Jumping to address growing recognition of gun crime

Abdiaziz Omar had a loaded 357 Taurus revolver. The police found him in possession of it, contrary to section 95 of the Code. He was carrying it around in his SUV, “concealed in a compartment under the cup holder in the centre console”. He was charged. He pleaded guilty. The sentencing judge noted, inter alia, that Omar posed “an immediate danger to the public”. Omar was sentenced to 6 years in jail. He appealed: 2015 ONCA 207.

Omar argued that the trial judge erred in his application of the “jump principle” and consideration of rehabilitative prospects. In considering this submission, the court noted the following:  (i) Omar had previously been convicted of the same offence (and other offences) for which he received a sentence of 6 and ½ months in jail; (ii) this first penitentiary sentence; (iii) Omar sought a sentence of four to five years jail.

While there were rehabilitative prospects and the sentence was a significant increase, the Court of Appeal noted that the trial judge was alive to these issues, citing the following passage from the trial judge’s reasons:

[H]owever, I think in the circumstances it may not adequately reflect the accused’s prospects for rehabilitation, particularly in light of the support of his family and friends in the community. I must also be cognizant of the ‘jump principle’. I must also consider this is Mr. Omar’s first penitentiary sentence and I must avoid imposing a crushing sentence, but a sentence still that will adequately address the paramount concerns of denunciation and deterrence.

The Court of Appeal dismissed the appeal. The trial judge made no error in principle and the sentence was fit. In conclusion the court noted that the range of fit sentences for this offence is “most significantly affected by growing judicial recognition of the reality of gun crime, as it should be” [@8].

DM

Mandatory does not mean automatic

Andrew Shia had some guns. He had some marijuana too. He kept them both in a closet. The police came to his home as a result of a domestic violence complaint. The police found the guns and the marijuana. The guns were lawfully possessed and properly stored. The marijuana was not. Shia was charged with production of marijuana and his firearms were seized. Shia pleaded guilty. He did so on the understanding that he would receive a discharge and that a section 109 firearms prohibition could not be made by the court. When he pleaded guilty no order was made. When he sought the return of his guns, however, the police refused. They did so on the basis that he was prohibited pursuant to section 109(1)(c) from possessing them. Shia appealed seeking to set aside his guilty plea: 2015 ONCA 190.

The appeal was allowed and the guilty plea was set aside. The basis for doing so was that the Crown had elected summarily and the matter was dealt with in the Ontario Court of Justice (provincial court). As Watt JA pointed out:

Production of marijuana is not an indictable offence within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction under s. 469 of the Criminal Code or an indictable offence within the absolute jurisdiction of a provincial court judge under s. 553 of the Criminal Code.
As a person charged with an indictable offence not listed in either s. 469 or s. 553 of the Criminal Code, the appellant was entitled to elect his mode of trial under s. 536(2) of the Criminal Code. He was never afforded this statutory requirement.
The presiding judge had no inherent jurisdiction to try the appellant or receive his plea of guilty. The judge’s authority to do either depended entirely on the appellant’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election meant that the provincial court judge had no authority to try the appellant or to receive his plea of guilty. [Citations omitted]; [@25-27].

While not necessary, Watt JA also made some comments on the issue of the section 109(1)(c) order. Noting that the order was mandatory, Watt JA pointed out that the presiding judge did not in fact make the order. Notwithstanding the mandatory nature of the order, the failure to make the order means that the order was not in fact in place:

Although, as I have said, it is not strictly necessary to consider the effect of the absence of a s. 109(1)(c) order to resolve this appeal, there appears to be some confusion over whether a s. 109(1)(c) order that is mandatory under the Criminal Code takes effect even if a judicial order is not made. The short answer is that no judicial order means no order. In other words, “no” means “no”.
[...]
The court record is the only authentic source from which to determine whether a s. 109(1)(c) firearms prohibition exists and can be enforced. An examination of the court record in this case would have disclosed that the presiding judge made no order under s. 109(1)(c). The fact that the order is supposed to be mandatory does not mean it applies even where there has been judicial default in ordering it. The existence of such an order depends on a judicial act, not an investigative assumption. [@34 and 38]

DM

Parity is not considered in isolation

Christopher Uniat was 18 years old. He decided to do a home invasion with some friends. He carried a shotgun with him. Once in the home Uniat held the occupants at gun point. He threatened to shoot them – the gun was in fact not loaded. Uniat was arrested and charged with robbery and conspiracy to commit robbery. He pleaded guilty to both charges. The sentencing judge imposed a sentence of 7 years jail. Uniat appealed: 2015 ONCA 197.

On appeal Uniat argued that the sentencing judge erred by failing to properly apply the principle of parity and placing too little weight on rehabilitative prospects of Uniat. Both grounds were readily rejected.

First, the principle of parity was not offended; while Uniat received a sentence in excess of his co-accused, it was warranted and his circumstances and involvement justify the departure.

The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture, irrespective of their role in the offence, their backgrounds and circumstances, and the manner in which their participation in the offences is resolved by the courts. The other principals were also youthful, but resolved their charges earlier on the basis of joint submissions. None had accumulated the impressive number of robbery convictions achieved by the appellant, or demonstrated such an unremitting unwillingness to abide by the terms of court orders or forms of release. The sentencing judge was well aware of the roles assigned to the others, their antecedents and the basis upon which their cases were resolved. The parity principle was not offended. [Emphasis added]; [@6].

Second, the sentencing judge did not lose sight of the objective of rehabilitation. Uniat’s troubling criminal past and failure under court orders undermined reliance on rehabilitation to justify a decrease in sentence.

Nor did the sentencing judge lose sight of the objective of rehabilitation. But sadly there is little positive revealed about those prospects. The appellant has proceeded with depressing regularity from one robbery to another, ignoring along the way his obligations under existing court orders. The pre-sentence report paints a bleak picture about the future. The appellant exhibits no remorse. Despite his youth, rehabilitation must occupy a secondary place in this sentencing analysis. The sentencing judge accorded it its due. [@8].

The sentence imposed by the sentencing judge, L’Oignon J, was fit and properly considered the relevant principles. The seven year sentence is significant for an 18 year old offender, but properly considered, it was warranted and just.

DM

Expecting privacy, you might have to say so

Richard Steele had a loaded, prohibited, semi-automatic handgun. He decided to take it with him when he went for a drive with his friend, White, in his mother’s car; Steele sat in the passenger seat. It was about 2 am when officer Stephens spotted the vehicle and pulled it over; the officer did so with the intention to check for proper documentation and to check on the sobriety of the driver.

Officer Stephens approached the car and asked White (who was driving) for a licence and the ownership. The car was registered to a Valarie Steele – the mother of Richard Steele. White told the officer the car belonged to a friend’s mother; there was no indication that the friend was the passenger, Richard Steele [para 7]. Steele remained silent throughout this exchange. White seemed nervous, but appeared to be cooperative. Officer Stephens offered to help him find his documentation, White accepted that offer. The other occupants were asked to step out of the vehicle and officer Stephens went to the passenger side of the vehicle and attempted to locate the documents in the glove box. Instead, officer Stephens spotted, under the seat, Steele’s loaded handgun.

Steele was arrested and charged. At trial he sought to exclude the evidence of the gun arguing that the search violated section 8. The trial judge dismissed the motion and convicted Steele. Steele appealed: 2015 ONCA 169.

Pardu J wrote the judgement for the court. Pardu J began by considering whether or not Steele had a reasonable expectation of privacy in the car. Citing R v Edwards, [1996] 1 SCR 128 and R v Belnavis, [1997] 3 SCR 341 and outlined relevant factors in this consideration; Pardu J also noted the Supreme Court’s recent consideration of this issue in R v Cole, 2012 SCC 53 and identified the “four lines of inquiry” to guide this test: "(1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances".

With those factors in mind, Pardu J concluded that Steele had no expectation of privacy:

In the circumstances of the present case, the appellant did not have a reasonable expectation of privacy in the car. The appellant was a passenger in the vehicle at the time of the search, and he was authorized by his mother, at the very least, to be a passenger in the vehicle. However, the appellant’s degree of possession or control, historical use, or ability to regulate access to the vehicle is unknown.
In general, it would be objectively reasonable for an individual using a family member’s car to have a reasonable expectation of privacy in that vehicle. Here though, the appellant did not identify himself as a person to whom the car had been loaned, and he did not indicate his connection to the vehicle’s owner. He was only a passenger in a vehicle driven by another person who claimed to have borrowed the car. Further, the police had no reason to believe that the appellant had any connection to the vehicle other than as a passenger. Moreover, the driver was attempting to produce required documentation to police, and had apparent control of the vehicle. Under these circumstances, there is no basis for a person in the appellant’s position to have subjectively expected privacy in the vehicle. [Emphasis added]; [@19-20].

Steele is a helpful case that illustrates the importance of a principled and substantive, as opposed to formulaic, consideration of the issue: see paras 16-17. In particular, despite the fact that the car belonged to Steele’s mother and she knew he had it, the absence of evidence from Steele himself (see similar comments in R v Lattif, 2015 ONSC 1580) and absence of evidence provided to the officer, in part, undermined any claim that he had a reasonable expectation of privacy at the time.

DM

Prelim Evidence Not to be “Shorn of Context”

Along with his co-accused, Jeremy Hall was committed to stand trial on a charge of second-degree murder. At the preliminary inquiry, the Crown properly established that there was circumstantial evidence upon which a trier of fact could find that it Hall's actions satisfied the elements of second-degree murder and he was committed to stand trial.

Hall sought to have his committal quashed. The Superior Court of Justice refused to do so. Hall then appealed: 2015 ONCA 198.

On appeal, he advanced two arguments. Each alleged that the preliminary inquiry judge misapprehended the evidence adduced, and drew impermissible inferences about the actus reus and mens rea of second-degree murder.

As the case for the Crown included circumstantial evidence, the Court of Appeal recalled that the preliminary inquiry judge was entitled – indeed, obliged – to engage in a limited weighing of all the evidence adduced, in order to determine if on the whole of the evidence, it would be reasonable for a properly instructed jury to infer guilt This limited weighing involves an assessment of the reasonableness of the inferences to be drawn. [See para 5, emphasis added. See also R v Arcuri, [2001] 2 SCR 828].

The Court of Appeal emphasized the importance of considering the whole of the evidence in this weighing exercise, stating:

The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be [emphasis added]. [para 6]

For these reasons, Hall’s appeal was dismissed. Whether a properly instructed jury would ultimately convict him, in the opinion of the Court of Appeal, is beside the point.

SS

Cutting No Slack on Quantum in True Crime Sentencing

Andre O’Mar Slack was sentenced to eight years imprisonment in a federal penitentiary for weapons-related offences. His convictions included the possession of a loaded restricted firearm, and the unauthorized possession of a firearm – contrary to sections 95(1) and 91(1) of the Criminal Code. His 95(1) conviction was stayed in accordance with Kienapple.

Slack appealed from sentence based on two grounds.

First, Slack argued the sentencing judge erred in failing to grant enhanced credit at the rate of 1.5:1 for pre-sentence custody.

Second, Slack argued the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Code as a “sentencing floor”, when the mandatory minimums in both R v Nur, 2013 ONCA 677 and R v Charles, 2013 ONCA 681 (both cases subsequently heard and reserved on November 7, 2014 at the Supreme Court of Canada) were held to unconstitutional [paras 5-6].

Slack’s first ground of appeal was successful. Based on Slack’s institutional conduct, the sentencing judge had declined to grant any enhanced credit for pre-sentence custody, finding that enhanced credit was not necessary to achieve a fair sanction based on the Court of Appeal’s decision in R v Summers, 2013 ONCA 147. However, the sentencing judge did not have the benefit of the Supreme Court’s decision in Summers (2014 SCC 26). Writing for the Supreme Court, Karakatsanis J outlined that pre-sentence custody is generally sufficient to give rise to the inference that the offender has lost eligibility for parole or early release, which in turn justifies enhanced credit. It falls to the Crown to challenge this inference. The Crown can advance such a challenge by demonstrating that the offender’s bad conduct renders it unlikely that parole or early release will be will be granted: see Summers, supra and R v Houlder, 2014 ONCA 372 [para 10-15].

Here, it fell to the Crown to counter the available inference. While Slack had three documented incidents of misconduct during his pre-sentence custody, the Court of Appeal concluded the sentencing judge fell into error by denying enhanced credit based solely on this evidence. Slack’s institutional record was thin, and the Crown was unable to demonstrate such misconduct would disentitle him to parole or early release. Further, the authority to deny statutory release is narrow, and unlike the regime which applies to provincially-incarcerated inmates, loss of credit towards early release is not a sanction that may be imposed for misconduct under the Corrections and Conditional Release Act (CCRA). The minor incidents which took place in pre-sentence custody did not give rise to the type of reasonable grounds required to demonstrate a denial of parole ineligibility or early release [paras 16-20].

Although the Court of Appeal set aside the sentencing judge’s determination of credit and substituted credit to be granted at 1.5:1, Slack’s second ground of appeal failed, regarding the quantum of sentence imposed.

The Court of Appeal clarified that while the mandatory minimums in Nur –three years for a first conviction under s. 95(1) – and the companion case Charles –five years for a second or subsequent conviction under s. 95(2)(a)(ii) and s. 95(1)– were both struck down, nothing in those cases displaced the developed sentencing range applicable to offenders convicted of a second or subsequent s. 95(1) offence. Both Nur and Charles affirm that offenders convicted of “truly criminal conduct” in relation to firearms offences must receive exemplary sentences that emphasize deterrence and denunciation [para 23].

Slack’s case was just that: one of true crime. It was his second s. 95(1) offence. He had a lengthy criminal record, which included convictions such as the use of an imitation firearm during the commission of a robbery, assault, trafficking in a scheduled substance, and breaching a firearm prohibition order [para 24].

Further, the Court highlighted that Slack was in unauthorized possession of loaded, restricted firearm in circumstances that posed a real and immediate danger to the public. The gun was readily accessible in an unlocked, running car; which Slack had abandoned in a public parking lot, in broad daylight. Given his serious and lengthy record, the nature of the predicate offences, and the four-year sentence received for his first s. 95(1) offence, the Court of Appeal concluded that Slack’s conduct could only be viewed as falling at the “true crime” end of the s. 95(1) spectrum discussed in Nur and Charles. The convictions cried out for a substantial penitentiary sentence [paras 25-26].

For these reasons, there was no basis to interfere with the eight year sentence imposed by the sentencing judge for the firearms-related offences. Therefore, the Appeal was only granted in part, with respect to the pre-sentence custody.

Comment

This case highlights that the impact of the Summers decision on the granting (and challenging) of enhanced credit is necessarily different depending on whether the offender is serving a provincial or federal sentence - different regimes govern early release. Still, while Slack was found to be entitled to this credit, the Court was unequivocal that the quantum of sentence imposed was justified given the “true crime” nature of both the offences, and Slack’s consistent pattern of criminal conduct. The striking down of the mandatory minimums in Nur and Charles, which the Supreme Court has yet to rule on, does nothing to negate the often serious penitentiary sentences required in cases such as these.

SS

Threats on Social Media

Social media (like Facebook and Twitter) is notorious for grand standing and narcissism. Users are criticized for posting things that put themselves in a positive light, get attention and/or boost their ego.

When a person makes a threat on social media, should the fact that it is on social media play into the Court’s assessment of whether the person had the requisite criminal intention to threaten, that is they  meant their words to be taken seriously or to intimidate? [In R v McRae, 2013 SCC 68 the Supreme Court recognized that the mens rea for threats was whether the words were “meant to intimidate or to be taken seriously”: see Dallas Mack’s blog on McRae, Did you Hear About that Threat].

This question is what the Court worked through in a 2008 case out of Newmarket called R v Sather, 2008 ONCJ 98 and a 2014 case out of Montreal called R c Le Seelleur, 2014 QCCQ 12216.  

In Sather, Mr. Dan Sather was charged with two counts of uttering threats to cause death or serious bodily harm to a CAS worker, and to members of the York Region Children’s Aid Society via his Facebook statuses between September 16, 2007 and November 22, 2007.

The Children’s Aid society had removed his newborn son from him and his wife’s custody after having received information from a doctor and a nurse that flagged concerns about their ability to care for the child. Mr. Sather admitted to posting the following on his Facebook page:

“when I find out what nurse called CAS may god have murcey on my soul cause I’m going straight to hell with a 25 yr pit stop in prison”
“Dan is gonna go suicidal bomb CAS”
“Dan is sick of all the bull shit and in the midst of planning a tacticle strike to get kyle back and disappearing off the face of the earth.”
“Dan is plan B is in full operation as of Nov. 23 first the man power was set up then the fire power is obtained now 2 weeks to find out where there keeping him.”
“Dan is scared its almost time”
“Dan is I have no son think what u will I give up” [@6].

Police were called after a CAS worker had randomly searched any references to her work on Facebook and came across Mr. Sather’s posts. Mr. Sather was not Facebook friends with any member of the York Region Children’s Aid Society.

The Court determined that the actus reus element of uttering threats was clearly made out as any reasonable person reading these words would view them as conveying a threat.

Mr. Sather was acquitted however because the Court determined that the mens rea, that is the criminal intention to intimidate or be taken seriously was not made out beyond a reasonable doubt. This finding was based in part on the Facebook expert testimony of Jesse Hirch (http://jessehirsh.ca/bio). Mr. Hirsh explained to the court how people use Facebook. He testified that:

…people who profile themselves embellish their character. They deliberately say provocative things to elicit a response from their Facebook “friends.” In a sense they construct an alternate persona [@9].

The Court further reasoned that Mr. Sather was directing his threats to people who would be sympathetic to his situation (his Facebook friends), and that he had had numerous interactions with the Children’s Aid Society and had not said or done anything that would instill fear or that could be related to his threatening posts.

In other words, he was just venting and grandstanding on Facebook and his posts should not be taken seriously.

Interestingly, despite the finding that Mr. Sather did not have the guilty intent, the Court affirmed the actions of police in arresting Mr. Sather for his postings stating that the response was both “necessary and appropriate” [@11].

In Le Seelleur the Court took a different approach. Unlike Mr. Sather’s case, no consideration was given by the Court to the social media context of the threat uttered by Ms. Le Seelleur.

Ms. Le Seelleur in a moment of frustration following a news story about the Prime Minister of Quebec took to her twitter account and posted “Good get the bitch out of there before I bomb her” [@2].

According to Ms. Le Seelleur she was frustrated and angry about things the Prime Minister was doing and tweeted the comment to her 100 or so followers with little thought to any possible consequences. She said she really did not think about it again until the police called.

The Court believed her when she testified that she was regretted the tweet and that she was never going to follow through on her threat. However the Court did determine that she meant her words to be taken seriously and to intimidate, and Ms. Le Seelleur was found guilty. In its reasoning the Court states:

Concerning the fault element, the evidence establishes that the accused had a full operating mind when she uttered those words. She posted her tweet right after reading the CTV article that mentioned that the Prime Minister was ready to call an election. She knew that she had more than a hundred followers at the time. In her testimony, she admits that she was frustrated and angry concerning a variety of decision or positions taken by the Prime Minister during that period. Although she claims that she wrote the post “without thinking clearly” and “without meaning what was written,” it is clear from the evidence that it came from an operating mind that was angry and frustrated. Her frustration was unmistakably vocalized in a serious threatening and intimidating manner. Although it might have been written in a “split second”, it was still a conscious act which was clearly intimidating and threatening [@10].

There was no twitter expert called at Ms. Le Seelleur’s trial.

There is nothing in Canadian law that states that threats posted on social media accounts should be treated any differently than things said in person or on the phone.

The typed word does not leave much wiggle room for alternative interpretations; in most cases it will be difficult for a person to convince a Judge or jury that they did not mean what they posted in a social media context to be taken seriously or to intimidate.

AL

The line between trier and advocate

Timothy Bornyk was charged with break and enter. The police had discovered a fingerprint in the study of a home [latent print] where there had been a break and enter. An expert in fingerprint identification and comparison testified that the print matched Bornyk’s prints [known print]. Notwithstanding this evidence, the trial judge acquitted Bornyk: 2013 BCSC 1927. In doing so the trial judge, inter alia, did his own research, reviewing and then relying upon, some academic articles on fingerprints analysis and did his own comparison of the latent and known prints. The Crown appealed. The British Columbia Court of Appeal allowed that appeal: 2015 BCCA 28.

The issues that were discussed on appeal began at the conclusion of the trial. The trial judge sent counsel a memorandum listing four articles which were critical of fingerprint identification analysis and asked counsel to make further submissions. Crown counsel subsequently sent three additional articles to the trial judge. Oral submissions were later offered by both Crown and defence.

With respect to the articles, the Crown argued that the issues raised therein had no application to the evidence in the present case. The Crown also argued that the articles were not properly evidence and should not be considered [@3].

The Crown also opposed the suggestion that the trial judge could assess the known and latent prints himself and identify differences that undermine the identification made by the expert witness.

The expert was never recalled. The articles were not marked as exhibits.

The trial judge acquitted Bornyk. In doing so he referred to and quoted certain portions of the articles. He further undertook his own comparison of the prints, based on submissions of defence:

In argument, defence counsel noted unexplained discrepancies between the latent and the known fingerprints. Of particular note, in the area of the latent fingerprint stated to be of “low tolerance” and “extremely reliable”, two gaps on the latent fingerprint are not visible on the known fingerprint.
If one goes to the ridge immediately to the left of the respective red dots marking the centre of the delta on the latent and the known fingerprints and traces a line towards the top of the page, on the known fingerprint there is a continuous ridge, whereas on the latent fingerprint there is a gap, a further ridge, another gap, and then a further ridge. [Emphasis added]; [@55-56].

These two approaches, the Crown said, were wrong in law. The Court of Appeal agreed.

With respect to referencing the articles, the Court began by noting that it is “basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken” [@8]: see R v RSM, 1999 BCCA 218 at para 20; R v Cloutier, 2011 ONCA 484.

In this case the articles, which offered opinions on fingerprint analysis, were “not matters of which the judge could take judicial notice. It is axiomatic that it was not open to the judge to embark on his independent investigation” [@10]. The Court continued:

By his actions, the judge stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of “advocate, witness and judge”. [@11].

The trial judge further erred when he considered the fruits of his investigation.

Not the least of the problems with the approach adopted by the judge is it opened the door to a mistaken comprehension and application of the information in the articles even if in the field of fingerprint analysis they would be considered authoritative and applicable to procedures employed in this case, an assumption not established in the evidence.
[…]
It is clear from the reasons for judgment that the articles had a material bearing on the acquittal as the judge relied upon them to find that the fingerprint identification was not reliable. Most of the “troubling aspects” he identified were not put to the expert witness, and appear to respond to the articles he located. [@14 and 16]

With respect to the comparison of the fingerprints done by the trial judge, the court found that to be in error as well.

The very point of having an expert witness in a technical area, here fingerprint analysis, is that the specialized field requires elucidation in order for the court to form a correct judgment: Kelliher (Village) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.
The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. On this basis alone, also, I would set aside the verdict. [@18-19].

Bornyk is an important and helpful decision. In overturning the acquittal, the Court of Appeal has recognized some very critical and principled points about the role of a trial judge and the treatment of expert evidence.

First, the Court recognized that the trial judge must limit his consideration to the evidence before the court.

Second, the Court recognized that “expert” consideration of the evidence must be done by the expert.

While it is fair to say that expert opinion evidence should be analyzed critically and may need to be considered carefully, Bornyk illustrates that such analysis and consideration must be done properly; triers of fact are limited to a consideration of the evidence available to them.

DM

What's in a name?

SH and MH were the parents of a young girl M. She died. They failed to provide the necessaries of life and were convicted of manslaughter. During the trial an order prohibiting the publication of the names of and any other information that would tend to identify M’s surviving siblings, was granted. That order included the surname H, which was a rather uncommon name.

In seeking the initial publication ban the Crown argued that the stigma of the parents’ conviction would follow the surviving children for the rest of their lives.

The Toronto Star applied to vary or set aside a publication ban. The Crown consented that the order could be narrowed to prohibit only the names of the surviving siblings and allow for the publication of the names of the victim and the offenders.

The Court appointed amicus curiae, Justice for Children and Youth, in order to make submissions in support of the original broad ban: 2015 CarswellOnt 821 (SC)

In support of the application amicus filed an affidavit highlighting the uniqueness of the family surname.

The Toronto Star in turn filed an affidavit, which cited examples of six reported cases in Toronto newspapers where the names of parents convicted in the deaths of their children were published but the names of surviving siblings were not. In some of those cases the surnames were rather uncommon.

Sproat J first considered the applicable legal framework under the Dagenais-Mentuck test.

Turning to the first step of the test Sproat J considered whether the publication ban is necessary to prevent a serious risk to the proper administration of justice or the protection of a public interest @para 19.

The Court accepted that both provincial and federal legislation provides for the restriction of publication of the names of those under 18. For example the Child and Family Services Act prohibits naming those involved in child protection proceedings. Similarly the Code prohibits naming young persons who are charged with or victims of Criminal Code offences.

It was also accepted by the court that the surviving siblings in this case met the definition of victims and would “fall within the class of persons entitled to provide a victim impact statement at a sentencing hearing.” @para 21

In assessing whether the public interest could only be addresses by a publication ban:

the reality is that the surviving siblings have suffered the death of their sibling and are now, or will become, aware that both their parents were criminally responsible for the death. A significant number of people must already know the identities of all concerned. This no doubt includes some family, friends, neighbours, teachers and health care professionals. The death of a sister, particularly given the culpability of the parents, will no doubt cause "dreadfully painful times" for the surviving siblings. That is the baseline. Nothing a publication ban can do will change that. @para 23

Thus, the Court concluded at the first stage that the publication ban was not necessary to prevent a serious risk to public harm. Notwithstanding this finding the Court went on to consider the second stage of the test.

At the second stage of the test the Court considered the effect of this type of litigation based on how common and uncommon a name is would be:

fertile ground for experts and litigation over just how common or uncommon a surname is; over what geographic area names should be compared; and to what extent should similar sounding but differently spelled surnames be considered. As a practical matter litigating publication bans, particularly if experts are required, will tend to mean that the affluent are much more likely to be able to shelter under publication bans. @para 40

Taking an approach that would be minimally impairing on the open court principle the Court noted that the public would have a significant interest in the names of convicted offenders, particularly those guilty of homicide. In contrast, citizens would have a minimal interest in the name of a victim. @para 41.

As such the Court accepted what was effectively the joint submission of Crown and media for the narrowed publication ban where the names of the surviving siblings would remain protected. 

LT

Pop Bottles, Pizza Boxes, and Powerful DNA: R v Mufuta

Muamba Mufuta was caught peering down at an unsuspecting woman in a bathroom stall. The only issue at trial was identity. He did not testify at his trial. His sole ground of appeal was whether the verdict was unreasonable: 2015 ONCA 50.

The complainant could not identify the perpetrator, other than by providing a generic description of him as being black with a shaved head. Shortly before the incident occurred, three black men entered the restaurant and ordered food and drinks. They all fit the general description of the voyeur: para 4-5.

After the incident, police seized a partially full bottle of pop from the top of the toilet tank in the washroom stall where the victim had seen the perpetrator. On subsequent testing, the appellant’s DNA was identified and found on the mouth of the pop bottle. A DNA expert testified at trial that forensic examination of the bottle yielded only a single source of DNA. She also testified that Mufuta was the last person to drink from the bottle: paras 6-7.

The restaurant washrooms were cleaned daily, and so the bottle would have been placed there sometime on the day in question. Only one of three scenarios could have occurred: Mufuta was the voyeur, Mufuta left the pop bottle in the bathroom earlier that day, or another man, of similar appearance, carried the pop bottle into the washroom and committed the offence. The trial judge concluded that the latter two scenarios were speculative, unlikely, and totally lacking in evidentiary support: paras 12-13.

On appeal, Mufuta primarily relied on R v Mars, (2006) 206 OAC 387 and R v Wills, 2014 ONCA 178, to argue that the DNA evidence, standing alone, was not capable of supporting the inference that he was the man who was the man seen by the complainant. Further, he argued that the trial judge erred in presuming that the mere presence of his DNA on the pop bottle was highly inculpatory: para 21.

The Court of Appeal upheld the trial judge’s decision.  The Court found Mufuta was understating the significance of the presence on DNA, and that it was a powerful piece of evidence linking him to the scene of the crime. Further, while it was the centrepiece of the Crown’s case on identification, it did not stand alone: para 24.

The Court went on to distinguish the case at bar from both Mars and Wills, commenting that their reference was misplaced.

In Mars, the victim heard a knock at his door and observed an unmasked man holding a pizza box. When he opened the door to decline the pizza, three men swarmed into the house. The victim could not identify the man holding the box, but a neighbour saw “three black youths” running away from the house. The pizza box contained three fingerprints, one of which matched that of Mars. However, at trial, it was established that the date of the fingerprint was indeterminable, and that because Mars was white, the neighbour’s evidence effectively excluded him as one of the robbers: paras 28- 32.

In Wills, two men wearing bandannas forcibly entered a home. One of the men attacked one of the occupants with a baton. During the attack, the victim pulled a white bandanna from the assailant’s face. The police later found the white bandanna, and upon testing, the DNA of at least three people was found on it. At trial, a DNA expert testified they were unable to estimate how long the DNA had been on the bandanna, and that it was also possible no DNA could have been left behind by the intruder wearing it. The home occupants could not identify their attackers. While the Court concluded that the inference it was Wills who wore the bandanna could not be based exclusively on the DNA evidence, the inference of guilt was otherwise supported on the facts. Unlike in Mars, there was also no exculpatory description of the assailants: paras 33-39.

After reviewing these cases, the Court concluded that the fact that only Mufuta’s DNA was found on the pop bottle increased the probative force of the DNA evidence, connected him to the scene of the crime, and supported the inference that he left the bottle in the washroom. It also rendered less reasonable any inference that someone other than Mufuta used the pop bottle: para 40.

Further, in contrast to both Mars and Wills, there was evidence that supported the inference that the DNA had been deposited around the time of the offence:

  • Mufuta was the last person to drink from the bottle.
  • The bottle was part-full, suggesting recent deposit of the DNA.
  • Given the washroom cleaning schedule, it had to have been left in the washroom that day.
  • The pop bottle was in the women’s washroom, a place Mufuta had no right to be.
  • The bottle was found in the exact stall used by the voyeur [para 41].

The Court found the case to be analogous to the decisions of R v Dewar, 2003 CanLII 48229 (ONCA) and R v Gauthier, 2009 BCCA 24. In Dewar, a pop bottle was found with the accused’s DNA on it, along with his co-accused. The co-accused pled guilty. There was no innocent explanation for the presence of Dewar’s DNA on the bottle in the manager’s office of a burglarized shop. In conjunction with the other facts in Dewar, the trial judge’s reasoning was not speculative and the verdict was not unreasonable: paras 43-44.

In Gauthier, the accused advanced only speculative exculpatory hypotheses for how a beer bottle with his fingerprint on it was found on the victim’s bed. Again, in conjunction with the other available evidence, the only reasonable explanation was that Gauthier had been the intruder: paras 45-46.

Ultimately, the Court of Appeal found that the trial judge expressly considered whether Mufuta’s guilt was the only reasonable inference to be drawn from the facts established on the whole of the evidence: R v Cooper, [1978] 1 SCR 860. There was no basis to interfere with the trial judge’s conclusion. On the totality of the evidence, there was no evidentiary foundation for any explanation of the presence of a partially-consumed pop bottle, bearing Mufuta’s DNA, in the exact washroom stall used by the perpetrator, other than that he was the voyeur. Mufuta’s appeal was dismissed.

SS