New & Notable: If it walks like a duck...

Kuldip Dhanjal was convicted of impaired operation.  Dhanjal unsuccessfully appealed that conviction before Miller J sitting on summary conviction appeal.  Dhanjal sought leave to appeal to the Ontario Court of Appeal.  That application was dismissed: R v Dhanjal, 2011 ONCA 666.
In dismissing the leave application, the Court of Appeal commented, albeit briefly, on the evidence and findings of the trial judge - impugned in the Notice of Appeal.
...Contrary to the submission of duty counsel, there was evidence from which the trial judge could conclude that the appellant’s alcohol consumption and its effects were greater than claimed by the appellant. In particular, we note that the appellant stopped to make a left hand turn for a prolonged period and then executed his turn in front of an oncoming car without activating his left turn signal. His car collided with that car. After the accident, the appellant stopped for only a few seconds, claiming that he did not see the other car or its driver although he had collided with it and it was parked nearby.

Finally, it was a cold November evening and he parked his car after the accident with the windows open, an indication that he likely intended to air it out from the smell of alcohol in the car. We add that the evidence of the appellant and his statements to the police gave further support to the conclusion that the appellant consumed more alcohol before the accident than he admitted [paras 5-6]; [emphasis added].

DG Mack 

New & Notable: There's Nothing Comical about Officer Safety

On January 14, 2010 members of the Fredericton Police Force, with warrant in hand, used a battering to conduct a "hard entry" into an apartment where Kevin Sexton was located and arrested.  The evidence gathered by the police once inside that residence became the subject of a Charter motion brought by Sexton and ultimately granted by the trial judge.  The judge found that the execution of the warrant, including the hard entry, was unreasonable.  The Crown appealed: R v Sexton, 2011 NBCA 97
Kevin Sexton was apparently trafficking in cocaine.  In the month leading up to January 14, 2010 (following the police attendance at Sexton's apartment for a domestic involving Sexton's brother) the police obtained information about Sexton and his trafficking business.  This led to a plan to execute the warrant at Sexton's apartment without notice - a "hard entry".  The reason for this type of entry was noted as follows: (i) concerns about office safety; (ii) concerns about the safety of neighbours; (iii) and preservation of evidence [para 12]. 
During the Charter motion the Crown led evidence about Sexton's criminal record which included weapons offences, drug offences and an outstanding charge for assault police; the Crown also led information from CPIC that he was believed to be "armed and dangerous". 
In rejecting this as a basis for conducting the hard entry the trial judge held:
The police also state they were somewhat at risk. They rely on Exhibit P3 [the CPIC report containing the cautions for violence and armed and dangerous] to justify their basis for that risk. Quite frankly, and with all due respect to the police, that suggestion is absolutely comical when one reviews in detail Exhibit P3. It is ripe with numerous errors. And states “Caution – this is not a criminal record”.Furthermore, when you review the alleged crimes previously committed by Mr. Sexton, and in particular, the various sentences handed down for those crimes, it is obvious that Mr. Sexton could not be considered a risk of violence under Exhibit P3. [Underlining in Court of Appeal ruling]. 
In addition the trial judge objected to the use of balaclavas by the entry officers. 

On appeal Bell JA, for the court, considered the trial judge's finding that reliance on CPIC was "comical".  Bell JA offered the following in rejecting this finding:
In deconstructing the Provincial Court judge’s reasoning, I would first consider his observation that police reliance upon CPIC cautions that Mr. Sexton was violent and armed and dangerous was“absolutely comical”. In addition to judicial and legislative dictates, there are two very practical reasons why police must take very seriously the search of someone else’s residence. First, it is highly likely that suspects will know the layout of the place being searched much better than the authorities. They will know potential means of escape and potential sources of weapons. Second, the person whose residence is being searched will, in most cases, have a better knowledge of who is present in the premises. The two unknowns of layout and occupancy provide a practical advantage to the person whose residence is being searched in the event that person wishes to destroy evidence or obstruct, evade or cause injury to police.   Those two very practical observations were at play on the day Mr. Sexton’s residence was to be searched. In addition to those factors, police knew Mr. Sexton possessed a criminal record for weapons and drug offences and was awaiting trial on a charge of assaulting a peace officer. Information appearing in CPIC, a national database, maintained by the Royal Canadian Mounted Police, constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it. While the Provincial Court judge was correct to state that the CPIC report does not constitute a criminal record, that fact does not render the cautions contained therein unreliable. Furthermore, even if Mr. Sexton had established that the CPIC cautions were unreliable, that fact would have had no impact upon the right of police officers to use the information unless they had doubts about its reliability. There is no evidence of any such doubts.
...As noted by Justice Cromwell in Cornell, after the fact assessments are unfair and inappropriate when applied to situations like this where officers must exercise discretion and judgment in difficult and fluid situations [paras 26-27]; [emphasis added]. 
Turning to the trial judge's criticism of the police use of balaclavas, Bell JA again disagreed with the trial judge and concluded as follows:
 
In assessing the reasonableness of the search, the Provincial Court judge expresses particular disdain because the police officers were dressed in full emergency response gear, including tactical weapons, goggles, helmets and balaclavas. 
With respect to the use of masks, Constable Haines testified their purpose was to protect police officers "if there happens to be any glass, shattering of glass for whatever reason, or flame, it's flame retardant.  It's basically to protect, give our faces some protection if was happen to encounter anything".  As Justice Cromwell observed, courts should not be micro-managing the police force's choice of equipment.  To the extent the Provincial Court judge relied upon the presence of balaclavas to conclude the search was conducted in an unreasonable fashion, he erred [paras 29 and 30]; [emphasis added].
DG Mack

News: MCLBulletin, Issue 10 now online!

Issue 2011-10 of Mack's Criminal Law Bulletin is now online.  In this issue, Common Law Police Powers: Search Incident to Arrest (cell phone), I discuss whether the police are permitted to search a cell phone incident to arrest under the traditional common power.   
…the question is simple: Does the scope and nature of the biographical core of information on a cell phone require prior judicial authorization before it may be searched, or can the police rely upon a modified common law power of search incident to arrest?
The issue is admittedly complex….

News: New Issues of Mack's Criminal Law Bulletin

Two new - and exciting - issues of Mack's Criminal Law Bulletin are online.  In Issue 8 I discuss the recent Ontario Court of Appeal ruling in R v Woodward, 2011 CarswellOnt 9823 (C.A.) and the issue of sentencing in internet luring cases.  In Issue 9 I discuss the interesting case of R v Jaycox, 2011 CarswellBC 1237 (SC) which found section 254(2) to be unconstitutional but saved it by reading in. 

DG Mack

Comment: At Least Three Agreed...

Well at least three got it right.  On November 4, 2011 the Supreme Court released its decision in R v Sarrazin, 2011 SCC 54.  I had predicted that the Court might agree with the insightful dissent of Moldaver J at the Court of Appeal.  I was wrong about that.  I take solace in my company (Moldaver, Deschamps, Rothstein and Cromwell JJ).  I also take solace in the fact I still think I am right. 
In Mack's Criminal Law Bulletin, Issue 1, I wrote at length about the Court of Appeal's ruling in Sarrazin, 2010 ONCA 577.  I also blogged about the curative proviso in a recent post: The Curative Proviso, to apply or not to apply, that is the question...  In my Bulletin I was of the view that Moldaver JA (as he then was) got it right in his dissent.  The trouble with the majority's ruling at the Court of Appeal and Supreme Court was succinctly encapsulated by Cromwell J:
Respectfully, this is an elegantly understated way of expressing what to me is an unacceptable proposition: appellate courts should assume that a jury might relax the standard of proof of causation because the alternative would be to let the accused walk. I cannot agree, on such speculative grounds, to set aside a jury verdict of 12 citizens who are presumed to have honoured their oath and who received impeccable legal instructions on the very issue in contention [para 52].
This is an important point.  As I argued in Issue 1 of my Bulletin, there was no complaint here about the charge to the jury on causation; there were no questions on that issue from the jury.  Given that the jury is an integral part of our criminal justice system, it is "an unacceptable proposition" to find they may have been subconsciously impacted by this error. 
In the end I maintain my view which was eloquently offered similarly by Cromwell J: 
No one questions that the trial judge gave the jury complete and accurate instructions on causation. The jury’s verdict necessarily means that they were persuaded beyond a reasonable doubt that the gunshots caused the deceased’s death. The admitted error was failing to provide instructions on attempted murder. Those instructions would only have been relevant if the jury had a doubt about causation, which, as their verdict unambiguously attests, they did not. In those circumstances, in my respectful opinion, the error clearly had no impact on the verdict [para 41]; [emphasis added].
The error was a serious one.  Yet, it in fact had no impact.  The verdict could not possibly have been different.  The Court should have, with respect, respected the jury's verdict.
DG Mack

Comment: Respecting Our Jury System

Juries are a fundamental part of our criminal justice system.  Trial judges and appellate courts should treat lightly, it at all, when they purport to speculate about the possible impact errors or omissions may have had upon a jury.  In the recent case of R v Sahota, 2011 ONCA 679 the Court of Appeal refused to engage in such speculation.  
Jaswinder Sahota was charged with offences relating to the discovery of heroine in a suitcase he possessed as he entered into Canada.  He was tried before a jury.  During deliberations the jury had a question; they asked if they could have transcripts of counsel's closing addresses.  The trial judge, with the agreement of both counsel, advised they jury they could not and should rely upon their collective memories.
The next morning the Crown brought to the attention of the trial judge cases which suggested the jury should have been told they could have listened to the closing addresses of counsel.  Despite an objection by defence the trial judge intended to advise the jury of this option.  The jury, however, advised it had come to a decision.  The trial judge brought in the jury and advised them that they had the option to listen to the closing addresses before delivering their decision.  After considering this the jury indicated it was still prepared to deliver its decision and it did, finding Sahota guilty. 
On appeal the court noted that the trial judge erred and should have let the jury listen to the closing addresses.  The Court of Appeal, in dismissing the appeal, offered the following:
The trial judge made it clear that the jury could listen to the closing addresses before reaching their verdict. They saw no need to do so. We will not speculate as to why they chose that course of action. In the end, before the jury returned its verdict, the jury understood that it could listen to the addresses if it wished to do so. The trial judge ultimately answered the jury’s request correctly. The timing of his answer did not result in any unfairness to the appellant [para 9].
 

DG Mack

New & Notable: They are Your Rights, be Diligent in Pursuing Them!

Teddy Waterson liked his lawyer; apparently he liked him alot. That is a good thing.  However, unreasonable insistence on speaking to his lawyer when his lawyer was not reasonably available deprived Waterson of an opportunity to speak to counsel.  While the trial judge felt this deprivation violated section 10(b), Gunsolus J, sitting on the appeal, disagreed: 2011 ONSC 2310
Waterson was stopped by Kawartha Lakes Police at approximately 3:46 pm.  Ultimately Waterson was arrested and advised of his right to counsel.  Once back at the station Waterson used the phone in the booking room to call his wife to obtain the number of his lawyer. At 4:25 the police placed a call to the office number for his lawyer and left a message.  The police then placed a call to the home number for that lawyer and also left a message.  At 4:55 - having received no call back - the police placed a second call to the office and residence of the lawyer.  The officer also apparently called Waterson's wife back to see if she had any success contacting the lawyer.    
After receiving no call back again the police determined there was no reasonable expectation that the lawyer was going to call back.  The officer then advised Waterson that he could call another lawyer and provided him a phone book - as well as advising him about duty counsel - to do so [para 8].
Waterson continually indicated that he would only speak with his lawyer [para 9].  Waterson refused to speak to any other counsel.  Waterson eventually did provide breath samples and was charged.

At trial Waterson argued that his right to counsel of choice, pursuant to section 10(b) of the Charter, was violated.  The trial judge agreed and excluded the evidence.  The Crown appealed.
On appeal Gunsolus J recognized that in some circumstances an obligation may arise for the police to provided additional information to an arrestee.  In the present case Gunsolus J held that no such additional informational obligation had arise.
Gunsolus J noted that the respondent had not waived his right to counsel [para 21] while on the other hand the police had made two attempts to contact his counsel of choice [para 20].  In the end Gunsolus J held:
In this case the respondent never waived his right to speak to his counsel of choice. He refused the option of contacting another lawyer, including available duty counsel. Therefore, an additional information obligation was not triggered, as in the Prosper case. The respondent continued to assert his right to speak only to counsel of choice. This is not a circumstance where the respondent had previously asserted his right to counsel, then indicated a change of mind such that he no longer wished legal advice. The respondent would not waive his right to speak to Mr. Beninger. He failed to exercise due diligence in obtaining legal advice by pursuing alternate counsel or to make use of the available duty counsel system... [para 24]; [emphasis added].
DG Mack

 

 

 

Comment: Lack of Knowledge is Bad, Imperfect Knowledge may be Worse

Knowledge can be antithetical. As Francis Bacon Sr onced noted, knowledge is power. Yet, a little knowledge is a dangerous thing; imperfect "knowledge" can be disasterous.
There can be no doubt that a lack of knowledge about one's fundamental legal rights is problematic; educating and providing such knowledge is a laudible pursuit and should be applauded. This pursuit, however, is one frought with danger as providing imperfect or incomplete knowledge can be dangerous.
It is with this in mind that I read with great interest a new column in the Ottawa Citizen: "Law, justice, lack of knowledge a bad mixture" by Michael Edelson.  In his introductory column Mr Edelson, a prominent local defence lawyer, explains that the column (which will be authored by him and members of his firm) is intended, at least in part, at educating people "on their rights and obligations...under the law".  This is a laudable goal.  Yet, one must wonder, perhaps be concerned, whether this can so easily be achieved in this context; the law is dynamic and its application is dependant on an infinite set of possible factual circumstances.  More importantly, however, often lawyers and judges do not agree on what the law actually is on any given point. 
With this in mind, I waited with great interest for the first installment of this column.   
 
The first issue of this new column came out on Friday: "Right to Know: Meeting the police: An informed citizen won't be intimidated" by Solomon Friedman.  These concerns about the potential pitfalls of purporting to educate the public on the law are borne out in this first article.
In this first column Mr Friedman discusses the "casual" interaction with the police which he suggests is a "regular feature of our lives". Regular, perhaps, is a bit of an overstatement but this type of interaction indeed is one that people should understand and be informed about.  Unfortunately, with respect, I am not sure that is what Mr Friedman has achieved.  Two examples will illustrate this point. 
 
First, in discussing "investigative detention" Mr Friedman advises readers that "while the police may be able to perform a 'pat-down' for weapons, an investigative detention does not give the police the right to search you or your belongings" [emphasis added].  There are, in my view, some problems or ambiguities with this statement of the law. 
 
First, a "pat-down" will be permitted where officers have "reasonable grounds to believe that his or her safety or that of others is at risk": see R v Mann, 2004 SCC 52 at para 45. 
 
Second, a "pat-down" is a search. The suggestion that the police cannot "search you" seems to imply that the "pat-down" is not a search.  It is.  The purpose of it, where it is permitted, is to determine if their are weapons.  If the police feel what they believe is a weapon a more intrusive search will be permitted.   
 
Third, and most importantly, the suggestion that the police are not permitted to "search you or your belongings" seems to be in error.  In R v Plummer, 2011 ONCA 350, for example, the Ontario Court of Appeal commented on the search of Plummer, while under investigative detention, and a bag in the car in which he was seated.  In finding that both were permissible the court noted the following:
there is nothing in Mann confining a search incidental to an investigative detention to only the person detained... 
If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity [paras 53 and 58]; [emphasis added].
A similar outcome was reached in R v Peters, 2007 ABCA 181 where the Alberta Court of Appeal found that the search of the accused's backpack by an officer was a justifiable search incident to investigative detention. 
Mr Friedman's advice to the reader of his column that the police are not permitted to search "you or your belongings" may lead some to resist such efforts by the police.  Based on Plummer and Peters, such resistance would be ill-advised and potentially criminal.
 
Second, the suggestion that "the longer the detention, the more likely it is that you are constitutionally entitled to consult a lawyer and seek legal advice" is ambiguous and not entirely accurate.  In R v Suberu, 2009 SCC 33 the Supreme Court reviewed the right to counsel (section 10(b) of the Charter) and its application in the context of investigative detention.  The majority offered the following:
Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention [para 42]; [emphasis added].
The length of the detention is not determinative.  According to Suberu, if there is an investigative detention then officers are obliged, subject to safety concerns, to immediately inform and implement rights to counsel.
Educating the public about their fundamental legal rights is a laudable pursuit.  Perahps, however, this pursuit must be undertaken with caution and a warning: the law is not static, it is fact specific and sometimes, it is not settled. 
Knowledge can be power so long as it is fully informed knowledge.
 
DG Mack

New & Notable: Logic and Common Sense do Occasionally Collide with Criminal Law

William Pereira was charged with impaired and "over 80".  At trial the breath technician testified.  During his evidence he identified the lot # for the alcohol standard that was used in the approved instrument.  During cross-examination it was elicited that the lot # provided by the breath technician - as recorded in his alcohol influence report - was different that the lot # recorded on the certificate. 
The accused submitted that if the Crown was seeking to rely upon the presumption of identity - section 258(1)(c) - then it needed to prove, inter alia, that the instrument was being operated properly.  The discrepancy in the lot # was evidence, the accused argued, that the instrument was not operated properly.  The trial judge accepted that argument and acquitted the accused.
The Crown appealed: R v Pereira, 2011 CarswellOnt 3208 (SCJ).
On appeal Sproat J commented on the discrepency:
While logic and common sense do not always dictate the result, there appears to me to be only one explanation for the discrepency.  The qualified breath technician testified that he was recording the number for the alcohol standard from a sticker of some sort that was on the Intoxilyzer machine itself.  The only explanation I can think of is the qualified breath technician made a regrettable but human error in writing down the lot number and/or transposing it to the certificate.  I can't think of any scenario in which this error could cast the slightest doubt on the validity of the reading [para 5].
Sproat J noted that the Crown had called the breath technician and therefore was not relying upon 258(1)(g).  Accordingly, this error is not fatal unless it caused some doubt that the instrument was not operated or operating properly.  Sproat J rejected that argument and held:
...the fact that there may be that slight discrepancy in the identified for the standard certainly doesn't raise any doubt that there was an alcohol standard in the machine.  If Parliament intended that in order to invoke the presumption it was necessary for the witness to be able to definitely identify the alcohol standard, Parliament would have said so as it did in s. 258(1)(g) [para 9].
Sproat J allowed the Crown appeal.
 
DG Mack