Invitation to knock? Depends if you are investigating or searching...

John Rogers backed into another vehicle. He was intoxicated when he did so. Someone noticed. Rogers left the scene but the police were called. The police obtained the licence plate of the vehicle Rogers was driving and went to the address of the registered owner. The officer entered the apartment complex at that address and knocked on the door. Rogers answered. As the officer spoke to Rogers standing at the door he formed grounds to arrest Rogers for impaired driving.

At trial Rogers argued that the officer violated his section 8 rights by approaching his door. The trial judge agreed and excluded the evidence obtained therefrom. The Crown successfully appealed to the summary conviction appeal court; a new trial was ordered. Rogers appealed from that ruling: 2016 SKCA 105.

The Saskatchewan Court of Appeal allowed the appeal and restored the trial judge's conclusion. The court accepted the Crown’s position on the law as follows:

Crown counsel on appeal submits that it is settled law that the police do not exceed the implied licence to knock simply because they are intent on investigating a potential criminal offence. He submits further that a police officer who is looking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable grounds to believe has been committed, is not conducting a “search” for s. 8 purposes for that reason alone. In support of this proposition, he relies upon Laurin; R v Vu, 1999 BCCA 182 (CanLII), 133 CCC (3d) 481, leave to appeal to SCC refused [1999] SCCA No 330 (QL) [Vu]; R v Grotheim, 2001 SKCA 116 (CanLII), 161 CCC (3d) 49 [Grotheim]; R v Petri, 2003 MBCA 1 (CanLII), 171 CCC (3d) 553 [Petri]; and Van Wyk. He states that all of the officers in these cases were looking for information and evidence about possible or actual crimes but none of them violated s. 8 simply because they approached a residence and knocked on the door in an effort to further their investigation. [Para 27].

The court rejected the notion, however, that the implied invitation to knock included situations where the police approach “with the intention of gathering evidence about the state of an occupant’s sobriety” [para 28]. The court acknowledged that the line between “investigation” and “searching” is a difficult one to draw but insisted it must be drawn:

There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive; but, in my view, none of the appellate authorities stand for the proposition urged upon us by the Crown in this appeal that the Court can ignore the express purpose of the police in approaching a dwelling house.  [Para 46].

In the end the court noted that the trial judge made the “critical finding” that the officer attended the Rogers’ residence “for the purpose of…obtaining evidence against” him. In such a case the officers exceeded the implied invitation to knock: see Evans, 1996 CanLII 248 (SCC).

This is indeed the critical finding. In Fowler, 2006 NBCA 90 the Court of Appeal noted that the trial judge, in that case, made the critical finding that the officers attended Fowler’s residence for the purpose of communicating with him. That finding resulted in no breach.

Notably, the Ontario Court of Appeal in Lotozky, 2006 CanLII 21041 (ONCA) recognized that the “fact that the police officer intends to pursue an investigation” of impaired driving “does not in my view exceed the bounds of the implied invitation” [Lotozky at para 35]. While the “entry” in that case was onto the driveway, the principles surrounding the implied invitation to knock remain the same. Where the officer had “a legitimate basis” for the entry – the investigation of a criminal offence – the entry was permissible.

The law surrounding this issue is nuanced. The distinctions are fine.  Attending one’s dwelling for the purpose of “investigating” an impaired driving offence is permissible conduct under the implied invitation. Attending for the purpose of “searching” is not.

DM

Recognizing Statutory Experts

Lorraine Parada was driving her car on Highway #2 in the municipal district of Air Ronge, Saskatchewan. Officer De Bruin noticed her driving. She was not driving well. She had crossed over the centre line, more than once. De Bruin pulled her over. As he spoke to her and asked for her licence and other documents he made observations that led him to suspect she was impaired. He made a roadside demand. As he did not have an approved screening device with him, he demanded she perform field sobriety tests [SFST] pursuant to section 254(2)(a) Code. Those tests, as per the Regulations, include the horizontal gaze nystagmus, the walk-and-turn test and the one-leg stand test. Parada failed. She was arrested. She later provided samples of her breath. She was over the legal limit. She was charged. She was convicted at trial. She appealed: 2016 SKCA 102.

On appeal Parada argued, inter alia, that the trial judge erred in allowing the officer to give "opinion" evidence related to the SFSTs without being qualified as an "expert" and requiring 657.3 notice. 

The Court of Appeal dismissed the appeal. The court began by noting that there are three recognized "categories" of experts capable of providing opinion evidence: (i) Mohan qualified experts; (ii) lay witness opinions (see Graat); and (iii) statutory experts. In relation to the statutory experts the court cited Bingley, 2015 ONCA 439. The court noted that in that case the ONCA held that drug recognition officers (evaluating officers as per s254 Code) need not be qualified to give an opinion on impairment. The statutory scheme, including the Code provisions and Regulations, provide the authority to permit DRE officers to give such an opinion.

In the present case section 254(2)(a) does not require that the officer be an "evaluating officer". If DREs need not be qualified under Mohan, the court concluded that officers performing the SFSTs need not be qualified under Mohan to provide evidence (admissible only for grounds at any rate) on the SFST tests.

Parada is another helpful decision settling the law across the country on issues related to the drug impaired driving provisions. As in Bingley, the court recognized the existence of "statutory" experts capable of giving an opinion pursuant to their qualifications under statute. This approach is logical, reasonable and consistent with statutory interpretation. It is one that the Supreme Court will likely accept when Bingley is decided later this year.

DM

Looked like a gun, walked like a gun, quacked like a gun

Dirie and Omar were both convicted of weapons possession offences. The sole issue at trial was identity. An apartment building equipped with a surveillance system captured the crime in progress. The trial judge found, beyond a reasonable doubt, that the two men in the footage were Dirie and Omar. She compared the men in court to the security footage, and gave some weight to the evidence of a police officer who had encountered Dirie on many occasions and who also recognized him in the footage. His posture and the way he spoke out of the side of his mouth were notable features. The trial judge also concluded the objects brandished by Dirie and Omar in the footage were loaded, restricted weapons.

Dirie and Omar appealed their convictions for a number of reasons: R v Dirie, 2016 ONCA 502.

In relation to the footage, both Dirie and Omar argued that the quality was too limited for identification purposes, and that it was an unreasonable finding of fact that the objects held by the individuals in the video were determined by the trial judge to be loaded restricted firearms. Dirie argued that the distinct features which the officer testified about should not have been considered by the trial judge in identifying him. Omar argued that the trial judge ignored the fact that no clothes matching the clothes in the footage were discovered after a search warrant was executed: @ paras 4, 5.

The Court of Appeal, in a brief decision, rejected all of Dirie and Omar’s arguments. The Court found it was clear from the trial judge’s reasons that she was “alive to the risks inherent in identification evidence”, and that she properly instructed herself in accordance with the principles articulated in R v Nikolovski, [1996] 3 SCR 1197. The trial judge determined the video was of sufficient clarity and quality for comparison purposes, she reviewed the footage multiple times, and, in comparing the images to Dirie and Omar, she was entitled to rely on the relevant police evidence at trial: @ para 7.

The trial judge also recognized the significance of the footage to the Crown’s case, and did so by expressly averting to the fact that the search executed did not assist the Crown: @ para 8.

Regarding the trial judge’s finding that the objects in possession of Dirie and Omar were loaded and restricted weapons, the Court of Appeal concluded there was “ample evidence” to support the trial judge’s finding, including “the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, which was captured on video”: @ para 10.

Comment

This is another recent case from the Court of Appeal (see also R v Benson, 2015 ONCA 827) which highlights the increasing importance of surveillance footage as effective (and, as in this case, sometimes critical) evidence for the Crown to lead in cases where identity may be difficult to prove. The utility of such footage is obvious: not only can it sometimes assist the trier of fact in reaching a possible determination as to identity, but it may also assist in the possible identification of other crucial details, including the possession of weapons.

SS

Constitutional Jurisdiction - Confirmed

Joseph Lloyd was charged with trafficking contrary to section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act. He faced a mandatory minimum sentence of one year. He challenged that minimum and asserted that it violated section 12 of the Charter. Notwithstanding that the trial judge (and counsel) believed that Lloyd deserved a sentence of at least 12 months, the trial judge considered the constitutionality of the provision and held that it violated section 12. The trial judge “declared” the provision to be of no force and effect. The Crown appealed and succeeded. Lloyd appealed to the Supreme Court: 2016 SCC 13.

The Supreme Court’s ruling offers three significant points of interest: (i) constitutional jurisdiction; (ii) the standard for section 12; and (iii) the limits of section 7.

Constitutional Jurisdiction

Before considering the constitutionality of the minimum sentence, McLachlin CJ, writing for the majority, addressed the issue of the constitutional jurisdiction of provincial court judges. The Court of Appeal had taken issue with the provincial court judge’s purported “declaration” of invalidity – holding that only superior courts, which have inherent jurisdiction can make such a finding. McLachlin CJ agreed:

The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.  However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.
[...]
The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. [Emphasis added]. @paras15 and 19

McLachlin CJ thus confirmed that while the provincial court judge in the present case had the statutory jurisdiction to consider the constitutionality of the provision – and to grant a remedy for Lloyd – the court had no inherent jurisdiction and thus no authority to make a “formal declaration”. Notably, McLachlin CJ went on to make clear that in cases such as the present one (where Lloyd was not impacted by the mandatory minimum) the doctrine of mootness could apply and the court could (perhaps should) decline to consider the issue:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [Emphasis added]. @para18

This conclusion is indeed consistent with the Court’s prior jurisprudence on this point and, equally important, logical and principled. There is nothing in our constitutional history and nothing in our principles of law that would warrant otherwise.

Section 12

Turning to the constitutionality, McLachlin CJ held that the provision violated section 12 – a three-member minority (Gascon, Wagner and Brown JJ) dissented on this conclusion and would have upheld the provision. Notably, however, McLachlin CJ offered some helpful language regarding the high bar for a finding of disproportionality under section 12:

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6 (CanLII), [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. @para24

The import of this can be understood – to some extent – when one reviews the dissent which expresses notable concern and offers a note of caution about the impact of the majority’s finding on this standard and how the majority’s conclusion appears out of step with the Court’s prior position on mandatory minimum sentences. @paras105-107.

Section 7

The final area of interest in Lloyd is the Court’s consideration and rejection of “proportionality” as a principle of fundamental justice. Notably, the Court considered the same issue in Safarzadeh-Markhali, 2016 SCC 14. In both cases the Court rejected the inclusion of “proportionality” as a principle of fundamental justice – in Lloyd the following comments summarize that rejection:

I am unable to accept the submission that the principle of proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. My starting point is the observation that principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter and conformity to the respective roles of Parliament and the courts.
[…]
Recognition of the principle of proportionality in sentencing as a principle of fundamental justice under s. 7 would also have implications for the respective roles of Parliament and the courts. The principle of proportionality is an admirable guide for judges seeking to impose fit sentences within the legal parameters established by Parliament.  But it is not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament. Those norms are judged only by the standard of s. 12.
[…]
Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:
It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. (R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont.), at p. 238)
[Emphasis added]. @paras 40, 43 and 45

DM

 

Realistically Dangerous

At 5:20am Balogun-Jubril [hereafter BJ] like a lot of folks was sound asleep. Unlike other folks though BJ was not tucked snugly into his bed. BJ was in the driver’s seat of his car. The car was off, the transmission was in park but the key was in the ignition. Most peculiar however was the location of BJ’s car. He was stopped in a lane of an exit ramp on a provincial highway. The location of the vehicle and BJ’s deep sleep caught the attention of both the Ministry of Transportation and police. Once conscious BJ exhibited what officers described as significant signs of impairment.

At 6:41am BJ provided his first of two breath samples which confirmed what the officers suspected – BJ’s blood alcohol concentration was well over the legal limit at 150mg of alcohol per 100ml of blood. BJ was charged with driving over the legal limit and impaired driving.

At trial BJ testified. He claimed that at 2:45am as he was driving his car stopped working. A mechanic testified that the vehicle was inoperable, as the oil had leaked causing the engine to seize.

The trial judge found that BJ was not operating the vehicle while impaired but was in care and control of the vehicle. The trial judge then concluded that BJ had “not engaged in an intentional course of conduct that had created a realistic risk of danger.” As a result she acquitted BJ of both charges.

The Crown successfully appealed to the summary conviction appeal court. The summary conviction appeal court held:

that the trial judge committed a palpable and overriding factual error in concluding that there was no realistic risk of danger to persons or property when the police arrived on the scene. Noting the "low threshold" of establishing that the conduct of the accused in relation to his motor vehicle created a realistic risk of danger to public safety, the appeal judge set aside the trial judge's decision and registered convictions on both counts against the appellant.  @para 5

At the Court of Appeal BJ advanced two grounds of appeal: 2016 ONCA 199. First, that the summary conviction appeal judge “was not entitled to interfere with the trial judge’s finding that there was no realistic risk of danger to the public, as deference is owed to findings of fact.”

Second, even if the appellate judge was entitled to interfere with the trial judge’s finding, “the risk identified by the appeal judge is properly characterized as ‘theoretical’ and not ‘realistic’.” @para 6

With respect to the first ground the Court of Appeal held that the trial judge embarked upon the wrong inquiry. The trial judge framed her conclusion as follows BJ had done "all that could be done to reduce the risk".

That of course is not the correct or even “pertinent inquiry. The question the court must determine is whether any realistic risk of danger was created.” @para 12

Juriansz JA writing for a unanimous Court held that:

given the incorrect analysis of the trial judge, the appeal judge was entitled to interfere with her conclusion and to find that the risk was realistic, and not merely theoretical. On the facts found by the trial judge, I would conclude that he was correct in doing so.
While the application of the standard of review is a question of law, this proposed argument has no merit and cannot provide a basis for leave to appeal.  @paras 13-14

On the second ground the Court held that whether the risk was realistic or theoretical is not a question of pure law and therefore could not be advanced on appeal. @para 16

The ONCA refused leave to appeal. @para 17

Although impaired and over 80 cases are some of the most demanding offences to prove from an evidentiary perspective as is clear from the various rulings in the present case, the outcome here is one of pure and simple common sense.

BJ was in the driver’s seat of his car. The car was in a lane on a ramp on a highway. The key was in the ignition. There can be no question that such a vehicle poses a risk of danger to other motorists. Further exacerbating this risk was the fact that BJ was impaired by alcohol and his blood alcohol concentration was nearly twice the legal limit. Nothing other than realistically dangerous about that

LT

Some is all you need

Webster was accused of committing offences against is former domestic partner. At the preliminary inquiry the now ex-partner testified via closed circuit television in a sequestration suite designed to allow witnesses to testify outside of the presence of accused.

She testified that she knew Webster, had been engaged to him and that they resided at the address specified in the information before the court.

The complainant was not asked to identify Webster nor from the sequestration suite would she have been able to do so.

At the conclusion of the preliminary hearing the defence argued that the accused should be discharged as the crown had failed to adduce some evidence that the accused before the court was the person who committed the offences.

The preliminary hearing judge discharged the accused. The Crown successfully sought the extraordinary remedies of certiorari and mandamus. Webster appealed to the Court of Appeal seeking to have the discharge reinstated. That appeal was dismissed: 2016 ONCA 189.

In a brief endorsement the Court reminded us that:

It is well settled that the identity of names a complainant identifies as her assailant and the person charged constitutes some evidence of identity. It is all the more so, when the name is accompanied by an address and other biographical details: R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.), at p. 573; and R. v. B.(D.), [2007] O.J. No. 1893 (C.A.), at para. 1.

The Court agreed with the certiorari judge that preliminary inquiry judge committed a jurisdictional error by failing to consider the whole of the evidence and in particular the identity of names as some evidence of identity.  [at para 6]

LT

To waive or not to waive - that is the question. Or, at least, it used to be

The Charter provides all Canadian citizens with a variety of rights that take legal authority above any other law that exists in Canada.  Many of those rights relate to individuals who are charged or arrested in relation to a criminal offence and outline the manner by which an accused is to be dealt with as they work their way through the criminal justice system. 

However, while all Canadians hold these rights, they also hold the right to waive those rights.  That being said, waiving a constitutional right is not like waiving the whipped cream on your mochachino at Starbucks – it’s a lot more serious.  The Supreme Court of Canada has outlined the thresholds for waiving a constitutional right in R v Manninen, 1987 CarswellOnt 99 (SCC).  The SCC held that a waiver may be either explicit or implicit.  Explicit waivers are relatively straight forward.  When asked about the whipped cream, if you respond “no thanks,” it’s understandable that the barista will serve you a whipped cream-free mochachino.  Similarly, when asked if you would like to speak with a lawyer now, if you state “no,” this constitutes a valid waiver of that element of your 10(b) right. 

The difficulty arises, however, when the answer given is equivocal.  What if you tell the barista “I probably shouldn’t… but on the other hand I do really love whipped cream.”  What is expected of the barista?  Did you waive your right to whipped cream or not? 

This is where whipped cream and Charter rights are different (a sentence I never thought I would write).  The barista can probably be forgiven whether she gives you whipped cream or not.  She’s got a lot of coffee’s to make, and is too busy misspelling your name to really engage in any follow-up.  But this sort of equivocal waiver typically will not constitute a valid waiver of a constitutional right.  According to the Supreme Court in Manninen, the threshold for these sorts of implicit or equivocal waivers is “very high,” and it must be proven by the party alleging that a waiver was made (typically the Crown).  In order to ensure a waiver is valid, therefore, in the case of an equivocal waiver the police are required to ask follow up questions to ensure that the accused understands their right, understands the consequences of waiving their right, and that in light of this information that they are, in fact, waiving that right.

As such, many Charter applications hinge on whether an accused provided a valid waiver.  Did they provide a valid waiver of their section 8 right prior to being searched? Did they provide a valid waiver of their section 12 right prior to receiving a cruel and unusual punishment? (I haven’t actually seen this one argued). 

However, what happens when a single Charter right has multiple elements?  Does a valid waiver require a waiver of each element of that right? 

An excellent example is the 10(b) right to counsel.  The Supreme Court in Manninen has told us that 10(b) has two elements: an informational element (which requires the police to inform the accused of the right to counsel, their right to speak to counsel, and the availability of duty counsel to speak to them free of charge); and, secondly, an implementational element (which requires the police to give the accused a reasonable opportunity to speak with counsel without delay). 

With respect to the informational component, the question is typically phrased “do you understand your right,” to which a yes or no answer is provided.  In response to the implementational component, the question is normally phrased “do you want to speak to a lawyer now,” again to which the typical answer is a yes or no.

But what happens when an accused provides a clear answer to the first question, and an equivocal answer to the second?  Enter the Ontario Court of Appeal.

The issue was explicitly addressed in Owens, 2015 CarswellOnt 14602.  This was a typical impaired charge.  Mr. Owens was pulled over, provided a sample into an ASD, failed, was arrested, and received his typical rights read by the arresting officer.  With respect to the informational component of his right to counsel, Mr. Owens states that “yes” he understood.  However, when asked “do you wish to call a lawyer now,” Mr. Owens replied “No, not right now.”  An interesting (although not atypical) answer.  Was this a valid waiver?  Does Mr. Owens get served whipped cream or not?  Or does he get his mochachino now, and return for his whipped cream later?  Is the barista required to put his whipped cream aside and offer it to him again when he returns?

The Court of Appeal’s answer: you’re asking the wrong question.  According to the ONCA, lower courts have often engaged in this incorrect analysis and the Court expressed at paragraph 19 that it hopes its decision in Owens decision will expressly clarify the law on this point to assist trial courts going forward.

In summary, the ONCA held that the issue of waiver for 10(b) only arises after the accused invokes his right to speak to counsel.  In other words, it is not a two-step analysis of whether the accused understood his right, and whether the accused waived his right.  Rather, what is required is a three part analysis, and the onus shifts between the parties at each step.  The proper analysis for 10(b), therefore, is as follows:

  1. Did the accused understand the implementational component of his 10(b) right? [Onus on the Crown]
  2. Did the accused invoke his right to counsel, on a balance of probabilities? [Onus on the accused]
  3. Did the accused provide a valid waiver of his right to counsel? [Onus on the Crown]

The Court found that Mr. Owen’s reply “No, not right now” did not constitute an invocation of his right to speak with counsel, so the issue of waiver should never have arisen: the right must be asserted before it can be waived. 

So don’t be caught off guard – ask for whipped cream, or any statement you make to the barista may be admissible in court.  

DD

Tried to go to rehab; ONCA said no, no, no

Clouthier’s blood alcohol was over the legal limit; he drove anyway. He drove badly and dangerously. Clouthier rear-ended another motorist as he approached an intersection; he fled from the accident. He did so by reversing over the median and heading into a residential area. There he rear-ended a second vehicle. He fled from that accident too- accelerating away at speeds over 100km/hr. He collided head on with another vehicle. One of the passengers of that third vehicle sustained serious injuries and need emergency surgery. Clouthier climbed out of the window of his truck and tried to run away. Witnesses captured him and held him until police arrived.

Clouthier plead guilty to impaired operation causing bodily harm, dangerous operation causing bodily harm and two counts of failing to stop at the scene of an accident.

He was remorseful. He took steps prior to sentencing to address his addictions and depression. By the time of sentencing he was gainfully employed.

Clouthier sought a suspended sentence or alternatively that he be sentenced to 90days and be permitted to serve the time on weekends.

The Crown argued for a sentence of 12months incarceration followed by probation.

The sentencing judge decided that a period of 5months in custody was the appropriate sentence, however she offered Clouthier the opportunity to serve the sentence in two intermittent installments. Clouthier accepted. He served 90days intermittently and then returned to court months later to be sentenced to a further 60days intermittent sentence.

The Crown appealed arguing that the imposition of consecutive intermittent sentences was illegal and that the sentence was manifestly unfit. The Ontario Court of Appeal agreed: 2016 ONCA 197.

Watt JA writing for the Court held:

What happened here was that, by imposing intermittent sentences at different times, the trial judge did indirectly what she could not have done directly without breaching the 90-day limit in s. 732(1) of the Criminal Code. The result is an effective sentence that defeated the very object of s. 732(1) and disregarded the correctional principles that it was meant to serve. [@para 38]

With respect to the fitness of the sentence the Court held that the five month sentence imposed “fails to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation, and protection of the public.” [@para 58]

Moreover the Court noted that it was an error not to have imposed consecutive sentences for the two counts of failing to stop at the scene. Although the sentences for failing to stop could have been made concurrent to each other to give effect to the principle of totality “they should have been made consecutive to the sentences for the dangerous and impaired offences.” [@para 60]

The Court held that the appropriate sentence in this case would have been 15-18months followed by a 12 month period of probation. This is so notwithstanding the positive rehabilitative steps Clouthier took to address his addictions.

In deciding whether to reincarcerate the offender the Court explained that:

These were serious offences that demonstrated a complete disregard for the lives and safety of others lawfully using the streets of an urban area on a summer evening. Repeated flights from the scenes of the accidents displayed a callous indifference to fellow motorists. No undue delay has occurred between service of the sentence and the hearing and determination of the sentence appeal. Despite the respondent’s remorse and significant rehabilitative steps, I see no reason to stay the operation of the sentence I consider appropriate in this case. [@para 64]

The ONCA ordered Clouthier to surrender himself within 72hours to serve a further 9months in custody.

Active efforts at rehabilitation are an important consideration at sentencing however they cannot displace the predominant sentencing objectives of deterrence, denunciation and protection of the public. As Watt JA held, those efforts are what make the appropriate range 15-18months “were it not for these positive attributes, a fit sentence would involve a more lengthy period of incarceration.” [@para 61]

 

Don't take your guns to town son, leave them at home

Darteh was hanging out in front of his residence. Police had received a complaint from the property manager that there had been a lot of trespassers especially after 8pm. Police spotted Darteh; it was after 8pm. Darteh spotted the police and quickly walked away; he stopped at the first apartment, knocked on the door and tried the handle to get in.

Police found this all to be quite suspicious and approached Darteh.  Darteh was carrying a partially consumed bottle of liquor and he reeked of booze. He had blood shot eyes- the officers felt this was a strong indication that Darteh had been drinking in the courtyard where they had first spotted him.

The officers asked Darteh for ID and he handed it over with a trembling hand; this officers found his level of nervousness suspicious. As Darteh was speaking with the officer he stood with his knapsack, which he wore on his back, pressed firmly against the wall; the officers suspected there was something in the bag that Darteh didn’t want them to see.

When the officers inquired about the backpack, Darteh shoved and kicked one of the officers and ducked into his apartment. The officers entered the apartment the scuffle continued as they tried to arrest Darteh. Police then searched the backpack and discovered a handgun. Darteh was charged with numerous firearms related offences and assaulting a police officer.

At his trial Darteh argued that his section 8 and 9 Charter rights had been violated and as such the firearm should be excluded and that the assault against the police officer was lawful. Justice Code dismissed the Charter motion and convicted Darteh of the offences: 2014 ONSC 895.

Darteh appealed. He argued that the police arbitrarily detained him and that the trial judge erred in finding otherwise.

The Ontario Court of Appeal dismissed the appeal: 2016 ONCA 141. The Court held that when considered cumulatively the following set of factors provided the officers with the requisite subjective suspicion grounded in objectively discernible facts:

  • The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.
  • The appellant did not have a key to the unit that he was trying to enter.
  • The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.
  • The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.
  • The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in. [para 6]

Of note is that the constellation of factors related to a lawful detention under the Trespass to Property Act and the Liquor License Act, and not in relation to the officers believing that Darteh was committing any Criminal Code offence. This is so notwithstanding the fact that the officers were suspicious of how Darteh was angling his backpack away from the officers.  In contrast in R v Grant, 2009 SCC 32 and R v Le, 2014 ONSC 4288 the accused’s body language (fidgeting and blading) led the officers to believe that they might be concealing a weapon.

The distinction about the basis for the detention, that is the Criminal Code or a provincial act, matters little. What does matter however is how the officers articulate the basis for the detention and the “constellation of discernible facts” that lead them to detaining someone.

Although Darteh was not licensed to possess that firearm under any circumstances, he should have heeded Johnny Cash and left his gun at home, where the test for a lawful search requires far more than what the officers had in this case. 

LT

Don't believe everything you see on the internet

Daryl Argent posted two ads on Craigslist. The ads indicated that Argent was looking for a woman between the ages of 18 and 30 interested in smoking marijuana and more. Lest there be any doubt about what Argent meant by ‘more’ he thoughtfully included a picture of his genitals and to seal the deal a pic of him holding a bud of marijuana.

To the layperson such an ad may have simply taken at face value: a guy looking for a girl to get high and have sex. To Det Brien Smith of the Child Pornography Unit at the Hamilton Police Service the ad held some potentially hidden meaning. In his training Det Smith had learned that people who are seeking sexual activity with children will often mention the age 18 in their ads. This is because Craigslist does not allow personal erotic ads to specify an age less than 18. Det Smith honed in on Argent’s ad because of his mention of the age 18.

Det Smith posing as a 14year old girl named Carlee responded to Argent’s ad. The response read:

Hey..cool pix! im not sure which is bigger…the bud in your hand or your bud! lol!…smoked for first time at my gr8 grad a few weeks ago..yeah! lemme know when you r smokin again some time…luv to try again [para 4]

The two exchanged messages and Carlee revealed that she was 14yrs old, a virgin, in the eighth grade and inexperienced with drugs and sex.  Argent responded with talk of oral sex and condoms for vaginal sex.

Argent was arrested and charged with luring a child to engage in sexual activity. Argent was convicted. He appealed. One of the grounds of appeal was that the trial judge erred in dismissing Argent’s request for a stay of proceedings on the basis of entrapment. The Court of Appeal found no error: 2016 ONCA 129.

Argent argued that the police lacked the reasonable grounds to suspect that criminal activity was taking place. He argued that the fact that the ad specified the age of 18 did not on its own provide the requisite level of suspicion. Moreover, Argent argued that it was ‘Carlee’ and not him who sexualized the content of their communication since she made the double entendre reference to Argent’s bud.

The Court of Appeal rejected these arguments and held that:

[t]he ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.
We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended.  It was the appellant who pursued the discussion of sexual activity. These facts support the officer’s suspicion that criminal activity was underway [paras 12-13]

It is hard to imagine that the Court could have found anything less than sexualized content in Argent’s ad given that he had posted a picture of his genitals along with his request for female pot smoking company. However, an interesting feature in this case is the Court’s acceptance of the fact that the specified age of 18years could in fact mean an age less than 18. Given that the website does not allow ads with the age of less than 18, the court had no difficulty accepting that not everything on the Internet should be taken at face value. Argent wasn’t the victim of entrapment he simply got caught. 

LT