Competence of Counsel: to be presumed or proven?

William Fogarty was driving his Crown Victoria on a highway outside of Antigonish; he was impaired. He collided head on with a Ford Mustang. The two young occupants of the Mustand, Kory Mattie and Nicholas Landry, were killed. He was convicted. He appealed. His appeal was dismissed: 2015 NSCA 6. His appeals raised an interesting issue related to section 10(b) and change in circumstances.

Police responded to the scene. As they dealt with Fogarty the police noted some “concerning” things including his demeanour and glassy eyes, yet there was no odour of alcohol detected [@7]. Fogarty admitted that he taken methadone earlier that day as part of his drug recovery program. An ambulance attended the scene and ultimately Fogarty was transported to the hospital. En route the officers observed him for signs of impairment and overheard him talking to the paramedics about his history of drug use (something which he had conveyed to the police as well). The officers also obtained information that Fogarty had been spotted, before the crash, driving erratically.

The officers formed the grounds that Fogarty was impaired by a drug and while in the ambulance, the officers placed him under arrest and read the drug recognition demand to him under section 254(3.1). Notably, at this point, the officers knew and had informed Fogarty that one of the young men had died as a result of his injuries.

Sometime later, at the hospital, after Fogarty had been cleared by medical personnel, the officer advised him of his rights to counsel. Fogarty subsequently spoke to a lawyer – over two separate calls, Fogarty would have consulted with his counsel for about 14 minutes [@14].

The DRE officer then conducted the DRE examination. At the conclusion the officer determined that Fogarty was impaired and consequently read the 254(3.4) demand for a biological sample. Fogarty replied “oh yeah, I understand that” [@18]. Fogarty did not request and was not given further access to counsel after the DRE tests and before the biological sample was taken.

At trial Fogarty sought to exclude the evidence of the biological; he argued “that the failure to provide him with an additional opportunity to consult counsel, after the demand for his blood sample, violated his right to counsel under s. 10(b)” [@29].

Fogarty was convicted; he was sentenced to five years and nineteen days jail. He appealed his conviction.

The issue on appeal was whether the “failure to provide him with an opportunity to re-consult counsel, after the demand for his blood sample” violated section 10(b) [@34]. More precisely, this argument highlighted two poitns. First, that the police should have told him, at the time of the initial demand, that a biological sample could be taken; and second, that the court should not infer that counsel was aware of this and would have advised the accused accordingly.

The court dismissed the appeal.

The Court began its assessment of the issue with a review of R v Sinclair, 2010 SCC 35 and the Supreme Court’s comments on when it is necessary to permit a detainee to re-consult with counsel.  The Court noted that “the opportunity to re-consult” arises “only where there is an objectively ascertainable change of circumstances” [@41].

With respect to the first point (whether there was a change in circumstances) the court offered the following:

The DRE and blood demand are not disjunctive investigative techniques.  Rather, the DRE culminates in the fluids demand.  That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4)… [@48].

With respect to the second point (the content of the legal advice) the Court offered the following:

There was no evidence of the content of the legal advice given to Mr. Fogarty, or that his counsel acted incompetently.  There was no challenge to the competency of his counsel. The judge’s view was that, in those circumstances, Mr. Fogarty’s counsel is assumed to have acted competently.  The judge concluded competent counsel would be aware, and advise that the DRE under s. 254(3.1) invokes a potential blood demand under s. 254(3.4). Consequently, despite that Mr. Fogarty initially had been unaware of a potential blood demand, his counsel would canvass that possibility in his pre-DRE advice to Mr. Fogarty. [@44].

The court dismissed the appeal.

Fogarty is a helpful case for a couple of reasons. First, it illustrates, quite properly, the courts can and should presume counsel provide competent advice to their clients absent evidence to the contrary. Second, it highlights the difference between a linear progression and new investigation.  

Fogarty should also be seen as a success for the DRE provisions and program in increasing the ability of the criminal justice system to detect and prosecute drug impaired driving.

DM

Securing Safety Search Powers

Mackel Peterkin had a gun. He had 40 rounds of ammunition on him as well. He had two cellphones. He had some cocaine. And he had $275 in cash. The police found all of these items when they searched him incident to an investigative detention.

Peterkin was convicted at trial of offences related to the discovery of those items. He appealed: 2015 ONCA 8. He argued on appeal that the warrantless safety search was unlawful; he did not contest, on appeal, the lawfulness of his detention @25.

Watt JA wrote the decision for the Court of Appeal. He outlined the factors which led the police to have concern for their safety – and thus conduct the search – as follows:

Several features of Peterkin’s behaviour caused the officers to be concerned about their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his right hip twice and held his right wrist there. He “bladed” his body so only his left side was visible to the officers. When an officer proffered Peterkin his driver’s licence on his right side, the appellant reached awkwardly for the document, holding his right elbow tight to his hip, turning his whole body and extending only his right forearm to take the licence. When the officers told Peterkin they were going to pat him down, he backed away and began to run. @28

Watt JA then discussed the test to be applied in determining the lawfulness of a search incident to arrest.

The test for determining whether an investigative detention is justifiable under the second prong of Waterfield is one of reasonable suspicion. An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para. 34. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:
                     i.  the extent to which the interference with individual liberty is necessary to                             perform the officer’s duty;
                     ii.  the liberty that is the subject of the interference; and
                    iii. the nature and extent of the interference.
See Mann, at para. 34.
To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45. @40-41

Of particular note is Watt JA’s reference to MacDonald – the recent Supreme Court decision on “safety searches”:

A second preliminary point concerns the decision in MacDonald. We need not decide whether, as the MacDonald minority argues, the majority, without overruling the prior decision in Mann, has recalibrated the standard to be applied in determining the lawfulness of a safety search. This is because the evidence in this case satisfies the test as articulated in MacDonald: reasonable belief an individual’s safety is at stake.  Further, in my respectful view, we need not determine whether the decision in MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing.
To be lawful, the investigative detention and safety search incidental to it must satisfy the two-stage Waterfield test. The conduct must fall within the general scope of a statutory or common law duty imposed on the officer, and must also involve a justifiable use of powers associated with that duty: Mann, at para. 24; MacDonald, at paras. 35-36. @59-60.

Watt JA thus applied the law, as outlined above, of search incident to investigative detention and offered the following conclusion:

When Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the officers were investigating a static line 911 call from the unit. In doing so, they were discharging their common law duty to preserve the peace, prevent crime, and protect life and property. Peterkin’s entry into the fenced rear yard also entitled the officers to detain him to investigate a potential breach of the Trespass to Property Act, an arrestable offence under s. 9(1) of that Act.
As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant’s pants. “Blading” to obstruct their view of the appellant’s right side. Awkward receipt of the driver’s licence when the officers returned it to the appellant. An indication by the officers of a pat-down search for the officers’ safety. Resistance. An attempt to flee. Apprehension and only then a search. This accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search. @61-62.

Peterkin is one of the first appellate court decisions to deal with MacDonald. While it does not resolve the issue raised in MacDonald by Moldaver J – which i have previously discussed (see: Safety Searches Post MacDonald; and MCLBulletin 2014.05) – it does recognize that MacDonald dealt with a non-investigative detention search. The search there was “free-standing”. Here, as in Mann and Clayton, the safety search was incident to an investigative detention.

DM

Giving Juries the Right Tools to Make Just Decisions

At the conclusion of what the Justice Boswell described as “a long and difficult murder trial”, the court was called upon to determine what if any “deliberation aids” would accompany the jury once they retired to deliberate.

Changes in technology used by criminals and in the courtroom have fundamentally changed the nature of evidence and the manner in which it is presented to judges and juries. Moreover as juries are being called upon to make findings of fact based on an “ever-increasing mass and complexity” of evidence, courts and counsel must decide what and which measures of assistance will be provided to juries to assist them in fulfilling their duties.

In R v Pan, 2014 ONSC 6055 (SC) Boswell J was called upon to decide whether a PowerPoint presentation which would be presented to the jury during the Crown’s closing argument could be provided to the jurors upon commencing their deliberations.

The PowerPoint in issue was prepared by an analyst with the Ontario Provincial Police (OPP) and was being offered as an aid to understanding a large body of cell phone evidence. Defence counsel representing each of the four co-accused, took no issue with the presentation of the slides during the closing argument of the crown but rather objected to the jury being provided with a copy upon commencing their deliberations.

The four co-accused in this case were charged with the home invasion murder and attempted murder of Ms Pan’s parents. Ms Pan was home at the time of the attack and aroused the suspicions of police when she confided in them that she had arranged for the attack and that she was the intended target. Her parents, she claimed were not supposed to have been harmed. Through their investigation police obtained a large volume of cell phone records of the co-accused

Justice Bowell noted that:

[t]here is no doubt that the accused in this case were cell phone enthusiasts. One might fairly describe them as prolific callers and texters. Their "digital embraces" are at the core of the Crown's case. Their contacts with one another and with third parties left an almost incomprehensibly thick trail of data and metadata. @para 83

The Crown tendered the cell phone evidence for several purposes including:

  • Identifying the users of specific cell phone accounts
  • Demonstrating the connections between the accused persons
  • Demonstrating the connections between the accused persons and other persons of interest
  • Demonstrating the timing of contacts involving the accused persons
  • Demonstrating the content, where available, of specific text messages involving the accused persons, and
  • Demonstrating the cell tower sites used during communication as circumstantial evidence of the locations of various persons. @para 15.

Before turning the to the specific cell phone records in this case Boswell J took a moment to very helpfully explain what exactly is meant by cell phone evidence.

Cell phone networks are like large computer networks. They are made up of a web of connected cell sites. Cell phones — sometimes referred to as "handheld devices" — are basically sophisticated two-way radios. They communicate with a network through radiofrequency signals. Signals are sent and received through particular cell sites — usually the cell site closest to where the phone is located. When a phone communicates through a particular cell site, it is said to "register" with that site.
Telecommunications companies, like Bell, Rogers and Telus, keep detailed records of the phone usage of their subscribers. Detailed records are essential to them for billing purposes. Those "call detail records" include, without limitation: the phone number of the subscriber; personal information about the subscriber, such as the name and address under which the account was opened; the serial number of the phone; the date, time and duration of phone calls, text messages, and data usage (including web browsing); other phone numbers communicated with; and identifying data about the cell tower sites the phone has registered to. @paras 18-19

In Pan some 700 000 communications were obtained as a result of the various warrants and production orders obtained by police. Those “raw” records were filed as an exhibit at trial. The Crown throughout the trial had presented various parts of what they considered to be relevant excerpts from the raw records. The PowerPoint presentation was a consolidation of the relevant aspects of the cell phone evidence into a comprehensive and user friendly format. Justice Boswell had the following to say about the end product:

What was produced was, in my view, an impressive effort. The presentation is two-hundred and thirty-one slides (pages) in length. It commences on October 24, 2010 and follows a chronological timeline to December 22, 2010, though only dates significant to the Crown are highlighted.
The presentation includes references to text and voice communications involving accused persons (including Eric Carty), and incorporates some banking records, some surveillance data, and a number of maps demonstrating when and where tower cell sites were accessed by particular phones.
The slides are, for the most part, based on a timeline format, with each accused person represented by their own individual timeline. Attached are the following appendices, which will assist in illustrating the content of the PowerPoint presentation:
  • Appendix "B" — A typical timeline slide;
  • Appendix "C" — A content slide, reflecting the known content of a particular text discussion; and,
  • Appendix "D" — A map slide. @paras 30-32     

Earlier in the trial the Crown had proposed to call the author of the PowerPoint to explain how it was prepared and its contents. Justice Boswell held that the Crown would not be permitted to adduce the presentation. In so concluding the Court noted that although extremely helpful, reliable and extremely useful to the jury:

[t]he presentation is not, in and of itself, evidence. The contents of the presentation — the dates and times of phone calls and the parties involved, as well as the other bits and pieces of data included in it — are evidence. The presentation is merely a re-organizing of evidence tendered in a different format. It is an illustrative tool designed to demonstrate how some of the evidence adduced in the trial might fit together: @para 39 and also 2014 ONSC 4645 @para 29.

Defence counsel argued that the slideshow was no more than an advocacy tool and as such had no place in the jury room. Boswell J gave short shrift to this argument finding that:

I do not perceive "advocacy" to be a bad word. For better or worse, our trial system is built on the adversary model. Every step of the proceedings tends to have an element of advocacy to it. The determination of what evidence the Crown will call, in what order, and from whom, are all informed, at least in part, by advocacy considerations. The same can be said from the defence point of view: whether to call evidence, what evidence to call, and in what order are, again, decisions informed, in part, by advocacy considerations. The body of evidence that will go into the jury room and the manner in which it was presented are already infused with elements of advocacy. In other words, we're not going to eliminate advocacy from the process. The system is reliant on it.
What is important, however, is that the jury understand what is evidence and what is not; that they understand the purpose for any aid to comprehension, the proper ways in which the aid(s) may be used, and any limitations on them.
Some people may worry that if the court allows aids to go to the jury room that have some element of advocacy to them, that the "floodgates" will open and that counsel will begin to request that all sorts of material be available to juries during deliberations. Frankly, any such concerns are overblown. @paras 110-112

Ultimately Justice Boswell held that PowerPoint would be provided to the jurors. In so doing he noted that:

The jury system is capable of adapting to meet new challenges. Given rapid changes in technology, and in the techniques used by law enforcement to gather and process evidence, juries today are challenged by increasingly complex, voluminous and dense evidentiary records. They must be provided with the assistance they need, and deserve, to meet the challenge. @para 120

LT

Principled approach to Constructive Murder

Dwayne Mullings killed Bogdan Spolski. Mullings was attempting to steal Spolski's car, which Spolski had left running in his driveway. Spolski attempted to stop Mullings and a struggle ensued. Spolski was shot by Mullings. Mullings then dragged Spolski into the garage where he shot Spolski again, this time in the chest. Spolski died. Mullings was charged with first-degree murder. The route to first-degree murder was through section 231(5) - murder and unlawful confinement. Mulling was convicted. He appealed.

One of his grounds of appeal was that the trial judge erred in the instruction to the jury on constructive murder under section 231(5). In particular, Mullings raised two points. First, he argued that for 231(5)(e) to apply the confinement must be distinct from the killing and not consumed in the killing - here the confinement was "inherent in the killing" [para 98]. Second, he argued that the victim's death was caused by the first shot (although he did not die instantly) and thus the confinement occurred after the killing - it was not caused "while committing" [para 99].

With respect to the second ground of appeal, the Court rejected it and offered the following:

Whether the first bullet was a sufficient cause of the victim’s death was unimportant in this case for three reasons. First, s. 226 of the Criminal Code makes clear that accelerating death is still murder. In this case, regardless of whether the victim was mortally wounded by the first shot, he was still alive when he was shot a second time while confined in the garage. Therefore, it was open to the jury to conclude that the second shot’s acceleration of death was an act of killing in itself, which occurred while the appellant was confining the victim. In R. v. Munro (1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 288-9, this court said it was an “elementary principle of the law of homicide” that “one who shortens the life of a person suffering from a mortal injury … has caused the death of that person.”
Second, there is nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound....It is not necessary in this appeal to decide whether that same proposition holds true for unlawful confinement under s. 231(5)(e). However, when applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of killing and the predicate offence, while distinct offences, remain part of the same transaction: R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at pp. 631-633.
Third, s. 231(5) is concerned with identifying the degree of blameworthiness required to ground a conviction for first degree murder. Apart from the obvious point that the appellant could have had no way of knowing that he had fatally wounded the victim, the confinement and shooting inside the garage removed any possibility of getting assistance for the victim. This is a case like R. v. Simon (2001), 2001 CanLII 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.), in which it can be said that, even if the wound to the chest was the ultimate cause of death, the subsequent restraint of the victim and the direct shot to his chest prevented any possibility of medical intervention which might have saved his life, however remote that possibility may have been. [@101-103].

With respect to the second ground of appeal, the Court rejected it and offered the following:

It was also open to the jury to find that while the confinement occurred as part of the same series of events as the murder, it was not inherent in the killing and that the appellant could have been convicted of the separate offences of murder and unlawful confinement. [@106].

Mulllings is a helpful decision in clarifying the law of constructive murder. This area of the law has seen some attention in recent years from the Court of Appeal and recent decisions, like Mullings, are very helpful. In particular, Mullings recognizes two important principles. First, the court recognizes that there does not need to be strict adherence to the "while committing language". Confinements which occur contemporaneously to (even if after the fatal blow/shot occurred) will satisfy the section. Second, the scope of the "killing" is narrowly construed - as in this case, the shooting constituted the "killing" and thus was clearly separate from the confinement while still being part of the same series of events. 

A final interesting point from Mullings is the comment of the Court that "accelerating death" is still murder. 

DGM 

SCC upholds but carefully circumscribes SITA for cellphones

In a 4:3 split decision, the majority of the Supreme Court of Canada in R v Fearon, 2014 SCC 77, upheld the police power to search a cell phone incidental to arrest [see prior post by Brian Holowka on ONCA ruling].

Justice Cromwell, writing for the majority, summarized the new rule as follows:

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8  where:

(1)     The arrest was lawful;

(2)     The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a)           Protecting the police, the accused, or the public;

(b)           Preserving evidence; or

(c)           Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3)     The nature and the extent of the search are tailored to the purpose of the search; and

(4)     The police take detailed notes of what they have examined on the device and how it was searched. [@ para 83]

Justice Cromwell noted that cell phones attract a high privacy interest. He referred back to the three features identified in R. v. Vu, 2013 SCC 60 (CanLII), that make a computer different from other “places”—immense storage capacity; the ability to generate and store information about the intimate details of the user’s interests, habits, and identity without the user’s knowledge; and the ability to provide access to information in different locations—and found that these features apply to cell phones. [@ para 51]

The new rule dealing with search of a cell phone incidental to arrest applies to all cell phones, whether or not the phone is password protected, and whether the phone is “relatively unsophisticated” or a “smart phone.” [@ paras 52-53]

Justice Cromwell elaborated on the circumstances in which a cell phone search will be found to be incidental to arrest and therefore lawful. He noted:

  • Generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. [@ para 76]
  • Search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest. [@ para 78]
  • Not all crimes justify the search of a cell phone incidental to arrest. The law enforcement objectives of the search will be most compelling in cases of violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences. [@ para 79]
  • When the purpose of the search is discovery of evidence, this will only be justified when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. For example, where there is reason to believe that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest. On the other hand, where all suspects are in custody and any firearms or stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. [@ para 80]
  • Put another way, the police must be able to explain why it was not practical (which, Justice Cromwell emphasized, does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [@ para 80]
  • The police are required to take detailed notes of the applications searched, the extent of the search, the time of the search, its purpose and its duration. [@ para 82]

Applying the new rule to the case at bar, Justice Cromwell found that the police officers gave unsatisfactory evidence about the extent of the cell phone searches. One officer testified that he “had a look through the cell phone” but could not recall specifics. Another officer testified that he did “some quick checks” for about two minutes, but his evidence also lacked specifics. The burden is on the Crown to establish that a search incidental to arrest was lawful, and this burden cannot be met absent detailed evidence about precisely what was searched, how, and why. [@ para 86]

Consequently, Justice Cromwell held that the search of Mr. Fearon’s cell phone was not reasonable and it therefore breached his s. 8 Charter rights.

Finally, Justice Cromwell considered whether the evidence obtained from Mr. Fearon’s cell phone should be admitted or excluded under s. 24(2) of the Charter. In apply the three factors set out in R v Grant, 2009 SCC 32 (CanLII), Justice Cromwell noted:

  • The first factor favours admission of the evidence. The police had good reason to believe, as they did, that what they were doing was perfectly legal. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence. [@ paras 94-95]
  • The second factor favours exclusion, but weakly. The invasion of privacy was not particularly grave. In particular, it was important that Mr. Fearon did not challenge the subsequent search of his phone pursuant to a search warrant. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. In other words, the evidence was discoverable because the it could have been discovered legally pursuant to a search warrant.[@ para 96]
  • The third factor favours admission of the evidence because it was cogent and reliable, and exclusion would undermine the truth seeking function of the justice system. [@ para 97]
  • In the result, Justice Cromwell held that the cell phone evidence was admissible and dismissed Mr. Fearon’s appeal.

MGM

Manslaughter & Sentence: Riskiness is Aggravating

Toronto florist Felicia Hosany died a horrific death at the hands of Nevin Joseph and Andre Clarke. The two men stormed Hosany’s flower shop in the winter of 2008. They were wearing masks, and their purpose was to rob her. During the attack, Clarke bound Hosany’s entire face so tightly with duct tape that she died of suffocation.

A jury convicted Clarke of manslaughter. Dambrot J, of the Superior Court of Justice, sentenced Clarke to a global sentence of 18 years imprisonment, less pre-trial custody. Clarke appealed from both conviction and sentence: 2014 ONCA 777.

With respect to his sentence appeal, Clarke advanced two arguments.

First, Clarke argued that the trial judge erred by attributing a specific state of mind to him – recklessness as to the likelihood of death – that was at odds with the jury’s verdict of manslaughter.

Second, he argued that a sentence of 18 years was outside the typical range for manslaughter [para 15].

Concerning the first argument, Clarke submitted that the jury must have accepted only one of two facts in reaching their verdict: that Clarke either did not bind the victim, or, that he bound her, but left a hole in the duct tape for Hosany to breathe through [para 16].

The Court of Appeal rejected these submissions. At trial, Dambrot J concluded that “the circumstances of the case lead…inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing put her at risk of death – but he did not care” [para 18, emphasis added]. The Court of Appeal concluded the trial judge was permitted to make such a finding, and did not err in citing Clarke’s knowledge of the risk of death as an aggravating factor [paras 18-19].

Clarke’s acquittal from first degree murder implicitly demonstrated that the jury was not satisfied beyond a reasonable doubt that Clarke either intended to kill the victim, or that he knew that what he was doing was likely to cause death. As such, these conclusions would not have been open for the trial judge to reach [para 21].

The mens rea for manslaughter is the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required: R v Creighton (1993), 83 CCC (3d) 346 (SCC). Although a foreseeability of the risk of death is not required, such a mental state is not precluded for a manslaughter conviction [para 24]. In fact, as what occurred in this case, the foreseeability of the risk of death can be an aggravating factor in the imposition of a harsher sentence for manslaughter [para 24].

The Court of Appeal accordingly concluded that the trial judge was entitled to make such a factual finding. Further, in using the term “inexorably”, it was clear to the Court of Appeal that Dambrot J was satisfied of this factual finding beyond a reasonable doubt, as is required for aggravating factors upon sentence [para 25].

Concerning the second argument, the Court of Appeal concluded that the trial judge gave extensive and compelling reasons for the sentence imposed. While it was outside of the “normal range”, it was not demonstrably unfit. The trial judge was entitled to deviate from the range, based on circumstances that distinguished this case significantly. The offence was one of extreme gravity; Clarke was an offender of high moral culpability. There were callous, aggravating features, including the horrifying and intimidating treatment of the victim [para 31, 34 and 37].

For these reasons, Clarke’s sentence appeal was dismissed. The trial judge did not err in the crafting of his sentence. A global sentence of 18 years imprisonment, less pre-trial custody, was upheld.

SS

May the Odds be Ever in Your Favour...

Riesberry was a gambling man who wanted the odds to be ever in his favour - so he cheated. He used his position as a licensed trainer of standardbred horses to inject them with performance enhancing drugs. Riesberry was charged with criminal offences including fraud and cheating. He was acquitted. The Crown successfully appealed: 2014 ONCA 744.

The facts were as follows: on a race day in September 2010 Riesberry was caught via hidden camera injecting something into the trachea of horse at the Windsor Raceway.  The injected horse finished sixth in that race. Just over a month later Riesberry was arrested as he was heading into the Raceway grounds. A search of his truck revealed a syringe filled with performance-enhancing drugs.

Testing of the contents of the syringe revealed that it was a combination of drugs which, when not administered on a race day, are perfectly legal and have a therapeutic purpose. However, because the side effects of combination include a performance enhancing effect, administering it on race day is prohibited. Additionally, regardless of the contents of a syringe, no trainer is permitted to possess a loaded syringe at a racetrack.

Riesberry was charged with:

  1. defrauding the public of money wagered on the outcome of a horserace exceeding $5,000;
  2. cheating while playing a game with the intent to defraud members of the public engaged in wagering money on the outcome of a horserace;
  3. attempting to defraud the public of money to be wagered on the outcome of a horserace exceeding $5,000; and
  4. attempting to cheat while playing a game with the intent to defraud members of the public who would be engaged in the wagering of money on the outcome of a horserace.

The wording of these charges was of some significance at trial. The trial judge held that the use of the term “members of the public” meant that the Crown could not rely on fraud or cheating directed at other racers.

The trial judge concluded that Riesberry had injected performance enhancing drugs in to the horse in the incident captured on camera and had attempted to do the same on the day he was apprehended. The trial judge further concluded that Riesberry:

  • was not using the drug for therapeutic purposes
  • knew of the ban on syringes on race days
  • had tried to sneak a loaded syringe into the track
  • and had done the forgoing with the intent to give his horse an unfair advantage.

Notwithstanding these findings the trial judge acquitted Riesberry. On the fraud counts the trial judge found that the Crown had failed to establish a deprivation. The trial judge held that:

  • no evidence had been called about whehther any member of the betting public placed or did not place a bet because of the injection
  • the betting public did not participate in the rage, rather they only wagered on the outcome
  • the real victims, if any, would have been the participants in the race (but the indictment wasn’t particularized that way)
  • there was no evidence about the amounts of the bets on the races at issue.
  • even if the public had suffered a deprivation is was too remote

On the gaming counts the trial judge found that horseracing not a game captured by section 197 of the Code as it is a game of pure skill that does not include an element of chance.

A unanimous Ontario Court of Appeal held that horseracing bettors are in a similar position as investors:

Just as investors were entitled to rely on the accuracy of the financial statements, bettors were entitled to assume compliance with the regulatory scheme. What occurred in this case was not a minor breach or minor non-compliance with the regulatory scheme. Where there is an attempt (successful or not) to affect the outcome of a race through the use of banned performance-enhancing substances, such a significant breach of the regulatory scheme necessarily places bettors at risk of being deprived of their bets. Indeed, as the trial judge found, the very purpose of the injection was to create “an unfair advantage” for the respondent’s horse. It is obvious that a horse injected with performance-enhancing drugs could run differently than if it was not so injected; in fact, that appears to be at least part of the reason for the prohibition. @para 21

The Appellate Court found that the trial judge had also erred in finding that horseracing was not a game as contemplated by section 197 of the Code. In fact horseracing, the Court of Appeal found is precisely the type of game of mixed of skill and chance that the section provides for.

Moreover the Court gave short shrift to the trial judge’s assessment of the remoteness of the risk of deprivation, holding that:

bettors were entitled to rely on compliance with the regulatory scheme. It is no answer to say they also relied on other factors in making their bets. As the trial judge observed in this section of his reasons addressing cheating while playing a game, had they known about the doping, some bettors would likely have changed their behavior, while others would not. Thus, as a group, the betting public was deprived of information about the race that they were entitled to know; they were also deprived of an honest race run in accordance with the rules. As we said in the previous section of these reasons, in our view, the trial judge erred in law in failing to consider the regulatory scheme in relation to the issue of deprivation. @para 33

In a relatively unusual step the Court of Appeal substituted verdicts of guilt on the fraud charges. The Court of Appeal found that the trial judge had made all of the necessary findings of fact to support a conviction for fraud and attempted fraud but had used the wrong legal test in reaching his conclusion. Thus, the convictions were entered and the matter back to the trial judge for sentencing.

A different remedy however, was imposed on the cheating and gaming counts. The Court found that “while the respondent could reasonably have been convicted if the correct legal test were applied” the necessary findings of fact had not been made to enter convictions. The trial judge did not conclude that the race even met the section 197 definition of a game or whether a particular form of cheating had impacted on the game. Since these necessary findings of fact had not been made, a new trial was ordered on those counts.

LT

You've been served

Redford had a criminal blood alcohol concentration (BAC) while driving. The Crown established this by calling the qualified breath technician to testify about the breath testing procedure and results. Redford had no substantive defence for his crime, rather he argued that the Crown had not satisfied the Court beyond a reasonable doubt that they had complied with the notice requirements found at section 258(7) of the Code. The trial judge disagreed and convicted Redford who in turn successfully appealed to the summary conviction court. In a 2-1 decision the Alberta Court of Appeal restored the conviction: 2014 ABCA 336.

Section 258(7) stipulates that “no certificate shall be received into evidence … unless the party intending the produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.”

At trial the qualified breath technician testified that after completing the breath testing “he took a document containing the Certificate of Analyses and Notice of Intention to Produce Certificate, completed the portion of the document consisting of the Notice of Intention to Produce, and gave a copy of the certificate to” Redford. The breath tech handed the paperwork to Redford and explained its contents. Because Redford was facing other charges and was going to be taken into custody, the officer then took the certificate back and placed it with Redford’s other property. The officer testified that he completed a Personal Property Report where he itemized Redford’s personal effects including the certificate; Redford signed this report. The officer completed an affidavit of personal service on the back page of the certificate.

No evidence was adduced at trial about whether upon his release Redford had ever received his personal property, including the certificate.

At trial Redford argued that it had not been proven beyond a reasonable doubt that section 258(7) had been complied with.  The trial judge was satisfied on a balance of probabilities that section 258(7) had been complied with, however also indicated that if he was in error and the applicable standard of proof was beyond a reasonable doubt, he would not have been so satisfied.  The summary conviction appeal court held that the trial judge had erred in concluding that the Crown had only an evidentiary burden to meet and that the applicable standard was beyond a reasonable doubt.

The Alberta Court of Appeal framed the issues as follows: first, did the trial judge err in concluding that the standard of proof for the service of the Certificate of Analyses under section 258(7) was a balance of probabilities. Second, was that section complied with?

With respect to the first question the majority of the Court held that:

(t)he purpose of s 258(7) is to provide an accused with reasonable notice of the Crown's intention to introduce into evidence the Certificate of Analyses and to provide a copy of the certificate to the accused. The provision governs only admissibility; it does not, without more, trigger any presumption. It is purely procedural. To take the benefit of a presumption, the Crown must go on to prove compliance with the prerequisites under s 258(1)(g) and then compliance with the prerequisites under s 258(1)(c). Section 258(7) does not establish facts which trigger a presumption with respect to a vital issue relating to innocence or guilt. It is only the threshold for admissibility. @para 35.

Thus, the trial judge was correct in concluding that the burden was no higher than a balance of probabilities.

The Court then turned its attention to whether in the circumstances of this case section 258(7) had been complied with.

The Court held that the breath tech had served Redford with the Certificate and Notice when he sat down handed it to him and explained the contents. They went on to note that:

(w)hat transpires with the documents after that does not render service invalid. The law does not require the respondent to retain personal control or possession of the certificate. What is important, functionally, is that before trial, the respondent receives a copy of the certificate and reasonable notice that it will be tendered as evidence by the Crown. This requirement is to ensure that the accused can make full answer and defence. Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, [1991] 3 SCR 326.
Beyond this, the Crown has no addition evidentiary burden under s 258(7) to establish that the respondent retained the certificate in his possession for a certain period of time, or received it again after he was released from custody. To suggest otherwise is to confuse the issue of standard of proof with the legal requirements of the section, adding the requirement of possession to that of notice for some uncertain amount of time, requirements that currently do not exist. @paras 41-42

Thus, even if the trial judge had found that Redford had not been properly served at the station, so long as the Crown provided the Certificate at some reasonable point before trial (which would usually be done in the normal course of the disclosure process) the Crown would have complied with the section 258(7) requirement. 

LT

Public Interest Post-Conviction

RB was charged with two separate sets of charges related to sexual assaults. One set of charges (the first charges) related to allegations made by a three-year old complainant who was the daughter of a friend of RB's then girlfriend. The other set of charges (the second charges) related to a complainant who was four to six years old at the time of the alleged offences and was the daughter of the person he was living with.

The second set of charges came to trial first. RB was convicted. He was sentenced to 28 months. He obtained bail pending appeal.

RB was then convicted in relation to the first set of charges. in relation to those charges RB was sentenced to four years.

RB once again sought bail pending appeal: 2014 ONCA 722. 

In considering the request for bail pending appeal, the court noted the test:

  1. his appeal is not frivolous;
  2. he will surrender in accordance with the terms of the release order; and
  3. his detention is not necessary in the public interest.

The court then cited the governing principles from R v Manasseri, 2013 ONCA 647:

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 stake:  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.

The court reviewed the merits of the appeal and concluded that while it was not frivolous, it was a weak appeal. In considering the public interest the court offered the following:

In my view, as expressed above, the applicant has a weak appeal. I balance this view against the fact that the accused was convicted of serious crimes against vulnerable young children and that the applicant has received a fairly lengthy sentence.
I find that the combination of convictions for serious offences, a fairly lengthy sentence, and a weak appeal, demonstrate that the immediate enforcement of the judgement below should be of paramount concern. Therefore, the public interest balance required by Farinacci favours immediate enforcement of the sentence rather than judicial interim release. [@22-23].

The court denied the application for bail pending appeal.

DGM

When is a "bike" a motor vehicle?

Ricky Pizzacalla's legal saga appears at an end. The issue that began his legal saga was whether the "e-bike" he was operating, at time he was stopped by police, was a "motor vehicle" - something he was prohibited from operating due to an earlier impaired conviction. Pizzacalla had argued at trial that it was not a motor vehicle, in part because he did not require a licence to operate it. As noted by the Court of Appeal, that argument did not succeed at trial:

held that the device Mr. Pizzacalla was driving was not a power-assisted bicycle as, under the Highway Traffic Act, at s. 1(1), such a machine is defined, among other things, as having “affixed to it pedals that are operable” and as being “capable of being propelled solely by muscular power”.   
The device Mr. Pizzacalla was driving did have two pedals.  However, neither was operable.  One was attached to the device but not in a way that would allow the driver to propel the device by muscular power.  The other pedal was not attached to the device at all; it was in a storage compartment on the device.
The trial judge went on to find that, as the device Mr. Pizzacalla was driving was not capable of being propelled by muscular power, it fell within the definition of a “motor vehicle” in s. 2 of the Code.  A motor vehicle is defined in that section as “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment”. [@4-6].

Pizzacalla launched a summary conviction appeal and renewed his argument. That appeal was dismissed. 

Pizzacalla then sought leave to appeal to the Court of Appeal. That court dismissed his leave application: None of Mr. Pizzacalla’s arguments raise an issue of law alone.  They do not provide a basis to grant leave to appeal. [@11]: 2014 ONCA 706.

It appears that Pizzacalla's legal saga is now over. His "device" was indeed a motor vehicle within the meaning of section 2 of the Criminal Code.

DGM