliament to deter and punish those who would engage in acts of cruelty to animals, we think the sentence was manifestly inadequate.
In our view, further incarceration was required. We would impose a sentence of nine months. Given the appellant credit for three months presentence, he has six months to serve.
We would vary the 447.1(1)(a) order to include a prohibition against “residing” with any animal or bird. [at paras 1-3]

One of the issues argued in this appeal was the significance of amendments to the Criminal Code that increased the maximum sentence for animal cruelty. Parliament amended the animal cruelty provisions of the Criminal Code in 2008, raising the maximum sentence to imprisonment for five years.

The Court of Appeal recognized that increasing the maximum penalty for animal cruelty offences signalled Parliament’s intent to denounce and deter animal cruelty. The Court considered Parliament’s intent as one of the factors supporting further incarceration in this case.

On this point, the Court of Appeal echoed the recent decision of Justice Alder in R v Helfer, [2014] OJ No 2984 (OCJ):

This type of behaviour must be denounced. When parliament enacted the changes to the Criminal Code provisions respecting animal cruelty, they did so to reflect our society's view towards animal abuse and cruelty. Those who inflict pain on animals, those who are deliberately brutal towards animals will face harsher sentences than in the past, as our society considers this behaviour morally reprehensible and the courts must attempt to denounce and deter this behaviour. [at para 83]

MGM

Big is Back: R v Mack

A few months back, fellow MCL blogger Brian Holowka reviewed the latest pronouncement from the Supreme Court of Canada in R v Hart regarding Mr. Big operations: The Mr Big Operation: The SCC constrains but does not eliminate the practice.

In the Hart decision, the Supreme Court created a new common rule that now governs whether or not the results of a Mr. Big undercover operation should be admitted into evidence: R v Hart, 2014 SCC 52.

Hart was heard with a companion case:  R v Mack, 2014 SCC 58. Mack was convicted at trial of first-degree murder. During the course of an undercover Mr. Big operation, Mack confessed to killing his roommate. He provided the undercover officers with a number of details about the murder, including the reasons he did it and the location of the body’s remains – which Mack had reduced to ashes. The Mr. Big confessions went to the jury for consideration, with an instruction from the trial judge that addressed any concerns about the confession’s reliability and potential for prejudice [para 56].

Mack appealed from conviction to the Alberta Court of Appeal, where his conviction was affirmed: 2012 ABCA 42.

On appeal to the Supreme Court, Mack advanced three arguments. Two of the three were concerned with the evidence gleaned from the Mr. Big operation. Mack argued that:

  1. The trial judge should have excluded the confessions he made to the undercover officers pursuant to s. 24(2) of the Charter; and,
  2. If the confessions were admissible, the charge to the jury was inadequate as to the dangers associated with them [para 2].

With respect to the first argument, the Supreme Court began by recognizing that Mack did not have the benefit of advancing an argument that the confessions should have been excluded pursuant to the new Hart framework. The two-pronged Hart rule dictates that a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative value, or where it is the product of an abuse of process [para 32].

The Court applied the Hart framework to Mack’s case. The first prong involves a balancing of the probative value of the confession against any prejudicial effect.

Concerning the confession’s probative value, the Court found:

  • The inducements provided by the officers were modest;
  • The Appellant had well-paying, legitimate work readily available to him;
  • The Appellant was not threatened by the officers;
  • The Appellant was told that he could decline to say anything, an option he initially accepted [para 33].

Further, the Court concluded that there was “an abundance of evidence” that was potentially confirmatory. This included:

  • The testimony of two other witnesses that described the same motive for killing that Mack had told the undercover officers;
  • The fact that the Appellant led the undercover officers to a fire pit where his roommate’s remained lay yet undiscovered; and,
  • The fact that shell casings fired from a gun found in the Appellant’s apartment were found in the same fire pit the Appellant led the officers to.

These factors, taken together, made the confession “highly probative” [para 34].

Concerning the confession’s prejudicial effect, the Court found any prejudice was limited. The Court considered that:

  • Mack did not partake in any scenarios that involved violence;
  • The operation did not reveal prejudicial facts about the Appellant’s past history; and,
  • Mack’s role was limited to assisting with the repossession of vehicles and delivering of packages [para 35].

The Court concluded that “any prejudicial effect arising from the Mr. Big confessions is easily outweighed by their probative value” [para 35]. Under the first prong of the Hart test, the confessions would have been admitted.

The second prong of the Hart framework involves determining whether the police officers conducting the Mr. Big operation engaged in any improper conduct, that could ground an application for abuse of process [para 36]. Here, the Supreme Court found that:

  • Mack was not presented with overwhelming inducements;
  • Mack had legitimate prospects for work, that would have paid even more than what the undercover officers were offering;
  • The officers did not threaten Mack with violence if he didn’t confess ; and,
  • The officers made it explicitly clear that Mack did not have to speak with them [para 36].

The Supreme Court found that at most, the officers created “an air of intimidation” by referring to violent acts committed by members of the fictional organization, but this did not mean that Mack was coerced into confessing [para 36].

Under the second prong of the Hart test, the confessions would also have been admitted.

Although the Court ultimately dismissed Mack’s first ground of appeal for the exclusion of evidence based on s. 24(2) of the Charter, the Court also concluded that the confessions would “clearly be admissible under [the Hart] framework” [para 32]. As such, Mack’s first argument was dismissed.

With respect to the second argument, the Court reiterated that there are two major evidentiary concerns arising out of Mr. Big operations: the reliability of such confessions, and the bad character evidence that invariably accompanies them [para 43].

The Court found that while the Hart rule is intended to respond to these concerns, it does not purport to erase them entirely. It falls to the trial judge to adequately, but not perfectly, instruct the jury as to how to approach these confessions in reaching a verdict [paras 44, 48].

The approach taken by the British Columbia Court of Appeal in both R v Terrico, 2005 BCCA 361 and R v Fry, 2011 BCCA 381, was endorsed by the Supreme Court. Jury instructions that pertain to Mr. Big operations should be subject to a contextual, case-by-case review. There is no “magical incantation” that must be read to juries in all Mr. Big cases; the nature and extent of instruction will vary from case to case [para 49].

The Court did offer some additional guidance, but no prescriptive formula, for trial judges to consider when instructing a jury. Juries should be informed that the reliability of such a confession is a question for them to answer, and will necessarily be impacted by both the circumstances in which the confession was made and the details contained in the confession itself [para 52].

As articulated in Hart, the trial judge should alert the jury to:

  • The length of the operation;
  • The number of interactions;
  • The nature of the relationship established;
  • The nature and extent of inducements offered;
  • The presence of any threats;
  • The conduct of the interrogation itself; and,
  • The personality of the accused [para 52, citing Hart at para 102].

Further, the trial judge should discuss that the confession itself may contain markers of reliability or unreliability. Juries should consider whether the confession led to the discovery of additional evidence, whether it identified any elements of the crime not publicly known, or whether it described mundane details of the crime the accused would likely not have known had he not committed it [para 53, citing Hart @ para 105).

Finally, the Supreme Court emphasized that the jury should be reminded that such a confession is admitted for the limited purpose of providing context for the confession, and cannot rely on the confession to determine whether the accused is guilty. The jury should also be reminded of the state’s role in simulating and encouraging criminal activity [para 55].

On the second ground of appeal advanced by Mack concerning Mr. Big operations, the Court found that trial judge’s instructions were adequate and revealed no error [para 58]. As such, Mack’s argument was again dismissed.

Comment

In reviewing the Hart decision for MCL, Mr. Holowka properly highlighted that Mr. Big operations are often spawned due to a dearth of other evidence, the results of which may now be difficult to admit if corroborative evidence is lacking. However, the Mack decision places important emphasis on the fact that it is not to be presumed that prejudice, coercion, or abusive tactics are necessarily present in all Mr. Big operations. Courts must still be alive to the significantly probative evidence that this investigative technique can generate. Although Hart may have left the Mr. Big technique alive, but only barely; Mack offers vital resuscitation.

SS

Missing Magic Incantations aren't Fatal

EH was convicted of sexual offences perpetrated against a 4yr old.  Her video and audio recorded statement to police was tendered at trial pursuant to section 715.1 of the Code. She also testified via closed circuit television in accordance with section 486.2 of the Code.

The evidence revealed that on several occasions while sitting on a couch watching television EH took the child’s hand and placed it on his penis. EH would then remove her hand and tell the child that he loved her.

At trial, EH testified that on a single occasion, out of the blue, the child put her hand down his shorts and touched his penis; at the time he was not wearing underwear.  EH said this caused him to panic- he ran upstairs put on pants, a belt and a shirt.

The jury convicted EH and he appealed: 2014 ONCA 622. One of the grounds of appeal EH argued was that although the trial judge had clearly stated in the pre-charge conference that a WD instruction would be given to the jury, the final charge did not include such an instruction or the functional equivalent thereof.

The Court of Appeal held that in these circumstances their task was “to determine whether the final instructions, viewed as a whole, would have left the jury under any misapprehension about the applicable burden and standard of proof” @para 6. The Court dismissed the appeal for four compelling reasons.

First, the Court noted “that the W.D. formula is not some magic incantation, omission of which is fatal” @para 9. What matters is whether the jury understood that that at the end of the day they had to simply chose between two competition versions of events. The Court found that instructions in substance did not leave the jury with an erroneous view.

Second, the Court held that the instructions on the core criminal law concepts of the presumption of innocence, the burden of proof and the standard of proof were all entirely complete and correct.

Third, the Court importantly noted that the charge does not take place in isolation. It is preceded by the closing addresses of counsel. Those addresses are not substitutes for a deficient charge but they “may fill some gaps left in the charge” @para 11.  In this case the Court noted that “the closing addresses of both counsel tracked the W.D. framework. Nothing in the charge contradicted or qualified what counsel said” @para 11.

Lastly and perhaps not surprisingly the Court relied on the fact that EH made no objection to the charge at trial.

Although WD has been the subject of much judicial scrutiny, the decision in EH is not at all surprising when one considers the circumstances of the seminal decision itself. In WD the trial judge in fact erroneously instructed the jury that they were engaged in a credibility contest, yet the conviction was upheld. In EH the Court of Appeal clearly found the functional equivalent of a proper WD instruction even in the absence of the magic credibility incantation. 

LT

Guns, Drugs and Willful Blindness

Alma McLeod didn’t take the average cross-border trip to visit the United States. Instead, she would transport large quantities of drugs out of Canada, using a rental car, and in exchange for those drugs, return back with firearms: two 9 mm Glock semi-automatic pistols, a Hi-Point .45 calibre semi-automatic pistol, and a .40 calibre semi-automatic pistol, for example.

After her last trip, McLeod got caught. At her trial, she testified that she thought she was transporting money back and forth, for a legitimate business purpose. She also claimed that she never saw what her accomplices were loading or unloading into the trunks of her various rental cars.

McLeod was convicted or six firearm offences, and one drug offence. She appealed both from conviction and sentence: 2014 ONCA 647.

Concerning her conviction, McLeod advanced two arguments.

First, she argued that the jury should not have been instructed as to wilful blindness. She argued there was no evidentiary foundation for the instruction [para 2].

Second, she argued that the Crown was improperly allowed to cross-examine her on her knowledge of guns in the Toronto community, stating it was an irrelevant and prejudicial line of questioning [para 11].

The Court of Appeal dismissed both.

First, in order to establish wilful blindness, there must be evidence of actual suspicion on the part of the accused: R v Briscoe, 2010 SCC 13.

The Court of Appeal concluded that the evidence at trial included facts from which an inference of actual suspicion could be drawn. These included:

  • The location where McLeod would meet her accomplices – strip malls, parking lots and service stations, late at night.
  • McLeod never loaded the car herself.
  • McLeod would provide her rental car to a near stranger to take to a secret location, so that the car could be loaded and unloaded.

The trial judge’s instruction on wilful blindness was error-free. He was correct to put the instruction to the jury [paras 7, 10].

Second, with respect to cross-examination, the Court of Appeal found the trial judge interjected as it became apparent that the Crown intended to ask McLeod about the notorious Boxing Day shooting of Jane Creba. At this point, the trial judge instructed the jury to disregard that particular question, and allowed the Crown to proceed with a “general line of questioning about general awareness of gun violence or drug crime in Toronto.” Any reference to a specific “community” was precluded [para 13].

The Crown was properly permitted to ask McLeod about her knowledge of:

  • Gun violence in Toronto in 2005,
  • Guns coming into Canada from the US, and
  • The relationship between guns and drugs.

The Court of Appeal found that this line of questioning was relevant to the issue of actual suspicion that McLeod was transporting guns, and not money, back into Canada [paras 14-15].

For these reasons, McLeod’s appeal from conviction was dismissed.

The seven year sentence McLeod received was subject to a generous two-for-one credit for pre-trial custody, and one-quarter-to-one credit for house arrest bail conditions. The remaining sentence was 5 years and 9 months. The Court of Appeal concluded this was not outside the range of appropriate sentences for importing firearms and exporting a controlled substance: para 19.

As such, McLeod’s appeal from sentence was also dismissed.

SS

When is a "firearm" not a "weapon"?

On November 5, 2014 the Supreme Court will hear argument in the matter of R v Dunn, 2013 ONCA 539.  The appeal will resolve the age-old question (or at least a burning one in Ontario) – when is a “firearm” not a “weapon”?

Christopher Dunn was being watched by some investigators on behalf of the Workplace Safety Insurance Board. The investigators noted that Dunn met with another man; during that meeting Dunn pulled out, what appeared to be, a pistol from his jacket and seemed to be pointing it at the other man. The pistol was put away and Dunn left. The investigators contacted the police and alerted them to what he had seen.

The police later attended at Dunn’s trailer and ultimately seized what turned out to be a Crosman Pro77 airgun that fires .177 calibre spherical BBs propelled by means of compressed air from a canister. The airgun was determined to be functional and was loaded with a partly used CO2 cartridge; there was no ammunition in the magazine. 

A firearms examiner who gave expert evidence agreed in cross-examination that this type of airgun can be purchased without the purchaser’s having to produce any documentation, as long as the muzzle velocity does not exceed 500 feet per second (“ft./s.”). The respondent’s airgun had an average velocity of 261.41 ft./s.
The expert gave evidence about a scientific study done to determine the velocity needed for a BB to penetrate the human eye – the so-called pig’s eye study, which used pig’s eyes because of their similar size and composition to the human eye. According to the study’s findings, any shot exceeding 214 ft./s. was capable of causing serious injury. A BB shot travelling at this speed would penetrate the eye of a 10-month old pig some of the time. A BB travelling at 246 ft./s. would penetrate the eye 50 percent of the time. The respondent’s airgun thus exceeded both thresholds.
The expert further testified that this particular airgun is built to closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun. [@7-9]

Dunn was charged with various offences including handling a firearm (s 86), pointing a firearm (s 87), carrying a weapon for dangerous purpose (s 88) and carrying concealed weapon (s 90). 

In considering those charges the trial judge noted that the offence of pointing a firearm “required proof that the airgun in question is a firearm, and that the other three counts required proof that the airgun was either a firearm or a replica firearm”. Citing McManus, 2006 CanLII 26568 (ONCA) the trial judge held that if a the firearm “is not a ‘real powder fired bullet shooting gun’, the Crown must prove that it is a weapon, as defined in s. 2 of the Criminal Code, before any finding could be made that it is a firearm” [@11]. On the facts the trial judge “held that the Crown had failed to prove that the airgun was used or intended to for use in any of the ways specified in s. 2. It was therefore not a weapon, and could not be a firearm” [@13]. The Crown appealed.

On appeal the Crown sought to argue that McManus, was wrongly decided and contrary to binding authority, namely Felawka, 1993 CanLII 36 (SCC). The Court of Appeal agreed to sit five members in order to consider that issue.

In considering the appeal the court noted that the “appeal turns on the proper interpretation of the terms ‘firearm’ and ‘weapon’ in the Criminal Code. There is only one issue in this appeal: must an object (to use a neutral word) that falls within the definition of ‘firearm’ in s. 2 also meet the definition for ‘weapon’ in the same section. The interpretation issue arises from the fact that each definition refers to the other” [@14]. This is evident from a review of the definition of weapon in the Code which states that it is any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person – and without restricting the generality of the foregoing includes a firearm.

After reviewing Felawka and McManus the court concluded that the Crown need not prove that an object which is a firearm must also fall within paragraph (a) or (b) of the definition of weapon. To the extent that McManus held otherwise it was wrongly decided.

Not only was this conclusion reached on the basis of the binding decision in Felawka but also on the basis of statutory interpretation.

To conclude, in my view, there is no ambiguity in the definition of firearm in s. 2 when regard is had to the legislative history and the context and scheme of the legislation. Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition in para. (a) or (b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as the offences charged against the respondent in this case. [@66].

The Supreme Court is now set to consider the issue. The Court of Appeal’s ruling is compelling. Not only did it conclude that McManus conflicted with Felawka but based on a thorough statutory interpretation analysis, the court came to the same conclusion. But, the courts are not Dunn yet considering this issue…stay tuned.

DGM