New & Notable: Substance over Form, Safety Searches need that Respect

Geran Williams was walking down the street with a loaded handgun in his waist band. Not only loaded, the gun had a round in the chamber ready to fire. Williams happened to match the description of a person the police had received an anonymous tip about. The police approached him and ultimately found the gun. Williams sought, unsuccessfully, to exclude the gun at trial arguing there had been violations of his rights under sections 8 and 9 of the Charter. He appealed. The Court of Appeal dismissed his appeal: 2013 ONCA 772.

The call cam in shortly after 7 pm on July 10, 2008. The caller indicated that there was a black man wearing a black t-shirt and jeans, about 5'8" tall, with a baby face and hair in dreadlocks walking south at 1800 Martingrove. The caller then hung up. The police knew this area well - there was a history of gun and drug issues at this location.

Officers responded to the area within a few minutes. Some officers, first on scene, identified a male matching the description - although they could not see his face to confirm he had a baby face. Two officers approached that male - he was the appellant, Williams; he was in the group of other males. Officers asked Williams if he was armed, he did not respond. Instead, Williams bladed his body - others in the group did not react in this way. One of the officers then noted Williams make a movement toward his waist. The officers told him to put his hands up and turn around. He did neither. 

The officers then took control of Williams, grabbing his arm and lifting his shirt - the butt end of a handgun was seen and officers arrested Williams. Williams was convicted at trial and appealed.

On appeal two issues were raised. First, the detention. Williams argued that the officers did not have a reasonable suspicion justifying an investigative detention. The Court of Appeal rejected this argument. The standard for investigative detention was "reasonable suspicion" - a standard which the court noted should not be conflated with the more "exacting standard of reasonable belief" [para 22]. To determine this issue the court should look at the totality of the circumstances [para 24]; the mere fact an innocent explanation may be another reasonable interpretation is not fatal [para 24]. In this case the Court of Appeal held the detention was lawful:

The parties agreed at trial and in this court that, on its own, the anonymous tip was not sufficient to satisfy the reasonable suspicion standard.  That said, the tip remained a part, and an important part, of the circumstances that were relevant to a determination of the reasonable suspicion issue.  The tip was current, described the nature of the offence being committed, and contained sufficient particulars of the suspect to enable police to immediately focus on the appellant when they arrived minutes later. 

In our view, the combination of the anonymous tip and what occurred when the appellant encountered the police was capable of supporting a reasonable belief that the appellant might be connected to a gun crime as reported by the anonymous caller.  Nothing more was required [paras 26-27].

Second, Williams argued that the search was unreasonable. This argument was based on the position that lifting his shirt was more than was permissible for an investigative detention safety search. The Court of Appeal rejected that argument as well.  

The police were investigating a possible gun offence.  They apprised the appellant of their purpose.  They asked whether he was armed.  He did not answer their question, but “bladed”, turned away from them.  An officer told the appellant to put his hands up and turn around.  He refused.  The officers approached and took hold of both arms.  The appellant resisted.

One officer lifted the appellant’s baggy t-shirt.  A gun butt protruded from the waistband of the appellant’s pants.  The officer saw it and yelled “gun, gun, gun”.  The appellant was subdued, handcuffed, and placed under arrest. 

Strictly speaking, what occurred was not a pat-down search.  But what occurred was no more, and arguably less, intrusive than a pat-down search.  To characterize what occurred here as unreasonable is to sacrifice substance for form.  In no sense could this search be characterized as the functional equivalent of a strip search [paras 31-33].

DGM

New & Notable: High End & Fit

Jeffrey Narvie went to an acquaintance’s home to sell him a small amount of marijuana. The deal didn’t go as planned for either the buyer, who was attacked and robbed, or the seller, who was subsequently arrested. After a trial Narvie was found to have held a knife to the victim’s throat, robbing him of his cell phone and $230.

The Crown argued that Narvie, an aboriginal person from the Mi’Kmaq band in New Brunswick should be sentenced to 3-5years in custody. Narvie submitted that 12 months would suffice. The trial judge imposed a sentence of 4 years, which “included three six-month concurrent sentences for the counts of mischief, breach of probation, and possession of stolen property, as well as nine months for trafficking in marijuana,” [@para 9]. Narvie appealed on the basis that the sentence was demonstrably unfit: 2014 ABCA 145.

In fashioning the sentence the trial judge noted:

  • The lengthy related criminal record
  • The unfavourable pre-sentence report
  • Longstanding substance abuse issues
  • A lack of remorse
  • The principles in Gladue, 1999 CanLII 679 (SCC)

On appeal Narvie argued that the sentencing judge overlooked a number of mitigating factors including:

  • A 10year gap in Narvie’s criminal record
  • The prior attempts to overcome addiction issues
  • Employment in the year prior to the offences
  • The unsophisticated nature of the crimes
  • The absence of injuries to the victim [@para 10]

The Crown conceded that the 9 month sentence for trafficking was overly harsh given the small amount involved and that the offender’s related drug record was minimal. The Court imposed a sentence of 60 days concurrent on the trafficking offence.

In dismissing the remainder of the sentence appeal the Court held that:

While the robbery sentence may have been at the high end, we cannot say it was demonstrably unfit. We are satisfied it fell into an appropriate range, given all the facts present here. The test is not whether a lower or higher sentence might have been imposed. It is whether, in this case, the sentence for robbery was demonstrably unfit. We are not convinced that it was. [@para 13]

Furthermore, although the sentencing “judge may not have mentioned every single factor, (…) all the matters he is said to have overlooked were, in fact, put before him. He carefully considered the principles of sentencing and made no errors of principle” [@para 12].

LT

New & Notable: Safety Searches Post MacDonald

Tom Le was visiting a friend. He was in the backyard of the friend's residence hanging out. Le had some plans for that night; he hoped to sell some illegal drugs - he had them on his person for that reason. He also had a fully-loaded restricted firearm, namely a .45 calibre semi-automatic Ruger pistol. The gun was secured in a satchel that Le was wearing over his shoulder.

Le would later be arrested and charged with possession of that gun. At trial he sought to exclude the gun on the basis of alleged violations of his rights under sections 8 and 9. Campbell J dismissed his motion: 2014 ONSC 2033.

While Le was visiting his friend, the police happened to be in that same neighbourhood; they were looking for another man who was wanted for some violent offences. The police were directed to the house where Le was visiting. The police were also told that this residence was the source of some problems including suspected drug activity.

The police entered the backyard. Campbell J described what happened next as follows:

As the police officers were speaking to some of the young men, the accused, who had told the police he did not live in the residence, began behaving nervously, and was “blading” his body to the officer speaking to him so as to keep the satchel away from the officer.  The accused denied having any identification on his person and, when asked about his satchel, quickly fled from the area.  Two of the police officers quickly gave chase and were, eventually, able to tackle the running accused to the ground on a nearby street.  As they wrestled on the ground, with the two officers trying to subdue the accused, the police discovered the firearm in the satchel.  Subsequently, they discovered his illicit drugs [para 5].

At trial Le sought, inter alia, to exclude the evidence on the basis that his detention and the subsequent search violated sections 8 and 9 of the Charter. Campbell J rejected both arguments. 

First, Campbell J addressed whether the police were lawfully positioned when they first encountered Le. Relying on the implied invitation to knock and rejecting the assertion that the police had to attend at the front door - rather than walk straight into the backyard - Campbell J held that they were.

In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier.  They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there.  Further, the police had been told that the 84 Vanauley Walk address was a “problem” in relation to suspected drug trafficking.  In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to Mr. Jackson and potential drug trafficking.  There was no signage in the area that suggested the police were prohibited from entering the backyard, and no occupier of the premises ever expressly revoked their implied licence to enter the backyard area.  In short, the police officers were never trespassers in the backyard area of this address.  They entered lawfully pursuant to the implied licence doctrine, and remained there lawfully as they were never asked to leave by an occupier of the dwelling [para 70].

Second, Campbell J addressed the detention issue. In doing so he held that Le was not initially detained but, just prior to his flight, based on his conduct and the intervention of the police which then was directed at him, the police had the basis to detain him for investigative purposes and he was detained in law.

While the arrival of the police into the backyard area of 84 Vanauley Walk temporarily interrupted the conversations of the five young men, none of the police physically restrained the accused or made any demand or direction to him that interfered with his liberty.  The accused was not on his way anywhere, so the accused was not even “stopped” by the police or momentarily delayed on any journey. The accused was not subjected to any physical or psychological restraint by the police.  No police officer told him to do anything.  He was asked only for some identification.  A reasonable person in the position of the accused, at that point, would not have concluded that he had been deprived of the freedom to choose whether or not to co-operate with the police.  Indeed, the accused himself testified that he thought that he was free to leave the backyard area.  More particularly, the accused explained that he went to go inside the townhouse through the back door because he did not think he needed to remain in the backyard, as no police officer was talking directly to him.  According to the accused, it was only when Cst. O’Toole physically prevented him from going into the townhouse that “things changed” and he did not think he could leave.

In my view, the accused was only detained by the police when Cst. O’Toole asked him about the contents of his bag.  Cst. O’Toole may only have been inquiring about the bag as a way of asking whether the accused had any identification documents in his bag, but a reasonable person in the position of the accused, in those circumstances, might well interpret that inquiry as a tactical demand or direction in relation to the bag, which meant that the accused was no longer free to leave and had lost the freedom to choose whether or not to continue to cooperate with the police [paras 87-88].

Third, Campbell J addressed the search issue. In doing so, he concluded that in the circumstances the police had the basis to perform a pat-down - "safety search" - of Le during the investigative detention as there was a basis to believe he had a gun on his person [paras 94-97].

Notably, in undertaking this analysis Campbell J addressed the recent Supreme Court ruling in R v MacDonald, 2014 SCC 3 and whether it changed the standard for safety searches. Noting that whether the standard was reasonable grounds or reasonable suspicion, the officers had the requisite basis to search, Campbell J nonetheless offered the following interpretation of MacDonald.

There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police “safety searches” from the traditional “reasonable suspicion” standard to a higher standard akin to the search warrant requirement of “reasonable and probable grounds.”  I do not read the R. v. MacDonald decision as having such an effect.  It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of “reasonable suspicion” to measure the constitutional permissibility of such “stop and frisk” searches.  The significantly higher standard of “reasonable and probable grounds” has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless.  If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest.  There would be little point in the existence of the police “safety search” power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest.  Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations.  Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties.  See: R. v. Chehil, 2013 SCC 49 (CanLII), 2013 SCC 49, at para. 3, 20-24, 27; R. v. MacKenzie, 2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson 1993 CanLII 3379 (ON CA), (1993), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker,2009 BCCA 388 (CanLII), 2009 BCCA 388, 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at § 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have “reasonable grounds” to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations.  In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy.  See: R. v. Zargar, 2014 ONSC 1415 (CanLII), 2014 ONSC 1415, at paras. 29-32.  Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it).  The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase “reasonable grounds” to describe the threshold of “reasonable suspicion” or “articulable cause,” as this same terminology is also used to describe the higher threshold of “reasonable and probable grounds.”  See: R. v. Mann, at paras. 33-35, 40-45, 63-64.  Accordingly, it is important to recall that, in this particular context, the term “reasonable grounds” is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability [paras 99-100].

In a recent issue of  Mack's Criminal Law Bulletin on Westlaw's CriminalSource, I discussed MacDonald. Therein I noted that MacDonald was not a case about investigative detention safety searches but rather non-detention searches - while it appeared that MacDonald imposed a standard of reasonable grounds for safety searches (not reasonable suspicion) that standard would only apply in the context of non-detention searches. For investigative detention safety searches the standard remained one of reasonable suspicion - MacDonald did not affect that.

Campbell J has interpreted MacDonald as not changing the standard at all. His reasons for so concluding are compelling. 

Going forward there will no doubt be other interpretations of MacDonald - likely until the Supreme Court again addresses this issue and explains what precisely they meant.

DGM

New & Notable: The Pull of Bail

Jeffery Norman was on the hook for a lot of money. He pledged $30,000 to secure his release on bail. Norman also had very generous parents who pledged significant amounts totalling $30,000 as sureties on their son’s release. All Norman had to do was abide by his release conditions. He did not and the Crown sought forfeiture of the pledged amounts: 2014 ONSC 2005.

Norman’s actions leading ultimately to this forfeiture hearing were violent and heinous. Norman had been convicted of manslaughter and sentenced to 8 years imprisonment, in addition to the 4 years of pre-sentence custody: [2005] OJ No 1073 (SCJ). While on parole Norman committed a serious, random and vicious act of violence on a complete stranger. The woman was jumped from behind, taken to the ground and repeatedly punched.  

As Trotter J pointed out “surprisingly, Mr. Norman was ordered released on bail (…) The learned justice of the peace ordered that Mr. Norman enter into a recognizance in the amount of $30,000.  He named two sureties under s. 515(2.1) of the Criminal Code and the amounts for which they would be liable:  Tonie Norman - $20,000 and Brian Norman - $10,000” [@para 5].

The conditions of release included a condition of house arrest which required Norman to be in his residence “at all times seven days a week except to go directly to and from and while at employment, counselling (including residential treatment), reporting to a parole office, medical emergencies, or in the direct company of either surety” [@para 6].

Norman denied the breach and testified at his trial that in fact he had been working during the day, was on his way to an AA meeting and had taken a circuitous route to get there to beat the 8:30pm traffic. In fact, although there was a meeting at the location Norman indicated, it was to take place entirely in Portuguese - a language neither spoken nor understood by Norman. In finding Norman guilty, Clements J aptly pointed out that Norman’s explanation simply “made no sense” [@para 10].

Norman declined to participate in the estreatment hearing; both sureties, Norman’s parents, opposed forfeiture and were represented by counsel.

Before turning to the specifics of Norman’s case, Trotter J, referred to a recent case from the Superior Court (Romania v Iusein, 2014 ONSC 623) and helpfully set out some of the governing principles. They are as follows:

  1. The onus is on the surety to show why forfeiture is not appropriate.
  2. The preeminent concern for the court is the preservation of the moral pressure or the pull of bail. “The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort.”
  3. Overemphasizing the surety’s lack of fault can undermine the pull opf bail and adversely impact the criminal justice system. The diligence of the surety, however is a relevant consideration.
  4. The estreatment judge has a wide discretion. There is no rule requiring total forfeiture. However, the vast majority of cases which involve a relatively small sum, nothing less than total forfeiture will usually suffice. [@para 20]

Turning to the facts before the court Trotter J noted that one of the sureties had effectively delegated her responsibilities to the second surety when she left the country on holidays. Prior to leaving on holidays Mrs Norman made arrangements wither her ex-husband. Before doing so however she consulted with counsel and received legal advice which she followed. Trotter J held that:

even though Mrs. Norman received advice that the proposed plan was legal, I have a difficult time seeing how anyone could have thought that it was wise. It was fraught with obvious risk. [i]n circumstances such as these, when a surety is unable to act (either permanently or temporarily), it is necessary that the bail situation be formally addressed.  This may achieved by making an application for variation on a bail review under s. 520 of Criminal Code.  Other options include making an application to substitute a surety (under s. 767.1), or by rendering the accused into custody (ss. 766 or 767): see R. v. Smith, 2013 ONSC 1341, per Dambrot J.  At the very least, the officer-in-charge or the prosecutor should be apprised of the situation. [@para 32]

In recognizing that Norman was apprehended before any real consequences flowed from the breach of the house arrest condition and that he received a criminal conviction for the same conduct, the Court ordered forfeiture of $10,000 of Norman’s $30,000 bond.

Notwithstanding the fact that Mrs Norman received legal advice prior to departing on her holiday, Trotter J found that: “she undermined the bail order by compromising her own ability to monitor her son’s behaviour” [@para 38]. As a result of the needless risks the public was exposed to the Court ordered $7,500 of the $20,000 bond to be forfeited [@para 38].

Trotter J had no sympathy for Mr. Norman Sr finding that:

he knew his son has a violent past and was facing a very serious offence of violence (while intoxicated). Jeremy Norman required intensive supervision. These types of conditions must be taken seriously by sureties. Mr. Norman (sr.) offered no real excuse for his lack of vigilance. He decided to put leisure activities ahead of his obligations as a surety. The only way to emphasize the importance of compliance in these circumstances is to order forfeiture in a substantial amount. Accordingly, I order Mr. Norman also to forfeit $7,500 for exposing the community to the risk of re-offending by his unsupervised son. [@para 39]

LT

New & Notable: Biting the Hand that Feeds - Animal Abuse and Self-Defence

On March 14th, 2013, Vernon Gladue killed his wife’s ten-pound shih-tzu— “Buttons”—by throwing her against a door frame, shooting it with a BB gun, and strangling it.  At issue was whether he had a “lawful excuse”, pursuant to section 445(1)(a) of the Criminal Code:

445. (1) Every one commits an offence who, wilfully and without lawful excuse,

(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose…

Gladue, who had been drinking, had just got into a lengthy argument with his wife.  After about an hour, Gladue tried to kiss Buttons; who responded by biting Gladue’s upper lip, causing a minor bleeding.  The fatal attack ensued.

The next day, Gladue sent his wife some text messages, including: “... dog doesn't bite hand that feeds it an (sic) if it does its gone,” and “Dog bit me an (sic) lost ...” and “Because I've told you, any dog that bites its master am (sic) draws blood dies. You get it?”

The Court found that there was room for some physical response to being bitten: “Pulling the dog away and even dropping it would have been fully justifiable in the circumstances (even if it injured the dog)” [para. 87].  However, once Gladue’s actions were fuelled by anger and a clear intent to cause injury, his conduct went beyond any lawful excuse: 2014 ABPC 45.

Gladue also attempted to argue self-defence.  The Court, however, found that the self-defence provisions in the Criminal Code apply only to human assailants:

Speaking in non-legal terms, one may well be the victim of a dog's ‘assault’ and have to act in ‘self-defence’. That these terms may be utilized colloquially, however, does not mean that they take on the character or legal force of their Criminal Code counterparts [para. 102].

The Court found support in this interpretation from the cases of R. v. Greeley, [2001] N.J. No. 207 and R. v. Barr, [1982] A.J. No. 1021.

The Court also noted that the scope of “lawful excuse” extends even more broadly than “self-defence”.  For one example:

The owner of a pet dog who discovers that the dog suffers from a terminal illness would be justified in having the dog euthanized. Indeed, our society views that as a compassionate response to the dog's plight. The same cannot be said in the context of human beings, however. A parent who discovers that his child suffers from a terminal illness would not be justified in having the child euthanized. Our society would view that as murder.… The policy of our criminal law does not militate in favour of extending Criminal Code provisions relating to ‘Defence of Person’ to animals (or vice versa) for that reason [para. 105].

Similarly, a zookeeper would likely find a lawful excuse in shooting a grizzly bear that was approaching a human infant found within its enclosure.  Applied to humans in the “self-defence” context, the same conduct would likely not be permissible: consider a prison guard shooting an inmate that was approaching an infant found within his cell.

In further support of this dichotomy, the Court found that animals are “property”: the offence in question is found within Part XI of the Code, titled “Wilful and Forbidden Acts in Respect of Certain Property”.

Within the context of the Criminal Code, this separation makes good sense for several reasons.  As remarked by the Court: “I resist the temptation to consider how the defence of self-defence would apply to this case if it were legally available. Did Gladue assault or even sexually assault Buttons by his unwanted kiss?”

JD

Current & Curious: A Little Step Back from Morelli?

Justice Fish in R v Morelli, 2010 SCC 8 wrote: “It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer” [para 2]. Since Morelli, it has often been taken as a given that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer infringes an accused’s s. 8 rights.

Not necessarily so, says the Ontario Court of Appeal in R v Little, 2014 ONCA 339.

Christopher Little murdered his ex-wife and another woman in his home and then called 9-1-1 in the early morning hours of February 12, 2007. When police arrived they found his cell phone on the bed in the master bedroom. The phone was seized because it had blood on it, and because police wanted to confirm it was the phone that was used to call 9-1-1. Once in police custody, however, the phone was subject to an extensive search. Police copied the user data, call logs, contacts, text messages, videos, and photos.

The next day police officers interviewed Little’s employer. They obtained his verbal consent to seize Little’s workplace computer. Police officers then obtained a warrant to search the contents of the computer. The warrant authorized police to examine the computer for “communications” between certain people, and only during a 6 ½ hour period on a particular day. The computer search did not begin until after the warrant expired, and lasted months. Officers searched the entire contents of the computer for other kinds of evidence such as videos and Internet search histories. They did so in spite of advice from a detective that the warrant only authorized a search for “communications” and further searches were beyond the scope of the warrant.

The trial judge found that the cell phone and workplace computer searches violated Little’s s. 8 rights: 2009 CanLII 41212 (ON SC).

The trial judge admitted photos obtained from the cell phone and an Internet search obtained from the workplace computer under section 24(2) of the Charter: 2009 CanLII 42594 (ON SC). The accused was found guilty of two counts of murder.

On appeal, Little challenged the trial judge’s decision to admit evidence obtained from the search of the workplace computer. In particular, he argued that the trial judge erred by describing the impact of the breach as “the lowest end of the scale.”

The Ontario Court of Appeal rejected this argument—implicitly rejecting a general proposition that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer breaches an accused’s s. 8 rights.

The Court held:

Cases from the Supreme Court of Canada subsequent to the trial judge’s ruling, e.g. R. v. Vu, [2013] 3 S.C.R. 657 and R. v. Cole, [2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the privacy interest engaged and the impact of the s. 8 breach on that privacy interest.  As made abundantly clear in Vu and Cole, this case-by-case approach applies to searches of computers. [para 8, emphasis added]

In R v Cole Justice Fish, writing for the majority of the Supreme Court of Canada, distinguished his own earlier decision in Morelli by ruling that evidence obtained from the warrantless search of a workplace computer should be admitted. The computer in Cole was owned by the accused’s employer. Workplace policies stated that personal use was permitted, but any data was the property of the employer and could be accessed by the employer. Justice Fish held that when assessing the impact of a s. 8 breach the focus is on the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity [para 91]. He concluded that the impact of the breach was attenuated by both the diminished privacy interest and the discoverability of the evidence [para 97].

In R v Vu Justice Cromwell, writing for a unanimous Supreme Court of Canada, ruled that evidence obtained from the warrantless search of two personal computers should be admitted. Police executed a search warrant on a house believed to be the site of a marijuana grow-op. Police officers found two personal computers in the house and manually viewed their contents. One of the computers was connected to a security camera system, and contained video of the accused’s vehicle coming and going from the house. The video was copied to a disc. The other computer contained the accused’s resume. Justice Cromwell noted that the search was not as intrusive as a full forensic examination. He also found that the police did not gain access to any more information than was appropriate, given the fairly modest objectives of the search as defined by the terms of the warrant. Justice Cromwell concluded that the impact of the breach favoured exclusion, but not strongly so [para 72].

The Ontario Court of Appeal’s decision in Little confirms a more nuanced approach to the impact of the breach on the Charter-protected interests of the accused when a computer has been searched in breach of s. 8. The impact of the breach will be assessed on a case-by-case basis and may not weigh in favour of exclusion where the reasonable expectation of privacy is diminished.

MG

New & Notable: Commendable Efforts but not Worthy of Lesser Sentence

Shortly after midnight, Kristopher Clarke, 19 years old, walked into a convenience store wearing a skeleton mask and pulled out a starter’s pistol, which he pointed at the head of the victim. He demanded cash and cigarettes.  He threatened to shoot if his demands were not met. Clarke plead guilty and was sentenced by Moore J who accepted a joint submission of two years less a day.

The joint submission was premised and accepted on the basis of the following factors. First, Clarke was a youthful first offender, who pleaded guilty.

Second, Moore J described Clarke as having “an incredible amount of potential” given the family support and prospect for rehabilitation [@para 5].

Third, Clarke was released on bail pending disposition and had abided by all of the release conditions.

Fourth, at the time of the robbery Clarke was suffering from depression but had stopped taking his anti-depressants because he could no longer afford them. A detailed psychiatric report was filed.

On appeal, however, Clarke argued that in light of fresh evidence, which revealed that he had taken significant steps towards rehabilitation following disposition, the sentence should be reduced. The Ontario Court of appeal disagreed: 2014 ONCA 296.

Before declining to admit the fresh evidence, the Court of Appeal first set out the categories of proposed fresh evidence, which included:

  • Letters of support from people who have known Clarke for many years
  • Letters of support from Clarke’s employers from various subway restaurants where Clarke worked on a part-time basis.
  • Letters relating to Clarke’s education post sentencing, which included the completion of high school credits and enrolment in a college program.

Although the Court commended Clarke for his efforts in both education and employment ultimately they determined that the fresh evidence did not:

significantly alter the picture presented to the sentencing judge. Then, as now, the appellant is a youthful first offender who committed very serious offences and who shows good potential for rehabilitation. Then, as now, he has the full support of his friends and family.  Then, as now, he has the full support of his friends and family. While the appellant appears to have made progress with his education since he was released on bail pending appeal we cannot say that the fresh evidence demonstrates a significant change of circumstances sufficient to permit us to reduce the sentence imposed by the sentencing judge [para 19].

Moreover, in concluding that the sentence was fit the Court highlighted that:

given the gravity of the offence, the governing law, and the fact that the sentence was at the low end of the range and imposed following a joint submission, we consider that in law we must uphold the sentence [para 20].

This approach is consistent with the comments of the Saskatchewan Court of Appeal in R v Stonechild, 1995 CanLII 3925 (CA), where the Court stressed that:

(…) crimes violence will be visited with a significant term of imprisonment. Robbery with violence is the type of crime from which the public is entitled to be protected and the sentence imposed must leave no doubt that such conduct cannot be tolerated.

Service stations and other places of business that remain open during the night (often with only one attendant) are particularly vulnerable. Taxi drivers are often in a similar position. Robbery is particularly serious because of its inherent danger to human life. Any escalation of violence toward a victim as well as resistance to the offender can easily result in death or serious bodily harm [paras 7-8].

LT

New & Notable: Maxwell - not so smart after all

Norman Maxwell thought he had a clever scheme. His scheme involved defrauding the Bank of Montreal to the tune of $375,000; he did so through several transactions occurring over the period of about one month. 

Maxwell was charged and ultimately found guilty after trial. The trial judge imposed a sentence of 4 years jail and made two ancillary orders: (i) restitution in the amount of $293,205; and (ii) a fine in lieu of forfeiture in the same amount to be paid within 30 days prior to the appellant’s release from custody, and in default of payment, a further term of imprisonment of four years to be served consecutively to the principal sentence. Maxwell was not happy - he had sought a conditional jail sentence or in the alternative, a sentence in the range of 2 years. He appealed. The Court of Appeal dismissed his appeal: 2014 ONCA 316.

On appeal two issues were raised.

First, Maxwell took issue with the length of sentence. The court rejected this ground of appeal. 

A custodial sentence of four years in our view falls within the range of sentence appropriate for the offence and the offender who committed it. The scheme involved several individual transactions that took place over a period of about a month. The amount of money involved, $375,000, was significant. That the bank manager breached bank procedure in the hope that the appellant’s promise of significant future business does not diminish the appellant’s moral blameworthiness. Nor are we persuaded that the trial judge’s consideration of the significant personal consequences for the manager resulted in the imposition of an unfit custodial sentence.

The reasons of the trial judge reflect consideration and application of the controlling sentencing principles including denunciation, deterrence and, secondarily, rehabilitation. The appellant is a mature adult, with related but dated convictions. At the time of sentencing he continued to solicit funds from others for a highly secretive project that the trial judge was satisfied did not exist [paras 5-6].

Second, Maxwell took issue with the fine in lieu of forfeiture. The court held that the "imposition of a fine in lieu of forfeiture...reflects no error in principle" [para 8]. However, the court did vary the order by allowing 2 years (rather than 30 days) to pay and reduced the imprisonment in default from 4 years consecutive to 3 years.

DGM

 

New & Notable: Hoping for Rehabilitation does not Protect the Public

Mr. Ogbamichael touches women in a sexual manner while riding public transit. He has done so for many years. Most recently he was convicted of sexually assaulting a young woman on the Toronto public transit system: 2014 ONSC 1693. At the time of the offences Ogbamichael was bound by a probation order which barred him from being on Toronto Transit Commission [TTC] property.

Ogbamichael’s victim was asleep on the bus when she woke to the offender rubbing her leg and crotch. He tried to put his hand down her pants and she fled the bus.

The victim described feeling disgust and shame at the attack and an ongoing fear of using the public transit system.

Trotter J held that he had no doubt that the offender has made many other women feel the same way over the years as this was his seventh conviction for a similar sexual offence.

An earlier pre-sentence report [PSR] one prepared prior to this most recent crime, described the offender as being at a low risk to re-offend, despite suffering from the paraphilia “toucherism”.  The PSR’s prediction turned out to be wrong as this sexual assault was perpetrated shortly after the offender’s release from custody. Ogbamichael offered no expression of remorse nor any real insight into the impact his crimes have had on his victims.

Before sentencing Trotter J noted that the offender’s undeterred conduct “leaves a sentencing judge with little choice but to increase the severity of responses to his re-offending. At this stage, a disposition focused on rehabilitation would delicately rest on little more than hope, leaving young women travelling the TTC to bear the risk of this approach” [@para 16].

Ogbamichael was sentenced to an 18-month jail term for the sexual assault and 12-months consecutive for the breach of probation, followed by a three year probationary period. In so doing Trotter J recognized that:

this custodial sentence, for a single over-the-clothing subway groping might strike some as severe. However, given Mr. Ogbamichael's persistent pattern of offending, which seems to be impervious to jail sentences and court orders, a significant jail sentence is required in an effort to protect the public and to put an end to this behaviour [para 22].

 LT

New & Notable: Screaming, Shouting and Swearing at police: Obnoxious, but is it Criminal?

On July 30, 2011, Justin Kukemueller was at his rural property north of Peterborough with his girlfriend, Caitlynn Wiles, and several other young people.  Ms. Wiles crashed her car into a tree, setting it on fire, and firefighters were called to the scene.  The group seemed to have been drinking, and firefighters called police to assist.

Police learned that the wreck may have been caused by playing a game of “demolition derby”.  Kukemueller and Wiles smelled of alcohol when speaking to police, and Wiles was arrested for dangerous driving.

The crowd got angry, and police requested backup.  Along with police, Kukemueller’s father arrived on an off-road vehicle to support the group, leading to his own arrest for impaired driving.

Kukemueller then “reacted with a loud, profane and angry tirade against the police”.  There was ultimately a group of about 22 people present during the outburst, including police, firefighters, family and friends of the accused.  Kukemueller was arrested and charged with causing a disturbance in or near a public place, under section 175(1)(a)(i) of the Criminal Code:

175. (1) Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

…

is guilty of an offence punishable on summary conviction.

 Kukemueller was convicted of the offence at trial, where the judge found that his “behaviour had an effect on the other family and friends who were present and contributed to raising the tension at the scene amongst those people as well as the police” [emphasis added], and that he “made things worse”.  The summary conviction appeal court agreed, and upheld the conviction.

The Ontario Court of Appeal allowed the appeal and set aside the conviction: 2014 ONCA 295.

At issue was whether Kukemueller’s outburst was causing a “disturbance”.

The Supreme Court in R v Lohnes, [1992] 1 SCR 167 defined this standard, finding that a disturbance “constitutes an interference with the ordinary and customary use by the public of the place in question”.  It is not enough to cause mental or emotional annoyance; courts must consider the public’s ordinary use of the place and whether that use has been interfered with.

For example, the majority of the Ontario Court of Appeal in R v Swinkels, 2010 ONCA 742 found that a group gathering and even shouting anti-police insults at officers is not, in and of itself, a disturbance; there must further be an “externally manifested disturbance of the public peace”.

The Court of Appeal similarly found that Kukemueller did not interfere with the “public’s normal activities” at the time and place in question.  Merely “raising the tension at the scene” or “making things worse” by screaming and swearing is insufficient.

The upshot: if a mob in the woods screams insults at the police and nobody else is around to hear them, have they caused a disturbance?  The answer is no.

The implications may seem unusual.  Does this mean that police just have to accept some high-volume verbal abuse as part of the background noise of the job?  Unfortunately, yes.

There are, of course, other tools available if such a targeted outburst rises to the level where the officer’s duties are interfered with, without even the slightest public interference.  Such conduct runs the risk of obstructing an officer in the course of duty, a separate offence under section 129(a) of the Code.

JD