Pending & Prominent: SCC to consider ISP privacy

The Supreme Court of Canada has granted leave to appeal from the decision of the Saskatchewan Court of Appeal in Spencer: 2011 SKCA 144. The appeal will provide the Supreme Court with the opportunity to clarify whether there exists a reasonable expectation of privacy in certain basic information held by Internet service providers (ISPs). Spencer was released concurrently with Trapp: 2011 SKCA 143. Together, they are the leading appellate authorities in this area of the law.

 

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

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New & Notable: A thinly veiled argument

What happens when the constitutionally protected right of an accused to confront his accuser conflicts with the constitutionally protected right of a citizen not to be discriminated against on the basis of her religion?

 

According to the Supreme Court - it depends: R v NS, 2012 SCC 72 [see previous post on NS by Dallas: Niqabs and the Criminal Justice System].

 

M---D S. & M---l S. were charged with sexually assaulting N.S.  The parties were N.S.’ cousin and uncle, respectively.  The Crown elected by indictment and a preliminary hearing commenced.

At the preliminary hearing the Crown sought to call N.S. as a witness.  N.S., a Muslim, wished to testify while wearing her niqab.  Both accused sought an order forcing her to remove her niqab when testifying so that they could they could effectively cross-examine her and so that the court could assess her demeanour.  A voir dire was conducted.

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New & Notable: Unsavoury witnesses and debt collectors

Kevin Pelletier was convicted of several offences related to his involvement in a beating and shooting. He appealed his conviction and sentence; the appeal was dismissed: 2012 ONCA 566.

 

Watt JA, in his distinct, concise and poignant way explained the circumstances of Pelletier’s appeal as follows:

The relationship between debtors and creditors is common to both licit and illicit commerce. Debtors owe. Debtors are expected to pay. Creditors are owed. Creditors expect to be paid.

Some debtors pay their debts on time and in full. Others lag behind and require reminder or encouragement to discharge their obligations. The methods used to remind debtors of their obligations and to encourage repayment vary. Some follow conventional methods. Others take different approaches.

In this case, some drug purchasers fell behind in their payments to their suppliers. To remind them of their indebtedness and to encourage repayment, their suppliers shunned dunning letters and threats of litigation in favour of a more direct approach: a baton and a handgun.

A judge found Kevin Pelletier (the appellant) guilty of several offences arising out of his role in a beating and a shooting, about a week apart, of two drug purchasers who got behind in their payments.

The appellant says that his convictions were flawed because the judge at his trial didn't take sufficient care in assessing the reliability of evidence of disreputable characters and untrustworthy eyewitnesses in reaching his conclusions of guilt. The appellant also contends that the sentence imposed by the trial judge was unfit because the judge failed to take into account that the appellant is Aboriginal [paras 1-5].

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New & Notable: SCC sends message on new offence of terrorism

Mohammad Momin Khawaja designed what he called the “hifidigimonster”. It was a remote arming device for explosives. He offered to people, that he believed were terrorists, that he would smuggle it into the United Kingdom and provide training in its use. In addition to making other offers of support to these people, he provided money for explosives for an operation in the United States or in Europe and for other projects. In a nutshell, Khawaja had become obsessed with Osama Bin Laden and his cause, and took steps to offer and provide assistance.

 

At trial, while Khawaja’s defence partially succeeded in challenging the constitutionality of several of the terrorism offences, he was nevertheless convicted of a number of terrorism offences. The trial judge sentenced Momin Khawaja to ten and a half years in the penitentiary and declined to provide any credit for time in custody prior to the imposition of the sentence on the basis that it would be incompatible with a denunciatory sentence. Parole ineligibility was set at five years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values.

 

As often happens when a new criminal offence goes to court, the matter ultimately goes on to appellate review.  The Ontario Court of Appeal granted the Crown’s sentence appeal and imposed a life sentence on a non-terrorism explosives offence found in the Criminal Code. The Court also imposed a ten-year period of parole ineligibility and a series of consecutive sentences on the terrorism offences of which Khawaja was convicted: 2010 ONCA 862.

 

Ultimately, when Momin Khawaja appealed from this decision, the Supreme Court of Canada was presented with the opportunity to send a message regarding the gravity of the new terrorism offences: 2012 SCC 69.

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New & Notable: No good deed goes unpunished

Robert Ellis attacked his parents with a club and sword.  He pleaded guilty to two counts of assault with a weapon.  He was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code.  He appealed, arguing that his counsel was incompetent and that the NCR finding was unreasonable.  The Ontario Court of Appeal resoundingly and unanimously dismissed the appeal: 2012 ONCA 906

 

The Crown sought and was granted an assessment of Ellis’ mental condition.  The first psychiatrist said that he was fit to stand trial and was likely criminally responsible. 

The Crown sought and was granted a second assessment.  The second psychiatrist said that Ellis had an NCR defence available to him based on his mental state at the time of the offence. 

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Current & Curious: Is the merit of a prosecution a factor in determining unreasonable delay?

Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.
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New & Notable: Forfeiture clarified

Alphide Manning was driving while impaired on April 1, 2010. At the time, Manning had three convictions for impaired driving offences. He also had an outstanding charge for impaired driving from July 2009. Manning eventually pleaded guilty to both of those matters - as a result he had five impaired driving related offeces on his record.

The Crown sought, in addition to some jail time and a driving prohibition, an order of forfeiture under s 490.1. The trial judge declined to make that order relying on 490.41(3). That request was initially denied; the SCC has just rectified that misstep: 2013 SCC 1.

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Current & Curious: Threats Redux

Today the Supreme Court released its decision in O'Brien: 2013 SCC 2. Yesterday I posted about this case and commented on the possible impact of the Court's ruling: Finding fear in all the right places.

Two aspects of the ruling are interesting. First, the legal analysis. Fish J, for the majority held that "it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered feel intimidated by them or be shown to have taken them seriously" [para 13]. Rothstein J, for the minority agreed. As I noted in my post yesterday, this is an interesting point. That all members of the Court agreed, and with little real analysis, that the subjective view of the recipient of the threat is not determinative is somewhat notable. It has been held and accepted by many that this is not only an important but fundamental aspect of a threats charge. Regardless, as I noted in my earlier post - whether it was always the law or is now the law - this is a beneficial and legally sound view of the elements of a threats charge.

Second, the dispute between the majority and minority relates to the interpretation of the trial judge's ruling. The trial judge held as follows:

So I have to consider the evidence of Ms. [W] when I consider the mental element or the mens rea.  Normally the mens rea is taken from the words of the accused, absent any explanation from the accused, and as I pointed out at the outset you have chosen not to testify, as is your right.  But the evidence in this case is somewhat unusual in the sense that Ms. [W] has told the court that she was not concerned about the threats, that you shoot your mouth off, if I can use the vernacular, that she did not want you charged, she did not take the threat seriously.  And so it is incumbent, and the court is required, to consider the words in the context of the evidence of Ms. [W], and when I do so, despite the fact that I am actually quite concerned about the actus of the offence, the comments, the words, I must say that I do have a reasonable doubt about the mental element of the mens rea of the offence because of the evidence of Ms. [W], the fact she did not take them seriously, and as I pointed out at the outset it is incumbent upon the Crown to prove all elements of the case beyond a reasonable doubt.  So despite my concerns I am entering an acquittal on the charges of utter threats, …

 

While the majority found that it was open to the trial judge to consider W's perception, the minority felt the trial judge asked the wrong question - and acquitted on the basis of W's perception. With respect, it looks like that is exactly what the trial judge did. Perhaps, in fairness, the learned trial judge was of the same view as many others, that the recipient's view is highly probative and indeed, determinative. At any rate, that is not the law - at least not any more.

DGM

Pending & Prominent: Finding fear in all the right places?

Kelly O’Brien has a short fuse, something his ex-girlfriend, W, knew well. W suspected O’Brien of cheating on her. She told him of her suspicions over the phone while O’Brien was incarcerated at Headingly Correctional Centre. O’Brien denied the accusation and W responded that in light of his infidelity she was taking steps to abort his baby. At the time W was 20 weeks pregnant.  O’Brien was upset at the prospect of the abortion, he tried to talk W out of it, he begged her not to kill his baby. She persisted with the threat and taunted him with her plan to send him the ultrasound photo. When O’Brien asked why she was doing this, W responded “Why not? Why not hurt you, hey? Maybe you should hurt?”

O’Brien was enraged and he provided an explicit explanation of what he was going to do upon his release, which included the following:

…I’ll be on the 25th… on the 25th you’re getting a bullet in your fucking head you fucking little whore, man, o.k.? O.k. And the guards just heard me so I’ll probably going to get charged for that. So I’m going to fucking kill you, you little bitch when I get outta here man. O.k., you fucking hear me? You’re dead, you fucking whore. I mean it man. Watch your windows. I’m going to shoot your windows out, bitch  [para 6]. 

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New & Notable: Where there is no will, there is no way...

Christopher Ramgadoo pled guilty to aggravated sexual assault, sexual interference, unlawful confinement, attempted choking and breach of probation as a result of his sexual attack of a 13-year old girl.  At the ensuing dangerous offender hearing, Crown and defence agreed that Ramgadoo satisfied the statutory criteria for a dangerous offender designation (s. 753(1)).  The only issue was whether the risk he posed could be controlled in the community (s. 753.1). 
The trial judge found that it could not and imposed an indeterminate sentence.  On appeal, Ramgadoo argued that the trial judge had failed to consider the “burn out” effect of his eventual aging on his risk of reoffence and whether making compliance with a medication regime a condition of a long-term supervision order would render his risk to reoffend manageable in the community.  The appeal was recently dismissed by the Ontario Court of Appeal: 2012 ONCA 921.
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