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

 

 

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

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

Justification for Delaying section 10 Rights?

Mohammad Mian was driving a grey Chevrolet Malibu. He was noted by police surveillance to be driving that car as part of an investigation into a number of homicides and attempted homicides in Edmonton. This investigation include wires. The principal target was Robin Chelmick. Through the wires the police learned that a drug transaction was going to take place and Chelmick was to be the middle man. Ultimately the police observed three separate meetings between Chelmick and the driver of the Malibu. After the third meeting one of the investigating officers contacted two other police officers, not connected with the homicide investigation; the detective met with those officers and recruited them to participate in the investigation; in particular, they were recruited to conduct a traffic stop of the Malibu when the investigative team alerted them. The officers were instructed to "make a routine traffic stop of the Malibu...they were to use every effort to find appropriate grounds to search the Malibu without having to rely on the information provided...so that the ongoing homicide investigation would not be compromised" [@8]. 

That traffic stop was eventually made. The officers approached Mian, spoke briefly then removed him from the vehicle. He had a cell phone in his hand. A pat-down search revealed $2,710 in cash. Mian was placed in the police cruiser and the officers conducted a search of the Malibu; during that search they located a large amount of cocaine and a smaller baggie of cocaine, additional cash and another cell phone.

22 minutes passed between the time when the officers pulled Mian over and when he was advised of the reason for his arrest and stop; a further 2 to 5 minutes passed before he was advised of his right to counsel.

At trial Mian successfully argued that this conduct violated his rights under section 10(a) and (b). The matter was appealed and eventually considered by the Supreme Court: 2014 SCC 54. 

On appeal the Crown argued, inter alia, that while there was a delay in providing the section 10 rights, the delay was justified on the basis of the need to protect the integrity of the ongoing investigation. Without rejecting the possibility that such delay may be permissible, the Court held that the factual findings in this case (by the trial judge) did not support the argument: 

The Crown concedes that to accept this argument would constitute an extension of the circumstances in which s. 10 rights may be suspended. As the Crown in this case recognizes, “[n]one of the jurisprudence has considered the precise situation presented here” (R.F., at para. 81).  I accept that the jurisprudence does recognize that compliance with the s. 10(b) informational rights may be suspended in exceptional circumstances (see R. v. Manninen,1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1244; and R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-99). However, it is not necessary to decide in this case whether the need to protect the integrity of a separate, ongoing investigation is an exceptional circumstance which may justify the suspension of the s. 10(b) rights. Nor is it necessary to determine whether exceptional circumstances can delay the implementation of s. 10(a) rights. Even if they could, exceptional circumstances do not arise on the facts as found by the trial judge in this case [@74].

As noted by the Court, the trial judge did not find there was sufficient evidence to support the assertion that "immediate compliance with s. 10 of the Charter would have compromised the broader investigation" [@75].

In concluding on the section 10 issue and rejecting the Crown's position on that point, the Court offered the following comments which reveal that while the factual basis was not present, the legal position may not be unfounded:

Crown appeals from acquittals are restricted to questions of law. Findings of fact can only be undermined in limited situations, not applicable in this case, where the trial judge’s alleged shortcomings in assessing the evidence give rise to an error of law (See Criminal Code, s. 676(1)(a); and R. v. J.M.H., 2011 SCC 45 (CanLII), 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-39, perCromwell J.). [@75].

With respect to the 24(2) issue the Court again noted the narrow approach in a Crown appeal from acquittal "which limits the Crown’s challenge to the decision of the trial judge to questions of law".

Turning to the seriousness of the breach the Court held that in this case, the 22 minute delay, while not necessarily lengthy, was serious as during that time the police questioned Mian and had, on the findings of fact by the trial judge, no justifiable reason for delaying 10(a) or (b). The Court noted however:

This does not mean that the seriousness of a delay will never be mitigated by extenuating circumstances. Indeed, in an appropriate case, where a Charter breach has been found, a delay of more than 22 minutes may well be justified. In this case, however, these arguments are impermissible attempts to undermine the factual findings of the trial judge. [@81].

In concluding its review of the 24(2) analysis and dismissing the Crown appeal, the Court again eluded to the narrow approach:

However, the Grant test is a flexible and imprecise balancing exercise (see Grant, at paras. 85-86). The question is whether the trial judge considered the proper factors. In this case, the trial judge did exactly that. The trial judge held that the lack of a causal connection between the breach and the evidence, the minimal impact of the breach on Mr. Mian’s privacy rights, the reliability of the evidence, and the seriousness of the offence favoured admission of the evidence. He also held that the egregious and deliberate state conduct, the lack of a valid reason for the Charter breach, and the misleading state conduct favoured exclusion of the evidence. On balance, the judge concluded that society’s interest in the adjudication of the case on its merits was outweighed by the wilful and flagrant state conduct and the attempts to mislead the court. This conclusion was not unreasonable. [@88].

While the findings of fact in Mian did not support the position that there may be other justifiable reasons for delaying section 10 rights, the Court leaves open the possibility that there may be and if so, what the precise scope and application of them will be. Stay tuned.

DGM

Only Time will Tell: Milani and the 11(b) Clock

April 20, 1985. EN is asleep in her home during the early morning hours. She awakes to find a masked assailant, armed with a knife, shining a flashlight into her eyes. The assailant attacks, tying her up and raping her. Then he takes $21 from her purse and leaves.  

September 18, 1985. CS hears a noise in her home. She arms herself with a handgun, and encounters an intruder in the hallway. His face is covered; he is armed with a knife. He threatens her. CS flees the house.

September 9, 1986. JB is asleep during the early morning hours. She awakes to the sound of running water. She encounters a masked assailant. The assailant ties her up and rapes her. He gets away.

July 11, 1987. JB encounters a masked intruder in her home for the second time. She is blindfolded and raped. The intruder assures her that he won’t “bind her feet like the last time.” He takes $67 from her purse before leaving.

December 3, 1987. SR and her co-worker, AC, return to SR’s home after midnight. A masked intruder is armed with a handgun. The women are bound, blindfolded, and separated. He rapes SR at gun point. He demands oral sex from AC, and SR tries to escape. He catches SR, ties her up and blindfolds her again, and strangles her. Before leaving, the intruder takes money from both of their purses.

December 22, 1987. Donald Milani is arrested and charged in connection with this string of violent, sexual assault home invasions. The Crown advanced a similar fact application. The preliminary inquiry judge found there was insufficient evidence to warrant a committal to trial, based on similar facts: [2012 ONSC 6892, para 26].

Although the preliminary inquiry judge found that the same person was responsible for the attacks on EN, JB, SR and AC, he was not satisfied that the evidence adequately identified Milani. At the time, DNA technology was not advanced enough to connect Milani to the semen and saliva that was seized at the crime scenes. He was discharged on all counts, except for one. On that count, Milani was acquitted at trial.

Time passed, but science improved. In 2008 and 2009, police resubmitted samples of the semen and saliva seized from the crime scenes to the Centre of Forensic Sciences (CFS). Due to advancements in technology, CFS was able to conclude that the DNA seized from the crime scenes matched that of Donald Milani. The probability of a randomly selected, unrelated individual sharing the same DNA profile of Milani was one in 18.8 billion. The Crown’s evidence was no longer circumstantial. It was overwhelming.

Based on this new evidence, nearly 25 years later, the Crown preferred an indictment against Milani. On August 17, 2010, he was arrested and charged with 19 counts relating to the violent sexual attacks on EN, JB, SR and AC. His trial was scheduled for early 2013. Prior to that trial Milani proceeded to bring an application for a stay of proceedings pursuant to s. 11(b) and s. 7 of the Charter: 

Piercem J, of the Ontario Superior Court, concluded that Milani’s right to be tried within a reasonable time, pursuant to s. 11(b), had indeed been infringed. Consequently, she did not address the s. 7 arguments advanced. A stay was granted: [2012 ONSC 6892].

The Crown disagreed with Piercem J’s finding. The matter proceeded on appeal: 2014 ONCA 536.

At the Court of Appeal, Milani argued that for the purposes of s. 11(b), the “constitutional clock” began to run when he was discharged from the preliminary inquiry in November 1989, and subsequently stopped ticking once the new indictment was preferred in July 2010. Milani was unaware during the intervening time that there was any ongoing investigation into his involvement in the sexual assaults [paras 7, 10].

Milani did not contend that the entire “gap” period between 1989 and 2010 constituted unreasonable delay. He submitted that the period of time between 1987 and 1995 was inherent delay, necessary to permit the advancement of DNA science. However, he argued that the subsequent 15 years of delay was solely attributable to the Crown, arising from such conduct as the police failing to submit items for testing at earlier dates, and the delay associated with obtaining a preferred indictment [para 11].

Although Milani acknowledged no actual prejudice resulted, he argued that prejudice should be inferred, as the delay far exceeded the guideline articulated in R v Morin [[1992] 1 SCR 771].

The Crown’s position on appeal was that this case should be classified as a cold case. The Crown argued that the court should not, through the vehicle of a Charter application, micromanage police investigations. The Crown submitted that the time accruing before the indictment was preferred should be considered pre-charge delay, and as such, that because Milani was not “a person charged with an offence” during that time, the s. 11(b) clock was not running [para 13].

The Court of Appeal agreed with the Crown. Van Rensburg JA, writing for the court, concluded that the trial judge erred in relying on the 1983 decision R v Antoine [(1983), 5 CCC (3d) 97] to conclude that the “gap” period in question should be included in the s. 11(b) analysis. The court found that a close examination of the more recent Supreme Court decisions, R v Kalanj [[1989 1 SCR 1594] and R v Potvin [[1993] SCJ No 63], properly supported the conclusion that the period in question is pre-charge delay. Given that s. 11(b) is designed to protect only against the harms that result from post-charge delay – not pre-charge or appellate delay – Milani’s rights pursuant to s. 11(b) were not engaged [para 30].

The Court of Appeal revisited the decision of Re Garton and Whelan [(1984), 47 OR (2d) 672 (HC)], referenced in Antoine and relied upon by Piercem J in her reasons. The court noted three important distinguishing factors present in that case, notably absent in the case at bar:

First, the accused was aware in Garton and Whelan throughout the intervening period in question about the ongoing efforts to have him prosecuted. Milani had no such knowledge. Some knowledge, on the part of the accused, that an active investigation is underway is required before the s. 11(b) clock will run, in the absence of active charges: [paras 38-39].
Second, there was no change in the evidence against the accused in Garton and Whelan. In Milani’s case, strong new evidence inculpating him as the assailant was unearthed as a result of scientific progress: [para 38].
Third, real prejudice would be suffered by the accused in that case should a trial have been heard after the delay, given the fading memories of witnesses. It was conceded by Milani that no real prejudice had incurred, only that there was a possibility of prejudice: [paras 12, 39, 53].

The Court points out that these distinctions make it clear that Garton and Whelan and Antoine can be interpreted in a way that do not support the arguments advanced by Milani. However, the Court actually went further to state that even if those cases stood for broader propositions that would indeed support Milani’s position, any such propositions have been overtaken by newer jurisprudence: [para 40].

The Court then moved to revisiting the Supreme Court’s reasoning in R v Kalanj and R v Potvin. In Kalanj, the court concluded that extending s. 11(b) to the pre-charge period would be unworkable. It was found that Courts are not equipped to fix time limits for investigations, as circumstances vary differently from case to case, and an investigation must, by its very nature, be confidential [para 42].

In R v Potvin, the Supreme Court concluded that appellate delay does not trigger the ticking of the s. 11(b) clock. The Court found that the focus of protection extends to the interests of a person who has been charged, and is subject to the processes of the court. The relevant period of time for an s. 11(b) analysis is when there is a “proceeding on foot.”  Active charges must be outstanding against the person. The anticipation of charges is not enough: [para 46].

Based on the reasons articulated in Kalanj and Potvin, the Court of Appeal endorsed the Crown’s position that the ambit of s. 11(b) does not extend on a societal level to the speedy investigation of crime. The only caveat are instances where unilateral state action may control whether or not charges are withdrawn or re-laid (such as when a formal charge has been withdrawn, and there is an intention of laying a new one). In such instances, it makes sense to consider the entire period of time in the s. 11(b) analysis. If the person is no longer actively charged, they must remain subject to the very real prospect of new charges [para 48-49] [emphasis added].

For these reasons, the Crown's appeal was allowed. The matter was referred back to the trial judge [para 54].

While it is clear from this case that the Court recognizes the importance of allowing law enforcement to conduct investigations in timeframes that are appropriate to each case (particularly in light of scientific improvements), the significance of the 25 year timespan in Milani’s case still remains undetermined. Inevitably, Milani will advance a s. 7 argument at trial, arguing that the significant passage of time has impacted both his right to make full answer and defence, and trial fairness. So while the 11(b) clock was not ticking, s. 7 has not yet been addressed. Ultimately, only time will tell if the case against Milani will proceed to be tried on its merits.

SS

Porn & Prejudice

Stillwell was charged with distributing, possessing and accessing child porn. A little more than 26 months elapsed between the date the information was sworn against Stillwell and the last day scheduled for his trial. Stillwell brought an application for a stay of proceedings on the basis that his right to a trial without unreasonable delay had been violated.

The trial judge concluded that 12.5 months of delay was attributable to the Crown (5.5 months crown and 7 months institutional) and that this exceeded the 8-10 month guideline established in Morin, 1992 CanLII 89 (SCC). The 5.5 months attributed to the Crown were dedicated to the analysis of Stillwell’s computer and the preparation of the report of that analysis. The trial judge entered a stay of proceedings.

The Crown successfully appealed: Stillwell, 2014 ONCA 563.  The Crown argued that first, given the shear volume of files on Stillwell’s computer additional time was required for the investigator to review and categorize the images. Second, the Crown argued that the trial judge erred in her assessment of the prejudice to Stillwell.

The trial judge commented on the task required of police in preparing a categorization report:

While I am sympathetic to the police and the difficult task they have to perform, it is clear that the resources assigned to the completion of this analysis were woefully inadequate, particularly when the main investigator became unavailable.  It is well settled that decisions on the part of the state concerning the allocation of its resources cannot be used to justify the abrogation of the rights of an accused person. @para 14.

The Court of Appeal accepted that:

(…) child pornography investigations are unique in that the storage capabilities of electronic devices may result in huge universes of information that can only be analyzed after charges have been laid. I also recognize that officers categorizing these types of images need frequent breaks due to the emotional toll associated with the work. @para 39

However the Court rejected the Crown’s argument that the 5.5 months attributed to the Crown for the preparation of the report was neutral. The Court held that allocating it as the trial judge did was appropriate in the circumstances.

The Court of Appeal however did not agree with the trial judge’s conclusion that such an allocation of time periods should result in a stay of these proceedings. The prejudice to the accused was minimal and “his ability to make full answer and defence was unaffected by the delay” [@para 23]. The Court agreed with the trial judge:  

(…) that the Crown delay in disclosing the final report was clearly disproportionate to the time spent preparing it.  In my view, however, this fact should not overwhelm the analysis.  On the trial judge’s own findings, the delay in disclosing the final report accounted for only five and a half months of the total 26 month period.  The bulk of the time was taken up by neutral intake time (nine months), defence delay (five and a half months) and reasonable institutional delay (seven months).  When the five and a half months of unreasonable Crown delay is added to the institutional delay, the total is 12.5 months – beyond the Morin guideline, but not egregiously so.  When this delay is balanced against the minimal prejudice the respondent experienced and the grave seriousness of the charges against him, the delay, while not ideal, was not unreasonable. [emphasis added]

With respect to the gravity of child pornography offences the Court referenced the recent SCC decision in Spencer, 2014 SCC 43 (check out blog on this by Dallas Mack “The Privacy of Anonymity”) as follows:

Society has both a strong interest in the adjudication of the case and also in ensuring that the justice system remains above reproach in its treatment of those charged with serious offences.  If the evidence is excluded, the Crown will effectively have no case.  The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children. [Emphasis added.] @para 63.

Stillwell serves as a significant guide to the balancing required between prejudice to the accused and the mighty public interest in prosecuting child pornography offences. Minimal prejudice which does not impact on the accused’s right to make full answer and defence must not result in a stay. It also marks an important, although in this particular case not significant, acknowledgement of the massive task facing investigators as they process ‘universes of information’ found on computers.

LT

684: Common Sense and Constitutional

PC was charged with manslaughter. During his trial, he was assisted by two legal-aid lawyers and an interpreter. He was convicted. PC filed notice that he would appeal his conviction, but was not granted additional legal aid on the grounds that his appeal lacked merit. He then brought a motion to have counsel appointed for him to facilitate his appeal, pursuant to s. 684(1) of the Criminal Code. The Crown argued such an appointment would not be “desirable in the interests of justice” because PC did not demonstrate his appeal possessed arguable merit. The motions judge dismissed PC’s application. PC responded by challenging the constitutionality of s. 684: 2014 ONCA 577.

PC argued that because persons who can afford to hire counsel can do so whether or not their appeal has merit, indignant accused persons should have the same right under s. 7, s. 10(b), s. 11 and s.15 of the Charter [para 3].

The Court of Appeal rejected PC’s Charter arguments for two reasons:

First, the Court found the Charter does not require an automatic right to publicly funded counsel for appellate purposes, and that s. 684 is an ameliorative program that falls within s. 15(2) of the Charter. PC’s challenge on the basis of s.15 was dismissed [para 11-14].

Second, the court found that ss. 7, s. 10(b) and s. 11 work in tandem to ensure an accused person is always treated fairly, from the point of arrest or detention through to the end of an adjudicative process [paras 16-19]. This includes the appeals process.

In the context of a trial, fairness will sometimes require that counsel be appointed where provincial legal aid has been denied: R v Rowbotham, 25 OAC 321 [para 20].

In the context of an appeal, the Court concluded that if the following criterion is satisfied, fairness will be ensured:

  1. The accused has a full and fair opportunity to exercise any right of appeal, and
  2. The accused is able to effectively present their appeal.

Concerning the first criteria, the court noted that in exceptional circumstances, counsel may need to be appointed to assist an accused in ascertaining whether or not grounds for an appeal exist. A motions judge can appoint counsel for this limited purpose [para 27].

Concerning the second criteria, once a ground of an appeal has been ascertained, for the purposes of effectively presenting the appeal, the appeal must be arguable. The court found that it is common sense to conclude that “appeals which are void of merit will not be helped by the appointment of counsel”: R v Bernardo, 105 OAC 244 [para 29]. An aspect of “rational objectivity” must be imported in order to balance the interests of the accused and the state. Requiring an accused to demonstrate that an arguable appeal exists does not treat the accused unfairly [para 30].  

After articulating these criteria, the Court then highlighted four additional aspects of s. 684 that demonstrate why it withstands constitutional scrutiny:

First, the fact that legal aid has been refused is not determinative of whether or not the “interests of justice” require counsel to be appointed [para 31].

Second, the cost of assigning counsel cannot influence a Court’s determination under s. 684, because these costs are to be accepted as “the price of the proper administration of justice”: Bernardo, supra [para 31].

Third, an indignant accused almost always has the assistance of duty counsel or legal aid to argue a s. 684 motion. Here, the Court went further and commented that this assistance may also include the preparation of an affidavit, which outlines whether an accused can meaningfully exercise his right of appeal, and effectively present it, with reference to relevant considerations such as:

  • the accused’s means,
  • the seriousness of the charge of which the accused was convicted,
  • the sentence received,
  • age,
  • youthfulness,
  • education,
  • ability to speak, understand and write English or French,
  • disability,
  • familiarity or lack thereof with the criminal justice system,
  • the length of the trial,
  • the complexity of the appeal, and
  • the legal principles engaged and the appellants ability or lack theory to effectively relate them to the facts of the case [paras 33-34].

Fourth, a decision on a motion pursuant to s. 684 is not a final one. An accused may seek a panel review of a refusal, or renew an application with the benefit of an expanded record following trial [para 35].

For these reasons, PC’s challenge on the basis of ss. 7, 10(b) and 11 was dismissed.

The Court of Appeal upheld s. 684 of the Criminal Code as constitutional. However, the Court did note that a renewed application in PC’s case could succeed on the basis of the newly expanded record (which included a full consideration of his age at the time of conviction, the seriousness of the crime, his inability to communicate in English except through an interpreter, and his lack of familiarly with the legal system and its principles) [para 35].

SS

Constitutional Jurisdiction

Joseph Lloyd was convicted of three counts of possession of drugs for the purpose, contrary to section 5(2) of the Controlled Drugs and Substances Act [CDSA].  Lloyd had a prior conviction under the same section; as a result, he faced a mandatory minimum of one year.

Lloyd argued that the one-year mandatory minimum violated section 12. The sentencing judge held that the minimum did not violate section 12 as it related to Lloyd but went on to consider whether the provision would violate section 12 in a reasonable hypothetical. The court found that it did. As a result, the court “declared” that the provision was invalid.

The Crown appealed: 2014 BCCA 224.

Two aspects of the appeal are quite interesting.

First, the court considered the jurisdiction of the provincial court to consider the constitutionality of provisions.

In this context, the court noted that while a provincial court has the jurisdiction to consider any constitutional impact of a provision on the offender before it, any ruling is limited in its application to the present case. The court has no jurisdiction to make a general declaration of invalidity: “the judge in this case did, indeed, intended to make a formal declaration that the impugned provision was of no force and effect. He had no jurisdiction to make such a declaration, and, assuming that he was right to have found the impugned provision to be unconstitutional, ought to have confined himself to refusing to apply it in the case before him. I would set aside the declaration” [para 38].

Second, the court considered the proper scope of constitutional consideration by a provincial court.

In this context the court noted two points. One, in light of the fact that a provincial court ruling on the constitutionality of a provision is limited to the case before it, any consideration of the constitutionality in the context of a reasonable hypothetical might be unnecessary and inappropriate. Two, based on the more general principle that courts should restrict their rulings to the case before them it was, in the present case, inappropriate for the court to strike down the provision on the basis of a reasonable hypothetical.

The fact that a party has standing to make a constitutional argument, however, does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases. Professor Hogg puts it this way:
A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided. For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided on a rule of federalism or under the Charter, the federalism ground is the narrower one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.
Peter W. Hogg, Constitutional Law of Canada (5th ed. supplemented) (looseleaf) Toronto: Thomson Carswell, 2007 (updated to 2013), §59.5, p. 59-22
In short, while Mr. Lloyd clearly had standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, the court was not obliged to determine that issue unless that section would have an impact on the appropriate sentence for Mr. Lloyd.
Mr. Lloyd contends that the court is required to determine the constitutionality of s. 5(3)(a)(i)(D), because "no one may be sentenced under an unconstitutional law". While there is some merit in that contention, I do not think that it can be said that Mr. Lloyd would be "sentenced under an unconstitutional law" unless that law in some way affects his sentence. Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [Paras 42-44].

Lloyd is an interesting and helpful decision. Interesting in its consideration of reliance upon a reasonable hypothetical in the context of section 12. As per Lloyd, where a provision would have no possible impact on the present offender reliance on a reasonable hypothetical may be unnecessary. Helpful in that it reminds that provincial courts are limited in their constitutional powers to making a finding about the force and effect of a provision to the case before them; there is no power to make general declarations of constitutional invalidity. 

DGM

USB Key Searches

In recent years a steady stream of authority from the Supreme Court of Canada has made clear that specific prior judicial authorization is required to search a personal computer. The most recent example is the decision of the Supreme Court of Canada in R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), which held that computers found while carrying out a search cannot be searched unless specifically authorized by a search warrant.

The Court in R v Vu seemed to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search—items such as USB keys, memory cards for cameras, and similar devices.

The Ontario Court of Appeal appears to have closed the door in R v Tuduce, 2014 ONCA 547 (CanLII).

The analysis in R v Vu

Much of the analysis in R v Vu focused on the difference between a computer and a “receptacle.”

A search warrant issued under s. 487 of the Criminal Code may authorize police officers to search “a building, receptacle or place” for the items named in the warrant, and to seize the items in evidence.  A warrant that authorizes police to search a particular place—such as a house—also authorizes police to search places and receptacles within that house. However, the Supreme Court of Canada in R v Vu ruled that this general principle does not apply to computers. The Court held that ordinary receptacles such as cupboards and filing cabinets are markedly different from personal computers, and that specific prior authorization is required to search a computer.

The Court stated four reasons why computers are markedly different from other receptacles:

  • Computers store immense amounts of information. The scale and variety of the material that can be found on a computer makes comparison with traditional receptacles unrealistic.
  • Computers contain information that is automatically generated, often unbeknownst to the user. A computer is a “fastidious recordkeeper” that documents when and by whom a file was created and accessed; logs a user’s Internet browsing habits; and stores the user’s search histories. In the context of a criminal investigation this data can enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly. This kind of information has no analogue to other types of receptacles found in the physical world.
  • A computer retains files and data even after users think that they have destroyed them. It creates information without a user’s knowledge, and retains information that the user has tried to erase.
  • A search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized. [@ paras 41-44]

The Court concluded:

These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches. [@ para 45]

The above analysis merits two comments. First, none of the four differences discussed in R v Vu is unique to a computer. A traditional receptacle like a filing cabinet, bookcase, or a banker’s box full of papers is also capable of storing a large volume of information. In any event, the volume of information could not have been determinative. It has never been the case that police searching a building would be entitled to search one or two filing cabinets, but would need a search warrant if they happened to find one hundred filing cabinets. A physical document like a log book, leger, or photo album can retain physical evidence (such as fingerprints and DNA) that could enable an expert to identify exactly what pages had been accessed, and by whom. Firing a gun generates new data unbeknownst to the user, such as firing pin marks, bullet striations, and ejector marks. It has always been true that the search of one place can reveal another building, receptacle, or place, including the exact address and the keys or combination needed to access it. However, a charitable reading of the Court’s analysis should not parse the differences in this manner. It is not any one of the differences on its own, but rather the totality of the differences and their magnitude in combination that justifies the different treatment of a computer.

Second, it was not obvious how the analysis in R v Vu would apply to an electronic device that functions exclusively as a storage container. A floppy disk, USB key, or flash memory card does not have its own operating system, does not generate data, and unless it is connected to a computer it cannot connect to a network or the Internet. Most of the differences in R v Vu did not appear to apply to an electronic device that is more like a container than a computer. Thus, R v Vu appeared to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search.

The decision in R v Tuduce

In R v Tuduce, 2014 ONCA 547 (CanLII), the Ontario Court of Appeal considered the warrantless search of a USB key that was seized incidental to an arrest.

In 2012 Adrian Tuduce was convicted of seven credit card fraud-related offences and sentenced to two years less a day’s imprisonment and two years of probation. His participation in the fraud was discovered by accident. A Waterloo Regional Police officer pulled Mr. Tuduce over for speeding. The officer searched Mr. Tuduce on police databases and discovered he was a suspended driver. The officer arrested Mr. Tuduce and conducted a pat-down search, locating USB key and bundle of credits cards in someone else’s name. The officer found other items in the vehicle that caused him to believe Mr. Tuduce was in possession of stolen credit cards. Fraud investigators seized the USB key incidental to arrest and submitted it for forensic analysis. The USB key contained stolen credit card data and photographs of credit card data skimming equipment.

The trial judge held that the warrantless search of the USB key infringed Mr. Tuduce’s s. 8 Charter rights, but admitted the evidence under s. 24(2): 2011 ONSC 2749 (CanLII).

On appeal, Mr. Tuduce challenged the trial judge’s decision to admit the USB key evidence under s. 24(2). The appeal was dismissed: 2014 ONCA 547 (CanLII).

The Court noted that the Supreme Court of Canada in R v Vu reviewed the privacy considerations that apply to searches of personal computers and held that they apply to USB keys, for three reasons:

  • A USB key can store a significant amount of data.
  • Data can be left on a USB key without a user’s knowledge, including information about the date and time a file was created or modified, and information about the user who created or modified the file.
  • A user does not have complete control over which files an investigator will be able to find on a USB key because—like a computer hard drive—the unallocated space in USB key may contain files that could be retrieved by a forensic expert. [@ paras 71-73]

The Court commented that a USB key may not contain personal information such as a list of contacts, the contents of past communications, and information a user’s web searching habit. This makes a USB key different from a home computer or cell phone. On the other hand, a USB key will attract a greater expectation of privacy than a work computer. This is because the two factors that diminish the expectation of privacy in a work computer—that the computer is not actually owned by the user, and the employee’s use of the computer is often subject to terms and conditions imposed by the employer—do not apply to personal storage devices like a USB key. [@ paras 74-75]

Strictly speaking, the Court of Appeal did not rule that specific, prior judicial authorization is required to search a USB key. That is because the trial judge’s ruling on the lawfulness of the search was favourable to Mr. Tuduce and therefore not a ground of appeal.

However, the broader implication of the decision cannot be ignored. The Supreme Court of Canada in R v Vu concluded that certain factors make a computer markedly different from other things that can be searched; and that specific, prior judicial authorization is therefore required to search a computer. The Ontario Court of Appeal in R v Tuduce held that the factors cited in R v Vu also apply to a USB key. This analysis leaves little doubt about how it would have ruled, had the s. 8 issue been properly before it.

The decision of the Ontario Court of Appeal in R v Tuduce is the strongest possible signal that absent exigent circumstances, police will require specific, prior judicial authorization before searching a USB key.

MGM

The views expressed in this post are those of the author, and do not necessarily represent the views or policy of the Ministry of the Attorney General.