New & Notable: Anesthesiologist Abusing Sedated Patients

Until the Ontario Superior Court’s decision in R v Doodnaught, 2014 ONSC 1196, there have been no reported cases in Canada on sentencing of an anesthesiologist who sexually assaulted his sedated patients during various medical proceedings [para 26].

Doodnaught was convicted of sexually assaulting 21 female patients. The victims were between the ages of 25 to 75. The sexual acts perpetrated on them included kissing, fondling, and forced fellatio. Although three formal complainants were made during the time period in the indictment, Doodnaught had faced no repercussions; the effects of the anesthesia were blamed and Doodnaught denied the allegations. McCombs J found that the dismissal of these complaints emboldened Doodnaught and escalated the frequency of his crimes. In fact, in the ten days prior to his arrest, no less than four women were sexually assaulted; three of them by forced fellatio. 

McCombs J found held that “the power imbalance between” Doonaught “and his victims was absolute” [para 8]. Sedated but aware of what was happening to them, the impact on the victims has been devastating.   The victim impact statements described profound psychological effect, sexual dysfunction and a distrust of the medical profession [para 13].  

At the time of sentencing Doodnaught was 65 years old with no prior criminal record.  McCombs J held that the “court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients” [para 29].

Doodnaught was sentenced to 10years.

In March of 2014 Doodnaught sought release pending the hearing of his appeal. The notice of appeal alleges some 100 errors by the trial judge - all of which challenge the correctness of the findings of fact [2014 ONCA 172 @paras 7-8].

The Crown argued that Doodnaught’s ongoing detention was necessary and in the public interest. LaForme JA agreed and noted the following:

(…) on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable.  In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest [ONCA para 24].

Doodnaught submitted the same 49 letters of support that were filed on sentencing. The point was to illustrate that some small segment of the public believed in his innocence.  LaForme JA held that:

These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates.  The letters thus do not assist very much in gauging the public interest in this case [ONCA para 19].

 LT

Current & Curious: Practical - but perhaps not precise - Interpretation

Tassandra Whyte was charged with accessory after the fact to murder. She wanted to be released on bail pending her trial. She applied for bail and had a hearing in Superior Court; her application was denied and she was detained on the secondary grounds.

Whyte renewed her application for bail in Superior Court, alleging there had been a material change. The changes included her living arrangements and the fact that the trial was now likely to occur some significant distance in the future.

At that second bail hearing the court declined to consider the matter on the basis that it lacked jurisdiction; the court held that a renewed bail application based on change in circumstances could only be heard by the Court of Appeal. .

Whyte sought a review under section 680(1) to the Court of Appeal: 2014 ONCA 268.

The Court of Appeal considered the issue of whether the Superior Court could entertain a second bail hearing. It offered the following overview of the law on this issue:

The relevant practice in Ontario can be summed up as follows:  Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of theCode, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant’s grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of theCode: R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.), at p. 746. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 5; R. v. Klymchuk (2007), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), 252 C.C.C. (3d) 521 (Ont. S.C.). This second avenue reflects the “considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release”: R. v. Boyle, [2006] O.J. No. 5094 (C.A.), at para. 3.

The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application, however: see Daniels, at p. 747; Boyle, at paras. 3-4. In other words, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release [paras 21-22].

The court then turned to consider what amounts to a “change in circumstances” and noted:

In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material [para 26].

In the present case the court accepted that a change in the trial date, arising from severance of the accused, and other delays, such that the accused may spend more time in custody then they would even if convicted, is a material one. In so concluding the court cited the following comments of Hill J in R v White, 2010 ONSC 3164:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted [para 10].

Interpreting section 522 as permitting a second bail hearing where there is not a material change in circumstances is, with respect, not the most compelling work of statutory interpretation. Indeed, in the past there has been divide about the proper interpretation. The Court of Appeal has clearly endorsed, the “purposive” [read practical] interpretation which permits successive bail hearings in Superior Court (rather than reviews at the Court of Appeal) where there is a material change. Practical, indeed, but precisely interpreted?

At any rate, at least in Ontario, there is no ambiguity; section 522 permits successive bail hearings in Superior Court where there is a material change in circumstances.

DGM

New & Notable: Voyeurism or Just a Guy with a Camera?

Toronto has a clothing optional public beach - designated as such by city bylaw in 2002. Some people exercise this option to participate in the nudist or naturalist lifestyle; some just for the fun of the experience. It is, not surprisingly, a popular beach with many simply in attendance to ogle.  In 2005 Parliament enacted Bill C-2 which saw the creation of the criminal offence of voyeurism.

On Labour Day weekend 2012, HL took his 9-month old son and camera and set out for the clothing optional beach. He was arrested later that day for having taken dozens of pictures of nude women. He did so in plain view and when confronted by one of his muses he agreed to delete the photos he had taken of her.

HL was charged with voyeurism; Green J was tasked with deciding if his conduct amounted to same: 2014 ONCJ 130.

The essential elements of voyeurism as charged in the information required that HL:

  1. Surreptitiously have made the visual recording
  2. Of nude persons
  3. In circumstances that gave rise to a reasonable expectation of privacy.

There was of course no dispute that HL had taken the 47 nude photos of women filed as exhibits in the trial. At issue was whether the photos were shot surreptitiously and whether the there was a reasonable expectation of privacy at the clothing-optional beach.

The Crown argued that despite the fact that HL's conduct was carried out in plain view, it was nonetheless surreptitious because all of the photos were taken from behind, with the women facing away from the camera. Thus, the effect was that HL's conduct was surreptitious to the women he was photographing.

Green J was dismissive of this argument holding, inter alia, that HL's conduct was “if anything, public (if not in fact conspicuous) — the antithesis of "surreptitious" [para 26].  He further noted that “neither the absence of consent or awareness on the part of the person observed or recorded is an expressly requisite feature of the offence set out in s. 162” [para 28].

Furthermore, HL testified that he intentionally and conspicuously photographed women from behind “so as to capture them in natural rather than contrived attitudes” [para 32]. That testimony was accepted by Green J.

Despite finding that the offence had not been made out due to the ‘conspicuous’ rather than surreptitious nature of the making of the visual recordings, Green J nonetheless addressed the issue of reasonable expectation of privacy.

Green J was prepared to infer that the woman who asked HL to delete her photos had a subjective expectation of privacy and that other beach-goers may have been displeased with his conduct. However, the court concluded that the circumstances did not give rise to a reasonable expectation of privacy for the following reasons:

  • The beach is public
  • The beach is open to both clothed and unclothed
  • Those who do go nude do so knowing that they will be observed
  • Those who remove their clothing know that many on the beach carry cameras
  • No rules or by-laws prohibited the taking of photographs
  • No sign discouraged the use of cameras
  • The photographs taken were of mature females
  • The photographs revealed no more nudity than would have been observable to any other beach goers
  • There was no concern that the photography was to be distributed in any way [@para 40].

Green J concluded by offering the following:

Without pre-deciding the issue or endeavouring to influence any other jurist, I venture to suggest that a change in circumstances — such as the installation of prohibitive signage and appropriate by-law amendments — could lead to a recalibration of "where the 'reasonableness' line should be drawn" with respect to the visual recording of nude beachgoers at the (beach) [para 41].

Of note since the summer of 2013 the clothing optional beach has had a “photography prohibited” sign.

LT

New & Notable: A Continued Battle with an Intractable Offence

Bonita Purtill had a prior conviction for impaired driving. Sadly that conviction did not fully deter her. On Thanksgiving day 2008, while impaired, she slammed her truck into another vehicle, killing a 5 month-old child inside and breaking the back of the mother. Purtill later refused to provide a sample of her breath.

Purtill was ultimately convicted of criminal negligence causing death, impaired causing death and refusal to provide a breath sample. The trial judge imposed a sentence of 6 years for the criminal negligence offence and impaired driving and 1 year consecutive for the refusal. Purtill appealed: 2013 ONCA 692.

In recent years the Ontario Court of Appeal has made clear that this type of offence has proven intractable and that increased sentences are not only warranted but necessary to send a strong message of deterrence and denunciation: R v Kummer, 2011 ONCA 39; R v Junkert, 2010 ONCA 549 - something I discussed in a recent blog: Fighting an Intractable Problem?

In response to the appeal in Purtill, the Court of Appeal reiterated this message and added a helpful point regarding the consecutive sentence for the refusal charge:

There is no fixed upper limit for criminal negligence causing death or impaired driving causing death. The facts of the case must govern...In this appeal, a five-month-old baby was killed and his mother's back was broken as a result of the appellant's offences. While the appellant showed remorse, she had a prior, albeit dated, criminal record for impaired driving. Furthermore, there was no error in the sentencing judge's imposition of a consecutive sentence for the offence of refusal to provide a breath sample. Counsel acknowledges that a consecutive sentence for this offence was appropriate. The seven year sentence was not unduly long or harsh in the circumstances and we are satisfied that the sentence does not offend the totality principle [para 4].

Given that an offence of refusal knowing death was caused (or bodily harm and death ensued) is now available, the guidance about the consecutive nature of that offence is notable. The battle with this intractable offence will undoubtedly continue; hopefully all courts will take note.

DGM

New & Notable: Not just a procedural rule

Brian Dexter crashed his car shortly after leading the police on a high speed chase. He had been drinking that night. His three friends who were also in the car were injured. At trial he testified that he had not been driving at the time of the accident. He asserted that he had earlier gotten in the backseat and fell asleep - he implied that one of his friends had been driving. 
The three friends testified at trial. During the cross of two of them the defence suggested to them that the accused was "unwilling to drive". During the cross of the third occupant of the vehicle the defence suggested that someone else might have been driving; that witness denied the assertion. He suggested that the car was the accused's "baby" and no one else would have been allowed to drive it.
Dexter was convicted. In rejecting his evidence the trial judge noted that one of the factors that was taking into account was the breach of the rule in Browne v Dunn by defence counsel. Something which teh Crown raised in submissions.
Dexter was convicted and appealed: 2013 ONCA 744.
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New & Notable: If at first you don't succeed...maybe you should stop

Daniel Woods was trafficking in cocaine. He got caught. He was found to have $1,130 and some drugs including 95.5 grams of cocaine. He was charged. He was released pending trial and resolution of that charge. While on release he again trafficked in cocaine. He was caught, again. This time he had 288.5 grams of cocaine and 79 ecstasy pills, along with $540. He was charged, again. He pleaded guilty to both charges.

 

Woods was a young man, he had no prior record and he had a gambling addiction. The sentencing judge imposed a sentence of 18 months jail on the first charge and 30 months jail on the second. Woods appealed: 2013 ONCA 766.

The Court of Appeal upheld the sentence. In doing so it offered the following:

However, the sentencing judge considered it an aggravating factor that the appellant committed the second offence while released on an undertaking and awaiting disposition of the first offence.

We agree. Where an accused re-offends while on release, the sentencing principles of general deterrence and denunciation must be given more significance to discourage and denounce such conduct. Further, we see no basis for the appellant’s submission that the sentences on the two offences should have been concurrent. We are not persuaded that the sentencing judge made any error or that the sentence is unfit [emphasis added]; [parars 3-4].

DGM

New & Notable: Looking for just one reasonable inference...

Clinton Yowfoo had two acquaintances, Mac and Ngo. The three men were actively involved in drug trafficking. The three men had come to the attention of the police and they were under surveillance by the police. During that surveillance Yowfoo was observed “on numerous occasions” in the company of Ngo and Mac.

 

On August 6, 2009 Ngo and Mac were arrested. Their residence was searched and the police found large quantities of drugs and cash. Two days later the police attended another address – which was believed to be a stash house. When the police arrived Yowfoo’s car was in the driveway. It was not his residence. About 53 minutes later he emerged carrying two bags (which later were found to contain items consistent with drug trafficking). The police arrested him.

The police then searched the residence and found a locked closet – inside they discovered drugs and firearms – which could have been worth up to $1.7 million. Yowfoo was charged in relation to those items. The evidence at trial included his presence in the house, he had a key for the residence, he had packaging for the brand of lock on the closet, although there was no evidence he had a key for the lock.

Yowfoo was convicted. He appealed: 2013 ONCA 751.

On appeal Yowfoo argued that there was no evidence that he had a key for the lock on the closet and that he left without retrieving the items in the closet. From this, combined with the evidence above, Yowfoo argued that there is a reasonable inference that he attended that residence to clean out the drug trafficking items he was arrested with after having heard that Mac and Ngo were arrested and either had no knowledge or no control over the closet.

The Court of Appeal accepted this as a reasonable inference and overturned the conviction, notwithstanding that Yowfoo did not testify.

DGM

New & Notable: Telus, Duarte and Undercover Police Operations over the Internet

In April 2013, I wrote a blog post about the Telus Communications Co. decision from the Supreme Court of Canada. In it I made the modest observation that we would not have to wait long in order to see whether Cromwell J’s concerns about the mischief that could be caused by the court’s adoption of a broader interpretation of the term “intercept” in the context of electronic surveillance would come true. The results are in: R. v. Mills, 2013 CanLII 74953 (NL PC).

 

The Facts

A police officer in St. John’s, Newfoundland set up Hotmail and Facebook accounts for a fictitious fourteen-year-old girl named Leann. On the Facebook profile page, the male officer provided information that Leann went to a local high school. The officer included a picture that he had obtained from the Internet. The Facebook account soon started receiving friend requests.

A little less than a month had passed when “Leann” got a message from a 32-year-old male by the name of Sean Mills asking about her Facebook profile photo. The officer posing as Leann responded and a series of email communications ensued between the undercover officer and Mr. Mills. Within a very few days of the first contact, Mills had provided his cell phone number and had asked “Leann” to send him pictures of herself. He also lied by stating that he was 23 years old. It was clear from the communications before the court that Mills knew “Leann’s” age.

All of the communications between the two, with one exception, were by email. On one occasion, the undercover officer posted a message on Mills’ Facebook page, but Mills took it down and sent a message to “Leann” to explain why: “Look I don’t want you to be upset but I had to remove it. Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.” [Para. 10]

The officer took screen captures of the emails that constituted the communications between him and Mr. Mills. The information from the emails was then used to gain access to the accused’s cell phone number and subscriber information, his motor vehicle information including his residential address and DOB.

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New & Notable: Did you hear about that threat?

Stéphane McRae was spending some time in jail. He was waiting to be tried on some drug offences. McRae met some people in jail. Comeau was one of them. Comeau was McRae’s “contract killer” – or so he told another fella he met or knew named Cloutier. Apparently he also met a fella named Collin. McRae felt comfortable enough to share with Cloutier and Collin his ideas about how to deal with those involved in the prosecution against him. That was a mistake.

Cloutier and Collin later reported that McRae had told them the following: he told Collin that he would “take down the guys at the top”, “rearrange the fact of the Crown prosecutor and one of the witnesses”; he told Cloutier that he hired a detective to find out where the Crown lived and the investigating officer, and that after trial he would kill anyone who ratted on him.

McRae was charged with uttering threats. He did not testify at trial. The trial judge, who found Cloutier and Collin credible, acquitted McRae; the acquittal was based on the finding that the fault element (mens rea) was not proven as the words were not conveyed with the intent that they be conveyed to the victims. The trial judge found that McRae “intended to seek revenge once the trial was done, and that he had uttered the words out of anger and frustration” [para 6].

The Crown appealed: 2013 SCC 68.

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New & Notable: Old Mother Hubbard & the Police can go to the Cupboard but not the Computer

Police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation which would identify the owners or occupants of the residence. The Information to Obtain a Search Warrant (“ITO”) stated that police would be looking for, among other things, “computer generated notes” but it did not specifically reference computers nor did the warrant authorize the search of computers. While executing the search, police found marijuana, two computers and a cell phone. Police examined the computers and cell phone and found evidence that Thanh Long Vu was the occupant of the residence. He was charged with marijuana production, possession and trafficking as well as theft of electricity. Vu successfully argued at trial that his s. 8 Charter rights were violated and that the evidence should be excluded. He was acquitted. The British Columbia Court of Appeal found that there had been no s. 8 breach and overturned the acquittal. The Supreme Court of Canada agreed with the trial judge in her finding that there was a s. 8 breach when the police searched the computers and the cell phone but found that the evidence should not have been excluded pursuant to s. 24(2) of the Charter. The appeal was therefore dismissed and the Court of Appealʼs order for a new trial stands: 2013 SCC 60.

Issue #1: Whether the warrant authorizing a search for ownership or occupancy documentation was properly issued

Justice Cromwell, writing for a unanimous Court, gave relatively short shrift to the argument accepted by the trial judge that because the officer who swore the ITO didnʼt specifically state in the ITO that he had reasonable grounds to believe that documents evidencing ownership or occupancy would be found within the house, the ITO could not support a search warrant for such documentation. He found that the issuing justice was entitled to draw an inference that such reasonable grounds existed and that the informant on the ITO did not have to state the obvious. Accordingly, the warrant to search for such documentation was properly issued and the search for it did not violate s. 8 of the Charter.

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