Constitutional Jurisdiction

Joseph Lloyd was convicted of three counts of possession of drugs for the purpose, contrary to section 5(2) of the Controlled Drugs and Substances Act [CDSA].  Lloyd had a prior conviction under the same section; as a result, he faced a mandatory minimum of one year.

Lloyd argued that the one-year mandatory minimum violated section 12. The sentencing judge held that the minimum did not violate section 12 as it related to Lloyd but went on to consider whether the provision would violate section 12 in a reasonable hypothetical. The court found that it did. As a result, the court “declared” that the provision was invalid.

The Crown appealed: 2014 BCCA 224.

Two aspects of the appeal are quite interesting.

First, the court considered the jurisdiction of the provincial court to consider the constitutionality of provisions.

In this context, the court noted that while a provincial court has the jurisdiction to consider any constitutional impact of a provision on the offender before it, any ruling is limited in its application to the present case. The court has no jurisdiction to make a general declaration of invalidity: “the judge in this case did, indeed, intended to make a formal declaration that the impugned provision was of no force and effect. He had no jurisdiction to make such a declaration, and, assuming that he was right to have found the impugned provision to be unconstitutional, ought to have confined himself to refusing to apply it in the case before him. I would set aside the declaration” [para 38].

Second, the court considered the proper scope of constitutional consideration by a provincial court.

In this context the court noted two points. One, in light of the fact that a provincial court ruling on the constitutionality of a provision is limited to the case before it, any consideration of the constitutionality in the context of a reasonable hypothetical might be unnecessary and inappropriate. Two, based on the more general principle that courts should restrict their rulings to the case before them it was, in the present case, inappropriate for the court to strike down the provision on the basis of a reasonable hypothetical.

The fact that a party has standing to make a constitutional argument, however, does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases. Professor Hogg puts it this way:
A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided. For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided on a rule of federalism or under the Charter, the federalism ground is the narrower one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.
Peter W. Hogg, Constitutional Law of Canada (5th ed. supplemented) (looseleaf) Toronto: Thomson Carswell, 2007 (updated to 2013), §59.5, p. 59-22
In short, while Mr. Lloyd clearly had standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, the court was not obliged to determine that issue unless that section would have an impact on the appropriate sentence for Mr. Lloyd.
Mr. Lloyd contends that the court is required to determine the constitutionality of s. 5(3)(a)(i)(D), because "no one may be sentenced under an unconstitutional law". While there is some merit in that contention, I do not think that it can be said that Mr. Lloyd would be "sentenced under an unconstitutional law" unless that law in some way affects his sentence. Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [Paras 42-44].

Lloyd is an interesting and helpful decision. Interesting in its consideration of reliance upon a reasonable hypothetical in the context of section 12. As per Lloyd, where a provision would have no possible impact on the present offender reliance on a reasonable hypothetical may be unnecessary. Helpful in that it reminds that provincial courts are limited in their constitutional powers to making a finding about the force and effect of a provision to the case before them; there is no power to make general declarations of constitutional invalidity. 

DGM

Criminal Chameleons

“Our criminal law has its chameleons. Take hybrid offences, for example. Sometimes, indictable. Other times, summary conviction. But capable of change.” [@para 1] In DME although the Crown was capable of changing its election, everyone forgot that one change often necessitates another, in this case the level of court. 

DME was charged with sexual assault and sexual exploitation.  While those charges were before the courts DME was further charged with breaching the undertaking he had been released on. Shortly after he was charged once more, this time with breaching the recognizance he had been released on following the second set of charges.  The Crown elected to proceed by indictment on all three informations and DME elected to have a trial by judge and jury. More than two after the first information was sworn, DME was committed to stand trial.

On the day of trial, following a judicial pre-trial, the Crown re-elected to proceed summarily and DME entered pleas of guilt. The Superior Court judge found DME guilty and sentenced him to a term of imprisonment and a period of probation. 

DME appealed: 2014 ONCA 496 arguing that the proceedings which followed the Crown’s re-election were vitiated by jurisdictional error. First, DME submitted that the Crown was not entitled to re-elect as they did and second, that the Superior Court of Justice had no jurisdiction to take the guilty pleas.

Dealing first with the Crown re-election to proceed by summary conviction Watt JA writing for a unanimous court , highlighted four points rejecting this ground of appeal:

First, the right to elect mode of proceeding for hybrid offences is that of the Crown.
Second, the common law equally permits the Crown, having once elected one mode of proceeding in connection with a hybrid offence, to re-elect later the other mode of proceeding. In some instances consent of the accused and approval of the presiding judge may be required.
Third, unlike an accused's right to elect or re-elect mode of trial, the Crown's right to elect or re-elect mode of proceeding need not be made at any specific place or before any particular judicial officer. Provided any consent and approval requirements are satisfied, it is of no jurisdictional moment where re-election is made.
Finally, that the re-election to proceed by summary conviction took place more than six months after the subject-matter of the proceedings arose is of no jurisdictional significance. The appellant, who was represented by counsel throughout, not only agreed with the change in the mode of proceeding, but also benefited substantially from it. Counsel for the appellant could advocate for a conditional sentence of imprisonment when Crown counsel proceeded summarily, a disposition statutorily unavailable to him when Crown counsel proceeded by indictment. And the maximum punishment to which the appellant would be subject on summary conviction was a term of imprisonment for 18 months rather than for ten years if the Crown proceeded by indictment. It may also be open to question whether re-election of mode of proceeding amounts to institution of proceedings within s. 786(2) of the Criminal Code: Linton, at pp. 536-537. [@paras 42-45]

DME’s second ground of appeal had more traction. Notwithstanding the fact that no one “involved in the case – Crown, defence or judge – query, let alone contest, the jurisdiction of the Superior Court of Justice to proceed as the prosecution played out.” [@para 49] the Court of Appeal held that the “presiding judge had no authority to arraign the appellant, to take his plea of guilty, or to impose what he considered to be a fit sentence.” [@para 67].

Watt JA explained as follows:

First, section 798 of the Criminal Code requires that summary conviction proceedings be adjudicated by a summary conviction court.  A summary conviction court is defined in section 785 of the Code.

Second, the Superior Court is the appellate court for summary conviction offences. “It would be somewhat undesirable to have judges of the same court try and review trials for error.” [@para 69]

Third, no other criminal code sections applied to give the Superior Court jurisdiction in the circumstances of this case.

Fourth, although there are provisions which allow a Superior Court judge to exercise jurisdiction as a justice of the peace and “as a matter of statutory construction a justice of the peace falls within the definition of a summary conviction court”, none of the parties asked the presiding judge to do so. [@para 74]

Fifth, prior decisions of the Court of Appeal make it clear that “superior court of criminal jurisdiction has no authority to try summary conviction offences.” [@para 75]

The Court remitted the matter to the Ontario Court of Justice for pleas of guilt (which the appellant made clear he intended to enter) and sentence.

LT

USB Key Searches

In recent years a steady stream of authority from the Supreme Court of Canada has made clear that specific prior judicial authorization is required to search a personal computer. The most recent example is the decision of the Supreme Court of Canada in R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), which held that computers found while carrying out a search cannot be searched unless specifically authorized by a search warrant.

The Court in R v Vu seemed to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search—items such as USB keys, memory cards for cameras, and similar devices.

The Ontario Court of Appeal appears to have closed the door in R v Tuduce, 2014 ONCA 547 (CanLII).

The analysis in R v Vu

Much of the analysis in R v Vu focused on the difference between a computer and a “receptacle.”

A search warrant issued under s. 487 of the Criminal Code may authorize police officers to search “a building, receptacle or place” for the items named in the warrant, and to seize the items in evidence.  A warrant that authorizes police to search a particular place—such as a house—also authorizes police to search places and receptacles within that house. However, the Supreme Court of Canada in R v Vu ruled that this general principle does not apply to computers. The Court held that ordinary receptacles such as cupboards and filing cabinets are markedly different from personal computers, and that specific prior authorization is required to search a computer.

The Court stated four reasons why computers are markedly different from other receptacles:

  • Computers store immense amounts of information. The scale and variety of the material that can be found on a computer makes comparison with traditional receptacles unrealistic.
  • Computers contain information that is automatically generated, often unbeknownst to the user. A computer is a “fastidious recordkeeper” that documents when and by whom a file was created and accessed; logs a user’s Internet browsing habits; and stores the user’s search histories. In the context of a criminal investigation this data can enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly. This kind of information has no analogue to other types of receptacles found in the physical world.
  • A computer retains files and data even after users think that they have destroyed them. It creates information without a user’s knowledge, and retains information that the user has tried to erase.
  • A search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized. [@ paras 41-44]

The Court concluded:

These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches. [@ para 45]

The above analysis merits two comments. First, none of the four differences discussed in R v Vu is unique to a computer. A traditional receptacle like a filing cabinet, bookcase, or a banker’s box full of papers is also capable of storing a large volume of information. In any event, the volume of information could not have been determinative. It has never been the case that police searching a building would be entitled to search one or two filing cabinets, but would need a search warrant if they happened to find one hundred filing cabinets. A physical document like a log book, leger, or photo album can retain physical evidence (such as fingerprints and DNA) that could enable an expert to identify exactly what pages had been accessed, and by whom. Firing a gun generates new data unbeknownst to the user, such as firing pin marks, bullet striations, and ejector marks. It has always been true that the search of one place can reveal another building, receptacle, or place, including the exact address and the keys or combination needed to access it. However, a charitable reading of the Court’s analysis should not parse the differences in this manner. It is not any one of the differences on its own, but rather the totality of the differences and their magnitude in combination that justifies the different treatment of a computer.

Second, it was not obvious how the analysis in R v Vu would apply to an electronic device that functions exclusively as a storage container. A floppy disk, USB key, or flash memory card does not have its own operating system, does not generate data, and unless it is connected to a computer it cannot connect to a network or the Internet. Most of the differences in R v Vu did not appear to apply to an electronic device that is more like a container than a computer. Thus, R v Vu appeared to leave the door open to the possibility that specific prior judicial authorization might not be required when electronic devices that are mere containers are discovered during a search.

The decision in R v Tuduce

In R v Tuduce, 2014 ONCA 547 (CanLII), the Ontario Court of Appeal considered the warrantless search of a USB key that was seized incidental to an arrest.

In 2012 Adrian Tuduce was convicted of seven credit card fraud-related offences and sentenced to two years less a day’s imprisonment and two years of probation. His participation in the fraud was discovered by accident. A Waterloo Regional Police officer pulled Mr. Tuduce over for speeding. The officer searched Mr. Tuduce on police databases and discovered he was a suspended driver. The officer arrested Mr. Tuduce and conducted a pat-down search, locating USB key and bundle of credits cards in someone else’s name. The officer found other items in the vehicle that caused him to believe Mr. Tuduce was in possession of stolen credit cards. Fraud investigators seized the USB key incidental to arrest and submitted it for forensic analysis. The USB key contained stolen credit card data and photographs of credit card data skimming equipment.

The trial judge held that the warrantless search of the USB key infringed Mr. Tuduce’s s. 8 Charter rights, but admitted the evidence under s. 24(2): 2011 ONSC 2749 (CanLII).

On appeal, Mr. Tuduce challenged the trial judge’s decision to admit the USB key evidence under s. 24(2). The appeal was dismissed: 2014 ONCA 547 (CanLII).

The Court noted that the Supreme Court of Canada in R v Vu reviewed the privacy considerations that apply to searches of personal computers and held that they apply to USB keys, for three reasons:

  • A USB key can store a significant amount of data.
  • Data can be left on a USB key without a user’s knowledge, including information about the date and time a file was created or modified, and information about the user who created or modified the file.
  • A user does not have complete control over which files an investigator will be able to find on a USB key because—like a computer hard drive—the unallocated space in USB key may contain files that could be retrieved by a forensic expert. [@ paras 71-73]

The Court commented that a USB key may not contain personal information such as a list of contacts, the contents of past communications, and information a user’s web searching habit. This makes a USB key different from a home computer or cell phone. On the other hand, a USB key will attract a greater expectation of privacy than a work computer. This is because the two factors that diminish the expectation of privacy in a work computer—that the computer is not actually owned by the user, and the employee’s use of the computer is often subject to terms and conditions imposed by the employer—do not apply to personal storage devices like a USB key. [@ paras 74-75]

Strictly speaking, the Court of Appeal did not rule that specific, prior judicial authorization is required to search a USB key. That is because the trial judge’s ruling on the lawfulness of the search was favourable to Mr. Tuduce and therefore not a ground of appeal.

However, the broader implication of the decision cannot be ignored. The Supreme Court of Canada in R v Vu concluded that certain factors make a computer markedly different from other things that can be searched; and that specific, prior judicial authorization is therefore required to search a computer. The Ontario Court of Appeal in R v Tuduce held that the factors cited in R v Vu also apply to a USB key. This analysis leaves little doubt about how it would have ruled, had the s. 8 issue been properly before it.

The decision of the Ontario Court of Appeal in R v Tuduce is the strongest possible signal that absent exigent circumstances, police will require specific, prior judicial authorization before searching a USB key.

MGM

The views expressed in this post are those of the author, and do not necessarily represent the views or policy of the Ministry of the Attorney General.

The “Mr. Big” Operation: SCC constrains but doesn’t eliminate the practice.

It isn’t every day that the Supreme Court of Canada creates a new common law rule but that is what happened today in R. v. Hart: 2014 SCC 52.

Nelson Hart’s twin daughters drowned while in his care. The police immediately suspected Hart but they lacked evidence to charge him or successfully support a prosecution. Two years after the drowning, the police put a “Mr. Big” operation into place.

Moldaver J. writing on behalf of the majority described the general parameters of what is now commonly known as the “Mr. Big” technique:

When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the “Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.
The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged. [Paras 1 and 2]

In this case, the police recruited Hart into a fictitious criminal organization. At the time Hart was unemployed and socially isolated. As part of the recruitment, Hart participated in 63 “scenarios” with undercover [UC] officers. He was paid more than $15,000 for the work that he did for the “organization” and traveled to several Canadian cities, staying in hotels and sometimes dining in expensive restaurants with the cost covered by his fictitious employer. Over the course of the operation, Hart came to consider the UC officers his best friends and viewed them as his brothers. At one point during the operation, he baldly admitted to having drowned his daughters.

The Mr. Big operation culminated in a meeting between Mr. Big—the head of the criminal organization— and Hart. The meeting was essentially portrayed as an interview. Mr. Big interrogated Hart about the death of his daughters, seeking a confession so that he could be included in further and better activities of the organization. Hart initially denied responsibility but then confessed to the crime. Days later, Hart took a UC officer to the scene and described how he had pushed his daughters into the water. Hart was charged with the murders based on this evidence.

This case was particularly frail: there were internal inconsistencies in the account of the murder and there was no confirmatory evidence to support the confession. It was in this context that the Supreme Court of Canada grappled with the often-criticized Mr. Big technique. Moldaver J. noted the tension arising from the clash between the value of the technique in solving crime and the dangers inherent in the use of the technique:

To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence. Manifestly, the technique has proved indispensible in the search for the truth.
But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.
Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit. And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions — a fact we cannot ignore
The concern about Mr. Big confessions does not end there. The confessions are invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. It also creates credibility hurdles that may be difficult to overcome for an accused who chooses to testify.
Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur.
Finally, Mr. Big operations run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth. [Paras 4 to 9][Emphasis added]

As a result of these inherent dangers, the majority of the SCC held that the appropriate response would be two pronged:

  1. The creation of a new common law rule of evidence
  2. Reliance on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [Para 84]

The New Common Law Rule

Moldaver J. summarized the new rule that seeks to examine both the reliability of the statement and therefore its probative value as well as the prejudicial nature of the participation in the fictitious criminal organization:

Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. [Para 85] [Emphasis added]

Abuse of Process Reinvigorated

In R. v. Fliss, 2002 SCC 16, Binnie J. described the Mr. Big technique as “skillful police work”. Moldaver J. and the majority of the Court distanced themselves from that characterization and chose to reinvigorate the abuse of process doctrine rather than attempting to seek an alternative framework to guard against what they viewed as the very same problem. [Para 114]

Moldaver J. provided the following guidance as to how the reinvigorated abuse of process doctrine should be applied in the context of Mr. Big operations:

It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.

Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253).

Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness — are also highly problematic (see Mack, at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement.

While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided. Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context [Paras 115 to 118]

In the case of Mr. Hart, the Supreme Court excluded all of his statements to the UC officers on the basis that the probative value did not outweigh their prejudicial impact. While not ruling on the abuse of process issue, the Court commented that the police conduct in the case raised significant concerns and might well have amounted to an abuse of process. [Paras 126 to 151]

The Future of the Mr. Big Operation

While Justice Moldaver noted that the Mr. Big technique is most often used in cold cases related to the most serious crimes and is used in ensuring that some of the most serious crimes in our society do not go unpunished, the new rules will surely discourage most future Mr. Big operations. The real concerns regarding wrongful convictions drove the creation of the new common law rules and the reinvigoration of the abuse of process doctrine.

The reality is that most of the cases where the Mr. Big operation is used, it is used because there is a dearth of other evidence. The new rules will make it very difficult to have the confessions ruled to be admissible due to the absence of other corroborative evidence. [See para 105] The Mr. Big technique is alive but only barely.

BCH

Corbett Update: Sexual Assault Conviction need not be Edited

In 2005 Ron Mayers attacked and sexually assaulted a stranger who was alone inside a shop in a commercial plaza. The shop was not open for business at the time. Mr. Mayers entered the shop and confirmed the victim was alone. He then closed the door so that she could not leave, dragged the victim into a back room, and started to pull off her clothes. He tore her bra and exposed her breasts. He held a knife to her throat and forced her to perform oral sex on him. Later he forced her to lie on the floor with objects piled on her back while he searched the business for money. He stole some cash from her wallet and fled the scene. Mr. Mayers discarded a wad of tissues near the scene, which was found to contain the victim’s vomit and his semen. While being seen by paramedics the victim vomited, and her vomit was found to contain Mr. Mayers’ semen.

At trial Mr. Mayers brought an application to prohibit the Crown from cross-examining him on his criminal record pursuant to R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC).

Mr. Mayers has an extensive criminal record. He had been released from prison less than three months before this crime. His criminal record includes two sexual assault convictions that were entered about three or four years before this trial. In the Corbett application he sought to have most of his criminal record redacted for the purpose of cross-examination, including the two sexual assault convictions.

The trial judge dismissed the Corbett application, in part because of defence counsel’s “forceful attack” on the victim’s credibility. Regarding the sexual assault convictions, the trial judge ruled that editing was not required and a strong limiting instruction would address any prejudice.

The Court of Appeal upheld the trial judge’s ruling: R v Mayers, 2014 ONCA 474. The Court held:

R. v. Corbett, [1988] 1 S.C.R. 670, the guiding authority, instructs, at paras. 35 and 50, that trial judges should begin from the premise that juries should receive all relevant information accompanied, where necessary, by a proper and clear limiting instructions. Corbett further instructs that the discretion to keep information about an accused's criminal record from the jury should not be exercised absent clear grounds in policy or law for doing so.
Bearing in mind the approach dictated by Corbett and giving the trial judge’s ruling the appropriate deference, we cannot say that she erred in exercising her discretion against editing the appellant’s criminal record by removing the convictions for sexual assault.  This ground of appeal cannot succeed. [paras 5 and 6]

In trials for sexual offences, trial judges have sometimes ruled that sexual assault convictions should be edited down to assaults, and those rulings have been upheld on appeal: R v Charbonneau, 2012 ONCA 314 (CanLII) at para 29; R v Paul, 2009 ONCA 443 (CanLII) at para 19; R v Batte, 2000 CanLII 5750 (ON CA) at para 51.

The decision in Mayers confirms that editing the accused’s convictions for sexual assault down to assault is by no means required. A strong limiting instruction can address any prejudice, even in a trial for sexual assault.

MGM

Bail Pending Appeal: The Application of the Public Interest Ground in Domestic Violence Cases

Evans Bedzra was convicted of 36 counts in relation to two complainants. In brief, he was convicted of assaulting and abusing two women with whom he had been in a relationship. The charges included assault, assault with a weapon, assault causing bodily harm, criminal harassment, mischief and breach of probation. His unsuccessful defence was a blanket denial. Bedzra was sentenced to a global sentence of three years less pre-sentence credit of one year for 133 days of pre-sentence custody—for a balance of two years less a day.

Bedzra launched an appeal against conviction and sentence and sought bail pending appeal: 2014 ONCA 408.

The Test for Bail Pending Appeal in Manasseri

In Chambers, Lauwers, J.A. commenced his consideration of the application by reviewing the relevant test recently summarized by Watt J.A. in R. v. Manasseri, 2013ONCA647:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;
ii. that the applicant will surrender into custody in accordance with the terms of the release order; and
iii. that the applicant’s detention is not necessary in the public interest.
…
An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.
…
The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.
But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.
The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187. [Emphasis added] [Para. 4]

The Merits of the Appeal and Mootness

In the case, the Crown conceded that the appellant, Evans Bedzra, would surrender in accordance with his conditions of release, if granted. The court accepted this concession leaving the remaining two grounds to be considered.

Lauwers, J.A. then addressed whether the appeal was frivolous or, in other words, whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship to the applicant if he were to be detained in custody.

While Lauwers J.A. largely rejects in seriatim the proposed grounds of appeal against both conviction and sentence, he does note that the practical issue with this appeal is that by the time the proposed appeal is heard, Bedzra will have served a substantial portion of his sentence if not granted bail pending appeal. The refusal to grant bail pending appeal would essentially render the appeal moot thereby causing him unnecessary hardship.

The Public Interest Ground Applied

In relation to public interest ground, the applicant argued that the Farinacci factors [cited above in Manasseri] favoured the immediate enforcement of judgments should only be applied when the sentence imposed is lengthy. The Crown in Chambers responded that “domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.” [Para. 21]

Lauwers J.A. agreed with the Crown’s submission:

…The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.  [Para. 22] [Emphasis added]

After citing the Crown’s concern regarding the unrealistic nature of the plan for release, Lauwers J.A. gave effect to the public interest ground in this case of domestic violence in denying Evans Bedzra bail pending appeal:

In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected. [Para. 24] [Emphasis added]

Interestingly, Lauwers J.A.’s application of the Farinacci factors favours continued enforcement of the sentence in the context of this case of domestic violence where the grounds to be argued are “barely arguable” even where denial of bail will likely render the appeal moot.

BCH

New & Notable: Free to Kill

George Johnstone was married to Erin, the daughter of Mary Lou Wolfe. On January 11, 2006 Ms Wolfe was found lying face down on her bathroom floor covered in blood, naked but for her underwear, which were partially pulled down. She had stab wounds on her face, neck and body; she had been strangled.

The evidence at the scene revealed that Ms Wolfe had been dragged from her bedroom to the bathroom. “Damage to the bathroom door confirmed that Ms. Wolfe had locked the door and taken refuge there. The marks on the inside of the door indicated that Ms. Wolfe had sat on the floor, leaning against the back of the door while bleeding profusely.” [@para 5]

The Crown argued that Johnstone was upset by his mother-in-law’s plans to help her daughter and her two grandchildren move away from Johnstone because of his poor behaviour. Sometime prior to the murder the victim’s daughter told Johnstone of this plan and he responded by saying that he would never allow her to leave with his son. [@para 9]

The murder weapon was a steak knife taken from the victim’s kitchen. Johnstone’s fingerprints were found on a serrated knife and the stove in the kitchen. Johnstone and Ms Wolfe’s blood was recovered from the stove and inside the cutlery drawer.

Following a trial by judge and jury Johnstone was convicted of first-degree murder; he appealed: R v Johnstone, 2014 ONCA 504.  On appeal he argued, inter alia, the trial judge misdirected the jury on constructive first-degree murder by way of forcible confinement.

Johnstone argued that the trial judge erred by framing the forcible confinement as follows:

[T]he Crown argues that the evidence established that the murder was first degree since, according to the Crown, the deceased found herself confined in the bathroom area as a direct consequence of the accused’s actions and that he exploited this position of domination in committing murder. [@para 37]

The accused argued that the marks on the bathroom door were indicative of the accused’s attempt to ‘un-restrain’ the victim, not confine her.

The Court of Appeal rejected this argument:

Ms. Wolfe was unlawfully confined “if for any significant period of time” she “was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59 (CanLII), 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. The only reasonable inference from the evidence led at trial was that the appellant’s attempt to “un-restrain” Ms. Wolfe was to get access to her in order to kill her. There is no suggestion that he sought to open the door in order to allow her to leave. The evidence pointed to Ms. Wolfe having been dragged to the bathroom by the appellant and her being left there while he went to the kitchen to obtain a knife. During this time he stood between Ms. Wolfe and any possible escape. Ms. Wolfe would have locked the door in the hope that it might prevent further assaults. From the moment the appellant left to obtain a knife up until he returned to the bathroom with the knife, there can be little doubt that Ms. Wolfe was not free to “move about according to her own inclination and desire”. The appellant’s submission that she was not confined and that he simply sought to “un-restrain” her is without merit. [@para 39]

Bottom line: ‘freeing’ someone in order to kill them is actually not freeing them at all. 

LT

New & Notable: Sentencing is not a Never-Ending Process

James Sipos is a dangerous offender. He was so designated by a court in 1998. Some 12 years later his appeal was before the Ontario Court of Appeal where he presented fresh evidence; that evidence indicated that he had made much progress in his treatment – “progress that was not foreseen at the time of his sentencing in 1998” [para 48]. His appeal was dismissed by the ONCA and he appealed to the Supreme Court. On appeal it was admitted and recognized that the sentencing judge committed the Johnson error. What remained, however, was whether a new hearing was warranted due to this error and/or as a result of the proposed fresh evidence. Cromwell J concluded that there was “no role for the fresh evidence in relation to the curative power” on appeal [para 41] and dismissed the appeal: 2014 SCC 47.

In addressing the appeal Cromwell J began by noting:

In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made. It follows that a legal error does not necessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result. But there is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had the error not been made. [Para 35].

In the present case, in relation to the proposed fresh evidence, Cromwell J held that there must be some connection between the “fresh evidence and the sentencing judge’s legal error” [para 37]. In this case, the fresh evidence related to the rehabilitative prospects of the offender. Cromwell J’s conclusion on this point:

In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation [para 38].

In coming to this conclusion, Cromwell J held, contrary to the offender’s position – that the issue is what the “outcome might conceivably be today [with the fresh evidence]” – that the issue is “whether the past decision would have been the same notwithstanding the error” [para 40]. Recognizing that it is possible that “after-the-fact evidence” may influence a court on sentencing, Cromwell J noted that “post-sentencing rehabilitative efforts and prospects will only exceptionally” meet the test for intervention and that “generally speaking [these are] matters for the correctional authorities to consider” [para 43].

Cromwell J concluded [at para 48], in relation to the proposed fresh evidence:

This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable. As Doherty J.A. put it:
I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence.  Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant.  We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.]

A final notable point raised by Cromwell J in dismissing the appeal was that “[r]outinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review” [para 30].

DGM

New & Notable: 278.1 Restored

The Supreme Court today released its ruling in Quesnelle addressing the scope of section 278.1 and discussing the privacy rights of victims of crime: R v Quesnelle, 2014 SCC 46. The Court unanimously overturned the Ontario Court of Appeal’s ruling (2013 ONCA 180). Two aspects of the ONCA ruling were, in my view, troubling. I commented on them in a blog at the time: A Drastic but Unfortunate Shift in the Law of Disclosure. First, the ONCA’s ruling that there were no privacy interests in police occurrence reports was flawed; and second, the ONCA’s ruling that police reports made in relation to other occurrences were not captured by the exclusionary clause of 278.1 (in other words, other occurrence reports were “records” and subject to privacy protections). The Supreme Court agrees with me (or at least that is how I see it).

In its unanimous ruling, authored by Karakastanis J, the court reviewed section 278.1 and outlined the issue on appeal as “whether these provisions apply to police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted. The question is whether these unrelated police occurrence reports count as “records” as defined in s. 2781. Such that the statutory regime limits apply” [para 1]. In short, the Court answered this issue as follows:

I conclude that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accused.  Privacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters.  Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.
Accordingly, I agree with the trial judge that the unrelated police occurrence reports at issue were “records” within the definition of s. 278.1  and thus subject to the Mills regime.  The trial judge was entitled to conclude that the reports should not be disclosed.  I would allow the appeal, set aside the order for a new trial, and restore the conviction, remitting the sentence appeal to the Court of Appeal. [Emphasis added]; [paras 2-3].

In the analysis of this issue the Court discussed two areas: (i) principles governing disclosure; and (ii) whether “unrelated” police occurrence reports are “records”.

With respect to the principles, the Court noted Stinchcombe, McNeil and O’Connor and then offered the following comments on the Mills regime:

The regime reflects Parliament’s intention to accommodate and reconcile the right of the accused to make full answer and defence with the privacy and equality rights of complainants in sexual offence cases.  In the words of Professor Lise Gotell, the regime was created in order to “to limit what it is that a woman/child complainant must be forced to reveal at trial as the price of her access to the criminal justice system” (When Privacy is not Enough:  Sexual Assault Complainants, Sexual History Evidence, and the Disclosure of Personal Records, (2006) 43 Alta. L. Rev. 743, at p. 745.).  That approach was upheld by this Court in R. v. Mills, [1999] 3 S.C.R. 668, and its constitutionality is not challenged in this appeal. [Emphasis added]; [para 14].

After discussing the procedural aspects of 278.1 the Court noted that the “mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution.  The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials [para 17].

Turning to discuss the impact of McNeil, the Court noted that

The Mills regime governs the disclosure of “records” in sexual offence trials, but does not displace the Crown’s duty to make reasonable inquiries and obtain potentially relevant material (or the police duty to pass on material to the Crown) under McNeil.  As an officer of the court and Minister of Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences, including sexual offences.  The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence. [Para 18].

With respect to whether unrelated occurrence reports are “records” in 278.1, the Court considered two issues: first, whether the records carry a reasonable expectation of privacy; and second, whether they “fall into the exemption for investigatory and prosecutorial documents”.

First, the Court concluded unrelated occurrence reports do carry with them a reasonable expectation of privacy. Such privacy interests must be assessed in relation to the “totality of the circumstances” and are not limited to “trust-like, confidential, or therapeutic relationships” [para 27]. Privacy interests are not “an all or nothing concept”. The Court went on to discuss the “information” in these reports and the “price of disclosure” and concluded:

People provide information to police in order to protect themselves and others.  They are entitled to do so with confidence that the police will only disclose it for good reason.  The fact that the information is in the hands of the police should not nullify their interest in keeping that information private from other individuals.
Fundamentally, the privacy analysis turns on a normative question of whether we, as a society, should expect that police occurrence reports will be kept private.  Given the sensitive nature of the information frequently contained in such reports, and the impact that their disclosure can have on the privacy interests of complainants and witnesses, it seems to me that there will generally be a reasonable expectation of privacy in police occurrence reports. [Paras 43-44].

Second, the Court rejected the notion that unrelated occurrence reports are exempt as prosecutorial and investigative documents in 278.1. Interpreting the section leads to the conclusion that the exempting clause only applies to the records made in the course of the investigation in question. In making this point the Court offered the following practical comments:

If Parliament wanted to exempt unrelated police and prosecution documents from the Mills regime, it is hard to see why it would have excluded only those documents made by some police departments and not others.
This would mean that an accused whose case was investigated by a large police force would be more likely to get easy access to occurrence reports than if the case was investigated by a small force.  For example, where the RCMP is involved in an investigation, the Court of Appeal’s interpretation of the exemption would waive the Mills regime for RCMP occurrence reports from across the country [paras 57-58].

I agree – I similarly noted this anomaly would follow from the ONCA ruling in my 2013 blog:

There is nothing in the language of this exclusionary portion of 278.1 that suggests it should apply as broadly as suggested by MacFarland JA. Indeed, if it did, it would create possible odd and unfair results. Consider whether the records held by other police agencies, not those “responsible” for this investigation, but nonetheless in possession of such information would be subject to 278.1.

In concluding on the point that unrelated occurrence reports are “records” the Court rejected the position of the Criminal Lawyer’s Association of Ontario and the respondent that this interpretation of records would impact on trial fairness – in part, this argument pointed out that the Crown and defence would be on unequal footing in access to such material:

The principles of fundamental justice and trial fairness do not guarantee defence counsel the right to precisely the same privileges and procedures as the Crown and the police (Mills, at para. 111).  Nor is the right to a full answer and defence a right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution.  The right to a full answer and defence is not without limit. [Para 64].

In my 2013 blog on the ONCA ruling I concluded with these thoughts:

Section 278.1 should apply to police occurrence reports. The section is broad enough to capture those reports and the exclusionary clause does not apply.
Ironically, MacFarland JA noted the following – from the preamble of the Bill to introduce the 278.1 provisions – as the “intent” of Parliament.
In the preamble, Parliament recognizes that the compelled production of personal information in accordance with ordinary disclosure principles may deter victims of sexual offences from reporting and seeking “necessary treatment, counselling, or advice”. It also acknowledges that such unconstrained disclosure may detrimentally affect the work of those who provide services and assistance to complainants of sexual offences [emphasis added]; [para 28]. 
If this truly was Parliament’s intent – and it seems quite reasonable to so conclude – it is unlikely to be furthered by this ruling. Indeed, this ruling is likely to have a chilling effect of reporting. If every complainant knew that everything they tell the police and hand over to the police will thereinafter be provided to every accused person on every cause in which she is a witness or victim, it is not hard to imagine some hesitation or concern may arise.
The 278.1 regime is not overly onerous. It does, however, provide a valuable and important level of protection. That protection should apply to police occurrence reports.

With its ruling today the Court has addressed these concerns. The privacy rights of victims and witnesses sought to be protected by 278.1 has been restored.

DGM

New & Notable: Illustrating the need for 24(2)

TGH sexually abused his step-son and step-daughter when they were children. The abuse spanned a period of 10 years. The abuse included acts of oral and anal sex that would give the step-son a direct view of TGH’s anal area. The step-son reported to police (and later testified at trial) that TGH had a flap of skin or “skin tag” over his anus. The step-son provided a detailed description of the skin tag, including its approximate size, appearance, and location.

TGH was arrested, provided with his right to counsel, interviewed, and ultimately released from custody. Ten months later the detective in charge of the case obtained a general warrant pursuant to section 487.01 of the Criminal Code, authorizing her to take TGH to a hospital, examine his anal area, and if a skin tag was found to photograph it. The detective attended TGH’s home and showed him the warrant. She did not advise TGH of his right to counsel when she detained him, or at any time during the execution of the warrant. TGH was brought to the hospital where he was told to bend over or lie on the bed and spread his buttocks. The detective observed a skin tag near TGH’s anus and took three photographs.

At trial the accused applied to exclude the evidence of TGH’s skin tag pursuant to section 24(2) of the Charter, on three grounds:

  1. The search in this case interfered with the bodily integrity of TGH, and consequently was outside of the scope of the general warrant provisions of the Criminal Code, thereby breaching his rights under s. 8.
  2. The search was not carried out in a reasonable manner, in that the detective required TGH to spread his buttocks, which was not expressly authorized by the warrant, thereby breaching his rights under s. 8.
  3. The detective did not advise TGH of his right to counsel when she detained him and brought him to the hospital to be examined, thereby breaching his right to counsel under s. 10(b).

The trial judge found that TGH’s Charter rights were not breached and admitted the evidence: [2012] OJ No 6478 (SCJ).

On appeal, TGH raised only the second and third ground. The Ontario Court of Appeal ruled that the search was carried out in a reasonable manner and no s. 8 breach occurred. The court found that TGH’s s. 10(b) rights were breached, but admitted the evidence under s. 24(2). In the result, the appeal from conviction was dismissed: 2014 ONCA 460 

The search was carried out in a reasonable manner

The Court of Appeal acknowledged that the search authorized by the general warrant was “invasive under any definition of that word,” and agreed that the powers granted to police by such a warrant should be both carefully delineated and narrowly construed [para. 47].

Nevertheless, the Court held that a warrant authorizing police to view a part of a person’s body necessarily includes positioning or bodily movements that allow a full viewing:

Setting aside intrusive measures that could compromise bodily integrity and, therefore, exceed the scope of a general warrant, I regard the authority to view a part of a person’s body as necessarily including positioning or bodily movements so as to allow a full viewing.  For example, if the police were authorized to view the area under a person’s arm for the presence of a tattoo, I have no doubt that the warrant would empower the police to require the subject to lift his arm.  The requirement that the appellant spread his buttocks, while no doubt more embarrassing than lifting one’s arm, is qualitatively no different for the purposes of assessing the reasonableness of the manner in which the police executed the warrant.  [para 48]

Police were required to advise TGH of his right to counsel upon detention

It was not in dispute that TGH was detained when the detective attended his house, showed him the general warrant, and brought him to the hospital to be examined. The arguments on appeal focused on whether, having complied with the right to counsel at the time of initial arrest, a second right to counsel warning was required when TGH was detained 10 months later for the purpose of executing the general warrant.

The Supreme Court of Canada in R v Sinclair, 2010 SCC 35 (CanLII), held that in most cases an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b) [para 2].

The Ontario Court of Appeal disagreed that this principle relieved police of the obligation to provide the right to counsel when TGH was detained for the purpose of executing the general warrant.

First, the Court held that the facts of this case were distinguishable from Sinclair because there were two different detentions separated by a significant period time:

I do not think Sinclair supports the trial judge’s holding that the police were not obliged to advise the appellant of his s. 10(b) rights.  I come to that conclusion for two reasons.  First, the principle enunciated in Sinclair assumes a single ongoing detention and speaks to situations in which the police are obliged to repeat the detainee’s s. 10(b) rights in the course of that single detention.  In my view, Sinclair has no application to a situation like this where the appellant was arrested, advised of his s. 10(b) rights as required, released, and then some 10 months later detained for the purpose of executing the general warrant.  The initial detention upon arrest in January 2011 and the subsequent detention for the purpose of executing the warrant in October 2011 were entirely distinct from each other and must be treated as such for the purposes of s. 10(b).  The question raised on these facts is not whether the police were required to restate the appellant’s s. 10(b) rights in the course of his detention, but rather whether they were required to comply with s. 10(b) when they detained the appellant for a second time many months after the initial detention. [para 37]

Second, the Court held that, in any event, Sinclair requires police to provide the right to counsel a second time when the circumstances are such that the purpose animating the right to counsel requires a repetition of the s. 10(b) rights:

Even if I am wrong and the principle in Sinclair does apply, the appellant’s detention in October 2011 for the purpose of executing the general warrant falls squarely within one category of cases that Sinclair recognizes as requiring a second compliance with s. 10(b).  As Sinclair explains, at para. 50:
The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee.  Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation.  It follows that to fulfill the purpose of s. 10(b) of providing the detainee with information necessary to make a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary. [Citation omitted; emphasis added.]
The examination authorized by the general warrant was about as far from a “routine procedure” as one could get.  No one would suggest that the appellant’s lawyer, when he was advising the appellant at the time of his arrest, could have anticipated an order in the terms of the general warrant and given the appellant the appropriate advice.  It also is irrelevant that the appellant was required to comply with the warrant and that any advice he might have received from his lawyer would not have altered that reality.  The appellant was entitled to legal advice even if that advice left him with few, if any, options other than compliance.  The appellant was entitled to legal advice about the scope of the warrant and exactly what he had to do or, more importantly, not do, to comply with the warrant.  In any event, and assuming the lawyer could do nothing other than tell the appellant to comply with the warrant, that advice could be important in that a reasonable detainee, in the appellant’s position, might well refuse to allow the police to do what the warrant authorized.  Without proper legal advice, a detainee might well refuse to cooperate and find himself in further difficulty with the law. [paras 39-40]

The absence of a causal connection and the nature of the allegations were factors supporting admission of the evidence under s. 24(2)

In its s. 24(2) analysis the Court first noted the absence of a causal connection between the Charter breach and the evidence that was obtained. However, the evidence could still be excluded under s. 24(2) because there was a “clear temporal and transaction link between the breach, the execution of the warrant, and the retrieval of the evidence.” In this case the link was sufficient to trigger the exclusionary power of s. 24(2) [para 52].

Regarding the seriousness of the breach, the Court noted that the detective treated TGH with respect and dignity during the search procedure. Her conduct did not require a court to dissociate itself from the evidentiary fruit of her conduct [para 57]. The seriousness of the breach was also reduced because the detective did not question TGH, thus respecting his right to silence [para 56].

The Court concluded that the impact of the breach on the Charter-protected interests of the accused was tempered by two factors.

First, the police did not attempt to take advantage of the absence of legal advice by attempting to elicit incriminating evidence from the appellant in the form of admissions or other statements [para 59].

Second, there was no causal connection between the breach of TGH’s right to silence and the evidence obtained. Nothing suggested that anything a lawyer may have said would have altered the course of the police conduct:

The police would have taken the appellant to the hospital, executed the warrant as they were entitled to do and the photographs would have been taken.  The absence of any causal connection between the breach of s. 10(b) and the obtaining of the challenged evidence leads me to conclude that the evidence would have been available even if the police had complied with s. 10(b).  This diminishes, to some degree, the significance of the breach on the appellant’s Charter-protected interests: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 69-74; R. v. MacMillan, 2013 ONCA 109, 296 C.C.C. (3d) 277, at paras. 67-72. [para 60]

Finally, the Court held that society’s interest in an adjudication on the merits strongly favoured admission of the evidence. This was true, firstly, because the evidence was reliable.

The Court went further and held that the availability of reliable evidence capable of corroborating the complainants had additional significance in a trial of historical sexual assault allegations:

The negative impact on the administration of justice when reliable evidence is excluded is arguably particularly significant in cases involving allegations of historical sexual assaults.  In many of those cases, there is little evidence independent of the complainant’s allegations and the accused’s denials.  The outcome often turns on difficult credibility assessments.  The availability of independent reliable evidence can be important to the maintenance of confidence in the administration of justice in this kind of case.  To exclude that kind of evidence under s. 24(2) runs a real risk of bringing the administration of justice into disrepute. [para 62]

In the result the Court concluded that the observations and photographs of TGH’s anal area were admissible under s. 24(2).

MGM