News: The Ever Changing Face of the Supreme Court

Prime Minister Stephen Harper announced this week the appointment of Mr Justice Michael J Moldaver and Madam Justice Andromache Karakatsanis to the Supreme Court of Canada.  In doing so he offered the following praise of the new appointees:
Justice Moldaver and Justice Karakatsanis are both highly intelligent, greatly experienced and eminently qualified for their new roles as Supreme Court justices...I have every confidence both justices will serve all Canadians faithfully and with distinction.
These appointments also mark the loss of Madam Justice Louise Charron and Mr Justice Ian Binnie. 
Any change to the Supreme Court is a significant one, but this change is particularly notable as it marks the loss of one criminal law luminary and the gain of another. 
 
The Loss:
Justice Charron has been a powerful force on the Court for the last several years.  She has authored some of the most significant decisions of the past decade and drafted reasons that will be cited for decades to come.  Her writing style is clear and her legal analysis is second to none.  A short list of some of the most notable decisions make the point: R v Nixon, 2011 SCC 34; R v Sinclair, 2010 SCC 35; R v Pickton, 2010 SCC 32; R v Suberu, 2009 SCC 33 (see my article on Suberu: A Death on the Way to Rome); R v Grant, 2009 SCC 32; and R v Dinardo, 2008 SCC 24.
 
 
The Gain:
Justice Moldaver has similarly been a powerful force at the Ontario Court of Appeal.  His decisions are legally sound and logical and he is certain not afraid to disagree with his colleagues and stand by his decisions.  A shot list of some of his recent rulings illustrate this point: R v Woodward, 2011 ONCA 610 (see my Bulletin comment on this case in MCLB Issue 8: Sentencing: Internet Luring); R v Sarrazin, 2010 ONCA 577 (in which he wrote a brilliant dissent, now being considered by the Supreme Court; see my Bulletin comment on Sarrazin Issue 1: The Curative Proviso); R v Phillion, 2009 ONCA 202; and Re Truscott, 2007 ONCA 575 [Moldaver J was part of the panel for the per curiam decision].
 
DG Mack

Current & Curious: Procedural Peculiarity

Tina Deveau was charged with impaired and "over 80". Prior to her trial she filed a Charter motion to exclude evidence based on alleged violations of her rights under sections 8, 10(a) and 10(b).  The Crown apparently did not file a response. 
At trial a debate ensued over how the motion and trial should proceed. The defence insisted that the Crown had to call evidence to establish a prima facie case before it was required to call evidence on the motion. The Crown argued that the defence had to call evidence to establish the breach and it would decide thereafter if it would call evidence. Ultimately Deveau testified on the Charter motion.  The Crown then sought to call evidence on the breach and the defence objected.  The trial judge outlined the defence objection:
So therefore, at this point in time, having heard the Defence’s evidence, the Crown ought to be estopped from calling evidence, viva voce evidence, on the matter. 
The trial judge then held the Crown was precluded from calling evidence:
So the Crown, having heard what the Appellant had to say, in my view, having not given the Applicant any notice of what its position was through a brief cannot now call a witness to present its position. To me that would be procedurally unfair, and I will not admit that.
The trial judge granted the motion and Deveau was acquitted.
The Crown successfully appealed and Deveau appealed to the Nova Scotia Court of Appeal: 2011 NSCA 85. The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal court, and concluded as follows:
The Crown had provided disclosure of its evidence for the prosecution proper. The Crown had made it clear that the Crown would decide whether or not to call evidence on Ms. Deveau’s Charter motion after the Crown heard Ms. Deveau’s evidence for that motion. The Crown was entitled to take that position. The Provincial Court judge’s view was that, before the respondent to a motion hears the applicant’s evidence, the respondent must file a pre-motion brief which commits the respondent to particular evidence for the motion. Failure to comply, according to the judge, precludes the respondent from calling evidence. That view is not a principle of law. No authority for such a preclusion or estoppel has been cited. Had the Crown been permitted to lead evidence in response to the defence motion, the defence would have been entitled, in appropriate circumstances, to an adjournment or to lead rebuttal evidence [para 10[. 
Two aspects of this case are curious.  First, on an alleged section 8 violation, in the context of "over 80" cases, the onus is on the Crown as there is a warrantless search which is presumed unreasonable. 
 
Second, it is odd that the matter did not proceed by way of a blended trial/voir dire. In cases such as this the usual course is to proceed in that manner.  It is efficient and effective.  Having not proceeded in that fashion in this case - for some inexplicable reason - has resulted in three different judicial proceedings and now will result in a new trial.  Absent some compelling reason, the trial judge should have queried why the matter did not proceed in that fashion. 

 

DG Mack

Pending & Prominent: Retrospectivity of Bill C-2

Samuel Dineley undoubtedly had no idea that he was about to become embroiled in one of the most litigated issues in recent memory and embark upon a legal journey that would take him to the Supreme Court when he jumped a curb in his parent's car and struck a parked car with over 90 mg of alcohol/100 ml of blood in his body. 
In November 2010 the Ontario Court of Appeal allowed the Crown's appeal and held that the amendments to the "Carter" defence - as set out in Bill C-2 - applied retrospectively.  In doing so, MacPherson JA offered the following:
I acknowledge that in support of his argument that Bill C-2 applies prospectively to offences committed on or after July 2, 2008, the respondent relies on Angus v Sun Alliance Insurance Co, 1988 CanLII 5 (SCC)and R v Boucher, 2005 SCC 72.  In both cases, when considering the temporal operation of legislation, the Supreme Court of Canada commented on legislation that has the effect of altering the content of an existing common law defence: see Angus at para. 21 and Boucher at para. 22.  In my opinion, however, read in their entirety, neither case stands for the proposition that legislation which merely alters the evidentiary content of a defence, rather than removing or eliminating an existing defence, compels a prospective application [para 27].
On Thursday the Supreme Court heard the appeal in this matter.  As noted by the Ontario Court of Appeal in October 2010 - when it heard the case - there was then over 3000 cases in Ontario dealing with that issue and dozens of decisions going both ways.  The Supreme Court's ruling will, regardless of what it decides, have significant impact.  More importantly, however, it will resolve this issue - finally.

DG Mack

New & Notable: How you Say it Can be as Important as What you Say

Janet Smith has asthma and suffers from anxiety and panic attacks.  This conditions can be exacerbated during times of stress.  When she testified about this during her trial for failing to provide a breath sample the trial judge believed her.  The trial judge did not believe, however, that these conditions were a reasonable excuse for her failure to provide a breath sample.  Smith was convicted of failure and appealed.  MacDonnell J heard the summary conviction appeal: R v Smith, 2011 ONSC 5377.

Smith was involved in a motor vehicle accident which was investigated by the police. During the investigation the police formed grounds to believe she was impaired and arrested her. She was transported to the police station where she began to exhibit signs of distress and insisted she was have trouble breathing. She was transported to a hospital.
A breath technician then attended the hospital along with an approved instrument. Despite 11 attempts, Smith failed to provide a suitable sample. She was charged with failure.
At trial Smith testified that the medical conditions she suffered from made it impossible for her to provide the sample as she did the best she could. The trial judge, although accepting her conditions existed, held that she “intentional [failed] and that she exaggerated her symptoms at the relevant time in order to avoid providing a sample” [para 4].
At trial the trial judge had the opportunity to view a DVD of Smith recorded on the day of the incident at the police station. The trial judge further had the opportunity to observe Smith as she testified in her own defence. In convicting Smith the trial judge concluded that her “in-court observations and the events shown on the DVD greatly contribute to my findings that [Smith] exaggerated her symptoms in order to avoid providing a sample” [para 4].

On appeal Smith argued (i) that the trial judge erred by giving undue weight to the observations of Smith on the DVD and in-court; (ii) that it was also an error to do so without giving Smith notice or the opportunity to explain her behaviour; and (iii) that in the absence of medical or other expert evidence the trial judge’s observations had no probative value [para 5].

MacDonnell J considered each of the issues. 
 
First, MacDonnell J noted that it is not improper for a trial judge to consider demeanour on the issue of credibility - citing inter alia: R v Jabarianha, 2001 SCC 75 at paras 30-31; R v Devine, 2008 SCC 36 at para 28 [para 9].  In the present case the trial judge did not err or place undue weight on DVD or Smith’s in-court behaviour, it was merely “one factor among many that was of assistance in assessing the credibility of the appellant’s assertion that medical difficulties prevented her from complying with the breath demand” [para 6].

Second, MacDonnell J found that the trial judge was not required to give Smith notice or an opportunity to explain her behaviour [paras 11-15]: “[a] judge might well choose to bring the accused’s in court behaviour to his or her attention before acting on it, a judge is not required to do so” [para 12].

 

Third, with respect to the need for medical evidence, MacDonnell J rejected the submission:

The trial judge was not purporting to diagnose the appellant's condition. She was simply noting that both on the DVD and in the course of the trial the appellant had demonstrated that she was capable of turning on or off, at will, the symptoms that, she asserted, had interfered with her ability to comply with the breath demand. The judge did not have to hear medical testimony in order to make that observation or to assess its significance. [Emphasis added]; [para 16].
DG Mack

Current & Curious: Speaking out of Both Sides of Your Mouth

In the recent case of R v Farrah, 2011 MBCA 49 the Manitoba Court of Appeal considered an curious situation.  David Farrah was charged with robbery and other related offences.  On January 31, 2007 two patrons had entered a bank to use the ATM when they were confronted by a male armed with a sawed-off shotgun.  The patrons were able to flee although the male shot at them as they drove away. 
 
Police were called and a K9 track commenced.  The K9 track eventually led to an apartment building.  Inside the K9 tracked to suite 16, paused, then moved on to suite 12 and indicated an entry.  Ultimately the police entered and searched both suites 12 and 16.  In suite 12 Farrah was found hiding.  In suite 16 a shotgun with one discharged shell was found.
 
At trial Farrah sought to exclude the evidence of the gun based on a violation of his section 8 Charter rights.  In doing so he asserted (as he needed to in support of his motion) a reasonable expectation of privacy in that suite - something he did by questioning the police about utterances he made at the scene to that effect.  The motion was dismissed.
 
At trial Farrah testified.  In doing so, he disavowed any interest in suite 16 indicating he no longer lived there and had no access thereto.  Farrah was convicted and appealed.
On appeal the Court of Appeal considered this curious approach taken by Farrah.  The court noted that at trial neither counsel or the judge commented on this "evidentiary discrepancy".  The court continued:
Nevertheless, this contradiction is troublesome.  The concern and unease are clear: an accused should not be able to successfully argue a position at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial based upon a change in his evidence [para 20]. 
The court further noted that this fluctuating position puts the judge in a "difficult, if not impossible, position" and raises "ethical questions" [para 21].   
 
The court then considered what the trial judge could have done in such a situation.  First, the court noted that the trial judge was not functus officio and could have revisited the Charter motion [paras 22-23].  Second, the trial judge could take it into account in assessing the credibility of the accused [para 25].
 
Either way, this curious approach is one that should not be permitted.  As the Court of Appeal noted the maxim quod approbo non reprobo [see definition at para 20 or at The Free Dictionary] comes to mind [para 20].
 
  
DG Mack

New & Notable: 10 Years Imposed on Roks by OCA

Adrian Roks recently had his second-degree murder conviction overturned by the Ontario Court of Appeal: R v Roks, 2011 ONCA 526.  I blogged about this case in a post entitled "The Paperback Novelist Strikes Again". 
The Court of Appeal has now exercised its power under section 686(3)(b) of the Code and imposed a sentenced for the manslaughter conviction it substituted in place of the second-degree murder conviction: R v Roks, 2011 ONCA 618.  Roks received the equivalent of a ten year sentence less pre-sentence custody and time served prior to the Court of Appeal's ruling [paras 27-28].
 
DG Mack

New & Notable: Setting the Record Straight on Jarvis

In the recent decision of R v Woodward, 2011 ONCA 610 the Ontario Court of Appeal set the record straight about its previous decision in R v Jarvis, 2006 CarswellOnt 4863 (CA). It also sent a clear message about the appropriate principles and range of sentencing in luring and child sex assault cases.

Thomas Edward Charles Woodward was charged with offences including luring (172.1(1)(c)), sexual touching (151(a)) and sex assault (271) in relation to his Internet luring and sexual contact with a young person. This young person was 12 years old and lived with her parents. In August or September 2006 Woodward sent a private text message to the complainant – he was 30 years old at the time. The text message originated through a chat site that the complainant could access via her mobile phone. The text message asked the complainant if she would sleep with him for $57 million. The complainant did not reply. A subsequent text message again asked the complainant if she wanted to have sex; this time she replied [para 7].

That response led to further texts numbering in the hundreds. These texts ultimately led to a meeting [para 8]. In the lead up to this meeting Woodward had offered the complainant increasing amounts of money to sleep with him; he even let her listen in on a call that was purportedly with a Bank of Montreal employee who indicated that Woodward had $300 million in his account. This lead the complainant to believe that Woodward had that kind of money and influenced her decision to meet him as her family was experiencing financial problems [para 10]. 

When the complainant met with Woodward he purportedly called the Bank of Montreal and transferred money into an account in her name. Thereafter he initiated sexual acts with the complainant including having her perform fellatio on him and having sexual intercourse with her [para 12]. 

 

Woodward was convicted after trial by Justice Nicklas. The judge ultimately sentenced Woodward to six and a half years jail. He appealed.

On appeal the appellant the court outlined the ground of appeal relating to the sentence as follows:

The appellant submits that the six-and-one-half year sentence he received manifestly exceeds the “range of reasonableness for a one-time isolated incident with no overt threats or violence and no abuse of trust or authority.” He points to a number of authorities, including some from this court, involving offenders who engaged in online sexually explicit conversations with undercover police officers posing as children under the age of 14 [para 53].

One of the cases relied upon by the appellant was Jarvis. With respect to Jarvis, Moldaver JA – on behalf of the court – noted that the reliance appears to be based on para 31 of that decision wherein Rosenberg JA offered the following: “decisions of trial courts that were placed before us suggest that the range of sentence for this offence [luring] generally lies between twelve months and two years” [para 54].

Moldaver JA then turned to discuss whether that comment properly set a range. After suggesting that was not the intention of Jarvis, Moldaver JA then offered the following clear statement about the future impact of Jarvis:

Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime [para 58].

Moldaver JA ultimately upheld the six and a half year sentence imposed by Justice Nicklas and concluded with the following quotable quote:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant’s past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive [para 75]; [emphasis added].


DG Mack

News: Interesting and Unique Read at Criminal Justice Blog

I recently did a lecture on wrongful convictions in the context of forensic sciences.  Coincidentally, I was just referred to another blog that has a list of "10 Infamous Inmates Who Were Wrongly Convicted".  I checked out the site and there are a few other very interesting blogs too.  Most recently there is one on "10 Teachers Who Turned Into Infamous Criminals"; check out the story on Albert Fentress, #2 on the list. 
Check out other posts including "10 Incredible Facts About the Criminal Brain" and the lighter post on "How to Survive Prison".  I have included a link to the blog post in my links page: "Criminal Justice Degrees Guide Blog".

 
DG Mack