Ice Caps & Stupefying Substances: inferring and denouncing high doses

Mullins was convicted of sexual assault and administering a noxious substance. The young victim was 18 at the time of the offence and a close friend of Mullins’ daughter. Mullins elected to have a trial in the Superior Court of Justice before a judge and no jury. Mullins was convicted; in the reasons for sentence, 2015 ONSC 1724, Molly J summarized the crimes as follows.

Using his daughter’s upcoming birthday as a ruse to enlist the help of AS, the victim, to shop for a gift, Mullins lured the victim into his truck. He offered her an iced cappuccino and a marijuana cigarette – one or both of which was laced with enough benzodiazepines to knock her out.

For over 12 hours he held her in the truck, brutally and violently raping her. When he was done, he dropped her off at her father’s home, beaten and still feeling the effects of the drugs. AS had little recollection of the vicious and prolonged attack; she testified of flashes of memory which involved a bed, a shower and Mullins’ voice.

Once home AS was still weak and disoriented. She was covered in injuries she could not recall having sustained.

The most significant injuries were the bruising and abrasions to both hips, the extensive bruising at the front of both feet, and the jagged tear at the entry to the vagina.  The vaginal injury had long term sequelae, including an infection and problems that were ongoing even as of the date of trial, five years after the attack. [@ para 8].

Mullins’ semen was in AS’ vagina and had prescriptions for 2 of the 3 types of benzos AS had been drugged with. 

Mullins testified in his own defence; his evidence of consensual sexual encounters with AS was unequivocally rejected.

The Crown sought a penitentiary sentence in the upper single digits. The defence proposed a range of 3-6 years.

Molloy J noted that there were no strong mitigating factors [@para 17]. There were however a large number of particularly aggravating factors.

One of the disputed factors was whether Mullins was in a position of trust in relation to AS. After reviewing the governing principles Molly J held that:

in assaulting A.S. as he did, Mr. Mullins abused his position of trust in relation to her.  There are no air-tight compartments as to what may constitute a position of trust.  The factual context is the most important part of the analysis.  Mr. Mullins was 47 years old at the time of this offence; nearly 30 years older than A.S.  He was the father of her close friend, and A.S. thought of him in that sort of parental role.  He had no actual authority over her, but she frequently spent nights and weekends at his home with her friend Katlyn, and in that sense was from time to time under his control.  He befriended her at a time when he knew she was particularly vulnerable due to the breakdown of her parents’ marriage.  He gave her gifts, joked around with her, shared marijuana with her, and their relationship evolved into one where she trusted him.  It was as a result of that trust that he was able to lure her into his truck with a story about shopping for a birthday present for his daughter.  Completely unsuspecting and having absolute trust in her friend’s father, A.S. was tricked into a position of vulnerability and then horribly abused.  In my view, these circumstances fall squarely within the notions of “trust” referred to in Audet, and within the purpose and intention of this sentencing provision in the Criminal Code. @para 26

An additional aggravating factor in this case was the endangerment of AS’s life through the use of drugs to perpetrate the assault. Notwithstanding the fact that there was no way to establish from the tests done on AS which specific drugs were administered nor in what dosage, Molloy J used the unchallenged evidence of the forensic toxicologist to draw a number of conclusions:

First, the greater the dosage of benzodiazepines, the greater the possibility of anterograde amnesia.

Second, in excessive quantities benzodiazepines cause on a spectrum, drowsiness, lack of consciousness, coma and can be fatal.

Third, since AS lost consciousness so quickly it is likely that initial dose was high.

Fourth, since she had no memory of what occurred over the span of 12 hours and given the extent of the injuries, the initial dose must have been “extraordinarily massive or else subsequent doses were administered”. [@para 35]

Fifth, although not possible to say whether AS was comatose or just how close to death she came, Mullins endangered her life with his administration of such a high dose or doses. This is a “seriously aggravating factor” [@para 36].

Molloy J also treated the fact that the intercourse was unprotected as an aggravating feature as it left her vulnerable to disease and pregnancy. [@para 39].

After reviewing a number of sentencing decisions Molloy J concluded that a fit sentence was one of 9 years on the sexual assault and 4 years to be served concurrently on the administering of a stupefying substance.

Molloy J held that:

sexual assault is often, by its nature, a difficult offence to prove because it is committed in private and rarely has corroborative evidence.  The use of drugs to stupefy the victim of a sexual assault frequently results in a victim who believes she has been abused but is unable to describe what has happened to her because her memory is completely missing.  Often by the time she gets to a hospital there is no longer any trace of the drug in her system, which makes it an even more difficult case to prove.  Not only are assaults committed in this manner difficult to prove and therefore attractive to their perpetrators, they are also extremely dangerous for the victims.  For this reason, general deterrence is of particular importance in sentencing crimes of this nature. @para 68

LT

Silence: A right, yes; an innocent explanation, no

Albert Brown lived in an apartment. He was the only male living there. The police obtained a warrant to search the apartment for drugs and drug related items. They found both. In a pair of pants hanging on the bathroom door they found 17 one gram packets of cocaine as well as $1275; elsewhere they found a digital scale with cocaine residue on it and bulk marijuana. Brown was charged. He was convicted. He appealed: 2015 ONCA 220.

On appeal Brown argued (i) that the trial judge erred in not excluding the items recovered in the search under 24(2) and (ii) that the verdict was unreasonable.

With respect to the first ground, the Court of Appeal noted that Brown must establish that “the trial judge erred in principle, considered irrelevant facts, or made unreasonable findings” [@6]. Brown failed to do so, that ground was dismissed.

With respect to the reasonableness of the finding, Brown argued that it was unreasonable to conclude that the pants in the bathroom were his. The court rejected this ground.

The appellant places specific emphasis on the police officer’s opinion that the pants found in the bathroom containing the cocaine “could fit the appellant”. He argues that this is not sufficient to prove ownership of the pants, thus knowledge of and control over the cocaine in a pocket, beyond a reasonable doubt. However, the whole of the circumstantial evidence – including the fact that an investigating police officer said the pants belonged to a man and that the appellant was the only man living in the apartment – was sufficient to find the appellant in constructive possession of the cocaine. [@9].

Notably, the court commented on the fact that Brown had not testified in concluding that the verdict was reasonable:

We note that there was no explanation whatsoever for the presence of the cocaine in the appellant’s bathroom. He chose not to testify. This court, when considering the reasonableness of a verdict, is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: see R. v. Dell, [2005] O.J. No. 863 (C.A.), at para. 35. [Emphasis added]; [@10].

This principle is certainly not new, but it seems that it bears repeating once and a while.

DM

Jumping to address growing recognition of gun crime

Abdiaziz Omar had a loaded 357 Taurus revolver. The police found him in possession of it, contrary to section 95 of the Code. He was carrying it around in his SUV, “concealed in a compartment under the cup holder in the centre console”. He was charged. He pleaded guilty. The sentencing judge noted, inter alia, that Omar posed “an immediate danger to the public”. Omar was sentenced to 6 years in jail. He appealed: 2015 ONCA 207.

Omar argued that the trial judge erred in his application of the “jump principle” and consideration of rehabilitative prospects. In considering this submission, the court noted the following:  (i) Omar had previously been convicted of the same offence (and other offences) for which he received a sentence of 6 and ½ months in jail; (ii) this first penitentiary sentence; (iii) Omar sought a sentence of four to five years jail.

While there were rehabilitative prospects and the sentence was a significant increase, the Court of Appeal noted that the trial judge was alive to these issues, citing the following passage from the trial judge’s reasons:

[H]owever, I think in the circumstances it may not adequately reflect the accused’s prospects for rehabilitation, particularly in light of the support of his family and friends in the community. I must also be cognizant of the ‘jump principle’. I must also consider this is Mr. Omar’s first penitentiary sentence and I must avoid imposing a crushing sentence, but a sentence still that will adequately address the paramount concerns of denunciation and deterrence.

The Court of Appeal dismissed the appeal. The trial judge made no error in principle and the sentence was fit. In conclusion the court noted that the range of fit sentences for this offence is “most significantly affected by growing judicial recognition of the reality of gun crime, as it should be” [@8].

DM

Mandatory does not mean automatic

Andrew Shia had some guns. He had some marijuana too. He kept them both in a closet. The police came to his home as a result of a domestic violence complaint. The police found the guns and the marijuana. The guns were lawfully possessed and properly stored. The marijuana was not. Shia was charged with production of marijuana and his firearms were seized. Shia pleaded guilty. He did so on the understanding that he would receive a discharge and that a section 109 firearms prohibition could not be made by the court. When he pleaded guilty no order was made. When he sought the return of his guns, however, the police refused. They did so on the basis that he was prohibited pursuant to section 109(1)(c) from possessing them. Shia appealed seeking to set aside his guilty plea: 2015 ONCA 190.

The appeal was allowed and the guilty plea was set aside. The basis for doing so was that the Crown had elected summarily and the matter was dealt with in the Ontario Court of Justice (provincial court). As Watt JA pointed out:

Production of marijuana is not an indictable offence within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction under s. 469 of the Criminal Code or an indictable offence within the absolute jurisdiction of a provincial court judge under s. 553 of the Criminal Code.
As a person charged with an indictable offence not listed in either s. 469 or s. 553 of the Criminal Code, the appellant was entitled to elect his mode of trial under s. 536(2) of the Criminal Code. He was never afforded this statutory requirement.
The presiding judge had no inherent jurisdiction to try the appellant or receive his plea of guilty. The judge’s authority to do either depended entirely on the appellant’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election meant that the provincial court judge had no authority to try the appellant or to receive his plea of guilty. [Citations omitted]; [@25-27].

While not necessary, Watt JA also made some comments on the issue of the section 109(1)(c) order. Noting that the order was mandatory, Watt JA pointed out that the presiding judge did not in fact make the order. Notwithstanding the mandatory nature of the order, the failure to make the order means that the order was not in fact in place:

Although, as I have said, it is not strictly necessary to consider the effect of the absence of a s. 109(1)(c) order to resolve this appeal, there appears to be some confusion over whether a s. 109(1)(c) order that is mandatory under the Criminal Code takes effect even if a judicial order is not made. The short answer is that no judicial order means no order. In other words, “no” means “no”.
[...]
The court record is the only authentic source from which to determine whether a s. 109(1)(c) firearms prohibition exists and can be enforced. An examination of the court record in this case would have disclosed that the presiding judge made no order under s. 109(1)(c). The fact that the order is supposed to be mandatory does not mean it applies even where there has been judicial default in ordering it. The existence of such an order depends on a judicial act, not an investigative assumption. [@34 and 38]

DM

Parity is not considered in isolation

Christopher Uniat was 18 years old. He decided to do a home invasion with some friends. He carried a shotgun with him. Once in the home Uniat held the occupants at gun point. He threatened to shoot them – the gun was in fact not loaded. Uniat was arrested and charged with robbery and conspiracy to commit robbery. He pleaded guilty to both charges. The sentencing judge imposed a sentence of 7 years jail. Uniat appealed: 2015 ONCA 197.

On appeal Uniat argued that the sentencing judge erred by failing to properly apply the principle of parity and placing too little weight on rehabilitative prospects of Uniat. Both grounds were readily rejected.

First, the principle of parity was not offended; while Uniat received a sentence in excess of his co-accused, it was warranted and his circumstances and involvement justify the departure.

The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture, irrespective of their role in the offence, their backgrounds and circumstances, and the manner in which their participation in the offences is resolved by the courts. The other principals were also youthful, but resolved their charges earlier on the basis of joint submissions. None had accumulated the impressive number of robbery convictions achieved by the appellant, or demonstrated such an unremitting unwillingness to abide by the terms of court orders or forms of release. The sentencing judge was well aware of the roles assigned to the others, their antecedents and the basis upon which their cases were resolved. The parity principle was not offended. [Emphasis added]; [@6].

Second, the sentencing judge did not lose sight of the objective of rehabilitation. Uniat’s troubling criminal past and failure under court orders undermined reliance on rehabilitation to justify a decrease in sentence.

Nor did the sentencing judge lose sight of the objective of rehabilitation. But sadly there is little positive revealed about those prospects. The appellant has proceeded with depressing regularity from one robbery to another, ignoring along the way his obligations under existing court orders. The pre-sentence report paints a bleak picture about the future. The appellant exhibits no remorse. Despite his youth, rehabilitation must occupy a secondary place in this sentencing analysis. The sentencing judge accorded it its due. [@8].

The sentence imposed by the sentencing judge, L’Oignon J, was fit and properly considered the relevant principles. The seven year sentence is significant for an 18 year old offender, but properly considered, it was warranted and just.

DM

Expecting privacy, you might have to say so

Richard Steele had a loaded, prohibited, semi-automatic handgun. He decided to take it with him when he went for a drive with his friend, White, in his mother’s car; Steele sat in the passenger seat. It was about 2 am when officer Stephens spotted the vehicle and pulled it over; the officer did so with the intention to check for proper documentation and to check on the sobriety of the driver.

Officer Stephens approached the car and asked White (who was driving) for a licence and the ownership. The car was registered to a Valarie Steele – the mother of Richard Steele. White told the officer the car belonged to a friend’s mother; there was no indication that the friend was the passenger, Richard Steele [para 7]. Steele remained silent throughout this exchange. White seemed nervous, but appeared to be cooperative. Officer Stephens offered to help him find his documentation, White accepted that offer. The other occupants were asked to step out of the vehicle and officer Stephens went to the passenger side of the vehicle and attempted to locate the documents in the glove box. Instead, officer Stephens spotted, under the seat, Steele’s loaded handgun.

Steele was arrested and charged. At trial he sought to exclude the evidence of the gun arguing that the search violated section 8. The trial judge dismissed the motion and convicted Steele. Steele appealed: 2015 ONCA 169.

Pardu J wrote the judgement for the court. Pardu J began by considering whether or not Steele had a reasonable expectation of privacy in the car. Citing R v Edwards, [1996] 1 SCR 128 and R v Belnavis, [1997] 3 SCR 341 and outlined relevant factors in this consideration; Pardu J also noted the Supreme Court’s recent consideration of this issue in R v Cole, 2012 SCC 53 and identified the “four lines of inquiry” to guide this test: "(1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances".

With those factors in mind, Pardu J concluded that Steele had no expectation of privacy:

In the circumstances of the present case, the appellant did not have a reasonable expectation of privacy in the car. The appellant was a passenger in the vehicle at the time of the search, and he was authorized by his mother, at the very least, to be a passenger in the vehicle. However, the appellant’s degree of possession or control, historical use, or ability to regulate access to the vehicle is unknown.
In general, it would be objectively reasonable for an individual using a family member’s car to have a reasonable expectation of privacy in that vehicle. Here though, the appellant did not identify himself as a person to whom the car had been loaned, and he did not indicate his connection to the vehicle’s owner. He was only a passenger in a vehicle driven by another person who claimed to have borrowed the car. Further, the police had no reason to believe that the appellant had any connection to the vehicle other than as a passenger. Moreover, the driver was attempting to produce required documentation to police, and had apparent control of the vehicle. Under these circumstances, there is no basis for a person in the appellant’s position to have subjectively expected privacy in the vehicle. [Emphasis added]; [@19-20].

Steele is a helpful case that illustrates the importance of a principled and substantive, as opposed to formulaic, consideration of the issue: see paras 16-17. In particular, despite the fact that the car belonged to Steele’s mother and she knew he had it, the absence of evidence from Steele himself (see similar comments in R v Lattif, 2015 ONSC 1580) and absence of evidence provided to the officer, in part, undermined any claim that he had a reasonable expectation of privacy at the time.

DM

Prelim Evidence Not to be “Shorn of Context”

Along with his co-accused, Jeremy Hall was committed to stand trial on a charge of second-degree murder. At the preliminary inquiry, the Crown properly established that there was circumstantial evidence upon which a trier of fact could find that it Hall's actions satisfied the elements of second-degree murder and he was committed to stand trial.

Hall sought to have his committal quashed. The Superior Court of Justice refused to do so. Hall then appealed: 2015 ONCA 198.

On appeal, he advanced two arguments. Each alleged that the preliminary inquiry judge misapprehended the evidence adduced, and drew impermissible inferences about the actus reus and mens rea of second-degree murder.

As the case for the Crown included circumstantial evidence, the Court of Appeal recalled that the preliminary inquiry judge was entitled – indeed, obliged – to engage in a limited weighing of all the evidence adduced, in order to determine if on the whole of the evidence, it would be reasonable for a properly instructed jury to infer guilt This limited weighing involves an assessment of the reasonableness of the inferences to be drawn. [See para 5, emphasis added. See also R v Arcuri, [2001] 2 SCR 828].

The Court of Appeal emphasized the importance of considering the whole of the evidence in this weighing exercise, stating:

The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be [emphasis added]. [para 6]

For these reasons, Hall’s appeal was dismissed. Whether a properly instructed jury would ultimately convict him, in the opinion of the Court of Appeal, is beside the point.

SS

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