Grossly disproportionate, for someone at least

Guns are dangerous weapons. Crime perpetrated with a firearm “poses grave danger to Canadians. [@para 1] It might surprise you to learn, that despite this risk of grave harm identified by the Supreme Court of Canada, today, that very Court struck down the mandatory minimum sentences for the possession of a prohibited or restricted firearm: 2015 SCC 15.

Six Supreme Court judges struck down the mandatory minimum sentences which were imposed for possessing a prohibited or restricted firearm that is either loaded or kept wit readily accessible ammunition. For a first offence the offender would serve 3years; a second offence 5years. The dissenting three judges found that these mandatory minimums did not offend section 12 of the Charter.

The majority of the SCC commenced their analysis from the starting point that “mandatory minimum sentences, by their very nature have the potential to depart from the principle of proportionality in sentencing.” [@para 44] Mandatory minimum sentences they held “function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.” [@para 44]

An analysis of a punishment under section 12 requires the court to consider first, whether the sentence is grossly disproportionate as applied to the individual offender before the court (the particularized inquiry). Second, the court must consider whether the impugned sentence “may impact on third parties in reasonably foreseeable situations.” [@para 56]

The introduction of the phrase “reasonably foreseeable situations” as a synonym of the term “reasonable hypothetical” is a direct response to the majority’s view that:

the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. [@para 57]

The question that the court must ask, regardless of the terminology is “whether the sentence would be grossly disproportionate in reasonably foreseeable cases.” [@para 57]

In determining what is a reasonably foreseeable circumstance the court can look to reported cases. “Not only is the situation in a reported case reasonably foreseeable, it has happened.”[@para 72] However, the court is not prevented from looking to reasonably foreseeable scenarios not found in reported cases.

In crafting a reasonable hypothetical or in determining whether a particular set of circumstances is reasonably foreseeable the role that the personal characteristics of the offender should play has been widely debated. On one end of the spectrum it has been argued that such “consideration must be generalized to the point where all personal characteristics are excluded”. On the other end, some “assert that any and all characteristics should be included.” [@para 73]

The majority concluded that first, “personal circumstances cannot be entirely excluded.” However, by way of example on what constitutes a personal circumstance the majority offered the following:

For example, as we will see in applying the test to this case, it may be relevant to look at the fact that an offender at the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition. [@para 74]

This type of example relates to the level or type of intent as opposed to what is traditionally understood as personal characteristics. In other words, the personal circumstances such as age, prior criminal record, socio-economic status, are not what the court is referring to. This distinction is important because it illustrates that only personal circumstances related to the offences are what may be considered.

Moreover, this distinction ties into the second conclusion the court draws on this point:

(…) far-fetched or remotely imaginable examples should be excluded from consideration. This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality. To repeat, the inquiry must be grounded in common sense and experience. [@para 75]

The two offenders before the Court, Charles and Nur, did not argue that the mandatory minimum terms were grossly disproportionate as applied to them [@para 48].  Charles was arrested at his home with a loaded semi-automatic handgun and ammunition. The gun had an over-capacity magazine and the serial number had been removed. Charles had a serious and lengthy criminal record which included 5 other firearms offences. [@paras 28-29] Charles was thus subject to the 5year mandatory minimum.

Nur was arrested outside a community centre in a high crime area of Toronto. The centre had been locked down as a result of concerns about the presence of some threatening looking individuals outside. When police arrived Nur ran and threw something to the ground. Police caught Nur and retrieved the discarded item which turned out to be a loaded handgun with an oversized ammunition clip. [@para 18] Nur as a first offender was subject to the 3year mandatory minimum.

The reasonably foreseeable circumstances prevailed. The Court held that it was entirely possible for an individual who had breached a firearm prohibition order imposed while on bail and who, some years later, innocently came into possession of a restricted or prohibited firearm without an authorization or a license together with usable ammunition that he stored nearby and which was readily accessible.” [@para 103]

On this basis the Court concluded that:

A five-year minimum term of imprisonment for offenders such as these would be draconian. It goes far beyond what is necessary in order to protect the public, far beyond what is necessary to express moral condemnation of the offender, and far beyond what is necessary to discourage others from engaging in such conduct. In a phrase, such a sentence would be grossly disproportionate. An offender in these circumstances has not caused any harm, nor is there a real risk of harm to the public. Such an offender is not engaged in any criminal activity. [@para 104]

Similarly a first time offender “who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house” would face a 3year sentence [@para 79]. The majority found that

[g]iven the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. [@para 83]

Having found a breach of section 12 the majority then conducted an analysis under section 1 of the Charter to determine whether the breach was justifiable in our free and democratic society. They concluded that it was not.

Notwithstanding the finding that the section 95 mandatory minimum sentences are of no force and effect the majority reminded us that:

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. [@para 120]

LT

Tinker: The Answer, for now

Edward Tinker was convicted of uttering threats and breach. He decided to challenge the constitutional validity of the victim surcharge, a mandatory order to be imposed under section 737 of the Code. Tinker challenged the surcharge under sections 7 and 12 of the Charter. At the first instance motion, Beninger J drew the following conclusions: 2014 ONCJ 208.

First, that the surcharge is a form of punishment [@para16]. In so concluding, Beninger J adopted the analysis by Schnall J in R v Flaro, 2014 ONCJ 2.

Second, that the surcharge impacts on security of the person. In coming to this conclusion, Beninger J rejected the Crown’s position that granting time to pay relieves against this impact [@paras20-21].

Third, that the surcharge infringes on security of the person in a manner that is not in accordance with the principles of fundamental justice; it is “arbitrary, overreaching, and grossly disproportionate” [@para34]. In coming to that conclusion, Beninger J reviewed the law on section 7, relying primarily on Canada (Attorney General) v Bedford, 2013 SCC 72. Notably, in relation to gross disproportionality, Beninger J set out the test from R v Nur, 2013 ONCA 677 (a test set out in that case under the section 12 analysis).

The Crown appealed: 2015 ONSC 2284.

On appeal, Glass J rejected the conclusions that the surcharge was punishment and held that it did not violate the principles of fundamental justice in section 7.

First, Glass J held that the surcharge is not punishment. Glass J held that the surcharge was not a sanction in its own right, “[r]ather, the surcharge is a sum of money that goes into a pool of resources to help victims of crime. Just as there are requirements for providing DNA samples upon conviction of offences and they are not sanctions, so do victim surcharges become requirements without being penalties” [@para29].

Second, Glass J held that the surcharge is not grossly disproportionate. In doing so, Glass J noted that the ability to grant time to pay was an appropriate response to the present inability to pay: see R v Wu, 2003 SCC 73. Glass J concluded:

The case before me is a far cry from being grossly disproportionate for the persons involved and further when applied to reasonable hypotheticals.  With each Defendant, the conviction is made on summary conviction leading to a consideration of a surcharge of $100 each. The persons involved are not well-to-do persons. They have an economic life style that is very humble. However, there is a means of granting them significant time to pay the surcharges. The Crown has indicated a willingness to allow 2 years for payment. I  might add that if there were some of the surcharges still outstanding at the end of 2 years, the person could apply for another extension. The same reasoning for the individual Defendants would apply to others in general in our society. [@para33].

Third, Glass J held that the surcharge was not “too broad a sweep against persons” or an inherently “bad law” as defined in Bedford.

Tinker is the first appellate decision on the constitutional validity of the surcharge. Its impact is significant. It has resolved, for now, much debate in the provincial court over this issue: see for example the discussion in R v Frail, 2014 ONCJ 744. It is difficult to conceive of any sustainable argument that would distinguish its binding authority: see generally R v Malmo-Levine, 2003 SCC 74. Some arguments may be conceived. Those arguments are likely to fail. 

DM

 

 

There is more than one party to consider

Stephanie Iroguehi received $10,000 from a person she did not know. The money was deposited into her account. She was later charged with fraud and possession of currency she knew was obtained by the commission of an offence – the latter charge related to her withdrawal of that money and delivery of it to a third party. She was convicted of the possession charge but acquitted on the fraud: 2015 OJ No 566.

Shirley Connolly was contacted by phone and told that she had won 2.6 million dollars. She was told that in order to collect the money she would have to participate in a “scheme”. The scheme required her to accept a $25,000 transfer and then withdraw that money and deposit it into other accounts. Despite obvious concerns, Connolly followed through. Unbeknownst to Connolly, at the time, the $25,000 was actually from her own VISA line of credit.

One of the accounts she deposited money into was Iroguehi’s account; $10,000 was deposited. On that same date, through three different transactions, Iroguehi withdrew $4700 of that amount; she later withdrew more of the money.  

Iroguehi was charged. At trial she testified – a summary of her evidence was set out by the trial judge:

In October of 2012, she was asked by a family friend named Edison Obaseki for her bank account # in order to allow a friend of his to transfer $10,000 to her account. She had concerns about whether the $10,000 was the product of fraudulent cheques from schemes she had heard about through friends. Edison apparently assured her that the money was legitimate and stated that he could not use his own account as it was "not working". She agreed and provided Edison with her account information. [Emphasis added]; [@6].

The money was transferred. Iroguehi went to try and withdraw it; she was told she could not withdraw the entire amount. Iroguehi then began withdrawing as much as she could and over the course of the next few days withdrew $8000. Iroguehi later handed over that $8000.

With respect to the possession charge, the trial judge noted that the issue was whether Iroguehi “knew that the money in question was obtained as a result of the commission of an offence” [@15]. The trial judge noted that it was conceded that the money was obtained by the commission of an offence and Iroguehi had possession thereof, thus, the only issue was her knowledge. On this point the trial judge concluded:

I am satisfied beyond reasonable doubt that Ms. Iroguehi was in a state of deliberate ignorance with respect to the illegal source of the funds that were transferred into her account. I make the finding based on a consideration of the following facts:
  • The unusual nature of the request from Edison to Ms. Iroguehi that she accept a $10,000 transfer of funds from an unknown source in order for her to in effect launder the money 
  • The fact that she questioned Edison about whether the money came from cheque scams, which suggests that Ms. Iroguehi recognized that she was being asked to deal with funds that potentially derived from an illegal source 
  • Her failure to ask virtually any questions of Edison, including a sensible explanation of his inability to use his own account, the name of the friend, the reason why her account had been selected and, most importantly, where the money was coming from. This compels me to the conclusion that Ms. Iroguehi simply did not want to know where the money was from, despite having ample reason to suspect that its source was an illegal one.
  • The fact that she handed the money over to a complete stranger in the manner she described suggests that she did not want to know the identity of the money's source, bolstering my conclusion that she had reason to suspect its origin was illegal. [Emphasis added]; [@16].

Having convicted Iroguehi of that offence the trial judge considered the fraud count. On that count the trial judge noted that the issue was whether she was “an aider of the unknown principal or principals who were responsible for transferring the $10,000 from Ms. Connolly’s account to her own” [@12]. The trial judge concluded that Iroguehi was not.

However, I am not satisfied beyond reasonable doubt that Ms. Iroguehi was a party to the fraud committed upon Ms. Connolly. Although her actions in providing her account information to Edison assisted Edison (and perhaps others) in fraudulently transferring money to her account from Ms. Connolly's account, there is no evidence that this was her intent. Presumably, in her state of wilful blindness, she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources. [Emphasis added]; [@18].

In other words, the trial judge found she did not intend to aid Edison in the fraud. Notably, however, the trial judge accepted that she was willing to aid him in transferring money that was unlawfully obtained. The trial judge continued:

It may well be that she knew the money was derived from the commission of fraud, or it may simply be that she chose to remain in a state of deliberate ignorance as to the money's origin.
Ms. Iroguehi's deliberate ignorance to the source of the money is not, in my view, sufficient to prove that she had subjective knowledge of the fraudulent scheme through which that money was obtained. She will therefore be found not guilty on count 1. [@20-21].

With respect, while these comments may support the conclusion that Iroguehi was not a party under section 21(1) of the Code, it does not follow that she should have been acquitted – the trial judge did not address section 21(2) and thus failed to fully consider the potential criminal liability of Iroguehi. Indeed, on the findings made by the trial judge it seems a conviction under section 21(2) was possible, if not inevitable.

Pursuant to section 21(2), if Iroguehi formed an intention in common with another person to carry out an unlawful purpose and she assisted that person therein, then if that person committed an offence that Iroguehi knew or ought to have known was a probable consequence of carrying out the unlawful purpose, she would be a party to that offence. In this section Iroguehi need not intend for the fraud to occur, so long as she intended to enter the common unlawful purpose with foresight that it was a probable consequence.

While the trial judge did not address the findings most pertinent to this section – as he did not consider it – the findings he did make suggest there was a real prospect that a conviction would have been entered through the application of section 21(2).

First, there seems to be little doubt that Iroguehi formed an intention in common to carry out an unlawful purpose and assisted Edison therein; her conviction for possessing money obtained by crime at the behest of Edison and later laundering it is proof of that.

Second, while some findings are absent on this point, the findings made would likely support the conclusion that she knew or ought to have known that fraud was a probable consequence of carrying out the scheme.

The following conclusions reached by the trial judge are illustrative:

  • That she recognized that Edison’s request was unusual [@16]
  • That she questioned Edison about whether the money came from cheque scams (aka fraud) [@16]
  • That she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources [@18]
  • That it “may well be that she knew the money was derived from the commission of fraud” [@20]

These findings would seem to make the conclusion that Iroguehi ought to have known fraud was a probable consequence of the scheme inevitable. Indeed, it seems the only way she did not know that a fraud would be committed is because she chose to remain wilfully blind. If so, she is imputed with actual knowledge and thus, in law, knew fraud was a probable consequence.

Whether or not the trial judge would have come to that conclusion is perhaps beside the point, the real point is that he did not consider the applicability of section 21(2). Having not done so, the trial judge, with respect, stopped short of conducting a full inquiry into the criminal liability in this case.

DM

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