Threats on Social Media

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Principled approach to Constructive Murder

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

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

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

Whether the first bullet was a sufficient cause of the victim’s death was unimportant in this case for three reasons. First, s. 226 of the Criminal Code makes clear that accelerating death is still murder. In this case, regardless of whether the victim was mortally wounded by the first shot, he was still alive when he was shot a second time while confined in the garage. Therefore, it was open to the jury to conclude that the second shot’s acceleration of death was an act of killing in itself, which occurred while the appellant was confining the victim. In R. v. Munro (1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 288-9, this court said it was an “elementary principle of the law of homicide” that “one who shortens the life of a person suffering from a mortal injury … has caused the death of that person.”
Second, there is nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound....It is not necessary in this appeal to decide whether that same proposition holds true for unlawful confinement under s. 231(5)(e). However, when applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of killing and the predicate offence, while distinct offences, remain part of the same transaction: R. v. Paré1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at pp. 631-633.
Third, s. 231(5) is concerned with identifying the degree of blameworthiness required to ground a conviction for first degree murder. Apart from the obvious point that the appellant could have had no way of knowing that he had fatally wounded the victim, the confinement and shooting inside the garage removed any possibility of getting assistance for the victim. This is a case like R. v. Simon (2001), 2001 CanLII 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.), in which it can be said that, even if the wound to the chest was the ultimate cause of death, the subsequent restraint of the victim and the direct shot to his chest prevented any possibility of medical intervention which might have saved his life, however remote that possibility may have been. [@101-103].

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

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

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

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


May the Odds be Ever in Your Favour...

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

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

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

Riesberry was charged with:

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

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

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

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

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

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

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

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

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

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

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

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

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

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


You've been served

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

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

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

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

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

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

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

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

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

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

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

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

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


When is a "bike" a motor vehicle?

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

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

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

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

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


Denouncing Animal Cruelty

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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


New & Notable: Free to Kill

George Johnstone was married to Erin, the daughter of Mary Lou Wolfe. On January 11, 2006 Ms Wolfe was found lying face down on her bathroom floor covered in blood, naked but for her underwear, which were partially pulled down. She had stab wounds on her face, neck and body; she had been strangled.

The evidence at the scene revealed that Ms Wolfe had been dragged from her bedroom to the bathroom. “Damage to the bathroom door confirmed that Ms. Wolfe had locked the door and taken refuge there. The marks on the inside of the door indicated that Ms. Wolfe had sat on the floor, leaning against the back of the door while bleeding profusely.” [@para 5]

The Crown argued that Johnstone was upset by his mother-in-law’s plans to help her daughter and her two grandchildren move away from Johnstone because of his poor behaviour. Sometime prior to the murder the victim’s daughter told Johnstone of this plan and he responded by saying that he would never allow her to leave with his son. [@para 9]

The murder weapon was a steak knife taken from the victim’s kitchen. Johnstone’s fingerprints were found on a serrated knife and the stove in the kitchen. Johnstone and Ms Wolfe’s blood was recovered from the stove and inside the cutlery drawer.

Following a trial by judge and jury Johnstone was convicted of first-degree murder; he appealed: R v Johnstone, 2014 ONCA 504.  On appeal he argued, inter alia, the trial judge misdirected the jury on constructive first-degree murder by way of forcible confinement.

Johnstone argued that the trial judge erred by framing the forcible confinement as follows:

[T]he Crown argues that the evidence established that the murder was first degree since, according to the Crown, the deceased found herself confined in the bathroom area as a direct consequence of the accused’s actions and that he exploited this position of domination in committing murder. [@para 37]

The accused argued that the marks on the bathroom door were indicative of the accused’s attempt to ‘un-restrain’ the victim, not confine her.

The Court of Appeal rejected this argument:

Ms. Wolfe was unlawfully confined “if for any significant period of time” she “was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59 (CanLII), 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. The only reasonable inference from the evidence led at trial was that the appellant’s attempt to “un-restrain” Ms. Wolfe was to get access to her in order to kill her. There is no suggestion that he sought to open the door in order to allow her to leave. The evidence pointed to Ms. Wolfe having been dragged to the bathroom by the appellant and her being left there while he went to the kitchen to obtain a knife. During this time he stood between Ms. Wolfe and any possible escape. Ms. Wolfe would have locked the door in the hope that it might prevent further assaults. From the moment the appellant left to obtain a knife up until he returned to the bathroom with the knife, there can be little doubt that Ms. Wolfe was not free to “move about according to her own inclination and desire”. The appellant’s submission that she was not confined and that he simply sought to “un-restrain” her is without merit. [@para 39]

Bottom line: ‘freeing’ someone in order to kill them is actually not freeing them at all. 


New & Notable: Officer's Unlawful use of Force doesn't mean you can Punch Him

In response to a disturbance on the Edmonton transit system, police officers searched for a male suspect of a generic description.  Carlan Met was nearby, and was the only male observed to be a loose match.  An officer requested to speak to him, but Mr. Met kept walking.  The officer tried again, to no avail.  Finally the officer grabbed Met’s arm in an attempt to stop him.

Met then threw what was described as a strong “haymaker” punch at the officer, which connected on the shoulder. Met was arrested for assaulting a police officer.

At trial he was convicted of simple assault, but acquitted of assault police.  The trial judge found that the officer was not acting in the lawful execution of his duty when he grabbed Met’s arm, so the latter was convicted only of the lesser assault.

On appeal, Met argued that he was acting in self-defence when punching the officer, and that the officer was not acting in the lawful execution of his duty in arresting Met, even after being punched: 2014 ABCA 157.

On the first point, the Alberta Court of Appeal deferred to the trial judge’s finding that the force of the punch was unreasonable, regardless of whether the officer’s unlawful initial contact was described more strongly as a “grab” or—in the more innocuous description of the trial judge—as a “placing of the hand”.

On the second point, the Alberta Court of Appeal held that, even though there was no initial arrest or detention that would justify the arm grab, and therefore no offence of “assault police” for which Met could be arrested, the punch still clearly gave the officer grounds for an arrest.  A conviction for an included offence (or no conviction at all) does not derogate from the lawfulness of the arrest: R v Biron, [1976] 2 SCR 56.

The appeal was dismissed.


New & Notable: Looking for Principles in all the Wrong Places

Singh drove while her blood-alcohol concentration was over 80. Singh’s only argument at trial was that the timing of the breath samples did not comply with the as soon as practicable requirement of section 258(1)(C)(ii).  The only time period in question was the 28 minutes that elapsed between the taking of the first and second samples. Singh argued that this time period exceeded the statutory minimum of 15minutes without any evidence to explain the delay.  The trial judge rejected this argument and held that there was no requirement for the Crown to explain every minute. Singh was convicted and appealed.

The summary conviction appeal judge allowed the appeal and expressly declined to apply the binding decision of the Court of Appeal in Vanderbruggen, 2006 CanLII 9039 (CA) because it “was not a case about unexplained delay between samples.”

The Ontario Court of Appeal restored the conviction and in so doing offered some interesting comments about how binding decisions of the Court must be read: R v Singh, 2014 ONCA 293 (CA).

First, “care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in” a brief endorsement” [@para 12]

To illustrate this point the Court pointed to the trial judge’s reliance on the Court of Appeal’s endorsement in Bulger. That decision was a four sentence oral endorsement which “does not articulate any proposition of law” [@para 11] nor does it contain “a recitation of the facts that would enable a reader to understand the overall circumstances of the case” [@para 10].

Second, the purpose of such a brief endorsement is “to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning”[@para 12]

Third, “[w]hen the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment” [@para 12].

By way of example the Court highlighted Vanderbruggen as just such a case [@para 12].

The Court of Appeal concluded that the:

(…) trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" [@paras 14-15].