Quick Pleas? Better think fast...

Ratio

The Ontario Court of Appeal recently ruled in Quick that when a person pleads guilty to a criminal charge, prior knowledge of the “collateral consequences” of conviction can be crucial to securing the plea as an “informed plea”: 2016 ONCA 95. 

Facts

Quick involved a guilty plea by Mr. Quick to a charge of dangerous driving.  The plea was part of a resolution involving other charges.  The resolution agreement was for a custodial sentence; no driving prohibition to attach to the ‘dangerous’ charge.  Mr. Quick’s counsel told him he would lose his licence for one year.

Under s. 259(2) a Canada wide driving prohibition is discretionary for convictions for dangerous driving simpliciter.  Mr. Quick did receive a jail sentence and no driving prohibition was imposed.  But when the dangerous driving conviction came to the attention of the Ministry of Transportation of Ontario, (hereinafter “MTO”), Mr. Quick’s licence was suspended indefinitely.  Mr. Quick had two prior impaired driving convictions on his record from within the last ten years. 

The Appeal

At the Court of Appeal, Mr. Quick attested by affidavit that at the time he plead guilty to the ‘dangerous’ charge, he did not know about the consequences he would face vis-à-vis the MTO.  Mr. Quick swore that had he known he would lose his licence indefinitely, he would not have plead guilty and would have had a trial.  Therefore, he argued, his was not an “informed plea”.

The Decision

Laskin, J. agreed with Mr. Quick, and struck his plea, overturning the conviction.  In the decision Laskin, J. sets out a handful of signposts for navigating through the rough terrain ahead, of collateral consequences, knowledge of which can be integral to securing an informed plea.

For collateral consequences to be the type that affect the informed nature of a guilty plea they must be “significant”.  “Significance” is a modification on earlier analyses by lower courts where the concept of “legally relevant” collateral consequences was invoked to decide those that count.

After Quick, “significant” collateral consequences are identified by looking subjectively from the point of view of the accused for what matters.  Mr. Quick was a truck driver by trade, so an indefinite licence suspension by the MTO would be “significant” to him.  “Significant” to an individual are consequences, knowledge about which would change a plea to a trial.   

Quick’s collateral consequences for the Crown and courts

What is curious and perhaps cumbersome about the Quick way forward is the filter for significance in consequences is bound up with the individual accused, while the interests in ensuring knowledge about penalties – to secure pleas – falls to the Crown and to the courts. 

Moreover, while the type of collateral consequences likely significant in a given case might be possible to identify, such as transportation, or immigration based consequences, the particular impact of a conviction may be discretionary not automatic, or unable to be determined from outside the collateral agency or department.  For example, the Crown would not likely know the specific immigration status and history of an individual canvassing a plea agreement, and therefore not be able to convey the potential collateral immigration consequences of entering a plea, nor likewise the policies of transportation ministries in other provinces than the one where a plea negotiation is taking place.

Comment

If the collateral consequences are to qualify as significant, and the details of collateral penalties in every given case are to be so individualized in the “informed” analysis - and so closely scrutinized in hindsight - then shouldn’t it be the individual himself or herself, who is charged with the foresight?

LR

The victim surcharge...

Nancy Bateman pleaded guilty to assault. Bateman had thrown a bowl of hot soup at the victim while the two were residents in “a transitional housing facility in the 200 block of Main Street in Vancouver” [para 4]. The sentencing judge imposed an absolute discharge. In relation to the victim surcharge the appeal court noted that the following transpired:

In relation to the mandatory $100 victim surcharge under s. 737 for this summary conviction offence, Defence counsel said the accused wanted the victim surcharge to be payable forthwith and to be found in default. After consulting with his client, however, he changed this submission and said she wanted to have six months to pay. The trial judge acceded to this request, stating: 
THE COURT:  Yes. What I will do presently today is I will give Ms. Bateman six months to pay the surcharge.
Another lawyer who happened to be in the courtroom asked if she could “assist the court” and then suggested a “rather unique, relatively creative approach” using the fine option program in s. 736.
Over the objection of the Crown, the trial judge then said that she was going to deem the victim surcharge paid under s. 736(3). When Crown counsel asked by what mechanism, the trial judge stated: 
THE COURT:  I am just deeming it paid. 
Proceedings were then adjourned, and the accused and both counsel left the courtroom.
Later the same day, at the request of the trial judge, both Crown and defence counsel returned to the courtroom. In the absence of the accused, the trial judge announced that she was going to enter a stay of proceedings on the charge. When Crown counsel asked the trial judge to provide reasons, the trial judge said:
THE COURT:  Well, if the matter had proceeded to trial, I believe the young woman would have been acquitted. And she was not – she clearly wanted to proceed, most likely because of her mental health issues. And perhaps those should have been taken into account when the charge approval decision was made.
[Paras 9-13].

The Crown appealed. The appeal was allowed in relation to the stay: 2015 BCSC 2071. Bateman conceded that the judge was functus. The appeal court held that the sentencing judge’s reasons did not “provide a proper basis for entering a stay” [para 15].

Turning to address the victim surcharge, the appeal court held:

I agree with counsel for Ms. Bateman that notwithstanding s. 737(4), a sentencing judge retains a discretion to allow no time to pay, pursuant to s. 734.7(2). This is because s. 737(9) provides, inter alia, that s. 734.7 applies, with any modifications that the circumstances require, in respect of a victim surcharge, and that any reference to “fine” in s. 734.7 must be read as if it were a reference to “victim surcharge”. [Para 32].

Notwithstanding this finding, the court imposed the surcharge and granted six months to pay – the initial position advanced by Bateman.

With respect, there are at least two problems with this finding. First, having concluded that the offender lacked the means to pay it is illogical and improper to impose the surcharge and vary the time to pay causing an immediate default. In British Columbia the offender would have been grant 2 months to pay. If he did not pay – because, as the court found on the day of sentencing he was unable to – then no jail would be imposed: see R v Wu, 2003 SCC 73. In effect, the court has imposed an unnecessary jail term.

Second, the point of section 734.3 (which allows for the court to vary time to pay) is to allow an offender more time to pay. Overriding the statutory time to pay – forcing immediate default – is not only inconsistent with the dicta in Wu (that courts should not determine future ability to pay at the time of sentencing) but it also appears to be a means to avoid the imposition of the surcharge.

DM

No Free Downloads

Jeremy Glenfileld was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a sample of his breath.  Shortly before Christmas in 2011, Glenfield was alone in his car when he ran a stop sign and struck the Huber family, husband and wife and their two young sons, who were proceeding lawfully through the intersection. Glenfield struck the driver’s side passenger door where 11 year Jeremy was sitting; he died the next day.

At the time of the accident it was snowing lightly and the roads were wet. Witnesses smelled alcohol on Glenfield’s breath. Within 6 minutes of arriving on scene police issued a roadside demand, which Glenfield failed. Later at the police station Glenfield refused to provide a sample of his breath.

Glenfield elected to have a preliminary hearing; he was committed to stand trial. Glenfield then elected to have trial by judge and jury. At the start of his trial and with the Crown’s consent Glenfield re-elected to have a trial by judge alone. The trial proceeded in a blended fashion with Glenfield’s two applications to have evidence excluded heard along with the trial evidence.

One of the applications concerned the “Event Data Recorder [EDR]” seized from Glenfield’s Jeep at the scene of the accident: 2015 ONSC 1304.  Cst Stotts arrived on scene nearly an hour after Glenfield had failed the roadside demand. Stotts was assigned to collect “roadway evidence.” Stotts had no idea who the Jeep belonged to and if any charges had been laid. Stotts entered the Jeep and downloaded the information on the EDR. Stotts testified that he did so in order to avoid having the EDR reset by the jostling that would be caused by towing.

To get to the EDR, Stotts forcibly removed a cover in the front passenger area of the console and using a Crash Data Retrieval system he downloaded some of the data. It is that information that Glenfiled sought to have excluded on the basis that his right to be free from unreasonable search and seizure had been violated.

Hambly J held that “the owner of the damaged vehicle in a collision has a reasonable expectation of privacy in the contents of the EDR” [para 46]. Since the police had neither Glenfield’s consent nor a warrant they were trespassing when they entered Glenfield’s vehicle.

Hambly J held that there was no evidence that police:

knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.6. Biographic Core Test [para 51].

After concluding that the police had violated Glenfield’s section 8 Charter rights the court then turned to whether the evidence should be excluded. Hambly J held first, that the seriousness of the breach was at the low end of the spectrum [para 74]. Second, that the impact on Glenfield’s Charter protected interest was low. [para 75] Third, that the exclusion of the evidence would effectively gut the crown’s case. [para 76]

In balancing the factors the Court concluded that Glenfield had failed to establish administration of justice would be brought into disrepute by the admission of the EDR evidence. [para 78]

One important aspect of this decision is Hambly J’s instruction to police on how they could have lawfully secured and searched for the data on the EDR.  Hambly J explained that “police could have entered the vehicle for the sole purpose of deactivating the power to the EDR”. By deactivating the power they would have protected the information on the EDR while they secured a warrant. [para 51] 

LT

Toews Counting: one day for one day

Trevor Toews was convicted of second-degree murder. With respect to sentence, the Crown and defence were ad idem regarding the appropriate period of parole ineligibility - 10 years. The sentencing judge accepted this position. The judge, however, reduced the 10 years to 6 years and 8 months to "reflect an enhanced credit for pre-trial custody" [para 1]. The Crown appealed that ruling. The Court of Appeal allowed the Crown's appeal: 2015 ABCA 167.   

Enhanced credit may be given where a court imposes a jail sentence, pursuant to section 719(3.1). The discretion to do so, provided in that section, has no application to life sentences for murder; that sentence is prescribed by 745(c). Time spent in custody prior to sentencing for murder is included in the calculation of the period of parole ineligibility but enhanced credit cannot be given in relation to that time [paras 3-4]. 

There is nothing in the statutory scheme that expressly supports a discretion to reduce the period of parole ineligibility below the statutory minimum. The absence of a specific provision precluding the discretion cannot support the existence of a residual discretion contrary to the statutory scheme. These conclusions are consistent with decisions of this Court and other appellate courts: R v Stephen, 1999 ABCA 190 (CanLII); R v Tsyganov,1998 NSCA 227; R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 OAC 169 (CA).
The respondent argues that had he known there was an issue as to the availability of an enhanced credit, he may have led evidence to justify the credit. This argument cannot succeed. No amount of evidence can overcome a lack of jurisdiction. [Paras 4-5]

DM

Reliable Co-Accused

Jeffrey Woodman was out shoplifting with a group of friends.  They left the scene of their crime in a car. When a police officer approached the vehicle, the car accelerated towards the officer, struck him and sped off.   The officer sustained serious injuries. The principal issue at trial was the identity of the driver at the time the officer was struck. Woodman was convicted by a jury of his peers; the Ontario Court of Appeal dismissed his appeal of both conviction and sentence: 2016 ONCA 63. 

Woodman testified at trial. He admitted to shoplifting with his friends. He admitted to that he got into the driver’s seat and that he was the one who was driving when the car fled from police. However, Woodman maintained that that he was not driving the car when it struck the officer. 

The officer could not identify the driver and of the males in the vehicle only one came forward and offered information about who was driving the vehicle. 

At 3am a few hours after the officer was struck, Stinson provided a video recorded statement to police.  Stinson identified Woodman as the driver of the vehicle. The statement was unsworn. When called upon to testify at trial Stinson claimed to have no recollection of the events because he was under the influence of heroin. 

The trial judge admitted Stinson’s statement to police for the truth of it’s contents. Woodman argued on appeal that this was an error worthy of granting Woodman a new trial. The ONCA disagreed. 

The Court held “the trial judge properly exercised his role as gatekeeper in admitting Mr Stinson’s statement that met the twin threshold requirements of necessity and reliability: R v Youvarajah, 2013 SCC 41 at para 21.”

First, the Court found that the necessity criterion was made out on the basis of Stinson either failure or refusing to adopt his prior statement [para 8].

Second, the trial judge did not err in finding that threshold reliability criterion was met based on the following factors: 

  • The statement was given to police within hours of the incident
  • The statement was video recorded
  • Stinson’s demeanour and credibility at the time the statement was given could be assessed by the trier of fact 
  • Stinson appeared to be coherent, responsive to questions and not under the influence of drugs or alcohol
  • The declarant was available for cross-examination 
  • Several aspects of the statement were corroborated and/or confirmed by other evidentiary sources including the injured officer and video surveillance from the store where the group was shoplifting [para 9]

Woodman argued that the Supreme Court’s relatively recent decision in Youvarajah was determinative of this appeal. In Youvarajah the trial judge declined to admit a recanting co-accused’s statement notwithstanding the fact that the co-accused was available for cross-examination. Woodman emphasized that Stinson had a powerful motive to lie: saving his own hide and thus his statement to police should not have been admitted. 

The Ontario Court of Appeal distinguished Youvarajah from the circumstances in Woodman explaining that: 

(…) in our view, the circumstances of R. v. Youvarajah are distinguishable from the case at bar. In R. v. Youvarajah, the Court noted the absence of the following indicia of reliability that are present in the case at bar: the statement in issue was an agreed statement of facts prepared by the co-accused’s lawyer rather than the witness’ own spontaneous words, for use at his own separate youth trial as part of a plea agreement; the co-accused testified that he did not understand everything that he read in the statement; the statement was not videotaped so that there was no opportunity to assess the co-accused’s demeanour or credibility; and the co-accused not only recanted his previous statement but admitted at the appellant’s trial the acts in which he had implicated the appellant in his previous statement.  Most important, cross-examination of the co-accused would be effectively precluded by his invocation of solicitor-client privilege. None of these factors features in the present case [para 11].

Finally the Court noted that in addition to having properly exercised his gatekeeping function with respect to the admissibility of the statement, the trial judge also properly instructed the jury on how they were to evaluate the statement [para 13].

Woodman was sentenced to 4years and 8months in prison after having been credited with 1 year and 4 months pre-sentence custody. The Court dismissed his sentence appeal. 

LT

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

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