New & Notable: Realistic Sentencing Options

Polanco-Gabriel was tried by a judge and jury of two counts of threatening bodily harm, one count of possession of a weapon for the purpose of committing an offence, one count of aggravated assault and one count of assault with a weapon. The jury only returned a verdict of guilty on one count, the possession of the weapon for the purpose of committing an offence. A mistrial was declared in respect of the remaining counts, which the Crown subsequently stayed. Polanco-Gabriel returned before Campbell J for sentencing on the sole count he was convicted of: R v Polanco-Gabrial, 2014 ONSC 3307

The facts of the case were simple. Polanco-Gabriel was at a baseball game in Toronto along with some 80 spectators. During the game he got into a scuffle with Mr Diaz over a woman also in attendance at the game and who was known to both parties. The altercation went from verbal to physical and resulted in Polanco-Gabriel being escorted away by a friend.

Some 10 minutes after being escorted out, Polanco-Gabriel returned to the ball game, this time wielding a machete, and yelling that he had a machete, which was plainly obvious.  The baseball game stopped and a group of people surrounded the accused. Meanwhile, Mr Diaz armed himself with a bat and made his way towards Polanco-Gabriel. The two men yelled at each other in Spanish and swung their weapons. Mr Diaz was hit a few times on his forearm with the machete. The fight ended when Diaz struck Polanco-Gabriel in the head rendering him unconscious.

At the sentencing hearing Polanco-Gabriel argued for a conditional discharge. The Crown sought a reformatory sentence of 4 to 6 months followed by 2 years probation.

In addressing the inappropriateness of a conditional discharge in the circumstances of this case, Campbell J held:

First, while discharges are often in the bests interests of an accused, there is no evidence in this case that suggests, in any specific way, that a discharge would be in the best interests of the accused. Defence counsel fairly conceded that a conviction would have no adverse consequences for Canadian citizenship of the accused. Further, given his history of employment it does not appear that a conviction would likely impact upon the accused's present employment or his future employment prospects. While there is always a possibility that a conviction might inhibit travel to certain other parts of the world, this risk was not one mentioned by defence counsel as being of any concern to the accused.
Second, and in any event, even if a conditional discharge was in the best interests of the accused, I have no hesitation concluding that a discharge would be contrary to the public interest. Given the gravity of the offence committed by the accused, the potential danger it caused to innocent members of the public, and the need to effectively denounce and deter such offences, a discharge is simply not a realistic sentencing option in the circumstances of the present case @paras 39-40.

Ultimately, Campbell J imposed a sentence of 3 months and 18 days, with credit for 12 days of pre-sentence custody. The sentencing judge noted that had the offender not been a mature first offender a longer sentence would have been appropriate @para 45.

LT

New & Notable: Privacy of Anonymity Protected

In a blog posting on February 11, 2013 Brian Holowka discussed the case of Matthew Spencer – a case decided by the Saskatchewan Court of Appeal: 2011 SKCA 144 – which dealt with the issue of whether persons have a reasonable expectation of privacy in their personal identifiers held by their ISP company.

Today the Supreme Court released its ruling on appeal from that decision: 2014 SCC 43. In short, it held that Spencer did have a reasonable expectation of privacy in his name and other personal identifiers as held by his ISP, Shaw Communications, that related to the IP address linked to his computer.

The facts – as set out in the previous post – may be succinctly summarized as follows:

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.

An officer with the Saskatoon Police Service used the “LimeWire” program and discovered the child pornography files in this shared folder. The IP address associated with the computer hosting the shared folder was publicly available and easily ascertainable by the police. The police wrote to Shaw Communications, the ISP, requesting the customer information associated with the IP address at the date and time relevant to the discovery. This kind of information is often referred to as customer name and address or CNA. The request was made pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA).

Shaw complied with the PIPEDA request and armed with this information, the police obtained a search warrant to search the home. The computer was located, seized and searched. Child pornography was located on the hard drive of the computer.

On appeal the Court considered whether Spencer had a reasonable expectation of privacy. That consideration began by determining his subjective expectation which was driven by two considerations: (i) the subject matter of the search; and (ii) the nature of the privacy interest potentially compromised.

With respect to the subject matter, the court noted that in some cases this is easily discerned, in others it is more nuanced and complex. In this case, the determination of the subject matter fell into the latter category and in such cases the court should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” [para 26]. In doing so courts should looked “not only the nature of the precise information sought, but also at the nature of the information that it reveals” [emphasis added]; [para 26].

Put another way, the Court held that courts should not look “narrowly at physical acts involved but should consider the nature of the privacy interest impact: para 31.

In the present case the Court concluded on this point with the following:

The subject matter of the search was not simply a name and address of someone in a contractual relationship with Shaw. Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage. As Cameron J.A. put it, at para. 35 of Trapp:
To label information of this kind as mere “subscriber information” or “customer information”, or nothing but “name, address, and telephone number information”, tends to obscure its true nature. I say this because these characterizations gloss over the significance of an IP address and what such an address, once identified with a particular individual, is capable of revealing about that individual, including the individual’s online activity in the home.
Here, the subject matter of the search is the identity of a subscriber whose Internet connection is linked to particular, monitored Internet activity [emphasis added]; [paras 32-33].

With respect to the nature of the privacy interest, the Court first identified the privacy interest at stake as being “informational” and noted:

To return to informational privacy, it seems to me that privacy in relation to information includes at least three conceptually distinct although overlapping understandings of what privacy is. These are privacy as secrecy, privacy as control and privacy as anonymity [para 38].

After setting out the framework for the analysis of each of these privacy interests, the Court identified an intrusion into the “privacy as anonymity” and concluded:

In the circumstances of this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which have been recognized by the Court in other circumstances as engaging significant privacy interests: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 3; Cole, at para. 47; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 40-45.
I conclude therefore that the police request to Shaw for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy [emphasis added]; [para 50-51].

In undertaking this analysis the Court drew the conclusion that Spencer had a subjective expectation of privacy.

Turning to determine whether such an expectation was reasonable, the Court discussed the implications of PIPEDA and the reliance thereon for the disclosure in question. In particular, Spencer argued that the contractual and statutory terms of his agreement with Shaw (the ISP) did not undermine his expectation of privacy. While recognizing that PIPEDA sets outs as a guiding principle that an organization may disclose personal information as they feel appropriate, this principle does not apply where the police seek such information – as opposed to the ISP discovering it and providing it on their own initiative. Where the police request the information they must have a “lawful authority”.

...s. 7(3)(c.1)(ii) of PIPEDA…permits disclosure only if a request is made by a government institution with “lawful authority” to request the disclosure. It is reasonable to expect that an organization bound by PIPEDA will respect its statutory obligations with respect to personal information [para 63].

The Court concluded that Spencer’s expectation of privacy was reasonable:

In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search [para 66].

DGM

New & Notable: Forfeiture not Cruel and Unusual

Richard Montague was charged with numerous firearm offences (including offences under sections 86(2), 91(1), 95(1)(a), 102(1) and 108(1)(b)). Montague was a firearms dealer and manufacturer. Unfortunately for Montague, he allowed his firearm’s licence to expire and subsequently his firearms acquisition certificate.

Subsequent to the expiration of the licence and certificate the police executed search warrants and seized more than 200 firearms and related devices along with 20,000 rounds of ammunition. The amount of weapons and ammunition were “sufficient for a small-scale insurrection”.

Montague was convicted after trial. He was sentenced – but the trial judge expressly held off addressing any forfeiture order until after appeals against conviction and sentence by Montague. Those appeals were heard and dismissed. Noting that the forfeiture orders should have been addressed previously, the Court of Appeal sent the matter back to the trial judge to consider the forfeiture orders. Back before the trial judge the Crown sought mandatory forfeiture orders under section 491(1)(b); Montague sought to have that provision declared unconstitutional as a violation of section 7. The trial judge dismissed that motion and ordered forfeiture of the firearms but declined to order forfeiture of the ammunition; the refusal to grant the order for the ammunition was “on the basis that, in [the trial judge’s] view, the applicants had been convicted under the wrong section and that the forfeiture provision did not apply to the ammunition that was not loaded in any firearm” [para 10]. Montague appealed that ruling: 2014 ONCA 439.

On appeal the Crown argued that there was no right to appeal the order; if the appeal did proceed the Crown sought to have it varied to include the ammunition.

With respect to whether or not Montague could appeal the forfeiture order, the court recognized that the issue was whether or not the order formed part of “a sentence” within the meaning of 675(1)(b). The definition of sentence in section 673 does not include an order under 491(1)(b).; nonetheless, the court held that forfeiture orders under 491(1)(b) are part of sentence within the meaning of 673 [paras 12-27].

Having decided that the order could be appealed, the court considered Montague’s argument that the provision violated section 12. In response to one of the key arguments advanced by Montague – that the forfeiture was grossly disproportionate to the offence – the court offered the following:

In this case, it is most unfortunate for the appellants that they chose to challenge the firearms licensing laws by putting all their firearms at risk. However, in my view, the fact that it was their deliberate action that put so much property at risk is not the full reason why its forfeiture does not constitute cruel and unusual punishment. It is because the forfeiture consequences cannot be viewed as grossly disproportionate or even disproportionate at all. The forfeiture of any one firearm is not going to be an overly serious consequence in comparison to the gravity of any one offence. What the appellants deliberately did in this case was put a large number of firearms constituting a significant amount of their property at risk. That choice does not affect the constitutionality of the forfeiture consequence [para 51].

After applying the section 12 analysis to the facts and circumstances of the forfeiture orders, the court held that the provision does not violate section 12 [paras 59-62].

DGM

New & Notable: Clarifying and Safeguarding Crown Discretion

Frederick Anderson was charged with over 80. He pleaded guilty. Prior to his plea he was served with a Notice of increased penalty. At sentencing the Crown intended to prove that Notice was served; the result being that Anderson would be subject to a minimum sentence of 120 days (Anderson had four prior convictions). 

Anderson sought to challenge the filing of notice alleging it breached section 7 of the Charter. In particular, he alleged that the Crown was obliged to consider his Aboriginal status. The Crown’s position was that the filing of Notice was a matter of prosecutorial discretion reviewable only through a finding of abuse of process. The matter ultimately made its way to the Supreme Court: 2014 SCC 41.

In considering the appeal the Court considered two issues. First, is the Crown required to consider the Aboriginal status of the offender in filing Notice of increased penalty. Second, whether filing the Notice is a matter of “core” prosecutorial discretion and on what basis can the exercise of Crown discretion be reviewed.

With respect to the first issue, the Court rejected the notion that the Crown was required to consider Aboriginal status for two reasons.

First, consideration of the Gladue principles is the responsibility of the judge not the Crown:

Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginal offenders. They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors must consider Aboriginal status when making a decision that limits the sentencing options available to a judge. Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged [para 25].

Second, the argument that Aboriginal status must be considered by the Crown relies on a principle of fundamental justice that the Court held is not valid: “The principle contended for by Mr. Anderson does not meet the second requirement that it enjoy consensus as a principle that is fundamental to the way in which the legal system ought to fairly operate” [para 30]. In concluding on this point the Court noted that accepting this principle would significantly impact on the role of the Crown and “hobble” them in their decision making processes:

We must begin by acknowledging that the principle advanced by Mr. Anderson would enormously expand the scope of judicial review of discretionary decisions made by prosecutors. In doing so, it puts at risk the adversarial nature of our criminal justice system by hobbling Crown prosecutors in the performance of their work and by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis [para 31].

With respect to the second issue, the Court addressed two points.

First, the Court considered the scope of Crown discretion. In doing so it held that there has been a lack of clarity in the law regarding the scope of Crown discretion. The development of “core” discretion is not helpful and should be eliminated. In its place, the Court held that all discretionary decisions are to be treated equally and, importantly, the list of such decisions are not closed or fixed:

In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making [paras 44-45].

Second, the Court considered the issue of when and how the exercise of Crown discretion may be reviewed. In doing so, it noted that “[m]anifestly, prosecutorial discretion is entitled to considerable deference” [para 48]. The review of prosecutorial discretion, the Court held, is reviewable only for abuse of process – which “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” [para 50]. In stressing this point the Court noted that to the “extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed” [para 51].

Having set the standard for review, the Court also noted that before the Crown is required to reply to such allegations, an evidentiary basis must be established [para 55].

In conclusion, the Court held:

Parliament has expressly conferred on the Crown the discretion to tender the Notice at the sentencing hearing through the governing provisions of the Code. This discretion is consistent with our constitutional traditions. As the Crown points out, tendering the Notice is not simply a decision as to what submissions will be made at a sentencing hearing (A.F., at para. 119). Tendering the Notice fundamentally alters the extent of prosecution — specifically, the extent of the jeopardy facing the accused. In this respect, the Crown’s decision to tender the Notice is analogous to the decision to proceed with charges that attract a mandatory minimum sentence when other related offences have no mandatory minimum sentence; the decision to proceed by indictment rather than summary conviction when different mandatory minimum sentences are involved; and the decision to proceed by indictment rather than by summary conviction when that decision precludes certain sentencing options.

For these reasons, I conclude that tendering the Notice is a matter of prosecutorial discretion. As a result, it is reviewable only for abuse of process.  In the complete absence of any evidence to support it, Mr. Anderson’s abuse of process argument must fail [paras 62-63].

Anderson is a very helpful decision beyond the specific issues it addresses for a number of reasons.

First, it has clarified the scope of Crown discretion. It has done away with the “core” dichotomy and it has recognized there is not a closed list of discretionary powers or decisions.

Second, it has held that review of such discretion is only permitted for abuse of process.

Third, it has held that an evidentiary basis is required before the Crown needs to respond to challenges to the exercise of its discretion.

Fourth, the Court recognizes that to the extent a regime results in a disproportionate sentence it can be challenged – short of which it must be applied.

DGM

New & Notable: Possibly is not Probably

Yates’ driving drew the attention of Saskatoon Police Services Cst. Mudasia. Yates was observed speeding some 20-30 km/hr over the speed limit and abruptly veering between lanes.

Cst Mudasia pulled Yates over and approached the driver’s side window whereupon he noticed that the vehicle smelled like alcohol and that Yates had bloodshot, glossy eyes. Cst. Mudasia issued the roadside demand. Yates complied and the Approved Screening Device (ASD) registered a ‘fail’. Yates was arrested, cautioned, read his rights and the Intoxylizer demand and transported to the police station. 

Both Intoxylizer samples revealed that Yates had a criminal blood alcohol concentration when he was driving. The trial judge excluded those results pursuant to section 24(2) of the Charter on the basis that Cst. Mudasia breached Yates’ section 8 and 9 Charter rights.

The trial judge concluded that the Cst. Mudasia did not have the requisite reasonable suspicion for the ASD demand. The trial judge held that although she accepted the officer’s evidence about an odour of alcohol emanating from Yates’ vehicle she could not be sure that the odour was emanating from Yates’ breath. The trial judge found that because the officer could not remember if anyone was present in the vehicle with Yates, the source of the odour of alcohol was undetermined. The Crown unsuccessfully appealed to the Saskatchewan Court of Queen’s Bench. The Crown then appealed to the Saskatchewan Court of Appeal: R v Yates, 2014 SKCA 52.

The Saskatchewan Court of Appeal held that:

(…) the appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body. Specifically, the trial judge found the threshold of reasonable suspicion was not met because the Crown had failed to adduce sufficient evidence to eliminate possible sources of odour of beverage alcohol, which emanated from the respondent’s vehicle, other that the respondent. (…)

In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s.254(2)(b) [paras 37-38].

Both the trial judge and summary conviction appeal judge emphasized the Crown’s failure to establish that Yates was alone in the vehicle. The Court of Appeal gave short shrift to this argument noting that:

[t]here is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol . The Crown need only proved that that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body.

By holding the Crown to dispel speculation that other persons were in the vehicle or to definitively show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed on the Crown and held the Crown to establish the validity of the s. 254(2)(b) demand on a standard greater than “reasonable suspicion” [paras 45-46].

Despite finding no Charter breaches, the Court of Appeal declined to enter a conviction and instead ordered a new trial. 

LT

New & Notable: Officer's Unlawful use of Force doesn't mean you can Punch Him

In response to a disturbance on the Edmonton transit system, police officers searched for a male suspect of a generic description.  Carlan Met was nearby, and was the only male observed to be a loose match.  An officer requested to speak to him, but Mr. Met kept walking.  The officer tried again, to no avail.  Finally the officer grabbed Met’s arm in an attempt to stop him.

Met then threw what was described as a strong “haymaker” punch at the officer, which connected on the shoulder. Met was arrested for assaulting a police officer.

At trial he was convicted of simple assault, but acquitted of assault police.  The trial judge found that the officer was not acting in the lawful execution of his duty when he grabbed Met’s arm, so the latter was convicted only of the lesser assault.

On appeal, Met argued that he was acting in self-defence when punching the officer, and that the officer was not acting in the lawful execution of his duty in arresting Met, even after being punched: 2014 ABCA 157.

On the first point, the Alberta Court of Appeal deferred to the trial judge’s finding that the force of the punch was unreasonable, regardless of whether the officer’s unlawful initial contact was described more strongly as a “grab” or—in the more innocuous description of the trial judge—as a “placing of the hand”.

On the second point, the Alberta Court of Appeal held that, even though there was no initial arrest or detention that would justify the arm grab, and therefore no offence of “assault police” for which Met could be arrested, the punch still clearly gave the officer grounds for an arrest.  A conviction for an included offence (or no conviction at all) does not derogate from the lawfulness of the arrest: R v Biron, [1976] 2 SCR 56.

The appeal was dismissed.

JD

New & Notable: An Illegal Order is No Order at All

Siebenmorgen was convicted of two counts of possession of child pornography. At the time of sentencing the Crown asked that the offender be placed on the Sex Offender Information Registry for a period of 10 years; Rady J so ordered.  As it happens the Crown had inadvertently requested that the Court make an illegal order. Because the offender had been convicted of two counts of a designated offence the period of time he was to remain on the Registry was prescribed by law as life.

Section 490.012(4) provides that:

Failure to make order - If the court does not consider the matter under subsection (1) or (3) [at the time of sentencing], the court

(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;

(b) retains jurisdiction over the matter;

(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

Crown and defence agreed that pursuant to section 490.012(4) the court had the authority to correct the order. However, defence argued that instead of amending the illegal order the Court should stay one of the two counts.

First, Rady J considered that “strictly speaking, it is not the case that "the court did not consider the matter under subsection (1) or (3)" at the time of the original sentencing because an order was in fact made” [para 7].

Second, the Court considered the defence pitch for a stay. Rady J noted that as a general rule “there is no power to amend a judgment which has been drawn and entered, except in two cases: (1) where there has been a slip in drawing it up, or (2) where there has been an error in expressing the manifest intention of the court: Paper Machinery Limited v. J.O. Ross Engineering Corporation, [1934] S.C.R. 186” [para 13].

In dismissing the defence request the Court held that:

Having rendered a verdict and sentenced Mr. Siebenmorgen, I am of the view that the court is functus. What is being requested by Mr. Crawford is not the correction of an error or slip. Rather, the request is for a reconsideration of the sentence, in accordance with new submissions not made at the time of the sentencing hearing [para 16].

The SOIRA order was amended to a period of life as prescribed by the Criminal Code.

LT

New & Notable: Looking for Principles in all the Wrong Places

Singh drove while her blood-alcohol concentration was over 80. Singh’s only argument at trial was that the timing of the breath samples did not comply with the as soon as practicable requirement of section 258(1)(C)(ii).  The only time period in question was the 28 minutes that elapsed between the taking of the first and second samples. Singh argued that this time period exceeded the statutory minimum of 15minutes without any evidence to explain the delay.  The trial judge rejected this argument and held that there was no requirement for the Crown to explain every minute. Singh was convicted and appealed.

The summary conviction appeal judge allowed the appeal and expressly declined to apply the binding decision of the Court of Appeal in Vanderbruggen, 2006 CanLII 9039 (CA) because it “was not a case about unexplained delay between samples.”

The Ontario Court of Appeal restored the conviction and in so doing offered some interesting comments about how binding decisions of the Court must be read: R v Singh, 2014 ONCA 293 (CA).

First, “care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in” a brief endorsement” [@para 12]

To illustrate this point the Court pointed to the trial judge’s reliance on the Court of Appeal’s endorsement in Bulger. That decision was a four sentence oral endorsement which “does not articulate any proposition of law” [@para 11] nor does it contain “a recitation of the facts that would enable a reader to understand the overall circumstances of the case” [@para 10].

Second, the purpose of such a brief endorsement is “to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning”[@para 12]

Third, “[w]hen the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment” [@para 12].

By way of example the Court highlighted Vanderbruggen as just such a case [@para 12].

The Court of Appeal concluded that the:

(…) trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" [@paras 14-15].

LT

New & Notable: Restrospective Application of new Self-Defence

Pandurevic was charged with first degree murder; Pandurevic sought to claim that he had acted in self-defence. The homicide took place in 2010 and Pandurevic’s trial commenced on April 8, 2013.

At the time of the offence the self-defence provisions found at sections 34-37 of the Criminal Code governed. On March 11, 2013 however, the Citizen’s Arrest and Self-Defence Act [hereafter the Act] came into force.  This new legislation repealed the old self-defence provisions and replaced them with a ‘new’ s.34 which is intended to apply in all instances where self-defence is raised.

Prior to the commencement of his trial Pandurevic brought an application for ‘directions from the court’ on whether the Act applied retrospectively. The Crown opposed the application.

MacDonell J found that despite the presumption that such changes in the law apply prospectively, this Act applies retrospectively: 2013 ONSC 2978.

First, MacDonell J noted that both the opinion of the judiciary and the academicians  was aptly captured by, then professor now, Justice Paciocco who referred to ss.34-37 as “the most confusing tangle of sections known to law” [at para 16].

The Parliamentary response to this criticism culminated in the enactment of  the Act which the Minister of Justice lauded as:

a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way. The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court. Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections [para 18].

Second, MacDonell J referred to the “Technical Guide for Practitioners” [hereafter the Guide] published by the Department of Justice at the time the Act came into force.  The Guide states, inter alia, that:

the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in a single simple framework that is capable of assessing a defence claim in any situation. The new laws give effect to the defences' underlying principles in a more transparent way; they will facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply.

[...]

The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles [para 22].

MacDonell J thus concluded that:

When the provisions of the Citizen's Arrest and Self-defence Act are considered in the context of the circumstances leading up to and surrounding its enactment, it is plain that Parliament's aim was not to alter the essential nature of the defence of self-defence. The intention, rather, was to put an end to a situation that was an embarrassment to the rule of law. Parliament sought to substitute clarity and common sense for the incoherence, confusion and occasional absurdity that virtually every informed observer associated with the former statutory scheme, and to rid the administration of justice of the scandalous spectre of juries making decisions not because of the legal instructions they received but notwithstanding them.

When the purpose of the legislation is characterized in this way, it points firmly toward an intention that upon the coming into force of the amendments, judges and juries would immediately begin to assess claims of self-defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013. That is, it points toward a retrospective application of the amendments [paras 23-24].

And that:

(...) to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate [para 43].

LT

New & Notable: Conflating RPG and Proof Beyond a Reasonable Doubt

Early one summer morning, Justin Churko was seen by police driving into the parking lot of a bar in Yorkton, Saskatchewan. The officer noticed that Churko’s way of driving and his way of stopping were abnormal and that he was unsteady on his feet when he stepped out of his car. When the officer detected the odour of alcohol on Churko’s breath and noted that his eyes were bloodshot, the officer arrested Mr. Churko. Pursuant to a breath demand, breath samples were obtained which resulted in readings of .150 and .130. He was ultimately charges with impaired and over 80.

At trial, the defence alleged that Mr. Churko’s Charter rights had been violated. The defence asserted that while the officer testified that he had RPG to arrest Mr. Churko, the fact disclosed by the officer amount only to a reasonable suspicion and not the required reasonable and probable grounds to believe the accused was impaired and therefore arrest him. The trial judge accepted the defence position and acquitted the accused.

The summary conviction appeal court judge overturned the acquittal and entered a conviction against Mr. Churko as he determined that reasonable and probable grounds did exist.

On appeal to the Saskatchewan Court of Appeal, the found that there were no grounds to interfere with the decision of the summary conviction appeal court: R. v. Churko, 2014 SKCA 41.

The panel of the Saskatchewan Court of Appeal interestingly pointed out the significant differences between the RPG assessment required by the police officer and the standard of proof reserved for a trial on the merit and where the learned trial judge erred in the application of the RPG standard:

Whether the facts as a whole establish reasonable and probable grounds is a question of law. The principles surrounding such a determination has most recently been explained in R. v. Gunn, 2012 SKCA 80 (CanLII), 2012 SKCA 80, [2013] 1 W.W.R. 495. The reasonableness of the police officer’s belief must be considered by the trial court from the vantage point of whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which is drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits, a proof beyond a reasonable doubt.

In this case, the observations and circumstances as a whole articulated by the police officer and accepted by both the trial judge and the summary conviction appeal court judge are rationally capable of establishing an objective belief of impairment and therefore reasonable and probable grounds. The trial judge erred in the application of the burden on the Crown to establish reasonable and probable grounds and appeared to require that the facts articulated by the police officer “would reasonably lead to a conclusion that this man was driving while impaired by alcohol [emphasis added]” (para. 14). The summary conviction appeal court judge applied the correct standard of review and correctly concluded that the trial judge’s determination of lack of reasonable and probable grounds was in error [¶ 5-6] [Emphasis added].

BCH