An end to unmeritorious "disclosure" applications?

David Jackson was arrested by the police. They police believed that his blood alcohol concentration was over the legal limit while he was operating a motor vehicle. Subsequent to arrest he provided breath samples into an approved instrument; the results indicated he was "over 80”. He was charged with “over 80”.

Prior to trial his counsel sought disclosure of (i) service records for the approved instrument; (ii) usage and calibration records; and (iii) downloaded data “bracketing the breath tests” of Jackson. The Crown refused to provide these materials citing their position that the records were third party records and were also clearly irrelevant. In response Jackson brought a disclosure motion before the trial judge.

The trial judge held that the records were subject to disclosure under Stinchcombe. The Crown and the police, the Ottawa Police Service, brought a certiorari application seeking to quash that ruling. That application was dismissed. The Crown appealed to the Ontario Court of Appeal: 2015 ONCA 832.

Several issues were dealt with at the Court of Appeal. Arguably two of the most pertinent ones dealt with the nature of the records and the potential relevance thereof.

With respect to the nature of the records, Watt JA offered the following overview of the governing principles:

First Party (Stinchcombe) Disclosure

Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges: Stinchcombe, at pp. 336-40; R. v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11. The duty is triggered upon request without recourse to a court: McNeil, at para. 17.

For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties: Quesnelle, at para. 11;McNeil, at para. 22. Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of third parties, including the police and other Crown entities, are generally not subject to the Stinchcombe disclosure rules: Quesnelle, at para. 11; McNeil, at para. 25.

The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined. Apart from the police duty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in fact but also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute: McNeil, at paras. 23, 25. Production of criminal investigation files involving third parties, at least as a general rule, falls to be determined on an O’Connor application. This is so at least in the absence of a nexus between the third party and subject investigation: McNeil, at para. 25.

The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged: McNeil, at para. 23. Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence: McNeil, at para. 17; Stinchcombe, at pp. 343-44.

Third Party (O’Connor) Production

A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation. This scarcely surprises. After all, third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them: O’Connor, at para. 102.

The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134. The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:

i.               the unfolding of the narrative;

ii.             the credibility of a witness;

iii.           the reliability of other evidence; or

iv.           the competence of a witness to testify: O’Connor, at para. 134; McNeil, at paras. 27, 33.

 For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation. Recall that Crown entities, other than the prosecuting Crown, are third parties under this regime: McNeil, at para. 13. And this is so even though some records of the same entity may be subject to the first party disclosure scheme of Stinchcombe: McNeil, at para. 15. [Pars 79-85].

Applying those principles Watt JA held that the records sought were third party records. In so concluding Watt JA noted that “[t]wo principal factors determine the disclosure/production regime that will apply”. First, the nature of the information sought; second, the party in possession of the information.

On the first issue, the court offered the following.

With respect to the nature of the information here, Watt JA held that it fell beyond the boundaries of the fruits of the investigation; indeed some of the records were created in relation to other investigations and others were created by the police service for reasons and at times wholly unconnected to the investigation at hand [paras 92-96].

With respect to who was in possession of the records, Watt JA noted that in this case the records were not in the possession of the Crown but were in the possession of a third party, The Ottawa Police Service [paras 97-98].

On the second issue, the court offered the following.

With respect to relevance, Watt JA noted that Jackson had received the usual disclosure package including the following:

A videotape of the respondent providing breath samples. The police officer’s notes. The Intoxilyzer 8000C print out for the respondent’s test. The Certificate of an Analyst attesting to the alcohol standard. The Intoxilyzer instrument log, diagnostic tests and calibration checks. The certificate of the breath technician confirming the test results of 116 and 113 milligrams of alcohol per 100 millilitres of blood. [Para 133].

With this Watt JA noted that the other records sought did not meet the likely relevance threshold.

First, nothing on the face of the typical disclosure package provided to the respondent indicated any problem with the Intoxilyzer 8000C approved instrument or any error by the technician in its operation. No error in the test print outs. A new instrument, not due for its first annual inspection. No annual inspection or maintenance records. In short, nothing to imbue the claim of instrument malfunction or operator error with an air of reality. A fishing expedition. Season closed.

Second, the expert evidence about potential relevance of the record sought failed to ascend above the speculative. In addition, the suggestion of unspecified relevance is contradicted by the report of the Alcohol Test Committee that belies the assistance of the records sought in determining whether the instrument functioned properly for a particular subject test.

Third, the records sought have no relevance to the unfolding of the narrative of material events in this case. Historical data has nothing to say about what gave rise to this prosecution, nor about the credibility of any party involved in the making of demands or the operation of the instrument.

Fourth, the applicable standard in the third party/O’Connor production regime is more demanding than the “whether the information may be useful” criterion for first party/Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the trial judge. [Paras 135-138].

Finally, and notably, Watt JA offered a “post-script”:  

It is critical for the efficient operation of trial courts, especially those in which alcohol-driving offences occupy a prominent place on the docket, that they be able to control their process. This includes the authority to discourage unmeritorious third party records applications that devour limited resources. [Emphasis added]; [para 139].

DM

En-Gendered Arguments on Incest

Section 155 of the Criminal Code prohibits the act of incest. The section reads as follows:

Everyone commits incest who, knowing that another person is by blood relationship with his or her parent, child, brother, sister, parent grandparent or grandchild, as the case may be, has sexual intercourse with that person.

Sexual intercourse is defined in section 4(5) of the Code; it states: 

For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that the seed is not emitted.

KH was charged with a number of sexual offences including incest all perpetrated against his underage sister. Numerous incidents were alleged which included forced fellatio and several acts of KH penetrating his sister’s anus.

At the close of the Crown’s case, KH brought an application for a directed verdict on the incest charge. KH argued the following:

1. The purpose of section 155 is to prevent “sexual intercourse between persons who have a blood relationship” in an effort to “prevent genetic mutations that can result from inbreeding” and to protect of vulnerable family members. [at paras 6-7]
2. The fact that section 4(5) includes the phrase “notwithstanding that seed is not emitted” indicates that what is contemplated is penetration of a vagina by a penis.
3. That Parliament also enacted (the now unconstitutional) section 159 prohibition against anal intercourse, further supports the defence position on the definition of sexual intercourse.

Barnes J dismissed the application: 2015 ONSC 7760 and held that:

The defence argument falls apart when considered in the context of the second legislative intent, which is the protection of vulnerable members of the family. A definition of sexual intercourse limited to penile penetration of the vagina means that a male can only commit incest if he uses his penis to penetrate the vagina of a blood relation. Under this circumstance, the "vulnerable family member" is only protected from incest if she is female and if the penis is inserted into her vagina. The same female blood relation is not protected from incest if her male blood relation inserts his penis into her anus.

Another consequence of restricting sexual intercourse to the penile penetration of the vagina is that a vulnerable family member cannot receive the protections provided by s. 155 of the Criminal Code simply because he is not female. On the defence theory, if a male places his penis in the anus of a vulnerable family member who is male, he cannot be charged with incest. The protection of vulnerable female family members to the exclusion of vulnerable male family members could not have been the intention of the legislature. [at paras 16-17]

Barnes J’s common sense approach to this issue is in accordance with the principles of statutory interpretation which the court reviewed prior to reaching its conclusions. 

LT

Likely Relevant, but Inherently Unreliable

Katlin Cousineau died at the hands of her housemates. Katlin was 23yrs old and developmentally delayed. When the two first met Katlin and Susan Balogh were neighbours and when Katlin and her husband separated she moved in with Balogh and her partner. In 2004 Paul Bradey and Balogh started an affair. Balogh left her partner and moved in with Bradey- taking Katlin with her. Thereafter the three moved into a new place and were joined by Balogh’s friend Matthew Sitte.

Katlin died in the basement of that shared residence. She had blowtorch burns all over her body. Katlin was viciously abused by Sitte and Bradey- Balogh also participated in the abuse.  Katlin was assaulted physically and sexually and on numerous occasions drugged. She was deprived of the necessities of life- forced to sleep on the concrete floor with a sheet and a pillow and made to use a bucket instead of a toilet.

The blowtorch burns covering Katlin’s body were inflicted over a number of days while she was alive. When she finally succumbed to the injuries Balogh, Bradey and Sitte hatched a plan to burn the home down to conceal their crime and collect the insurance money from the ‘accidental’ fire.

Forensic investigation quickly unraveled the plot and the three were charged with Katlin’s murder.

Sitte pled guilty to second degree murder. Balogh pled guilty to criminal negligence causing death. Both testified at Bradey’s trial for the Crown.

Bradey was found guilty of first degree murder, arson and rendering an indignity to Katlin’s body.

Bradey appealed his conviction: 2015 ONCA 738. One of those grounds of appeal was that the trial judge erred in denying Bradey’s application for Balogh’s psychological records from the correctional facility she was being held.

Brady’s application for these records arose mid-trial. In chief Balogh was asked whether she had ever told anyone the truth about what happened before telling the jury. Balogh responded that she had told her psychologist.

The psychologist in question was the psychologist at Grand Valley where Balogh was serving her sentence.

Bradey sought production of the records from Grand Valley that included statements Balogh had made:

1. About the offence
2. About her relationship with Bradey
3. About her plea to the lesser included offence of criminal negligence causing death

Counsel was appointed to represent Balogh. Both Balogh and the Crown resisted the application.

On the application the Crown called a psychologist from Grand Valley but not the one Balogh had dealt with. The witness testified that:

1. Psychologists are not required to note everything a patient says and patients are not consulted about the accuracy of what has been recorded
2. Releasing such notes could damage a therapeutic relationship and impede an inmate’s rehabilitation

Bradey argued that production of the records would allow him to challenge Balogh’s assertion that she had told the whole truth to the jury.

The trial judge dismissed the application finding that Bradey had failed to establish the likely relevance of the records.

The trial judge’s findings were summarized by the Court of Appeal as follows:

the mere fact that a witness has spoken to a counsellor about matters touching the issues at trial does not make a record of those observations "likely relevant to a fact in issue or the witness' credibility";

the records only pass the likely relevance threshold if there is some basis to conclude that the statements have the potential to provide an accused with some added information not already available to him or to have some impeachment potential;

confidentiality is paramount in the relationship and a high expectation of privacy attaches to the records with the result that unsupported, at large assertions of likely relevance fail to meet the threshold standard for review; and

the witness' statement about the consistency between the account to her psychologist and that provided to the jury demonstrates no inconsistency [para 62].

On appeal Bradey argued that the trial judge erred in dismissing the application. The Court of Appeal held that the trial judge erred in ruling that the test for likely relevance was not met however upon review of the records the Court of Appeal ruled against production.

Watt JA writing for a unanimous court on the issue of production noted the following important points:

First, the records themselves contain onlygeneralized and references to the offence and the guilty plea which were not inconsistent with her testimony [para 1-7].

Second:

the principal purpose for which the records were sought was to impeach Balogh's credibility and the reliability of her evidence on the basis of statements inconsistent with her trial testimony. At trial, she was cross-examined for several days. A prominent feature of the cross-examination was her impeachment by statements made elsewhere -- to investigators and at the preliminary inquiry -- relative to, but said to be inconsistent with, her trial testimony. These statements were accurately recorded and, in some instances, under oath. Her testimony at trial was the subject of a Vetrovec caution.

In light of this, it is difficult to see how the production of these records would have furthered the appellant's ability to make full answer and defence. That difficulty is compounded as the casual reference to relevant events in summary form in a single document affords no basis for cross-examination under s. 10(1) or, for that matter, under s. 11 of the Canada Evidence Act.

 Moreover, the records are sought in relation to collateral issues -- the credibility of Balogh and the reliability of her evidence. Information relating to collateral issues, more accurately, failure to direct its production, does not impair an accused's right to make full answer and defence: O'Connor, at para. 161 [paras 107-109].

Third, the fact that the records originated in a therapeutic context is a relevant consideration.  Such records have been found to be inherently unreliable. “there is no requirement that the notes accurately record any statements.”  Such notes are generally not reviewed by the patient for accuracy, such was the case here.

Fourth, “despite the reduced expectation of privacy inherent in the correctional context, the Clinical Progress Notes originated in a therapeutic relationship. Disclosure of information revealed in that relationship may be injurious to the relationship and stunt its rehabilitative purpose.” [para 111]

As such the appeal on this ground (as well as the others) were dismissed.

LT

The silent witness sees it all

John Benson and Brian Timmons were neighbours. At first, they were friendly. It didn’t stay that way. Things deteriorated. One day, Timmons was working on fixing a borrowed truck. Benson set it ablaze. Timmons suffered minor burns, and property damage.

Unfortunately for Benson, he was caught on video. At trial, there was video of Benson approaching the truck with something in his hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back. This evidence was critical. The sole issue was identity. Timmons watched the video, and testified that the man was Benson. Benson was convicted of four arson related charges.

On appeal, Benson raised three issues: 2015 ONCA 827. Two of those arguments concerned the surveillance footage. Benson argued that the trial judge:

1. Did not consider the effect of the evidence of the Crown’s expert forensic video analysis on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.
2. Failed or refused to engage in any analysis concerning Timmons’ credibility, based on animus, his history of criminal misconduct, and that he lied to the trial judge about that misconduct.

The appeal was dismissed with reasons.

The Background

Timmons testified that he and Benson had known each other for at least six years. On the day of fire, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The fire department was called by a passerby. When they arrived, Timmons insisted he had set it on fire accidentally. He testified that he did not want the hassle of involving the authorities. A surveillance system had been installed by Timmons, which he had forgotten about. Timmons was reluctant to turn over the tapes. He believed he had caused the fire himself. Once he reviewed the video with police, Timmons immediately identified Benson as the fire starter [@ paras 8-12].

The Expert Video Evidence

With respect to the first issue, the Crown had adduced the video evidence at trial. The police expert who tendered the video evidence was called as a forensic video analyst. His evidence was relevant as to whether or not the video was in any way compromised or altered. When it is determined the video was not altered or changed and that it accurately depicts the scene, the video may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events [@ para 13-15, see R v Nikolovski, [1996] 3 SCR 1197 @ para 28]. 

In regard to video quality, the pixilation of the video was noted. It could not be further enhanced, which the trial judge took note of. However, whether the video was of sufficient quality to form the basis for identification was a question of fact for the trial judge, and of limited jurisdiction for review [@ para 16-18, see R v Abdi, 2011 ONCA 446 @ para 6]. In this case, the quality of the recording was relevant to the trial judge’s consideration of the content of the video, when determining what weight to give Timmons’ observations and identification of Benson. There was no need to give further consideration to the expert’s opinion, as those who are not acquainted with the accused are in no better position to identify persons in video evidence [see R v Leaney, [1989] 2 SCR 393]. The trial judge did not make a positive identification of Benson. He relied on his own observations and those of Timmons’ in making his decision on Benson’s guilt.

The Video Identification Issue

With respect to the second issue, the trial judge found Timmons to be a credible witness. While appellate courts retain power to reverse decisions where credibility assessments made at trial are not supported by the evidence, this is done sparingly. Interference with these rulings happens only in exceptional circumstances [@ paras 19-21; see R v W(R), [1992] 2 SCR 122 @ para 131, R v Burke, [1996] 1 SCR 474 @ para 5-7).

Specifically on the issue of Timmons identifying Benson, the trial judge noted a number of observations in the video in conjunction with Timmons’ evidence that he was 100% sure that the person in the video was indeed Benson:

• The way he moved his arms;
• The way he walked;
• The way he limped as he was moving;
• His Einstein hairstyle;
• His face;
• His body shape;
• His thinning hair;
• His age;
• His build;
• His enlarged stomach; and
• The plaid shirt he always wore [@ para 23-24].

In cases of recognition evidence, such as this, the caution regarding the frailties of eyewitness identification still applies [@ para 25; see R v Olliffe, 2015 ONCA 242 @ para 39]. However, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. The reliability of the evidence was enhanced by their relationship and familiarity with one another [@ para 25]. Further, the ability of a witness to point to a unique identifiable characteristic or idiosyncrasy is a concern better resolved when determining ultimate reliability, not admissibility [@ para 26; see R v Behre, 2012 ONCA 716 @ para 22].

Comment

This case again highlights the powerful nature of video evidence, especially when combined with the observations of witnesses. Although eyewitness identification evidence can be problematic, it remains important and forward-thinking law that witnesses who recognize persons captured by camera ought to be able to testify as to that knowledge – even in cases where the quality of the footage itself is less than ideal. In this case, Timmons clearly pointed out unique, distinctive, and recognizable features that signalled, to him, the person was Benson. These features were noted by the trial judge to be badges of reliability of identification. The trial judge’s own observations, when watching the video, were consistent with that of the witness [see paras 26-27]. Video evidence is an integral part of the truth-finding process. The impartiality it offers as a silent witness cannot be understated. 

SS

Can't Breach or Waive what hasn't been Invoked

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Owens was driving his pick-up truck. He was driving it badly. So badly that other motorists called 911. When police found Owens he had run out of gas and was pulled over on the side of the road- still sitting in the driver’s seat. Police formed a reasonable suspicion that Owens had been boozing. They issued a roadside demand; Owens failed. Upon arrest Owens was read his right to counsel. He told the officers he understood that right. Owens told the officers that he did not wish to speak to a lawyer right now.  Owens was taken to the police station and registered a blood alcohol concentration of twice the legal limit. After providing samples Owens was asked once more by the arresting officer if he wished to contact a lawyer. Owens responded that “the cat was out of the bag.”

At trial Owens argued that the breath samples should be excluded from evidence as his right to counsel was violated. Owens was convicted. Morneau J held that Owens had never invoked his right to counsel.

He appealed. The summary conviction appeal court disagreed with the trial judge. Miller J held that since Owens “did not unequivocally waive his rights, the collection of breath samples by the police before the respondent had a meaningful opportunity to contact counsel amounted to a violation of the respondent’s s. 10(b) rights.” [@para 12] Miller J concluded that the admission of the samples taken in this matter would bring the administration of justice into disrepute. Thus, she allowed the appeal, set aside the conviction and entered an acquittal. [@para 13]

The Crown successfully appealed to the Court of Appeal: 2015 ONCA 652.

Before turning to the issue on appeal the Court first considered whether leave should be granted. The Court found that the case was worthy of their consideration on both aspects of the test for granting leave:

First, it is important that lower courts have guidance regarding the correct analytical approach to applications under s. 10(b) of the Charter. The issue raised in this appeal, specifically, concerns whether a detainee is obligated to establish an invocation of his or rights as prerequisite to a consideration of the issue of waiver. This is an issue that frequently arises in the context of drinking and driving offences, but has broader implications for any investigation in which a properly informed detainee elects not to invoke his or her right to counsel. Thus, the proposed question of law has broad significance for the administration of justice in Ontario. [@para 19]

Second, the appeal is meritorious.

Turning then to the merits of the appeal the Court noted that “the issue of waiver of s10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel. [@para 22]

A finding of invocation (or not) is “essentially a question of fact”. [@para 28]

The Court held that: “[o]n the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “No, not right now” did not qualify as an invocation of the right to counsel.” [@para 29]

So the answer to the question of law with a broad significance for the administration of justice in Ontario is: you can’t breach or waive what hasn’t been invoked.

LT

Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.

[. . .]

An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases. 

LT

Crown Advocacy 101 - Lessons from MacBeth

Introduction

In the course of prior writings, I have sought to point out how criminal law advocates and prosecutors in particular may profit immensely from the many plays penned by the Bard.[1]  This summer, my interest in this subject has been rekindled by reason of excellent local productions. Accordingly, I offer these observations on the subject of persuasion,[2] based on Macbeth, in the expectation that it may prove profitable to counsel.

Discussion

Reversing the proposition: The building block of a successful argument

I have argued elsewhere, and in great detail,[3] that one of the fundamental tools with which to form a successful submission is the technique of reversing the proposition.  If the defence, for example, were to submit that the account of the event advanced by a prosecution witness does not dovetail well with the testimony of a second Crown witness, it should be stressed that incidental errors and inconsistencies support the credit of the supposedly mistaken witness.  After all, his account was not suspiciously “too pat”. 

Hence, counsel must be alert to the possibility of “flipping” any theory and certainly any argument - the famous phrase uttered by the three “weird” sisters in Act I, scene I of Macbeth, “Fair is foul, and foul is fair” should serve as an easy mnemonic in this respect.  What is fair and what is foul in any given situation depends on a subjective view, and is often tributary to one’s wishes and needs.  A terrible snowstorm is always a welcome event in the lives of schoolchildren wishing a break from their responsibilities, more so in the case of those delinquent with an assignment, and thus a mention in a report that a witness was enjoying herself at home one day during a blizzard might be explained by the context, and thus a potential area of impeachment may be foreclosed with a bit of preparation. 

An even handed account will win your witness favourable credit

In Macbeth, Act I, scene II, a Sergeant states, in response to a question as to the way the battle was fought, “… Doubtful it stood; As two spent swimmers, that do cling together And choke their art…”  In other words, the witness undertook his testimony by making plain that the subject matter is not without controversy and the ultimate answer depended on a review of all of the information.  If one reverses the proposition, and puts these words in the mouth of the Sergeant, “… I knew all along we would win! ...”, one may doubt that the judge or trier of fact will view the evidence with the same degree of consideration.  Thus, it may well be wise to instruct a witness to make sure that they refer to the good and the bad in whatever they viewed and are called upon to describe.  If a prosecution witness, for example, was consuming narcotics at the relevant time, this should be drawn out from the witness at the outset. 

Make allowance for any idiosyncrasies in how a witness speaks

Counsel must always be alert, at the stage of preparation, for any particular elements in the manner or fashion by which a witness communicates in order to forestall any unnecessary lack of credit that might be assigned to the testimony in question.  Macbeth includes this passage, at Act I, scene II, wherein the King asks if Macbeth was worried when the enemy was able to count on reinforcements: “Duncan: Dismay'd not this Our captains, Macbeth and Banquo? Sergeant Yes; As sparrows eagles, or the hare the lion…”  Stated otherwise, some persons have a very particular way of communicating, and questions should be framed in order to lessen any potential concerns in the minds of fact finders.  In the case under study, the witness was ironic and if that is the typical form of response, it must be addressed, if possible.

Witnesses collaborating in the recitation of their understanding of the events

Quite often, the prosecution’s case will be impugned on the basis that the witnesses had an opportunity to “rehearse” their testimony when they discussed what had happened quite soon after the event, with a view to planting the seed of contamination.  Often, defence counsel seek to underscore how police officers consulted prior to, or during, the writing of their notes.  And yet, it may be that the manner by which the witnesses reviewed the event, let us say what happened as the third party driver, and later accused, sought to overtake another vehicle, ensures a correct understanding and a clear “anchor” to a sound memory.  This is illustrated in Macbeth, Act I, scene III, after the sisters have advanced a number of predictions:

BANQUO: Were such things here as we do speak about?

Or have we eaten on the insane root

That takes the reason prisoner?

MACBETH: Your children shall be kings.

BANQUO: You shall be king.

MACBETH: And thane of Cawdor too: went it not so?

BANQUO: To the selfsame tune and words. Who's here?

In truth, by reviewing the words of the three sisters immediately after such a dynamic event, in this strict fashion, the two witnesses have ensured that neither would labour under any misunderstanding.  By contrast, the passage consigned in Act I, scene III, “Give me your favour: my dull brain was wrought With things forgotten…” illustrates the opposite situation. 

The dangers of demeanour evidence

The works of Shakespeare, and Macbeth in particular, contain multiple examples of the dangers associated with demeanour evidence, a very controversial form of “testimony”, a subject that I have discussed critically in extra-judicial writings.[4]  Perhaps the best known and the one that counsel should resort to most often, given its universal understanding, is found in Act I, scene IV: “Duncan: There's no art To find the mind's construction in the face…” The companion reference that is best suited to underscore this point is set down in Act I, scene VII: “Macbeth … Away, and mock the time with fairest show: False face must hide what the false heart doth know.”

I note as well the oft quoted observation, from Macbeth, Act I, scene V: “Your face, my thane, is as a book where men May read strange matters…” In fact, Macbeth’s features made plain his anxiety.  In this vein, noteworthy also is this passage from Macbeth, Act III, scene II: “Macbeth: … Present him eminence, both with eye and tongue: Unsafe the while, that we Must lave our honours in these flattering streams, And make our faces vizards to our hearts, Disguising what they are.”

Of further interest on the question of demeanour evidence is the following passage, in which the son of the slain king states that he has not yet had time to weep in sorrow, in light of the circumstances: “… Let 's away; Our tears are not yet brew'd.”  See Act II, scene III.  Drawing further attention to the concern that certain witnesses may be adept at feigning emotions, consider the words found at Act II, scene III of Macbeth: “… Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy…”

A great number of further examples might be offered in attempting to demonstrate the soundness of the proposition that outward demonstrations of facial demeanour are simply too unreliable as bedrocks for any precise conclusions, but I will limit myself to these.  On the issue of interpreting smiles, Act II, scene III, of Macbeth includes the words: “… There's daggers in men's smiles…” What of the expression “goose look” found in Macbeth, Act V, scene III: “Macbeth The devil damn thee black, thou cream-faced loon! Where got'st thou that goose look?” 

At all events, it is relatively simple for one to adopt a guise that may well hide the true nature of one’s thoughts and actions.  In this context, Justice O’Halloran cautioned against the fear that a good actor might hoodwink the Court.  Refer to Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10, and to para. 46 of the judgment of Ryan J. A. in R. v. Sue, 2011 B.C.C.A. 91:

46   There are a number of cases which caution judges not to rely too heavily on demeanour in determining credibility. As stated by O'Halloran J.A. in the frequently cited case from this Court, Faryna v. Chorny, [1952] 2 D.L.R. 354 at paras. 10 and 11:

[10] If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

Circumstantial evidence: A good example of

The passage found at Act II, scene III, in which Lady Macbeth sets out how she will incriminate the King’s chamberlains by smearing them with blood affords a well-known example of circumstantial evidence by means of which innocent persons stand accused most foully.  As we read: “… Give me the daggers: the sleeping and the dead Are but as pictures: 'tis the eye of childhood That fears a painted devil. If he do bleed, I'll gild the faces of the grooms withal; For it must seem their guilt.” Later on, we note her counsel at Act II, scene II: “… Go get some water, And wash this filthy witness from your hand. Why did you bring these daggers from the place? They must lie there: go carry them; and smear The sleepy grooms with blood.”

Circumstantial evidence: The dangers when raising “flight” against an accused

Case law abounds with illustrations of persons who are innocent who took flight upon the discovery of a crime, for a variety of innocent reasons, and prosecutors must always be wary of such circumstances.  One example found in the world of fiction arises in Macbeth, Act II, scene IV: “… Malcolm and Donalbain, the king's two sons, Are stol'n away and fled; which puts upon them Suspicion of the deed.”  And yet we know that they were innocent and we also know that they had good reason to fear that unjust suspicion would arise against them. Consider as well these passages, from Macbeth, Act IV, scene II: “Lady Macbeth … His flight was madness: when our actions do not, Our fears do make us traitors. Ross You know not Whether it was his wisdom or his fear.”[5]

One ought not to expect that each person will react the same to the same situation

An advocate is often confronted with a situation in which different persons have reacted differently to the same factual situation, let us say the reaction to an armed confrontation in which one or more flee whilst another does not. In seeking to make plain that the response of the one who remained was, amongst other things, not proportionate, it must be expected that the defence will raise the suggestion that different reactions are not only common, but to be expected, in situations of stress.  As illustrated in Macbeth, Act II, scene II, Lady Macbeth states: “That which hath made them drunk hath made me bold; What hath quench'd them hath given me fire.”

An additional example of the potential for a variety of reactions to a certain situation is seen in Act II, scene III, upon the discovery of King Duncan’s murder and Macbeth’s reaction, that of killing the two guards.  When asked why he had acted in this fashion, Macbeth responds: “Who can be wise, amazed, temperate and furious, Loyal and neutral, in a moment? No man…”

Cross-examination

Admittedly, the best-known example of advice on cross-examination advanced by Shakespeare is found in Hamlet, Act II, scene I: “Lord Polonius “… Look you, sir, Inquire me first what Danskers are in Paris; And how, and who, what means, and where they keep, What company, at what expense; and finding By this encompassment and drift of question That they do know my son, come you more nearer Than your particular demands will touch it …” Nonetheless, Macbeth contains some “backwards” advice, along these lines: “Lord He did: and with an absolute 'Sir, not I,' The cloudy messenger turns me his back, And hums, as who should say 'You'll rue the time That clogs me with this answer.'”  Stated in direct terms, the advocate must not allow a witness to “clog” the case adversely.

Memory is adversely affected by alcohol and other intoxicants

I doubt very much that any authority is required in support of the proposition that a witness who has consumed intoxicants may well be thought to have perceived events poorly and, certainly, to have retained the memory of the perception less than fully and fairly.  But if the occasion does present itself, reference may be made usefully to the following, from Macbeth, Act I, scene VII: “… his two chamberlains Will I with wine and wassail so convince That memory, the warder of the brain, Shall be a fume, and the receipt of reason A limbeck only: when in swinish sleep Their drenched natures lie as in a death…”  If you believe that further authority is called for, quote the Porter, at Act II, scene III.

Conclusion

It is the hope and expectation of every advocate that he or she has, in the words found in King Lear, Act V, scene III, succeeded in moving the trier of fact.  As Edmund states: “… This speech of yours hath moved me, And shall perchance do good: but speak you on; You look as you had something more to say.”  It is my hope that these classic citations will assist the advocate in achieving that ambition and though this article is directed to prosecutors, the essence of advocacy is the capacity to “flip” arguments and defence counsel may well profit as equally from the thoughts penned herein. 

Justice G Renaud

END NOTES:

[1]           Refer to Advocacy: A Lawyers’ Playbook, Carswell, 2006, and to the following articles: “Shakespeare’s Instruction for the Advocate: An Overview”, June 1999, 21 Advocates’ Q. 457-464, “Shakespeare and the art of judging”, (Spring 1999) 23 Prov. Judges J. 29-33 and “Shakespeare’s Instruction for Defence Counsel”, posted in Alan D. Gold’s Netletter, Quick Law, ADGN/RP-078, January 26, 1999.

[2]           On this subject, I commend without reservation Power of Persuasion, Essays by a Very Public Lawyer, by Sir Louis Blom-Cooper Q.C., Hart Publishing, Oxford, 2015.  My very favourable book review will appear in (2015), Vol. 39 Crim. L.J. 221-223. 

[3]           Advocacy: A Lawyers’ Playbook, Chapter 6, at pages 119-161. 

[4]           Refer to Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008.

[5] In addition, Act V, scene II, of Macbeth provides a good example of circumstantial evidence favourable to the prosecution.  Hence: “Angus … now does he feel his title Hang loose about him, like a giant's robe Upon a dwarfish thief.”  In other words, clothes that evidently do not fit may well make plain that they were obtained unlawfully.

All Talk and No Action

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Marshall and Wong were both found guilty conspiracy to commit robbery: 2015 ONSC 4593. There was no evidence that the conspiracy was ever carried out.

As part of a larger police investigation Marshall and Wong’s telephone conversations and text messages were being intercepted. Sixteen of those intercepts were filed as exhibits at trial. A police officer with expertise in coded language and slang testified about some of the words and language used in the recorded conversations. That said the ‘code’ used was neither sophisticated or particularly difficult to understand, essentially Marshall and Wong don’t use the term firearm but instead say ‘it’ or ‘one’ or ‘that thing’ or ‘the girl’.  Justice Code summarized the first of the sixteen intercepts as follows:

The first of the sixteen intercepts is the most important one. The parties agreed that the subject matter of this initial telephone discussion is a robbery. The call was made by Wong and it was received by Marshall on May 8, 2013 at 4:14 p.m. Wong immediately told Marshall that a man is "counting fifteen stacks right now". Marshall clearly understood Wong's reference to "fifteen stacks" and he replied by asking "where?" It is agreed that this exchange about a man "counting fifteen stacks" is a reference to money and I infer, in the context of all the evidence, that it likely means $15,000. Wong then asked Marshall, "you don't thing it, you don't have it?" Marshall replied, "I can get, I'm going for that right now". It is agreed that these cryptic terms -- "thing", "it", and "that" -- in the context of all the evidence, are references to some kind of offensive implement that Wong and Marshall needed in order to carry out the robbery that was under discussion. I am satisfied that these references, which are repeated and added to in the subsequent intercepts, are to a weapon of some kind and that they likely refer to a firearm, although the exact kind of weapon is not an essential element of the offence and it is unnecessary to decide whether it is a firearm or some other kind of weapon at this stage of the proceedings. [@para 9]

Another 15 exchanges took place between Wong and Marshall setting out their difficulties and frustrations as they tried and failed to find a weapon. There are spats between Wong and Marshall as they grow concerned that each is telling others of their score.

Their communications wind down and the two expressed their frustration at not having capitalized on the opportunity: “Marshall stated, "I'm cheesed ... we could've did something with that right here". Wong replied, "I know".” [@para 31]

Ultimately no robbery was ever committed. The only issue at trial whether the offence of conspiracy had been perpetrated.  

Code J stated the essential elements of the offence of conspiracy as follows:

it is now settled law that three essential elements must be proved by the Crown in a conspiracy case: first, an intention to agree; second, the completion of an agreement to commit an indictable offence; and third, an intention to carry out the agreement (which is sometimes referred to as the common design or as an intention to put the common unlawful design into effect [@para 40]

Defence argued “that the evidence disclosed mere talk, discussion and negotiation about a robbery, none of which can amount in law to an agreement.” [@para 41]

Code J rejected this argument and convicted Marshall and Wong. The Court held:

(…) that Marshall and Wong did reach an agreement to rob the man who had been seen counting money. Their agreement was conditional or was premised on Marshall securing a weapon that he had access to and it was conditional or premised on Wong checking with his "girl" in order to learn the present whereabouts of the man. In other words, it was an agreement to rob the man "if it is possible or propitious to do so", as explained in Mills and Root. The two conditions or premises -- concerning the weapon and the man's whereabouts -- related only to the parties' ability to successfully carry out the agreement. These conditions did not detract from the existence of an "overall dominant plan" to commit a criminal offence.[@para 49]

Although 16 intercepts were tendered Code J found that:

By the end of the second intercept, I am satisfied that an agreement had been reached to rob the man who had been seen counting money. The only rational inference from these two discussions between Marshall and Wong is that they were enthusiastically committed to a common goal of acting together in order to carry out a robbery. They assumed that Marshall would and could get his weapon, Wong had made inquiries as to the present whereabouts of the target of the robbery, and they agreed to meet in order to attempt the robbery. There was uncertainty as to the present location of the money but this was simply a contingency related to the ultimate success of the planned robbery. In all these circumstances, I am satisfied that there was an agreement between them to act together and carry out a robbery. [@para 51]

All talk and no action…. Still guilty. 

LT

Not so Endless Summer(s)

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Mr Abdullahi was convicted after a trial of four offences relating to the possession of loaded restricted firearm. The only issue at trial was whether the accused was in possession of the firearm; he claimed he was not. The trial judge rejected the accused’s evidence and convicted him of the offences before the court. At the time Abdullahi was found to be in possession of the loaded restricted firearm he prohibited from doing so.

The trial judge imposed a global sentence of 6 years. The breakdown of the sentence was as follows:

• Count 1:  Possession of a loaded restricted firearm (s. 95(1)):  4 years;
• Count 3:  Possession of a firearm knowing its possession is unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and
• Counts 4 and 5:  Possession of a firearm and possession of ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

Quigley J credited Abdullahi at a rate of 1.5:1 for 72 days of presentence custody as those days the offender was held in very crowded conditions. Abdullahi received no credit for the remaining 448 days of presentence custody.

Abdullahi appealed conviction and sentence.

The appellant’s main argument on the sentence appeal was that the trial judge erred in his assessment of the credit for pre-sentence custody. The Court of Appeal rejected that argument: 2015 ONCA 549.

In dealing with this argument the Court of Appeal noted first, that the sentencing judge did not have the benefit of the Supreme Court’s judgment in Summers, 2014 SCC 26.

The Court of Appeal briefly reviewed the principles in Summers and summarized them as follows:

First, the quantitative rationale for an enhanced credit is grounded in the loss of eligibility for early release and parole during pre-sentence custody.

Second, the qualitative rationale for an enhanced credit is to be applied to account for the relative harshness of the conditions in a detention center.

The Court of Appeal noted that the trial judge correctly applied the qualitative rationale in accounting for the harsh conditions during the 72 days where Mr Abdullahi shared a cell with two others.

The Court then noted that although loss of eligibility for early release is generally sufficient to grant enhanced credit it does not mean that such a credit is automatic. In fact, the specific circumstances of a particular offender may result in an adjustment or even denial of such a credit.

The Court held the following:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1.  The credit is not, however, automatic.  If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit:  Summers, at paras. 71, 79; R. v. Nelson, 2014 OJ. No. 5729, at para. 51-53. @para 18

In Mr Abdullahi’s case the Court noted that:

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges.  His conduct could hardly be worse.  Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody.  There is no realistic possibility that the appellant will be given any form of early release or parole.  Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit. @para 19

As such even though the sentencing judge did not have the benefit of the decision in Summers, the Court of Appeal found no error in the allocation of the credit for pre-sentence custody.

This decision serves as an important reminder that the enhanced credit is not automatic but requires a quantitative and qualitative analysis, based on a sound evidentiary record, to be undertaken by the sentencing judge. 

LT

Handguns: The cause of so much devastation

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Louis Woodcock apparently liked to carry around a handgun. On Boxing Day 2006 he allegedly was doing so on Yonge Street in Toronto. The Crown alleged he handed it to JSR who engaged in a shootout with other men. One of them shot and killed Jane Creba. Woodcock was charged with murder. He was convicted of manslaughter. He appealed: 2015 ONCA 535.

On appeal Woodcock advanced three grounds.

First, Woodcock alleged that the trial judge erred in relation to expert evidence. Two points were raised. One, that the evidence should not have been admitted as it was “common sense”. The trial judge rejected this position:

I am satisfied that this evidence is necessary to give the jury the tools to appreciate the evidence. It would not be surprising if most or all of the jurors will have never handled a handgun, much less carried an illegal firearm. Such an object is not an ordinary household object with which most persons can be presumed to be familiar. [Cited @12]

The Court of Appeal agreed.

Two, that the expert should not have been allowed to view the video in re-examination. Initially the trial judge ruled that the expert could not view the video in the presence of the jury and offer an opinion on it. However, during cross-examination defence counsel raised the video and challenged the expert on it. In light of this, the trial judge’s decision to allow it to be played in re-examination was reasonable.

Second, Woodcock alleged that the trial judge erred in her charge on causation. In essence, he alleged there was no direction on the issue of causation. In addressing this issue the court noted that it has previously considered the theory of causation in R v JSR, 2008 ONCA 544. The court then reviewed the charge given by the trial judge and held that it was sufficient; in doing so, the court cited, with approval, the following portion of the charge by the trial judge:

The Crown submits that this was, in effect, a mutual shootout, and that the issue of who fired the first shot is of no moment and only reflects who reacted the fastest. The Crown submits that Jane Creba died as a result of a decision by both the accused and Jeremiah Valentine to participate in a shootout on Yonge Street, and that the conduct of the accused in firing, or passing a gun so [J.S.R.] could fire it, was a contributing cause of the death. [Cited @22].

This theory of liability, together with the conduct of the accused (if accepted by the jury, as it apparently was) – which included carrying the handgun used by JSR and handing it to him – was sufficient to support the conviction.

Woodcock is another ruling in a long list of rulings on the prosecutions related to the killing of Jane Creba. It also emphasizes the generous approach to causation that courts are taking in cases of firearm related killings. This is appropriate and necessary. Handguns are designed for the purpose of killing (or at least seriously wounding) other human beings; that is their sole purpose. Those who choose to illegal carry such deadly weapons in our communities and brandish or provide them to others must be held responsible for the foreseeable consequences thereof. The convictions of Woodcock and others – even though they were not the ones that actually shot Jane – are appropriate and just.

DM