New & Notable: Choosing Between the Devil and the Deep Blue Sea

Choosing between the devil and the deep blue sea is not something one envies but it is something one must do from time to time; the longevity of this idiom is a testament to that fact.  The precise origins of this idiom seem to be the source of some debate.  The Phrase Finder canvasses some of this debate noting that CANOE (the committee to ascirbe a nautical origin to everything); that approach to the origin of the phrase is also noted by Wikipedia.  Both sites seem to reject this explanation however; The Phrase Finder favours Greek origins for the phrase:
Homer's Odyssey refers to Odysseus being caught between Scylla (a six-headed monster) and Charybdis (a whirlpool).
Whatever the origin, the phrase is well known and been used in songs (sung first by Cab Calloway in 1932), movies and plays.
In the recent case of R v Borde, 2011 ONCA 534, the appellate Crown (James Stewart) craftily made reference to this phrase in discussing the dilemma facing defence counsel at trial in response to a ground of appeal alleging ineffective assistance of counsel.
Quinn Borde was charged with several offences relating to a robbery and attempted murder.  At trial his position was that he did not commit the offences and was at home with his mother when the offences occurred [paras 1-2].
On June 29, 2006 two young women were partying together and decided to attend at another woman's residence for the purpose of buying some marijuana.  During their trip to that residence they were accosted by a male, alleged to be the appellant.  The appellant robbed them of a chain and some cash and then told them they were staying with him.  The three then attended another residence to find some marijuana and a confrontation occurred at the door of that residence during which the appellant shot the resident.  The appellant and the girls left the apartment and shortly thereafter on the street were confronted by the police.  The appellant began shooting at the officers and then fled.  During his flight he fired shots at an ambulance which was attending to help the residence who had been shot earlier.
At trial the Crown called eye-witness photo lineup including one of the females who had known the appellant.  While the appellant had apparently not planned to testify, after the female witness proved to be "formidable" he chose to testify and provide an alibi defence - which, due to his initial position, had not previously been disclosed. 
The appellant was convicted of almost all of the offences he was charged with and appealed [paras -14].
One of the grounds of appeal related to an allegation of ineffective assistance of counsel.  The allegation related to the failure to make timely disclosure of the alibi and accordingly avoid the adverse inference that could be drawn.  In rejecting this ground of appeal Juriansz JA, for the court, offered the following:
Defence counsel examined both the appellant’s mother and brother regarding his claim of alibi and concluded that the jury was unlikely to believe them. Counsel for the appellant accepts that it was reasonable for defence counsel to make this judgment initially and to advise the appellant not to testify. Counsel for the appellant points out that circumstances change, as they did in this case, and because the accused always has the right to decide to testify, defence counsel must serve a notice of alibi in all cases. The only exception this rule that counsel for the appellant would recognize is where defence counsel knows the claim of alibi is fabricated.
I find the proposition too unequivocal. Certainly, having the case go to the jury with an adverse inference instruction is always undesirable for the defence. Every effort should be made to avoid that happening. However, sometimes the defence must choose between the devil and the deep blue sea, as counsel for the Crown put it. Here, defence counsel considered that the appellant’s alibi defence would be disbelieved, and that having the police investigate the claimed alibi would harm the defence by exposing its weakness or possibly establishing it was concocted. The appellant was prepared to accept that advice. In the unlikely event that the appellant changed his mind, going to the jury with a failed or concocted alibi would have been worse for the defence in defence counsel’s judgment. This was a competent, professional tactical decision that I would not second guess [paras 20-21] [emphasis added].
Other grounds of appeal were raised and rejected including an allegation with respect to the use that could be made out of the appellant's failure to call his mother [paras 26-29]. 
In the end the appeal was dismissed.  The appellant had been sentenced by the trial judge to 25 years.
 
DG Mack

Comment: Racial Profiling...

Racial profiling is a serious allegation and if made out should be treated very seriously; our Court of Appeal has clearly recognized this: R v Brown, 2003 CarswellOnt 1312 (CA).  Conversely, it is a serious allegation that should not be made lightly and should properly be raised.  As the Court of Appeal noted, in "quickly" dispensing with a non-meritorious claim of racial profiling in  R v Clayton, 2005 CarswellOnt 1061 (CA) [overturned on other grounds]: 
There is no basis in the trial record for this submission [of racial profiling] which, as indicated above, was made for the first time on appeal. It is unfair to those who are the target of this serious allegation to raise it for the first time on appeal. In addition, advancing a claim of racial profiling where it is so obviously devoid of merit tends to trivialize a matter of serious concern within the community.  [Emphasis added].
In the recent case of R v Noel and St-Louis, Ontario Court of Justice, Ottawa, June 23, 2011, it was alleged that the arresting officer may been involved in racial profiling.  Unfortunately, these allegations were made during a preliminary hearing and absent a formal complaint or Charter motion (indeed the court had no jurisdiction to consider the validity of the stop or detention).  Respectfully, it seems equally unfair to raise such a serious allegation in the context of a judicial proceeding where the court has no jurisdiction to properly consider the allegation and without the benefit of a full and fair hearing.  
Moreover, the allegation of "racial profiling" was legally irrelevant in the proceedings.  A claim of "racial profiling", in the context of a criminal trial, has a specific meaning and consequence; it is relevant where a stop and/or detention of an accused is at issue or some other Charter remedy is being sought.  If proven its consequences may be a stay or exclusion of evidence.  However, where there is no formal claim or the court has no jurisdiction to consider it, a claim of "racial profiling is legally irrelevant.  The comments of the court in R v Humphrey, 2011ONSC 3024, 2011 CarswellOnt 3817 - where racial profiling was alleged - are instructive:
Once it is determined that the H.T.A. grounds for the stop were not a mere ruse, and that the police genuinely acted, at least in part, on the basis of the expired val tag, it becomes very difficult to establish racial profiling. As Morden J.A. put it in Brown, supra, the burden on the accused is to establish on a balance of probabilities "that there was no articulable cause for the stop" or that the H.T.A. grounds were "a pretext for a racially motivated stop", as Doherty J.A. put it in Peart, supra. On the facts of the present case, the "extra interest" that motivated the police to stop the Cadillac was the possible association of the car to criminal gang members. As in Brown v. Durham Regional Police Force, the racial make-up of the possible criminal gang associates does not appear to have been a factor. Whether they were black or white, the possibility of gang associations was a perfectly good reason to show some "extra interest" in the car. [Emphasis added]. 
Unfortunately, but not unexpectedly, these allegations and the results of the case have spurred much commentary.  For example, in a blog on "Politic?" the author offers the following critique on the comments by the court in R v Noel and St-Louis:
It's the troubling aspect of how the courts perceive their mission in weighing evidence put before them through the professional conduct of police, coming to the unwarranted conclusion that as a result of imputed behavioural misdemeanors, that evidence is to be set aside that should concern us. The police doing their professional best and the courts insisting on leniency based on political correctness.
On the other side, Dawg's Blawg seems to view the courts comments in a much more favourable light.  
Obviously this is a subject which will stir up emotion and strong opinions; before jumping to conclusions however,  it is important to consider some facts.
First, as noted at the outset, this was a preliminary hearing.  There was no formal allegation of racial profiling made, no Charter motion alleging the stop or detention was unlawful, arbitrary or based on racial profiling; nor could there be as the court was without jurisdiction to consider same.  Absent such a motion (and jurisdiction for the court to consider it) it is unfair and legally irrelevant to raise the allegation. 
Second, to the extent that the stop and detention was alleged to be based on racial profiling, it should be recognized that the officer was legally authorized to make the stop.  Pursuant to section 32(1) of the Highway Traffic Act and section 3(1)(a)(i) of the Compulsory Automobile Insurance Act, combined with section 216 of the Highway Traffic Act the officer was lawfully entitled to stop the men and check their licence and insurance.  The officer testified that he did stop them for that purpose; after explaining why he ran the plate, "to see if there's stolen vehicles...if they're expired, who owns the vehicle, if the vehicle is stolen...", the officer testified as follows regarding the reasons for the stop [as reported by the Ottawa Sun]:
OFFICER FERRIE: I stated the reason for my stop, I’m just checking documents and ensuring that he’s allowed to be in the vehicle. I asked him who owned the vehicle and he stated his — his mother did.
Is it racial profiling to stop a motorist, for a valid and lawful purpose, just because they are black? It could be racial profiling, if there was any evidence to support that allegation.  On the other hand, it could be good police work to rely on a valid authority to stop two young men driving a Cadillac registered to an older female in the Market to ensure they were properly licenced and had insurance and registration for the vehicle.  The officer could have stopped any person driving through the Market that night to check on their licence.  He choose to stop these young men for that purpose; true, he did so in part because they raised suspicion in his mind, yet, he did so for a valid purpose.  That is good police work, not racial profiling. 
The recent case of R v Hopkins, 2011 ONCJ 349 makes this point in circumstances which most people will easily accept and likely agree with [see my blog: Quotable Quote: It can be Random, it Need Not be Pointless].  In Hopkins the defence argued that it was a Charter violation for an officer to select and stop motorists in the area of a bar under section 48 of the Highway Traffic Act - a section which permits officers to stop motorists to determine if they may be impaired.  The argument was essentially that the officer was "alcohol profiling".  That argument was rejected.  It would be odd to permit officers to stop motorist to check on their sobriety but not permit them to stop motorist who are more likely to be impaired, such as those who are leaving a bar.  Similarly, it would be odd that officers are permitted to stop motorist to check on their licence, registration and insurance but not to stop those who are more likely in contravention of those sections (such as two young men who are in an older female's Cadillac).   
Third, as far as it appears from all reports and reference to the case, the officer never admitted or conceded that he was racial profiling.  A finding that it was racial profiling in the absence of any evidence to support same is troubling - as noted in Humphrey, if the allegation were made in a proper Charter motion, it would be the accused who bore the onus of establishing, on a balance of probabilities, that there was no valid reason for the stop.
It is interesting to note, in this regard, one of the questions posed by the judge during the questioning of the officer [as reported by the Ottawa Sun]: "How many white women do you stop in the market just because they're driving a car?".  The officer replied "I couldn't even tell you".  Of course, the more relevant question - if you were attempting to allege racial profiling or determine if there was racial profiling is "How many young white men driving cars in the market that are registered to older females do you stop?".  This could provide relevant evidence on racial profiling.  The actual question posed is completely irrelevant, with respect.
Racial profiling is a serious allegation and must be rejected and admonished by the courts.  It must not be alleged or found, however, in the absence of a formal Charter motion and a full and fair hearing. 
Coincidentally, during the stop the officers found the following: 13 grams of pot, 5 grams of crack and $1,685 in cash.

 
DG Mack

Quotable Quote: A Car is no Place to Hang When you're Drunk!

Chelsea Kelly was convicted by Justice Adams of one count of impaired care and control of a motor vehicle; Kelly appealed her conviction.  In dismissing the appeal, Kane J provides a quotable quote in relation to care or control cases: R v Kelly, 2011 ONSC 2258.
Kane J outlined the salient facts as follows:
The appellant drove her automobile and her girlfriend to a bar on the evening of May 3, 2009. The appellant parked her car at the bar. She and her friend went into the bar and consumed some alcohol. They stayed at this bar for some 3 to 4 hours. The appellant and this friend then left the bar and went with others to a house party where they stayed for between one-half to one hour. The appellant's car had been left at the bar and not driven to the house party. The appellant and her girlfriend left the house party with the intention to walk to the girlfriend's home. The girlfriend, wearing shorts and a tank top, became cold as they walked. It was decided to stop at the appellant's car to warm up. The appellant testified that, after warming up in the car, it was her intention to then walk to the girlfriend's home some ten minutes away from the car.
The appellant used her keys and unlocked her car. The appellant sat in the driver's seat. Her girlfriend sat in the front passenger seat. The appellant placed the keys into the ignition and started the motor. Neither woman wore a seat belt. The two women remained in the vehicle with the motor running for approximately ten minutes whereupon two police officers at 04:08 hours noticed the stationary car with running lights on. Police detected the smell of alcohol from the appellant. The physical actions by the appellant during questioning by police suggested to the officers that she was impaired from alcohol. The appellant was arrested and taken to the police station. The breath analy-sis of the appellant conducted at approximately 05:15 hours were 113 milligrams and 108 milligrams of alcohol in 100 millilitres of blood. A charge under s. 253(a) of care or control of a vehicle was thereupon issued [paras 2-3] [emphasis added].
In convicting the appellant, Adams J accepted the appellant's evidence that she did not intend to drive, but noted that "her intention to drive is not an element of the charge...and not therefore determinative of guilt" [para 35].  The trial judge concluded, as summarized by Kane J on appeal, as follows:
She was in the driver's seat, the car motor was running and the girlfriend's house was merely a few blocks away. The capacity to do so was just a gear shift away. The judge further held that the car could easily have been set in motion unintentionally [para 14].
On appeal the appellant argued, inter alia, that (i) there was no evidence to conclude that there existed a realistic risk that she would change her mind and drive and (ii) that the trial judge’s conclusion that the vehicle could have accidentally or unintentionally been put in drive was unreasonable.
In rejecting these grounds, Kane J, offered the following quotable quote:
Parliament could have limited s. 253(1) to prohibit care or control of a motor vehicle to acts sufficient to create risk to persons or property. This is in response to the appellant's argument that the appellant's actions constituted no such risk as only an intentional or accidental shifting of the gear out of Park would have created such vehicle movement and resulting risk. In fact, movement of this car and the resulting risk to person or property increased with every action of the appellant as she unlocked the car, sat in the driver's seat, inserted the key in the ignition, started the motor and intentionally left the motor running. The risk to person and property increased with these actions. The realization of the risk was but "a gear shift away," whether that shift occurred by accident, mechanical fault or a decision to drive home.
Regardless of risk, the appellant was exercising control of and operating the mechanical, electrical and motor system of the vehicle [emphasis added] [paras 72-73].
 
DG Mack

New & Notable: When is a Refusal Really a Refusal

In the recent case of R v Degiorgio, 2011 ONCA 527 the Ontario Court of Appeal upheld the conviction as found by Justice David Cole. In doing so, the court shed some light on when a refusal is really just that, a refusal.
At 7:32 am a passerby noticed that there was a female slumped over the steering wheel of a car which was running and parked in front of driveway; the passerby alerted the police and officer Fielding attended. Upon arrival the officer found Tammy Degiorgio in the driver’s seat of the vehicle alert; upon speaking with the appellant the officer noted glassy eyes and a strong odour of alcoholic beverage coming from the area of her mouth [para 4].
The appellant denied have consumed any alcohol that day but was confused about where she was [para 5]. At 7:39 am Officer Fielding concluded he had a reasonable suspicion that the appellant had alcohol in her body and made a demand under section 254(2). The appellant responded, indicating she understood but that she was “not blowing into anything” [paras 6-7]. The officer asked the appellant if she understood and she again indicated she did and again indicated that she was “not blowing into anything” [para 7]. After advising the appellant of the circumstances of failing to provide a sample the officer again made the demand and a third time the appellant indicated she understood and was “not blowing into anything” [para 9]. The appellant was then arrested for refusal.
At trial the central issue became whether or not the Crown had to prove that sample could have been obtained “forthwith”. The trial judge convicted the appellant and an appeal was launched, ultimately reaching the Court of Appeal.
LaForme JA, on behalf of a unanimous court began by noting that the trial judge did not make any findings surrounding the issue of the unavailability of the ASD, however, the evidentiary record “supports a finding that an ASD was never available at the scene” [para 15]. The appellant argued, LaForme JA noted, that a section 254(2) demand is not valid where there is no evidence that an ASD could be available “forthwith” [para 22].
Turning to consider this position, LaForme JA noted that the appellant clearly understood the demand yet “immediately” and “unequivocally” refused on three occasions to provide a sample [para 45]. LaForme JA held that if the “demand is otherwise proper and the outright refusal occurs during the ‘forthwith’ timeframe, the accused’s 10(b) rights are not engaged and cannot affect the accused’s liability under s. 254(5)” [para 50]. In so holding, LaForme JA noted a distinction between the present case and R v Grant, 1991 CanLII 38 (SCC) and R v Cote, 1992 CanLII 2778 (SCC) as in those cases the “refusals did not immediately follow the demand; instead, the drivers refused only when presented with the ASD” [para 51].
Put simply, LaForme JA held that there is no requirement that an officer have a “reasonable belief that he or she could ‘make the demand good’ at the time it is made” nor is the Crown required to prove same where the refusal is immediate and unequivocal [para 54].
DG Mack

Quotable Quote: It can be Random; it need not be Pointless

In the recent case of R v Hopkins, 2011 ONCJ 349 Schwarzl J disposed of a peculiar section 9 argument in a quotable manner.
David Hopkins had attended the Midway Invader tavern in the middle of the afternoon on December 30, 2009.  Unfortunately for him, PC Paul Haramis had decided to set up outside the tavern in the hopes of capturing impaired drivers; the officer was not part of an organized RIDE program but rather, was purposely set up outside the bar for the purpose of capturing impaired drivers [para 5].  At about 3:20 pm the officer observed Hopkins drive his car out of the bar parking lot.  Ultimately Hopkins failed a roadside screening test and was charged with "over 80" after providing breath samples at the police station.
At trial Hopkins argued, inter alia, that his rights under section 9 of the Charter had been violated. In particular, he argued that although RIDE programs are constitutionally valid, the "stopping of people coming out of a bar, as opposed to all motorists at some intersection or other length of road, is too narrow a focus and is therefore a violation of section 9 of the Charter" [para 6].  In other words, Hopkins argued that random stops are permissible but "focussed" random stops are not. 
In disposing of this argument Schwarzl J noted that the Highway Traffic Act provides an officer may stop any motorist to determine if there are grounds to make a demand under section 254(2) of the Code: see sections 48(1) and 216(1) HTA. It follows, Schwarzl J held, that the stop was not arbitrary as it was expressly provided for by law.  Moreover, Schwarzl J held, the decision to focus police resources on an area or group of people more likely to be involved in drinking and driving did not make the stop arbitrary; he concluded with the following quotable quote:
The targeting of the driving population coming out of bars over the holiday season is entirely consistent with the purpose of RIDE programs, which is to detect, deter, and reduce drunk driving.  By concentrating on a location such as a bar where there is a higher probability of detecting drunk drivers, P.C. Haramis was not only performing his lawful duty but he was also minimizing the inconvenience to the general motoring public.  In other words, by zeroing in on those leaving drinking establishments, the officer's conduct was far less random than setting up at an intersection and stopping all drivers [para 9] [emphasis added].
 
DG Mack

Pending & Prominent: A "Grizzly" Night but "Maybin" a Prominent Legal Ruling

A case which has interested me for some time now, and is currently on appeal to the Supreme Court, prompted me to create a new category for my blog: Pending and Prominent. R v Maybin, 2010 BCCA 527 presents the Court with very interesting legal issues relating to factual and legal causation and to consider the diverging approaches to the particular issue raised in that case that have arisen across the country.
Matthew and Timoth Maybin, two brothers, apparently enjoyed playing pool.  On October 21, 2006 they were playing pool at the Grizzly Bar Pub in Nanaimo when Michael Brophy, who was talking to a young lady, happened to move one of their balls.  The Maybin brothers did not take kindly to this and attacked Brophy.  Their sudden and violent attack left Brophy a "standing knockout" and he fell unconscious on the pool table.  Buddha Gains, a bouncer at the Pub, came rushing over and decided to once again strike Brophy in the head [paras 7-11]. 
Brophy died later that same day as a result of injuries he received from those assaults.  The medical cause of death was determined to be a subarachnoid haemorrhage in the brain [para 12].
All three men were charged and jointly tried.  After trial all three were acquitted.  In acquitting all three men the trial judge held, inter alia:
In order to succeed in proving that Timothy Maybin is guilty of manslaughter, the Crown must prove beyond a reasonable doubt that he struck a blow which was the sole cause, or a significant contributing cause, of the fatal injury inflicted on Michael Brophy.  The evidence does not support the inference that either of those two propositions is true, beyond a reasonable doubt.  As a result, Timothy Maybin cannot be found guilty of manslaughter. 
It must follow that Matthew Maybin cannot be found guilty of manslaughter, because the only way he could be found guilty is by proving that he aided or abetted the commission of manslaughter by Timothy Maybin.
In order to prove that Buddha Gains is guilty of manslaughter, it must be proved beyond a reasonable doubt that the blow he struck was the sole cause, or a significant contributing cause of the fatal injury to Michael Brophy.  As with Timothy Maybin, the evidence does not support either inference beyond a reasonable doubt Buddha Gains cannot be found guilty of manslaughter [para 19 CA].
The Crown appealed.
Ryan JA, for the majority, allowed the Crown's appeal in relation to the Maybin brothers; the appeal in relation to Gains was dismissed.
Dealing first with factual causation, Ryan JA held as follows: 
...the trial judge failed to fully examine the factual cause of Mr. Brophy’s death, ended his factual inquiry early and never reached the question whether anyone should be held legally responsible for the death of Michael Brophy...the trial judge ended his examination of the factual cause of death once he concluded he could not say which blow or combination of blows administered by the Maybin brothers and Mr. Gains caused the death of Mr. Brophy.  This focus was not wrong, but its scope was too narrow.
The Maybins’ punches did more to Mr. Brophy than cause bruising and bleeding to his face and head. Another product of their assault was that Mr. Brophy was rendered unconscious, tumbling face down onto the pool table where he became a target for Mr. Gains. As a result, Mr. Brophy died. Given these facts, it cannot be open to dispute that the Maybin brothers were one of the factual causes of Mr. Brophy’s death. Their blows either killed Mr. Brophy or at the very least rendered him unconscious and exposed to the attack of Mr. Gains. But for their actions, Mr. Brophy would not have died.
Given that Mr. Brophy's death was a consequence of the actions of the Maybin brothers and thus a factual cause, the trial judge was required to ask, but did not, whether they were also legally responsible for that outcome [paras 25 and 26].
Turning to legal causation Ryan JA noted that the respondent Maybin brothers argued that due to the "intervening act" - the assault of Gains - they could not be held liable for the death.  In considering this argument Ryan JA turned to the cases of R v Shilon, 2006 CarswellOnt 9888 (CA) and R v Sinclair, 2009 MBCA 71.  After discussing the applicable tests in those cases, Ryan JA, preferring the approach in Shilon, offered the following conclusion:
...I agree with the Crown that there is a reasonable possibility that a trier of fact could conclude that it was reasonably foreseeable that the Maybins’ assault would provoke the intervention of others, perhaps the bar staff, with resulting non-trivial harm. If that were found to be the case it would follow that their contribution to Mr. Brophy’s death would be outside the de minimus range.
It follows that I am of the view that there must be a new trial on the charge of manslaughter for both Timothy and Matthew Maybin [paras 43-44].
On appeal to the Supreme Court, the central issue will undoubtedly revolve around which of the two approaches to intervening act should be followed. 
The Court will have to consider the Shilon approach which is focused on reasonable foreseeability of future non-trivial harm.  Under this approach the relevant inquiry is, at the time of the first impugned act, did the first actor reasonably foresee that a subsequent act would occur that would inflict non-trivial bodily harm.  If so, than the first actor may be liable for manslaughter.  Under this approach, the precise act need not be foreseen, so long as the first actor foresees that an act might occur which would cause non-trivial bodily harm.
The Court will similarly have to consider the Sinclair approach which is focused on whether the subsequent act was "extraordinary" or "unusual".  In this approach the focus is retrospective - not prospective as in Shilon.  In this approach the Court considers the subsequent act and determines if it was "extraordinary" or "unusual" to the extent that it constitutes an intervening act. 
The Court may also consider if both test can co-exist and apply when and where appropriate.
Maybin presents an interesting issue for the Court to consider and one that is prime for consideration.  Ultimately, in my view, the majority of the Court of Appeal correctly found that the trial judge erred in not considering the issue of legal causation and a new trial should be ordered.  Regardless, Maybin is Pending & Prominent.

 

 
DG Mack

New & Notable: Nikolovski Identification

Identification cases are some of the most contentious and frequently appealed; the recent case of R v Adbi, 2011 ONCA 446 is yet another example.
Mustafa Abdi was in the car business; more specifically, he was in the business of exporting high end stolen automobiles.  The case against Abdi included the evidence of police officers who observed and videotaped a man, they alleged to be the respondent at a freight yard where stolen high end automobiles were being delivered.  The lead investigator and an officer who had been on scene later compared the video images of the male alleged to be the respondent with a digital copy of the respondent's driver's licence photo.  Both men testified that they believed that the respondent was the male in the surveillance video [paras 2-3].  There was also two pieces of circumstantial evidence which were corroborative, at least indirectly [para 2].
At trial the trial judge noted that the evidence "may be sufficient unless there is good reason for me to doubt the accuracy of identification that Police Officer Baxter gave".  The trial judge also viewed the video himself and offered the following:
I have looked again and again at the evidence to discern a number of other things including the height of the accused as opposed to the man in the grey jacket.  I do not have any evidence with respect to it, but my observation tells me it is consistent.  His facial features and structure...The type of haircut - many have it; the skin colour.  All those things are part of it - none determinative.  Glasses or not, as I have said before.
As I say, I am reluctant to substitute my view of that type of evidence for a witness that was there, but I have to tell you that a close observation by me leads me to the conclusion that the person in the digital photograph, the accused and the person in the grey coat are the same [para 5 OCA].
The respondent was convicted and appealed.
On appeal he argued that the video recordings were not of sufficient quality [para 6].  Rosenberg JA, writing for the court, noted that this issue was a question of fact for the trier of fact and the scope of review is limited to a consideration of whether the quality was such that it would be reasonable for a trier of fact to making a finding [para 6]: see R v Nikolovski, 1996 CanLII 158 (SCC).  After reviewing the video in this context, Rosenberg JA concluded:
The second clip, and the clip obviously relied upon by the trial judge, is much shorter in length, just over 30 seconds, but the person alleged to be the appellant is much closer to the camera.  The quality of the video is good and it is possible to make out this person’s features.  I cannot say that the trial judge’s conclusion is unreasonable [para 7].      
In so concluding Rosenberg JA noted that the length of the video does not make it "unsuitable for use in making an accurate identification" [para 8].  Rosenberg JA further noted that although the trial judge might have appeared to have delegated his responsibility to determine the identification issue it is clear when the entirety of the decision is read that the trial judge properly came to his own conclusion [para 9].
Appeal dismissed.
 
DG Mack

New & Notable: Proctecting the Quasi-Judicial Function of the Crown

In a recent blog, Crown Discretion: Exercising, or is it excising, Crown Discretion, I commented on the issue of whether the Crown's discretionary decision to file notice of increased penalty was part of core prosecutorial discretion. In the recent decision of R v Nixon, 2011 SCC 34 the Supreme Court considered the issue of prosecutorial discretion; while it is considered in a different context, the Court's ruling may shed some light on the likelihood of R v Gill, 2011 ONSC 1145 being upheld or overruled if appealed.
Olga Nixon was charged with a number of offences including dangerous driving causing bodily harm and impaired driving causing bodily harm. It was alleged that Nixon “drove her motor home through an intersection without stopping and struck another vehicle, killing a husband and wife and injuring their young son” [para 2]. Nixon ultimately provided breath samples and registered 200mg of alcohol per 100ml of blood. A toxicologist testified that these results extrapolated to the time of the accident would have been between 225mg and 250mg of alcohol per 100ml of blood [para 2].
Nixon elected to be tried by judge and jury and the case proceeded to a preliminary inquiry. The Assistant Crown Attorney who had carriage of the file had concerns about the admissibility of the evidence and in “particular the breathalyzer results and the probative value of the eyewitness evidence that a motor home had been seen driving erratically some time before the accident” [para 7]. Based on this analysis of the Crown’s case the results of the breath samples were not adduced at the preliminary hearing and the presiding judge was informed that the Crown would only be seeking committal on the dangerous driving counts; committal on these counts was conceded by Nixon [para 7].
After the preliminary hearing Crown and defence agreed that Nixon would plead guilty to careless driving under the Traffic Safety Act; a joint sentence of an $1800 fine was agreed upon.  Prior to agreeing to this resolution, Crown counsel sought and was granted approval by his immediate supervisor to proceed with the plea to the TSA offence. In light of the seriousness of the allegations a report was prepared and forwarded to senior officials in the justice department. The report caused significant concern to the Acting Assistant Deputy Minister (ADM); an inquiry was commenced and an adjournment of the plea was obtained.  Defence counsel was not informed of the reason for the adjournment.
Ultimately the ADM concluded that the assigned Crown’s assessment was flawed and that the proposed resolution “was contrary to the interests of justice and would bring the administration of justice into disrepute” [para 10]. The assigned Crown was instructed to withdraw the proposed resolution agreement and proceed to trial on the dangerous driving charges in accordance with the outcome of the preliminary hearing.
As a result of this decision, Nixon brought an application under section 7 of the Charter alleging an abuse of process and requesting an order compelling the Crown to honour the proposed resolution. The application judge granted the application and ordered the Crown to proceed with the plea agreement.  Nixon pleaded guilty to careless driving.  The Crown successfully appealed; the acquittals were set aside and a new trial was ordered on the dangerous driving charges.  Nixon appealed to the Supreme Court. 
At the Supreme Court, Charron J, writing for a unanimous Court, first noted that there was agreement between all parties that the Crown's conduct and decision to enter into a plea agreement was part of the "core" discretion [para 29].  The issue, however, was whether the decision to repudiate that deal also fell within this discretion. 
Although it was not agreed by all, Charron J noted that the question of whether the decision to repudiate also fell within the "core" discretion was as easily resolved:
As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: “. . . is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?” (para. 32). Applying this test, she held that the ADM’s decision to repudiate the plea agreement “fell squarely within the core elements of prosecutorial discretion” (para. 33). I agree. In my respectful view, it is difficult to see how the ADM’s decision could otherwise be characterized. The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM’s decision to repudiate the plea agreement also constitutes an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges [emphasis added] [para 30].

It followed, Charron J held, that the decision to repudiate the deal was only reviewable on a showing of abuse of process [para 31].

Turning to that issue, Charron J held that the Crown’s repudiation of the plea agreement did not amount to conduct that was so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that allowing the Crown to proceed on the Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process. 
...the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate, the decision to proceed with the prosecution is the Crown's alone to make. Reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, in good faith, determined that Crown counsel's assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct [para 68].
It is interesting to note in Nixon the decision by the Crown to repudiate its previous deal had the effect of continuing the proceedings.  At the stage that this decision was made, however, there had previously been decisions to commence proceedings, what charges to proceed with and to terminate proceedings by way of a plea agreement.  These previous decisions, Charron J held, did not change the nature of the ADM's decision - it was part of the "core" discretion. 
In the context of filing notice of increased penalty, the Crown has similarly made a decision to commence proceedings and a decision about what charges to proceed with.  However, these previous decisions and the entering of a conviction does not exhaust the Crown's "core" discretionary powers.  One discretionary option open to the Crown is to stay proceedings, even after conviction.  The decision, therefore, to file notice, is a decision about continuing the proceedings.  The fact that it impacts the accused and the court by narrowing the available sentencing options, should not - and does not in my view -change the nature of the decision. 
 
DG Mack