Cutting No Slack on Quantum in True Crime Sentencing

Andre O’Mar Slack was sentenced to eight years imprisonment in a federal penitentiary for weapons-related offences. His convictions included the possession of a loaded restricted firearm, and the unauthorized possession of a firearm – contrary to sections 95(1) and 91(1) of the Criminal Code. His 95(1) conviction was stayed in accordance with Kienapple.

Slack appealed from sentence based on two grounds.

First, Slack argued the sentencing judge erred in failing to grant enhanced credit at the rate of 1.5:1 for pre-sentence custody.

Second, Slack argued the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Code as a “sentencing floor”, when the mandatory minimums in both R v Nur, 2013 ONCA 677 and R v Charles, 2013 ONCA 681 (both cases subsequently heard and reserved on November 7, 2014 at the Supreme Court of Canada) were held to unconstitutional [paras 5-6].

Slack’s first ground of appeal was successful. Based on Slack’s institutional conduct, the sentencing judge had declined to grant any enhanced credit for pre-sentence custody, finding that enhanced credit was not necessary to achieve a fair sanction based on the Court of Appeal’s decision in R v Summers, 2013 ONCA 147. However, the sentencing judge did not have the benefit of the Supreme Court’s decision in Summers (2014 SCC 26). Writing for the Supreme Court, Karakatsanis J outlined that pre-sentence custody is generally sufficient to give rise to the inference that the offender has lost eligibility for parole or early release, which in turn justifies enhanced credit. It falls to the Crown to challenge this inference. The Crown can advance such a challenge by demonstrating that the offender’s bad conduct renders it unlikely that parole or early release will be will be granted: see Summers, supra and R v Houlder, 2014 ONCA 372 [para 10-15].

Here, it fell to the Crown to counter the available inference. While Slack had three documented incidents of misconduct during his pre-sentence custody, the Court of Appeal concluded the sentencing judge fell into error by denying enhanced credit based solely on this evidence. Slack’s institutional record was thin, and the Crown was unable to demonstrate such misconduct would disentitle him to parole or early release. Further, the authority to deny statutory release is narrow, and unlike the regime which applies to provincially-incarcerated inmates, loss of credit towards early release is not a sanction that may be imposed for misconduct under the Corrections and Conditional Release Act (CCRA). The minor incidents which took place in pre-sentence custody did not give rise to the type of reasonable grounds required to demonstrate a denial of parole ineligibility or early release [paras 16-20].

Although the Court of Appeal set aside the sentencing judge’s determination of credit and substituted credit to be granted at 1.5:1, Slack’s second ground of appeal failed, regarding the quantum of sentence imposed.

The Court of Appeal clarified that while the mandatory minimums in Nur –three years for a first conviction under s. 95(1) – and the companion case Charles –five years for a second or subsequent conviction under s. 95(2)(a)(ii) and s. 95(1)– were both struck down, nothing in those cases displaced the developed sentencing range applicable to offenders convicted of a second or subsequent s. 95(1) offence. Both Nur and Charles affirm that offenders convicted of “truly criminal conduct” in relation to firearms offences must receive exemplary sentences that emphasize deterrence and denunciation [para 23].

Slack’s case was just that: one of true crime. It was his second s. 95(1) offence. He had a lengthy criminal record, which included convictions such as the use of an imitation firearm during the commission of a robbery, assault, trafficking in a scheduled substance, and breaching a firearm prohibition order [para 24].

Further, the Court highlighted that Slack was in unauthorized possession of loaded, restricted firearm in circumstances that posed a real and immediate danger to the public. The gun was readily accessible in an unlocked, running car; which Slack had abandoned in a public parking lot, in broad daylight. Given his serious and lengthy record, the nature of the predicate offences, and the four-year sentence received for his first s. 95(1) offence, the Court of Appeal concluded that Slack’s conduct could only be viewed as falling at the “true crime” end of the s. 95(1) spectrum discussed in Nur and Charles. The convictions cried out for a substantial penitentiary sentence [paras 25-26].

For these reasons, there was no basis to interfere with the eight year sentence imposed by the sentencing judge for the firearms-related offences. Therefore, the Appeal was only granted in part, with respect to the pre-sentence custody.

Comment

This case highlights that the impact of the Summers decision on the granting (and challenging) of enhanced credit is necessarily different depending on whether the offender is serving a provincial or federal sentence - different regimes govern early release. Still, while Slack was found to be entitled to this credit, the Court was unequivocal that the quantum of sentence imposed was justified given the “true crime” nature of both the offences, and Slack’s consistent pattern of criminal conduct. The striking down of the mandatory minimums in Nur and Charles, which the Supreme Court has yet to rule on, does nothing to negate the often serious penitentiary sentences required in cases such as these.

SS

Threats on Social Media

Social media (like Facebook and Twitter) is notorious for grand standing and narcissism. Users are criticized for posting things that put themselves in a positive light, get attention and/or boost their ego.

When a person makes a threat on social media, should the fact that it is on social media play into the Court’s assessment of whether the person had the requisite criminal intention to threaten, that is they  meant their words to be taken seriously or to intimidate? [In R v McRae, 2013 SCC 68 the Supreme Court recognized that the mens rea for threats was whether the words were “meant to intimidate or to be taken seriously”: see Dallas Mack’s blog on McRae, Did you Hear About that Threat].

This question is what the Court worked through in a 2008 case out of Newmarket called R v Sather, 2008 ONCJ 98 and a 2014 case out of Montreal called R c Le Seelleur, 2014 QCCQ 12216.  

In Sather, Mr. Dan Sather was charged with two counts of uttering threats to cause death or serious bodily harm to a CAS worker, and to members of the York Region Children’s Aid Society via his Facebook statuses between September 16, 2007 and November 22, 2007.

The Children’s Aid society had removed his newborn son from him and his wife’s custody after having received information from a doctor and a nurse that flagged concerns about their ability to care for the child. Mr. Sather admitted to posting the following on his Facebook page:

“when I find out what nurse called CAS may god have murcey on my soul cause I’m going straight to hell with a 25 yr pit stop in prison”
“Dan is gonna go suicidal bomb CAS”
“Dan is sick of all the bull shit and in the midst of planning a tacticle strike to get kyle back and disappearing off the face of the earth.”
“Dan is plan B is in full operation as of Nov. 23 first the man power was set up then the fire power is obtained now 2 weeks to find out where there keeping him.”
“Dan is scared its almost time”
“Dan is I have no son think what u will I give up” [@6].

Police were called after a CAS worker had randomly searched any references to her work on Facebook and came across Mr. Sather’s posts. Mr. Sather was not Facebook friends with any member of the York Region Children’s Aid Society.

The Court determined that the actus reus element of uttering threats was clearly made out as any reasonable person reading these words would view them as conveying a threat.

Mr. Sather was acquitted however because the Court determined that the mens rea, that is the criminal intention to intimidate or be taken seriously was not made out beyond a reasonable doubt. This finding was based in part on the Facebook expert testimony of Jesse Hirch (http://jessehirsh.ca/bio). Mr. Hirsh explained to the court how people use Facebook. He testified that:

…people who profile themselves embellish their character. They deliberately say provocative things to elicit a response from their Facebook “friends.” In a sense they construct an alternate persona [@9].

The Court further reasoned that Mr. Sather was directing his threats to people who would be sympathetic to his situation (his Facebook friends), and that he had had numerous interactions with the Children’s Aid Society and had not said or done anything that would instill fear or that could be related to his threatening posts.

In other words, he was just venting and grandstanding on Facebook and his posts should not be taken seriously.

Interestingly, despite the finding that Mr. Sather did not have the guilty intent, the Court affirmed the actions of police in arresting Mr. Sather for his postings stating that the response was both “necessary and appropriate” [@11].

In Le Seelleur the Court took a different approach. Unlike Mr. Sather’s case, no consideration was given by the Court to the social media context of the threat uttered by Ms. Le Seelleur.

Ms. Le Seelleur in a moment of frustration following a news story about the Prime Minister of Quebec took to her twitter account and posted “Good get the bitch out of there before I bomb her” [@2].

According to Ms. Le Seelleur she was frustrated and angry about things the Prime Minister was doing and tweeted the comment to her 100 or so followers with little thought to any possible consequences. She said she really did not think about it again until the police called.

The Court believed her when she testified that she was regretted the tweet and that she was never going to follow through on her threat. However the Court did determine that she meant her words to be taken seriously and to intimidate, and Ms. Le Seelleur was found guilty. In its reasoning the Court states:

Concerning the fault element, the evidence establishes that the accused had a full operating mind when she uttered those words. She posted her tweet right after reading the CTV article that mentioned that the Prime Minister was ready to call an election. She knew that she had more than a hundred followers at the time. In her testimony, she admits that she was frustrated and angry concerning a variety of decision or positions taken by the Prime Minister during that period. Although she claims that she wrote the post “without thinking clearly” and “without meaning what was written,” it is clear from the evidence that it came from an operating mind that was angry and frustrated. Her frustration was unmistakably vocalized in a serious threatening and intimidating manner. Although it might have been written in a “split second”, it was still a conscious act which was clearly intimidating and threatening [@10].

There was no twitter expert called at Ms. Le Seelleur’s trial.

There is nothing in Canadian law that states that threats posted on social media accounts should be treated any differently than things said in person or on the phone.

The typed word does not leave much wiggle room for alternative interpretations; in most cases it will be difficult for a person to convince a Judge or jury that they did not mean what they posted in a social media context to be taken seriously or to intimidate.

AL

The line between trier and advocate

Timothy Bornyk was charged with break and enter. The police had discovered a fingerprint in the study of a home [latent print] where there had been a break and enter. An expert in fingerprint identification and comparison testified that the print matched Bornyk’s prints [known print]. Notwithstanding this evidence, the trial judge acquitted Bornyk: 2013 BCSC 1927. In doing so the trial judge, inter alia, did his own research, reviewing and then relying upon, some academic articles on fingerprints analysis and did his own comparison of the latent and known prints. The Crown appealed. The British Columbia Court of Appeal allowed that appeal: 2015 BCCA 28.

The issues that were discussed on appeal began at the conclusion of the trial. The trial judge sent counsel a memorandum listing four articles which were critical of fingerprint identification analysis and asked counsel to make further submissions. Crown counsel subsequently sent three additional articles to the trial judge. Oral submissions were later offered by both Crown and defence.

With respect to the articles, the Crown argued that the issues raised therein had no application to the evidence in the present case. The Crown also argued that the articles were not properly evidence and should not be considered [@3].

The Crown also opposed the suggestion that the trial judge could assess the known and latent prints himself and identify differences that undermine the identification made by the expert witness.

The expert was never recalled. The articles were not marked as exhibits.

The trial judge acquitted Bornyk. In doing so he referred to and quoted certain portions of the articles. He further undertook his own comparison of the prints, based on submissions of defence:

In argument, defence counsel noted unexplained discrepancies between the latent and the known fingerprints. Of particular note, in the area of the latent fingerprint stated to be of “low tolerance” and “extremely reliable”, two gaps on the latent fingerprint are not visible on the known fingerprint.
If one goes to the ridge immediately to the left of the respective red dots marking the centre of the delta on the latent and the known fingerprints and traces a line towards the top of the page, on the known fingerprint there is a continuous ridge, whereas on the latent fingerprint there is a gap, a further ridge, another gap, and then a further ridge. [Emphasis added]; [@55-56].

These two approaches, the Crown said, were wrong in law. The Court of Appeal agreed.

With respect to referencing the articles, the Court began by noting that it is “basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken” [@8]: see R v RSM, 1999 BCCA 218 at para 20; R v Cloutier, 2011 ONCA 484.

In this case the articles, which offered opinions on fingerprint analysis, were “not matters of which the judge could take judicial notice. It is axiomatic that it was not open to the judge to embark on his independent investigation” [@10]. The Court continued:

By his actions, the judge stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of “advocate, witness and judge”. [@11].

The trial judge further erred when he considered the fruits of his investigation.

Not the least of the problems with the approach adopted by the judge is it opened the door to a mistaken comprehension and application of the information in the articles even if in the field of fingerprint analysis they would be considered authoritative and applicable to procedures employed in this case, an assumption not established in the evidence.
[…]
It is clear from the reasons for judgment that the articles had a material bearing on the acquittal as the judge relied upon them to find that the fingerprint identification was not reliable. Most of the “troubling aspects” he identified were not put to the expert witness, and appear to respond to the articles he located. [@14 and 16]

With respect to the comparison of the fingerprints done by the trial judge, the court found that to be in error as well.

The very point of having an expert witness in a technical area, here fingerprint analysis, is that the specialized field requires elucidation in order for the court to form a correct judgment: Kelliher (Village) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.
The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. On this basis alone, also, I would set aside the verdict. [@18-19].

Bornyk is an important and helpful decision. In overturning the acquittal, the Court of Appeal has recognized some very critical and principled points about the role of a trial judge and the treatment of expert evidence.

First, the Court recognized that the trial judge must limit his consideration to the evidence before the court.

Second, the Court recognized that “expert” consideration of the evidence must be done by the expert.

While it is fair to say that expert opinion evidence should be analyzed critically and may need to be considered carefully, Bornyk illustrates that such analysis and consideration must be done properly; triers of fact are limited to a consideration of the evidence available to them.

DM

What's in a name?

SH and MH were the parents of a young girl M. She died. They failed to provide the necessaries of life and were convicted of manslaughter. During the trial an order prohibiting the publication of the names of and any other information that would tend to identify M’s surviving siblings, was granted. That order included the surname H, which was a rather uncommon name.

In seeking the initial publication ban the Crown argued that the stigma of the parents’ conviction would follow the surviving children for the rest of their lives.

The Toronto Star applied to vary or set aside a publication ban. The Crown consented that the order could be narrowed to prohibit only the names of the surviving siblings and allow for the publication of the names of the victim and the offenders.

The Court appointed amicus curiae, Justice for Children and Youth, in order to make submissions in support of the original broad ban: 2015 CarswellOnt 821 (SC)

In support of the application amicus filed an affidavit highlighting the uniqueness of the family surname.

The Toronto Star in turn filed an affidavit, which cited examples of six reported cases in Toronto newspapers where the names of parents convicted in the deaths of their children were published but the names of surviving siblings were not. In some of those cases the surnames were rather uncommon.

Sproat J first considered the applicable legal framework under the Dagenais-Mentuck test.

Turning to the first step of the test Sproat J considered whether the publication ban is necessary to prevent a serious risk to the proper administration of justice or the protection of a public interest @para 19.

The Court accepted that both provincial and federal legislation provides for the restriction of publication of the names of those under 18. For example the Child and Family Services Act prohibits naming those involved in child protection proceedings. Similarly the Code prohibits naming young persons who are charged with or victims of Criminal Code offences.

It was also accepted by the court that the surviving siblings in this case met the definition of victims and would “fall within the class of persons entitled to provide a victim impact statement at a sentencing hearing.” @para 21

In assessing whether the public interest could only be addresses by a publication ban:

the reality is that the surviving siblings have suffered the death of their sibling and are now, or will become, aware that both their parents were criminally responsible for the death. A significant number of people must already know the identities of all concerned. This no doubt includes some family, friends, neighbours, teachers and health care professionals. The death of a sister, particularly given the culpability of the parents, will no doubt cause "dreadfully painful times" for the surviving siblings. That is the baseline. Nothing a publication ban can do will change that. @para 23

Thus, the Court concluded at the first stage that the publication ban was not necessary to prevent a serious risk to public harm. Notwithstanding this finding the Court went on to consider the second stage of the test.

At the second stage of the test the Court considered the effect of this type of litigation based on how common and uncommon a name is would be:

fertile ground for experts and litigation over just how common or uncommon a surname is; over what geographic area names should be compared; and to what extent should similar sounding but differently spelled surnames be considered. As a practical matter litigating publication bans, particularly if experts are required, will tend to mean that the affluent are much more likely to be able to shelter under publication bans. @para 40

Taking an approach that would be minimally impairing on the open court principle the Court noted that the public would have a significant interest in the names of convicted offenders, particularly those guilty of homicide. In contrast, citizens would have a minimal interest in the name of a victim. @para 41.

As such the Court accepted what was effectively the joint submission of Crown and media for the narrowed publication ban where the names of the surviving siblings would remain protected. 

LT

Pop Bottles, Pizza Boxes, and Powerful DNA: R v Mufuta

Muamba Mufuta was caught peering down at an unsuspecting woman in a bathroom stall. The only issue at trial was identity. He did not testify at his trial. His sole ground of appeal was whether the verdict was unreasonable: 2015 ONCA 50.

The complainant could not identify the perpetrator, other than by providing a generic description of him as being black with a shaved head. Shortly before the incident occurred, three black men entered the restaurant and ordered food and drinks. They all fit the general description of the voyeur: para 4-5.

After the incident, police seized a partially full bottle of pop from the top of the toilet tank in the washroom stall where the victim had seen the perpetrator. On subsequent testing, the appellant’s DNA was identified and found on the mouth of the pop bottle. A DNA expert testified at trial that forensic examination of the bottle yielded only a single source of DNA. She also testified that Mufuta was the last person to drink from the bottle: paras 6-7.

The restaurant washrooms were cleaned daily, and so the bottle would have been placed there sometime on the day in question. Only one of three scenarios could have occurred: Mufuta was the voyeur, Mufuta left the pop bottle in the bathroom earlier that day, or another man, of similar appearance, carried the pop bottle into the washroom and committed the offence. The trial judge concluded that the latter two scenarios were speculative, unlikely, and totally lacking in evidentiary support: paras 12-13.

On appeal, Mufuta primarily relied on R v Mars, (2006) 206 OAC 387 and R v Wills, 2014 ONCA 178, to argue that the DNA evidence, standing alone, was not capable of supporting the inference that he was the man who was the man seen by the complainant. Further, he argued that the trial judge erred in presuming that the mere presence of his DNA on the pop bottle was highly inculpatory: para 21.

The Court of Appeal upheld the trial judge’s decision.  The Court found Mufuta was understating the significance of the presence on DNA, and that it was a powerful piece of evidence linking him to the scene of the crime. Further, while it was the centrepiece of the Crown’s case on identification, it did not stand alone: para 24.

The Court went on to distinguish the case at bar from both Mars and Wills, commenting that their reference was misplaced.

In Mars, the victim heard a knock at his door and observed an unmasked man holding a pizza box. When he opened the door to decline the pizza, three men swarmed into the house. The victim could not identify the man holding the box, but a neighbour saw “three black youths” running away from the house. The pizza box contained three fingerprints, one of which matched that of Mars. However, at trial, it was established that the date of the fingerprint was indeterminable, and that because Mars was white, the neighbour’s evidence effectively excluded him as one of the robbers: paras 28- 32.

In Wills, two men wearing bandannas forcibly entered a home. One of the men attacked one of the occupants with a baton. During the attack, the victim pulled a white bandanna from the assailant’s face. The police later found the white bandanna, and upon testing, the DNA of at least three people was found on it. At trial, a DNA expert testified they were unable to estimate how long the DNA had been on the bandanna, and that it was also possible no DNA could have been left behind by the intruder wearing it. The home occupants could not identify their attackers. While the Court concluded that the inference it was Wills who wore the bandanna could not be based exclusively on the DNA evidence, the inference of guilt was otherwise supported on the facts. Unlike in Mars, there was also no exculpatory description of the assailants: paras 33-39.

After reviewing these cases, the Court concluded that the fact that only Mufuta’s DNA was found on the pop bottle increased the probative force of the DNA evidence, connected him to the scene of the crime, and supported the inference that he left the bottle in the washroom. It also rendered less reasonable any inference that someone other than Mufuta used the pop bottle: para 40.

Further, in contrast to both Mars and Wills, there was evidence that supported the inference that the DNA had been deposited around the time of the offence:

  • Mufuta was the last person to drink from the bottle.
  • The bottle was part-full, suggesting recent deposit of the DNA.
  • Given the washroom cleaning schedule, it had to have been left in the washroom that day.
  • The pop bottle was in the women’s washroom, a place Mufuta had no right to be.
  • The bottle was found in the exact stall used by the voyeur [para 41].

The Court found the case to be analogous to the decisions of R v Dewar, 2003 CanLII 48229 (ONCA) and R v Gauthier, 2009 BCCA 24. In Dewar, a pop bottle was found with the accused’s DNA on it, along with his co-accused. The co-accused pled guilty. There was no innocent explanation for the presence of Dewar’s DNA on the bottle in the manager’s office of a burglarized shop. In conjunction with the other facts in Dewar, the trial judge’s reasoning was not speculative and the verdict was not unreasonable: paras 43-44.

In Gauthier, the accused advanced only speculative exculpatory hypotheses for how a beer bottle with his fingerprint on it was found on the victim’s bed. Again, in conjunction with the other available evidence, the only reasonable explanation was that Gauthier had been the intruder: paras 45-46.

Ultimately, the Court of Appeal found that the trial judge expressly considered whether Mufuta’s guilt was the only reasonable inference to be drawn from the facts established on the whole of the evidence: R v Cooper, [1978] 1 SCR 860. There was no basis to interfere with the trial judge’s conclusion. On the totality of the evidence, there was no evidentiary foundation for any explanation of the presence of a partially-consumed pop bottle, bearing Mufuta’s DNA, in the exact washroom stall used by the perpetrator, other than that he was the voyeur. Mufuta’s appeal was dismissed.

SS

Competence of Counsel: to be presumed or proven?

William Fogarty was driving his Crown Victoria on a highway outside of Antigonish; he was impaired. He collided head on with a Ford Mustang. The two young occupants of the Mustand, Kory Mattie and Nicholas Landry, were killed. He was convicted. He appealed. His appeal was dismissed: 2015 NSCA 6. His appeals raised an interesting issue related to section 10(b) and change in circumstances.

Police responded to the scene. As they dealt with Fogarty the police noted some “concerning” things including his demeanour and glassy eyes, yet there was no odour of alcohol detected [@7]. Fogarty admitted that he taken methadone earlier that day as part of his drug recovery program. An ambulance attended the scene and ultimately Fogarty was transported to the hospital. En route the officers observed him for signs of impairment and overheard him talking to the paramedics about his history of drug use (something which he had conveyed to the police as well). The officers also obtained information that Fogarty had been spotted, before the crash, driving erratically.

The officers formed the grounds that Fogarty was impaired by a drug and while in the ambulance, the officers placed him under arrest and read the drug recognition demand to him under section 254(3.1). Notably, at this point, the officers knew and had informed Fogarty that one of the young men had died as a result of his injuries.

Sometime later, at the hospital, after Fogarty had been cleared by medical personnel, the officer advised him of his rights to counsel. Fogarty subsequently spoke to a lawyer – over two separate calls, Fogarty would have consulted with his counsel for about 14 minutes [@14].

The DRE officer then conducted the DRE examination. At the conclusion the officer determined that Fogarty was impaired and consequently read the 254(3.4) demand for a biological sample. Fogarty replied “oh yeah, I understand that” [@18]. Fogarty did not request and was not given further access to counsel after the DRE tests and before the biological sample was taken.

At trial Fogarty sought to exclude the evidence of the biological; he argued “that the failure to provide him with an additional opportunity to consult counsel, after the demand for his blood sample, violated his right to counsel under s. 10(b)” [@29].

Fogarty was convicted; he was sentenced to five years and nineteen days jail. He appealed his conviction.

The issue on appeal was whether the “failure to provide him with an opportunity to re-consult counsel, after the demand for his blood sample” violated section 10(b) [@34]. More precisely, this argument highlighted two poitns. First, that the police should have told him, at the time of the initial demand, that a biological sample could be taken; and second, that the court should not infer that counsel was aware of this and would have advised the accused accordingly.

The court dismissed the appeal.

The Court began its assessment of the issue with a review of R v Sinclair, 2010 SCC 35 and the Supreme Court’s comments on when it is necessary to permit a detainee to re-consult with counsel.  The Court noted that “the opportunity to re-consult” arises “only where there is an objectively ascertainable change of circumstances” [@41].

With respect to the first point (whether there was a change in circumstances) the court offered the following:

The DRE and blood demand are not disjunctive investigative techniques.  Rather, the DRE culminates in the fluids demand.  That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4)… [@48].

With respect to the second point (the content of the legal advice) the Court offered the following:

There was no evidence of the content of the legal advice given to Mr. Fogarty, or that his counsel acted incompetently.  There was no challenge to the competency of his counsel. The judge’s view was that, in those circumstances, Mr. Fogarty’s counsel is assumed to have acted competently.  The judge concluded competent counsel would be aware, and advise that the DRE under s. 254(3.1) invokes a potential blood demand under s. 254(3.4). Consequently, despite that Mr. Fogarty initially had been unaware of a potential blood demand, his counsel would canvass that possibility in his pre-DRE advice to Mr. Fogarty. [@44].

The court dismissed the appeal.

Fogarty is a helpful case for a couple of reasons. First, it illustrates, quite properly, the courts can and should presume counsel provide competent advice to their clients absent evidence to the contrary. Second, it highlights the difference between a linear progression and new investigation.  

Fogarty should also be seen as a success for the DRE provisions and program in increasing the ability of the criminal justice system to detect and prosecute drug impaired driving.

DM

Securing Safety Search Powers

Mackel Peterkin had a gun. He had 40 rounds of ammunition on him as well. He had two cellphones. He had some cocaine. And he had $275 in cash. The police found all of these items when they searched him incident to an investigative detention.

Peterkin was convicted at trial of offences related to the discovery of those items. He appealed: 2015 ONCA 8. He argued on appeal that the warrantless safety search was unlawful; he did not contest, on appeal, the lawfulness of his detention @25.

Watt JA wrote the decision for the Court of Appeal. He outlined the factors which led the police to have concern for their safety – and thus conduct the search – as follows:

Several features of Peterkin’s behaviour caused the officers to be concerned about their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his right hip twice and held his right wrist there. He “bladed” his body so only his left side was visible to the officers. When an officer proffered Peterkin his driver’s licence on his right side, the appellant reached awkwardly for the document, holding his right elbow tight to his hip, turning his whole body and extending only his right forearm to take the licence. When the officers told Peterkin they were going to pat him down, he backed away and began to run. @28

Watt JA then discussed the test to be applied in determining the lawfulness of a search incident to arrest.

The test for determining whether an investigative detention is justifiable under the second prong of Waterfield is one of reasonable suspicion. An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para. 34. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:
                     i.  the extent to which the interference with individual liberty is necessary to                             perform the officer’s duty;
                     ii.  the liberty that is the subject of the interference; and
                    iii. the nature and extent of the interference.
See Mann, at para. 34.
To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45. @40-41

Of particular note is Watt JA’s reference to MacDonald – the recent Supreme Court decision on “safety searches”:

A second preliminary point concerns the decision in MacDonald. We need not decide whether, as the MacDonald minority argues, the majority, without overruling the prior decision in Mann, has recalibrated the standard to be applied in determining the lawfulness of a safety search. This is because the evidence in this case satisfies the test as articulated in MacDonald: reasonable belief an individual’s safety is at stake.  Further, in my respectful view, we need not determine whether the decision in MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing.
To be lawful, the investigative detention and safety search incidental to it must satisfy the two-stage Waterfield test. The conduct must fall within the general scope of a statutory or common law duty imposed on the officer, and must also involve a justifiable use of powers associated with that duty: Mann, at para. 24; MacDonald, at paras. 35-36. @59-60.

Watt JA thus applied the law, as outlined above, of search incident to investigative detention and offered the following conclusion:

When Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the officers were investigating a static line 911 call from the unit. In doing so, they were discharging their common law duty to preserve the peace, prevent crime, and protect life and property. Peterkin’s entry into the fenced rear yard also entitled the officers to detain him to investigate a potential breach of the Trespass to Property Act, an arrestable offence under s. 9(1) of that Act.
As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant’s pants. “Blading” to obstruct their view of the appellant’s right side. Awkward receipt of the driver’s licence when the officers returned it to the appellant. An indication by the officers of a pat-down search for the officers’ safety. Resistance. An attempt to flee. Apprehension and only then a search. This accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search. @61-62.

Peterkin is one of the first appellate court decisions to deal with MacDonald. While it does not resolve the issue raised in MacDonald by Moldaver J – which i have previously discussed (see: Safety Searches Post MacDonald; and MCLBulletin 2014.05) – it does recognize that MacDonald dealt with a non-investigative detention search. The search there was “free-standing”. Here, as in Mann and Clayton, the safety search was incident to an investigative detention.

DM

Giving Juries the Right Tools to Make Just Decisions

At the conclusion of what the Justice Boswell described as “a long and difficult murder trial”, the court was called upon to determine what if any “deliberation aids” would accompany the jury once they retired to deliberate.

Changes in technology used by criminals and in the courtroom have fundamentally changed the nature of evidence and the manner in which it is presented to judges and juries. Moreover as juries are being called upon to make findings of fact based on an “ever-increasing mass and complexity” of evidence, courts and counsel must decide what and which measures of assistance will be provided to juries to assist them in fulfilling their duties.

In R v Pan, 2014 ONSC 6055 (SC) Boswell J was called upon to decide whether a PowerPoint presentation which would be presented to the jury during the Crown’s closing argument could be provided to the jurors upon commencing their deliberations.

The PowerPoint in issue was prepared by an analyst with the Ontario Provincial Police (OPP) and was being offered as an aid to understanding a large body of cell phone evidence. Defence counsel representing each of the four co-accused, took no issue with the presentation of the slides during the closing argument of the crown but rather objected to the jury being provided with a copy upon commencing their deliberations.

The four co-accused in this case were charged with the home invasion murder and attempted murder of Ms Pan’s parents. Ms Pan was home at the time of the attack and aroused the suspicions of police when she confided in them that she had arranged for the attack and that she was the intended target. Her parents, she claimed were not supposed to have been harmed. Through their investigation police obtained a large volume of cell phone records of the co-accused

Justice Bowell noted that:

[t]here is no doubt that the accused in this case were cell phone enthusiasts. One might fairly describe them as prolific callers and texters. Their "digital embraces" are at the core of the Crown's case. Their contacts with one another and with third parties left an almost incomprehensibly thick trail of data and metadata. @para 83

The Crown tendered the cell phone evidence for several purposes including:

  • Identifying the users of specific cell phone accounts
  • Demonstrating the connections between the accused persons
  • Demonstrating the connections between the accused persons and other persons of interest
  • Demonstrating the timing of contacts involving the accused persons
  • Demonstrating the content, where available, of specific text messages involving the accused persons, and
  • Demonstrating the cell tower sites used during communication as circumstantial evidence of the locations of various persons. @para 15.

Before turning the to the specific cell phone records in this case Boswell J took a moment to very helpfully explain what exactly is meant by cell phone evidence.

Cell phone networks are like large computer networks. They are made up of a web of connected cell sites. Cell phones — sometimes referred to as "handheld devices" — are basically sophisticated two-way radios. They communicate with a network through radiofrequency signals. Signals are sent and received through particular cell sites — usually the cell site closest to where the phone is located. When a phone communicates through a particular cell site, it is said to "register" with that site.
Telecommunications companies, like Bell, Rogers and Telus, keep detailed records of the phone usage of their subscribers. Detailed records are essential to them for billing purposes. Those "call detail records" include, without limitation: the phone number of the subscriber; personal information about the subscriber, such as the name and address under which the account was opened; the serial number of the phone; the date, time and duration of phone calls, text messages, and data usage (including web browsing); other phone numbers communicated with; and identifying data about the cell tower sites the phone has registered to. @paras 18-19

In Pan some 700 000 communications were obtained as a result of the various warrants and production orders obtained by police. Those “raw” records were filed as an exhibit at trial. The Crown throughout the trial had presented various parts of what they considered to be relevant excerpts from the raw records. The PowerPoint presentation was a consolidation of the relevant aspects of the cell phone evidence into a comprehensive and user friendly format. Justice Boswell had the following to say about the end product:

What was produced was, in my view, an impressive effort. The presentation is two-hundred and thirty-one slides (pages) in length. It commences on October 24, 2010 and follows a chronological timeline to December 22, 2010, though only dates significant to the Crown are highlighted.
The presentation includes references to text and voice communications involving accused persons (including Eric Carty), and incorporates some banking records, some surveillance data, and a number of maps demonstrating when and where tower cell sites were accessed by particular phones.
The slides are, for the most part, based on a timeline format, with each accused person represented by their own individual timeline. Attached are the following appendices, which will assist in illustrating the content of the PowerPoint presentation:
  • Appendix "B" — A typical timeline slide;
  • Appendix "C" — A content slide, reflecting the known content of a particular text discussion; and,
  • Appendix "D" — A map slide. @paras 30-32     

Earlier in the trial the Crown had proposed to call the author of the PowerPoint to explain how it was prepared and its contents. Justice Boswell held that the Crown would not be permitted to adduce the presentation. In so concluding the Court noted that although extremely helpful, reliable and extremely useful to the jury:

[t]he presentation is not, in and of itself, evidence. The contents of the presentation — the dates and times of phone calls and the parties involved, as well as the other bits and pieces of data included in it — are evidence. The presentation is merely a re-organizing of evidence tendered in a different format. It is an illustrative tool designed to demonstrate how some of the evidence adduced in the trial might fit together: @para 39 and also 2014 ONSC 4645 @para 29.

Defence counsel argued that the slideshow was no more than an advocacy tool and as such had no place in the jury room. Boswell J gave short shrift to this argument finding that:

I do not perceive "advocacy" to be a bad word. For better or worse, our trial system is built on the adversary model. Every step of the proceedings tends to have an element of advocacy to it. The determination of what evidence the Crown will call, in what order, and from whom, are all informed, at least in part, by advocacy considerations. The same can be said from the defence point of view: whether to call evidence, what evidence to call, and in what order are, again, decisions informed, in part, by advocacy considerations. The body of evidence that will go into the jury room and the manner in which it was presented are already infused with elements of advocacy. In other words, we're not going to eliminate advocacy from the process. The system is reliant on it.
What is important, however, is that the jury understand what is evidence and what is not; that they understand the purpose for any aid to comprehension, the proper ways in which the aid(s) may be used, and any limitations on them.
Some people may worry that if the court allows aids to go to the jury room that have some element of advocacy to them, that the "floodgates" will open and that counsel will begin to request that all sorts of material be available to juries during deliberations. Frankly, any such concerns are overblown. @paras 110-112

Ultimately Justice Boswell held that PowerPoint would be provided to the jurors. In so doing he noted that:

The jury system is capable of adapting to meet new challenges. Given rapid changes in technology, and in the techniques used by law enforcement to gather and process evidence, juries today are challenged by increasingly complex, voluminous and dense evidentiary records. They must be provided with the assistance they need, and deserve, to meet the challenge. @para 120

LT

Principled approach to Constructive Murder

Dwayne Mullings killed Bogdan Spolski. Mullings was attempting to steal Spolski's car, which Spolski had left running in his driveway. Spolski attempted to stop Mullings and a struggle ensued. Spolski was shot by Mullings. Mullings then dragged Spolski into the garage where he shot Spolski again, this time in the chest. Spolski died. Mullings was charged with first-degree murder. The route to first-degree murder was through section 231(5) - murder and unlawful confinement. Mulling was convicted. He appealed.

One of his grounds of appeal was that the trial judge erred in the instruction to the jury on constructive murder under section 231(5). In particular, Mullings raised two points. First, he argued that for 231(5)(e) to apply the confinement must be distinct from the killing and not consumed in the killing - here the confinement was "inherent in the killing" [para 98]. Second, he argued that the victim's death was caused by the first shot (although he did not die instantly) and thus the confinement occurred after the killing - it was not caused "while committing" [para 99].

With respect to the second ground of appeal, the Court rejected it and offered the following:

Whether the first bullet was a sufficient cause of the victim’s death was unimportant in this case for three reasons. First, s. 226 of the Criminal Code makes clear that accelerating death is still murder. In this case, regardless of whether the victim was mortally wounded by the first shot, he was still alive when he was shot a second time while confined in the garage. Therefore, it was open to the jury to conclude that the second shot’s acceleration of death was an act of killing in itself, which occurred while the appellant was confining the victim. In R. v. Munro (1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 288-9, this court said it was an “elementary principle of the law of homicide” that “one who shortens the life of a person suffering from a mortal injury … has caused the death of that person.”
Second, there is nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound....It is not necessary in this appeal to decide whether that same proposition holds true for unlawful confinement under s. 231(5)(e). However, when applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of killing and the predicate offence, while distinct offences, remain part of the same transaction: R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at pp. 631-633.
Third, s. 231(5) is concerned with identifying the degree of blameworthiness required to ground a conviction for first degree murder. Apart from the obvious point that the appellant could have had no way of knowing that he had fatally wounded the victim, the confinement and shooting inside the garage removed any possibility of getting assistance for the victim. This is a case like R. v. Simon (2001), 2001 CanLII 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.), in which it can be said that, even if the wound to the chest was the ultimate cause of death, the subsequent restraint of the victim and the direct shot to his chest prevented any possibility of medical intervention which might have saved his life, however remote that possibility may have been. [@101-103].

With respect to the second ground of appeal, the Court rejected it and offered the following:

It was also open to the jury to find that while the confinement occurred as part of the same series of events as the murder, it was not inherent in the killing and that the appellant could have been convicted of the separate offences of murder and unlawful confinement. [@106].

Mulllings is a helpful decision in clarifying the law of constructive murder. This area of the law has seen some attention in recent years from the Court of Appeal and recent decisions, like Mullings, are very helpful. In particular, Mullings recognizes two important principles. First, the court recognizes that there does not need to be strict adherence to the "while committing language". Confinements which occur contemporaneously to (even if after the fatal blow/shot occurred) will satisfy the section. Second, the scope of the "killing" is narrowly construed - as in this case, the shooting constituted the "killing" and thus was clearly separate from the confinement while still being part of the same series of events. 

A final interesting point from Mullings is the comment of the Court that "accelerating death" is still murder. 

DGM 

SCC upholds but carefully circumscribes SITA for cellphones

In a 4:3 split decision, the majority of the Supreme Court of Canada in R v Fearon, 2014 SCC 77, upheld the police power to search a cell phone incidental to arrest [see prior post by Brian Holowka on ONCA ruling].

Justice Cromwell, writing for the majority, summarized the new rule as follows:

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8  where:

(1)     The arrest was lawful;

(2)     The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a)           Protecting the police, the accused, or the public;

(b)           Preserving evidence; or

(c)           Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3)     The nature and the extent of the search are tailored to the purpose of the search; and

(4)     The police take detailed notes of what they have examined on the device and how it was searched. [@ para 83]

Justice Cromwell noted that cell phones attract a high privacy interest. He referred back to the three features identified in R. v. Vu, 2013 SCC 60 (CanLII), that make a computer different from other “places”—immense storage capacity; the ability to generate and store information about the intimate details of the user’s interests, habits, and identity without the user’s knowledge; and the ability to provide access to information in different locations—and found that these features apply to cell phones. [@ para 51]

The new rule dealing with search of a cell phone incidental to arrest applies to all cell phones, whether or not the phone is password protected, and whether the phone is “relatively unsophisticated” or a “smart phone.” [@ paras 52-53]

Justice Cromwell elaborated on the circumstances in which a cell phone search will be found to be incidental to arrest and therefore lawful. He noted:

  • Generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. [@ para 76]
  • Search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest. [@ para 78]
  • Not all crimes justify the search of a cell phone incidental to arrest. The law enforcement objectives of the search will be most compelling in cases of violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences. [@ para 79]
  • When the purpose of the search is discovery of evidence, this will only be justified when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. For example, where there is reason to believe that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest. On the other hand, where all suspects are in custody and any firearms or stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. [@ para 80]
  • Put another way, the police must be able to explain why it was not practical (which, Justice Cromwell emphasized, does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [@ para 80]
  • The police are required to take detailed notes of the applications searched, the extent of the search, the time of the search, its purpose and its duration. [@ para 82]

Applying the new rule to the case at bar, Justice Cromwell found that the police officers gave unsatisfactory evidence about the extent of the cell phone searches. One officer testified that he “had a look through the cell phone” but could not recall specifics. Another officer testified that he did “some quick checks” for about two minutes, but his evidence also lacked specifics. The burden is on the Crown to establish that a search incidental to arrest was lawful, and this burden cannot be met absent detailed evidence about precisely what was searched, how, and why. [@ para 86]

Consequently, Justice Cromwell held that the search of Mr. Fearon’s cell phone was not reasonable and it therefore breached his s. 8 Charter rights.

Finally, Justice Cromwell considered whether the evidence obtained from Mr. Fearon’s cell phone should be admitted or excluded under s. 24(2) of the Charter. In apply the three factors set out in R v Grant, 2009 SCC 32 (CanLII), Justice Cromwell noted:

  • The first factor favours admission of the evidence. The police had good reason to believe, as they did, that what they were doing was perfectly legal. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence. [@ paras 94-95]
  • The second factor favours exclusion, but weakly. The invasion of privacy was not particularly grave. In particular, it was important that Mr. Fearon did not challenge the subsequent search of his phone pursuant to a search warrant. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. In other words, the evidence was discoverable because the it could have been discovered legally pursuant to a search warrant.[@ para 96]
  • The third factor favours admission of the evidence because it was cogent and reliable, and exclusion would undermine the truth seeking function of the justice system. [@ para 97]
  • In the result, Justice Cromwell held that the cell phone evidence was admissible and dismissed Mr. Fearon’s appeal.

MGM