Drug Recognition Experts are Experts

Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complex  and struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. In doing so, the court offered the following points.

First, contrary to the submission of Bingley (via his counsel Mr Brown) section 254(3.1) is not simply a procedure provision that serves only as a precondition to the making of a demand under 254(3.4).

Had Parliament intended the DRE’s evaluation under s. 254(3.1) to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4), it could have said so expressly. [@39].

In so concluding, the court noted that 254(3.4) is permissive, not mandatory. It follows that it would be illogical and incongruous to interpret 254(3.1) as merely a procedure step toward the obtainment of a biological sample under 254(3.4) when the latter is not mandatory.

Second, the statutory construct of 254(3.1) and related provisions makes it clear that an “evaluating officer” is permitted to provide an opinion on impairment.

Based on a plain reading of s. 254(3.1) of the Criminal Code, it is my view that DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations. [@44]

The court continued:

By requiring the DRE “to determine” whether the driver is drug-impaired, s. 254(3.1) requires the DRE to reach a conclusion – that is, to form an opinion – as to impairment. It is implicit that the DRE opinion evidence as to impairment is admissible without the need for a Mohan voir dire, and that the court may consider that opinion evidence when determining whether the offence has been made out. No further statutory provision is required for the DRE opinion evidence to be admitted. This conclusion flows from the wording of s. 254(3.1) and is harmonious with the object and scheme of the legislative provisions and Parliament’s intention.
The detailed scheme in the relevant legislative provisions and the Regulations provides further support for this conclusion. Not all peace officers are entitled to perform drug evaluations under s. 254(3.1). Instead, only peace officers “who [are] qualified under the [R]egulations” are allowed to perform the evaluations (s. 254(1)). Under s. 1 of the Regulations, the evaluating officer “must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.” Furthermore, s. 3 of the Regulations specifies precisely which tests the DRE must perform in conducting the evaluation under s. 254(3.1). By creating this detailed regulatory regime, Parliament has shown that it is satisfied of the science underlying the drug evaluations. [@47-48].

In short, the Court of Appeal concluded that once it is established that an officer is an “evaluating officer” – who by definition is a drug recognition expert – that officer is permitted – on the basis of an evaluation and other evidence – to provide an opinion on whether an accused is impaired by drug.

Bingley is a significant decision. It is the first Court of Appeal ruling on this point in Canada. It is in line with a recent trend in Ontario accepting this approach: see R v Lecomte, 2014 CarswellOnt 10127 @11-13 (CJ); R v Dejesus, 2014 ONCJ 489 @7-9; R v Oum, 2014, ONSC 5131 @14-27.

Bingley also stands as a clear and unequivocal rejection of the argument that a Mohan voir dire is necessary to allow an evaluating officer to provide such an opinion – an argument advanced by Bingley (at both trials) and one accepted by other lower courts.

DM

Every St Cloud has a silver lining

St Cloud, along with two others, was alleged to have been the perpetrator of a violent and vicious assault against a City of Montreal bus driver. The incident was video recorded by the onboard surveillance system. Notwithstanding the intervention of passengers the attack continued- the driver was left with serious long-term injuries.

St Cloud sought bail. The Crown bore the onus. At the time of the initial bail hearing the medical prognosis for the victim was uncertain- he remained in hospital. The bail hearing Judge found that the Crown had discharged their onus on the secondary ground but nonetheless went on to consider whether detention was warranted on the tertiary ground.

The bail hearing judge explained that the tertiary ground “calls for an analysis of whether, at the end of the day, after all the circumstances are considered ... there is a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration of justice.” [@para 13]

The bail hearing judge concluded in light of the videotape and all of the circumstances a public who is well-informed, dispassionate and reasonable would conclude that St Cloud’s detention was warranted on the tertiary ground.

At the conclusion of the preliminary hearing St Cloud made a renewed bid for his release.  The preliminary hearing judge concluded that in order to hear the application St Cloud first had to demonstrate a material change in circumstance- the judge accepted that a new release plan financially backed by the accused’s parents and the possibility of employment were sufficient for the Court to consider the application.

The preliminary hearing judge concluded that the new plan reduced the applicant’s risk of re-offending however on the tertiary ground the court concluded that the initial bail hearing judge was correct to detain on the basis that releasing St Cloud would erode the public’s confidence in the administration of justice. [@para 18]

St. Cloud applied pursuant to section 520 of the Code to the Superior Court for a review of the preliminary hearing judge’s denial of bail. Martin J concluded that both the initial bail hearing judge and the preliminary hearing judge had erred in their interpretation of the tertiary ground as they failed to consider that the crime although “repugnant, heinous and unjustifiable” was in fact explainable. [@para 23]

The Crown appealed: 2015 SCC 27 and the Supreme Court of Canada reviewed the correct approach to the tertiary ground for the first time the high court’s decision in R v Hall, 2002 SCC 64.

Wagner J writing for the Court first reviewed R v Hall and noted three significant areas of misinterpretation which have emerged in the jurisprudence post-Hall.

First, the facts in Hall were of a particularly heinous crime. A murder of a young woman who sustained 37 slash wounds during her attack.  The tertiary however does not require that the crime be heinous or horrific in order for the accused to be detained. In fact as Wagner J explained of Hall, “[t]he Court’s description of the crime as horrific, heinous and unexplained was simply an observation, a description of the facts considered by the Court in its analysis of s. 515(10) (c) Cr.C. It cannot be read as imposing conditions or prerequisites.” [@para 46]

Second, the Court in Hall referred to the crime as unexplained. This was of course a mere statement of fact about the circumstances of the case and not as Wagner J explained in St Cloud a criterion to be considered in applying the tertiary ground.

In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c). Apart from the fact that the provision itself does not even refer to such a criterion, I consider the concept ambiguous and confusing. What is meant by an “unexplainable” crime? Is it a crime against a random victim? A crime that could be committed only by a person who is not rational? An especially horrific crime?
Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant was provoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable” crime criterion is of little assistance. [@paras 47-48]

Third, the infrequent application of the tertiary ground as a basis for detention is not a precondition to its application. As Wagner J explained, it is a consequence not a condition precedent.

I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice. How would such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in the last year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10) (c) will remain “rare” if they order detention in the cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the case before him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a “rareness” of circumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examination of the circumstances of individual cases that the situation requires. In my opinion, a comparative approach such as this could potentially undermine the public’s confidence in the administration of justice. [@para 52]

The Court then helpfully summarized the principles that must guide courts in applying the tertiary ground:

  • Section 515(10) (c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.
  • Section 515(10) (c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
  • The four circumstances listed in s. 515(10) (c) Cr.C. are not exhaustive.
  • A court must not order detention automatically even where the four listed circumstances support such a result.
  • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
  • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
  • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. 
  • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10) (c).
  • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter  values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
  • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [@para 87]

In light of the principles articulated above and the Superior Court’s erroneous reliance on the ‘explainable’ nature of the crime, the Court concluded that detention order should be restored.

LT

Book Review: Sing a Worried Song

Sing a Worried Song; An Arthur Beauchamp Novel; by William Deverell; ECW Press, Toronto, 2015

Imagine my joy! I am headed to the train station to attend a continuing education conference in Toronto and decide to pop into my local library to see if any new books are of interest. As I enter, the librarian states: “we have a new Deverell … are you interested?”  It is the equivalent of asking whether I enjoy the trials of Rumpole, the detective works featuring Armand Gamache, John Rebus and Harry Hole, leaving aside Commissaire Maigret and Tintin!  It is the latest courtroom adventure of Arthur Beauchamp (pronounced Beechum), who has defended with passion and zeal alleged terrorists from an Asian country with a name no one can pronounce to the more typical sorts of accusations known to Canadian justice, but involving far from common individuals, often by quoting Latin sages and sacrificing his vanity whilst avoiding alcohol, save for those times when he has not been able to resist temptation…

For those familiar with the many signal writings of Willam Deverell, a celebrated barrister in his own right with an impressive history of advancing civil rights claims prior to the Charter, and since, I need do little more than to state that he is well known for his quirky characters and unforeseen endings; to know this author is reason enough to order this latest soon-to-be bestseller.  For readers of French, Yves Beauchemin comes to mind in terms of the unusual “personnages” and fascinating endings penned by Deverell. That being said, the correct words fail me as I attempt to summarize the forensic acumen and the bedroom debacles of this endearing Queen’s Counsel for those not yet privileged to have read one of the prior books in this well received series.  Allow me to say that each chapter is captivating by reason of the depth of the study of human nature on display and the breadth of the circumstantial attacks on the law’s many illogical requirements and expectations. 

I hasten to add that this volume is of particular interest to Crown counsel as Beauchamp leaves aside his typical brief on behalf of the accused in order to prosecute a well to do graduate student charged with the apparent “thrill kill” of a street clown.  The action begins some twenty five years previously, to then leap forward as we encounter our hero, attempting to enjoy retirement on his island of repose, together with a cast of neighbours that call forth the best of Hogan’s Heroes, Papillon, the Keystone Cops and Bob Morane and Bill Ballantine.  Deverell adds a few trips to Vancouver, including voyages to the past, to expose the antics and outrageous conduct of the Bench and Bar. 

Based on a trial William Deverell was engaged in on behalf of the Crown, Sing a Worried Song contains not only the captivating trial scenes one expects from so experienced an advocate but the gripping and suspenseful writing of one who has spent four decades honing his craft.  This book is full of lessons for all counsel engaged in criminal litigation, not least in terms of the dangers attendant upon high-stakes litigation fuelled by stimulants of all kinds.  It is especially useful for prosecutors as we see the dangers of overreaching, of ego and of allowing the thrill of the “hunt” to potentially obscure the ethical boundaries of the fair and just presentation of evidence.  In the end, Deverell makes plain that the road to justice is chalk full of potential pitfalls while entertaining his readers at every turn of the page.  It should be required reading at this summer’s Crown School.

Gilles Renaud, Ontario Court of Justice

Parity does not mean Equal

Sahota participated in a prison riot. He was part of a group that attacked another smaller (in numbers) group at the Joyceville Prison. Ultimately, the attack focused on a single victim who was beaten severely. Sahota’s involvement in the attack was viscous and “substantially in excess of anything done or even attempted by the other inmates” [@para 2].

Sahota participated in the initial attack, he then returned to the victim who lay bloody and unconscious on the floor. Armed with a pool cue, Sahota speared the victim in the groin. He pulled down the victim’s pants and speared him again in the genitals with the pool cue. He spat on the victim and stomped on him before leaving the room [@para 3].

Sahota was charged with attempted murder but plead guilty to the lesser and included offence of aggravated assault. The Crown sought a sentence of 8 to 10 years; the defence sought a term of imprisonment of 3 ½ to 5 years. The sentencing judge imposed a sentence of 7½ years less 45 days of pre-sentence custody. Sahota appealed: 2015 ONCA 336

The sentencing judge had heard and sentenced the other offenders involved in the attack. Sahota argued that the sentencing judge failed to properly apply the principle of parity  as required by section 718.2(b) of the Code.

In dismissing the appeal the Court held that “this principle is one of parity, not equivalence” [@para 6].  The Court explained that “the principle of parity means that any disparity between sentences for different offenders in a common venture requires justification” [@para 7]. In this case the actions of the offender in returning to the room, delivering blows to the unconscious and injured victim, and spitting on the victim clearly set this offender apart. The fact that the other offenders were sentenced on the basis of joint submissions:

did not compel [the sentencing judge] to impose an equivalent or near equivalent sentence on the appellant for an offence that reflected a significantly greater degree of  moral blameworthiness. [@para 8]

Before concluding the Court of Appeal noted that:

it was not inappropriate for a trial judge to consider that a guilty plea in the face of an overwhelming case may not be accorded the same weight as one in which an accused pleads guilty and gives of significant litigable issues. [@para 9]

In Sahota’s case the evidence of his involvement was overwhelming, whereas the identity of the individuals who participated in the initial attack was less clear and as the Court of Appeal put it each of them “may have challenged the Crown’s case on identification.”  [@para 9]

LT

Less than Malicious Prosecutions

Section 24(1) of the Charter allows for the award of damages for Charter breaches. “Damages are a powerful tool that can provide a meaningful response to rights violations” [@para 35]. This general principle has been a long standing reality and not a terribly surprising one given that section 24(1) allows for any remedy that “the court considers appropriate in the circumstances.” The precise question before the Supreme Court of Canada in Henry, however, was a new one: can damages be awarded to a claimant who establishes prosecutorial misconduct that falls short of malicious. The short answer is yes, in rare circumstances: R v Henry, 2015 SCC 24

The majority of the Court however noted that they were treading into new territory and that they should do so cautiously. Damages, they opined “represent an evolving area of the law and must be allowed to develop incrementally.”[@para 35]

In 1983 Henry was convicted of 10 sexual assaults; he was convicted and sentenced to an indeterminate period of incarceration as a dangerous offender. He was incarcerated for 27years before the British Columbia Court of Appeal quashed all 10 convictions finding serious errors in the conduct of the trial. [@para 1]

Following his release from prison Henry launched a civil action against the City of Vancouver, the Attorney General of BC and the Attorney General of Canada. With respect to the provincial AG Henry sought damages on the basis that the Crown “should be held liable for its failure- before, during and after his criminal trial – to meet its disclosure obligations under the Charter.” [@para 2]

Initially Henry’s pleadings claimed that the prosecutorial conduct was malicious and sought the damages on that basis. Those pleadings were amended to also seek an award for prosecutorial misconduct that fell short of malice.

The Supreme Court of Canada offered four reasons why the maliciousness standard was ill suited as a threshold for damage claims arising out of wrongful non-disclosure. First, the malice standard is deeply embedded in the tort of malicious prosecution, which of course has a distinct history and objective. Second, malice requires that application judge make a finding of improper purpose. The Court noted that this line of inquiry is entirely appropriate for highly discretionary prosecutorial decisions. However, disclosure is not subject to prosecutorial discretion it is a constitutionally protected right and thus obligation of the Crown. Third, disclosure is not an exercise in core prosecutorial discretion so the onerous threshold of malice is unnecessary. Fourth, a purposive interpretation of section 24(1) does not favour the malice standard.

Moldaver J writing for the majority of the Court held that notwithstanding the fact that the malice standard does not apply in cases of wrongful non-disclosure the departure to a lesser standard is still very high. It must be a high standard because to do otherwise would be to expose “prosecutors to an unprecedented scope of liability that would affect the exercise of their vital public function.” [@para 78]

With this in mind the majority concluded that in a case of wrongful non-disclosure:

[t]here is no inquiry into the Crown’s motive or purpose, which are concepts better-suited to cases where the exercise of core prosecutorial discretion is challenged. Rather, the focus is on two key elements: the prosecutor’s intent, and his or her actual or imputed knowledge. Specifically, a cause of action will lie against the state — subject to proof of causation — where a prosecutor breaches an accused’s Charter rights by intentionally withholding information when he or she knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence. [@para 84]

The majority further held that:

Whether considered at the pleadings stage or at trial, the same formulation of the test applies. At trial, a claimant would have to convince the fact finder on a balance of probabilities that (1) the prosecutor intentionally withheld information; (2) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter  rights; and (4) he or she suffered harm as a result. To withstand a motion to strike, a claimant would only need to plead facts which, taken as true, would be sufficient to support a finding on each of these elements.[@para 85]

This approach to the appropriate threshold, less than malice in cases of wrongful non-disclosure, is consistent with the Court’s cautionary words at the outset of the decision:

Charter  damages are a powerful tool that can provide a meaningful response to rights violations. They also represent an evolving area of the law that must be allowed to “develop incrementally” [@para 35]

Less than malicious exercises of prosecutorial power will rarely be cause for damages. In fact, the standard in Henry was incrementally expanded short of malice to accommodate a scenario where the prosecutors failed to discharge a duty for which there exists no discretion. 

LT

Grossly disproportionate, for someone at least

Guns are dangerous weapons. Crime perpetrated with a firearm “poses grave danger to Canadians. [@para 1] It might surprise you to learn, that despite this risk of grave harm identified by the Supreme Court of Canada, today, that very Court struck down the mandatory minimum sentences for the possession of a prohibited or restricted firearm: 2015 SCC 15.

Six Supreme Court judges struck down the mandatory minimum sentences which were imposed for possessing a prohibited or restricted firearm that is either loaded or kept wit readily accessible ammunition. For a first offence the offender would serve 3years; a second offence 5years. The dissenting three judges found that these mandatory minimums did not offend section 12 of the Charter.

The majority of the SCC commenced their analysis from the starting point that “mandatory minimum sentences, by their very nature have the potential to depart from the principle of proportionality in sentencing.” [@para 44] Mandatory minimum sentences they held “function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.” [@para 44]

An analysis of a punishment under section 12 requires the court to consider first, whether the sentence is grossly disproportionate as applied to the individual offender before the court (the particularized inquiry). Second, the court must consider whether the impugned sentence “may impact on third parties in reasonably foreseeable situations.” [@para 56]

The introduction of the phrase “reasonably foreseeable situations” as a synonym of the term “reasonable hypothetical” is a direct response to the majority’s view that:

the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. [@para 57]

The question that the court must ask, regardless of the terminology is “whether the sentence would be grossly disproportionate in reasonably foreseeable cases.” [@para 57]

In determining what is a reasonably foreseeable circumstance the court can look to reported cases. “Not only is the situation in a reported case reasonably foreseeable, it has happened.”[@para 72] However, the court is not prevented from looking to reasonably foreseeable scenarios not found in reported cases.

In crafting a reasonable hypothetical or in determining whether a particular set of circumstances is reasonably foreseeable the role that the personal characteristics of the offender should play has been widely debated. On one end of the spectrum it has been argued that such “consideration must be generalized to the point where all personal characteristics are excluded”. On the other end, some “assert that any and all characteristics should be included.” [@para 73]

The majority concluded that first, “personal circumstances cannot be entirely excluded.” However, by way of example on what constitutes a personal circumstance the majority offered the following:

For example, as we will see in applying the test to this case, it may be relevant to look at the fact that an offender at the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition. [@para 74]

This type of example relates to the level or type of intent as opposed to what is traditionally understood as personal characteristics. In other words, the personal circumstances such as age, prior criminal record, socio-economic status, are not what the court is referring to. This distinction is important because it illustrates that only personal circumstances related to the offences are what may be considered.

Moreover, this distinction ties into the second conclusion the court draws on this point:

(…) far-fetched or remotely imaginable examples should be excluded from consideration. This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality. To repeat, the inquiry must be grounded in common sense and experience. [@para 75]

The two offenders before the Court, Charles and Nur, did not argue that the mandatory minimum terms were grossly disproportionate as applied to them [@para 48].  Charles was arrested at his home with a loaded semi-automatic handgun and ammunition. The gun had an over-capacity magazine and the serial number had been removed. Charles had a serious and lengthy criminal record which included 5 other firearms offences. [@paras 28-29] Charles was thus subject to the 5year mandatory minimum.

Nur was arrested outside a community centre in a high crime area of Toronto. The centre had been locked down as a result of concerns about the presence of some threatening looking individuals outside. When police arrived Nur ran and threw something to the ground. Police caught Nur and retrieved the discarded item which turned out to be a loaded handgun with an oversized ammunition clip. [@para 18] Nur as a first offender was subject to the 3year mandatory minimum.

The reasonably foreseeable circumstances prevailed. The Court held that it was entirely possible for an individual who had breached a firearm prohibition order imposed while on bail and who, some years later, innocently came into possession of a restricted or prohibited firearm without an authorization or a license together with usable ammunition that he stored nearby and which was readily accessible.” [@para 103]

On this basis the Court concluded that:

A five-year minimum term of imprisonment for offenders such as these would be draconian. It goes far beyond what is necessary in order to protect the public, far beyond what is necessary to express moral condemnation of the offender, and far beyond what is necessary to discourage others from engaging in such conduct. In a phrase, such a sentence would be grossly disproportionate. An offender in these circumstances has not caused any harm, nor is there a real risk of harm to the public. Such an offender is not engaged in any criminal activity. [@para 104]

Similarly a first time offender “who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house” would face a 3year sentence [@para 79]. The majority found that

[g]iven the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. [@para 83]

Having found a breach of section 12 the majority then conducted an analysis under section 1 of the Charter to determine whether the breach was justifiable in our free and democratic society. They concluded that it was not.

Notwithstanding the finding that the section 95 mandatory minimum sentences are of no force and effect the majority reminded us that:

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. [@para 120]

LT

Tinker: The Answer, for now

Edward Tinker was convicted of uttering threats and breach. He decided to challenge the constitutional validity of the victim surcharge, a mandatory order to be imposed under section 737 of the Code. Tinker challenged the surcharge under sections 7 and 12 of the Charter. At the first instance motion, Beninger J drew the following conclusions: 2014 ONCJ 208.

First, that the surcharge is a form of punishment [@para16]. In so concluding, Beninger J adopted the analysis by Schnall J in R v Flaro, 2014 ONCJ 2.

Second, that the surcharge impacts on security of the person. In coming to this conclusion, Beninger J rejected the Crown’s position that granting time to pay relieves against this impact [@paras20-21].

Third, that the surcharge infringes on security of the person in a manner that is not in accordance with the principles of fundamental justice; it is “arbitrary, overreaching, and grossly disproportionate” [@para34]. In coming to that conclusion, Beninger J reviewed the law on section 7, relying primarily on Canada (Attorney General) v Bedford, 2013 SCC 72. Notably, in relation to gross disproportionality, Beninger J set out the test from R v Nur, 2013 ONCA 677 (a test set out in that case under the section 12 analysis).

The Crown appealed: 2015 ONSC 2284.

On appeal, Glass J rejected the conclusions that the surcharge was punishment and held that it did not violate the principles of fundamental justice in section 7.

First, Glass J held that the surcharge is not punishment. Glass J held that the surcharge was not a sanction in its own right, “[r]ather, the surcharge is a sum of money that goes into a pool of resources to help victims of crime. Just as there are requirements for providing DNA samples upon conviction of offences and they are not sanctions, so do victim surcharges become requirements without being penalties” [@para29].

Second, Glass J held that the surcharge is not grossly disproportionate. In doing so, Glass J noted that the ability to grant time to pay was an appropriate response to the present inability to pay: see R v Wu, 2003 SCC 73. Glass J concluded:

The case before me is a far cry from being grossly disproportionate for the persons involved and further when applied to reasonable hypotheticals.  With each Defendant, the conviction is made on summary conviction leading to a consideration of a surcharge of $100 each. The persons involved are not well-to-do persons. They have an economic life style that is very humble. However, there is a means of granting them significant time to pay the surcharges. The Crown has indicated a willingness to allow 2 years for payment. I  might add that if there were some of the surcharges still outstanding at the end of 2 years, the person could apply for another extension. The same reasoning for the individual Defendants would apply to others in general in our society. [@para33].

Third, Glass J held that the surcharge was not “too broad a sweep against persons” or an inherently “bad law” as defined in Bedford.

Tinker is the first appellate decision on the constitutional validity of the surcharge. Its impact is significant. It has resolved, for now, much debate in the provincial court over this issue: see for example the discussion in R v Frail, 2014 ONCJ 744. It is difficult to conceive of any sustainable argument that would distinguish its binding authority: see generally R v Malmo-Levine, 2003 SCC 74. Some arguments may be conceived. Those arguments are likely to fail. 

DM

 

 

There is more than one party to consider

Stephanie Iroguehi received $10,000 from a person she did not know. The money was deposited into her account. She was later charged with fraud and possession of currency she knew was obtained by the commission of an offence – the latter charge related to her withdrawal of that money and delivery of it to a third party. She was convicted of the possession charge but acquitted on the fraud: 2015 OJ No 566.

Shirley Connolly was contacted by phone and told that she had won 2.6 million dollars. She was told that in order to collect the money she would have to participate in a “scheme”. The scheme required her to accept a $25,000 transfer and then withdraw that money and deposit it into other accounts. Despite obvious concerns, Connolly followed through. Unbeknownst to Connolly, at the time, the $25,000 was actually from her own VISA line of credit.

One of the accounts she deposited money into was Iroguehi’s account; $10,000 was deposited. On that same date, through three different transactions, Iroguehi withdrew $4700 of that amount; she later withdrew more of the money.  

Iroguehi was charged. At trial she testified – a summary of her evidence was set out by the trial judge:

In October of 2012, she was asked by a family friend named Edison Obaseki for her bank account # in order to allow a friend of his to transfer $10,000 to her account. She had concerns about whether the $10,000 was the product of fraudulent cheques from schemes she had heard about through friends. Edison apparently assured her that the money was legitimate and stated that he could not use his own account as it was "not working". She agreed and provided Edison with her account information. [Emphasis added]; [@6].

The money was transferred. Iroguehi went to try and withdraw it; she was told she could not withdraw the entire amount. Iroguehi then began withdrawing as much as she could and over the course of the next few days withdrew $8000. Iroguehi later handed over that $8000.

With respect to the possession charge, the trial judge noted that the issue was whether Iroguehi “knew that the money in question was obtained as a result of the commission of an offence” [@15]. The trial judge noted that it was conceded that the money was obtained by the commission of an offence and Iroguehi had possession thereof, thus, the only issue was her knowledge. On this point the trial judge concluded:

I am satisfied beyond reasonable doubt that Ms. Iroguehi was in a state of deliberate ignorance with respect to the illegal source of the funds that were transferred into her account. I make the finding based on a consideration of the following facts:
  • The unusual nature of the request from Edison to Ms. Iroguehi that she accept a $10,000 transfer of funds from an unknown source in order for her to in effect launder the money 
  • The fact that she questioned Edison about whether the money came from cheque scams, which suggests that Ms. Iroguehi recognized that she was being asked to deal with funds that potentially derived from an illegal source 
  • Her failure to ask virtually any questions of Edison, including a sensible explanation of his inability to use his own account, the name of the friend, the reason why her account had been selected and, most importantly, where the money was coming from. This compels me to the conclusion that Ms. Iroguehi simply did not want to know where the money was from, despite having ample reason to suspect that its source was an illegal one.
  • The fact that she handed the money over to a complete stranger in the manner she described suggests that she did not want to know the identity of the money's source, bolstering my conclusion that she had reason to suspect its origin was illegal. [Emphasis added]; [@16].

Having convicted Iroguehi of that offence the trial judge considered the fraud count. On that count the trial judge noted that the issue was whether she was “an aider of the unknown principal or principals who were responsible for transferring the $10,000 from Ms. Connolly’s account to her own” [@12]. The trial judge concluded that Iroguehi was not.

However, I am not satisfied beyond reasonable doubt that Ms. Iroguehi was a party to the fraud committed upon Ms. Connolly. Although her actions in providing her account information to Edison assisted Edison (and perhaps others) in fraudulently transferring money to her account from Ms. Connolly's account, there is no evidence that this was her intent. Presumably, in her state of wilful blindness, she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources. [Emphasis added]; [@18].

In other words, the trial judge found she did not intend to aid Edison in the fraud. Notably, however, the trial judge accepted that she was willing to aid him in transferring money that was unlawfully obtained. The trial judge continued:

It may well be that she knew the money was derived from the commission of fraud, or it may simply be that she chose to remain in a state of deliberate ignorance as to the money's origin.
Ms. Iroguehi's deliberate ignorance to the source of the money is not, in my view, sufficient to prove that she had subjective knowledge of the fraudulent scheme through which that money was obtained. She will therefore be found not guilty on count 1. [@20-21].

With respect, while these comments may support the conclusion that Iroguehi was not a party under section 21(1) of the Code, it does not follow that she should have been acquitted – the trial judge did not address section 21(2) and thus failed to fully consider the potential criminal liability of Iroguehi. Indeed, on the findings made by the trial judge it seems a conviction under section 21(2) was possible, if not inevitable.

Pursuant to section 21(2), if Iroguehi formed an intention in common with another person to carry out an unlawful purpose and she assisted that person therein, then if that person committed an offence that Iroguehi knew or ought to have known was a probable consequence of carrying out the unlawful purpose, she would be a party to that offence. In this section Iroguehi need not intend for the fraud to occur, so long as she intended to enter the common unlawful purpose with foresight that it was a probable consequence.

While the trial judge did not address the findings most pertinent to this section – as he did not consider it – the findings he did make suggest there was a real prospect that a conviction would have been entered through the application of section 21(2).

First, there seems to be little doubt that Iroguehi formed an intention in common to carry out an unlawful purpose and assisted Edison therein; her conviction for possessing money obtained by crime at the behest of Edison and later laundering it is proof of that.

Second, while some findings are absent on this point, the findings made would likely support the conclusion that she knew or ought to have known that fraud was a probable consequence of carrying out the scheme.

The following conclusions reached by the trial judge are illustrative:

  • That she recognized that Edison’s request was unusual [@16]
  • That she questioned Edison about whether the money came from cheque scams (aka fraud) [@16]
  • That she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources [@18]
  • That it “may well be that she knew the money was derived from the commission of fraud” [@20]

These findings would seem to make the conclusion that Iroguehi ought to have known fraud was a probable consequence of the scheme inevitable. Indeed, it seems the only way she did not know that a fraud would be committed is because she chose to remain wilfully blind. If so, she is imputed with actual knowledge and thus, in law, knew fraud was a probable consequence.

Whether or not the trial judge would have come to that conclusion is perhaps beside the point, the real point is that he did not consider the applicability of section 21(2). Having not done so, the trial judge, with respect, stopped short of conducting a full inquiry into the criminal liability in this case.

DM

Ice Caps & Stupefying Substances: inferring and denouncing high doses

Mullins was convicted of sexual assault and administering a noxious substance. The young victim was 18 at the time of the offence and a close friend of Mullins’ daughter. Mullins elected to have a trial in the Superior Court of Justice before a judge and no jury. Mullins was convicted; in the reasons for sentence, 2015 ONSC 1724, Molly J summarized the crimes as follows.

Using his daughter’s upcoming birthday as a ruse to enlist the help of AS, the victim, to shop for a gift, Mullins lured the victim into his truck. He offered her an iced cappuccino and a marijuana cigarette – one or both of which was laced with enough benzodiazepines to knock her out.

For over 12 hours he held her in the truck, brutally and violently raping her. When he was done, he dropped her off at her father’s home, beaten and still feeling the effects of the drugs. AS had little recollection of the vicious and prolonged attack; she testified of flashes of memory which involved a bed, a shower and Mullins’ voice.

Once home AS was still weak and disoriented. She was covered in injuries she could not recall having sustained.

The most significant injuries were the bruising and abrasions to both hips, the extensive bruising at the front of both feet, and the jagged tear at the entry to the vagina.  The vaginal injury had long term sequelae, including an infection and problems that were ongoing even as of the date of trial, five years after the attack. [@ para 8].

Mullins’ semen was in AS’ vagina and had prescriptions for 2 of the 3 types of benzos AS had been drugged with. 

Mullins testified in his own defence; his evidence of consensual sexual encounters with AS was unequivocally rejected.

The Crown sought a penitentiary sentence in the upper single digits. The defence proposed a range of 3-6 years.

Molloy J noted that there were no strong mitigating factors [@para 17]. There were however a large number of particularly aggravating factors.

One of the disputed factors was whether Mullins was in a position of trust in relation to AS. After reviewing the governing principles Molly J held that:

in assaulting A.S. as he did, Mr. Mullins abused his position of trust in relation to her.  There are no air-tight compartments as to what may constitute a position of trust.  The factual context is the most important part of the analysis.  Mr. Mullins was 47 years old at the time of this offence; nearly 30 years older than A.S.  He was the father of her close friend, and A.S. thought of him in that sort of parental role.  He had no actual authority over her, but she frequently spent nights and weekends at his home with her friend Katlyn, and in that sense was from time to time under his control.  He befriended her at a time when he knew she was particularly vulnerable due to the breakdown of her parents’ marriage.  He gave her gifts, joked around with her, shared marijuana with her, and their relationship evolved into one where she trusted him.  It was as a result of that trust that he was able to lure her into his truck with a story about shopping for a birthday present for his daughter.  Completely unsuspecting and having absolute trust in her friend’s father, A.S. was tricked into a position of vulnerability and then horribly abused.  In my view, these circumstances fall squarely within the notions of “trust” referred to in Audet, and within the purpose and intention of this sentencing provision in the Criminal Code. @para 26

An additional aggravating factor in this case was the endangerment of AS’s life through the use of drugs to perpetrate the assault. Notwithstanding the fact that there was no way to establish from the tests done on AS which specific drugs were administered nor in what dosage, Molloy J used the unchallenged evidence of the forensic toxicologist to draw a number of conclusions:

First, the greater the dosage of benzodiazepines, the greater the possibility of anterograde amnesia.

Second, in excessive quantities benzodiazepines cause on a spectrum, drowsiness, lack of consciousness, coma and can be fatal.

Third, since AS lost consciousness so quickly it is likely that initial dose was high.

Fourth, since she had no memory of what occurred over the span of 12 hours and given the extent of the injuries, the initial dose must have been “extraordinarily massive or else subsequent doses were administered”. [@para 35]

Fifth, although not possible to say whether AS was comatose or just how close to death she came, Mullins endangered her life with his administration of such a high dose or doses. This is a “seriously aggravating factor” [@para 36].

Molloy J also treated the fact that the intercourse was unprotected as an aggravating feature as it left her vulnerable to disease and pregnancy. [@para 39].

After reviewing a number of sentencing decisions Molloy J concluded that a fit sentence was one of 9 years on the sexual assault and 4 years to be served concurrently on the administering of a stupefying substance.

Molloy J held that:

sexual assault is often, by its nature, a difficult offence to prove because it is committed in private and rarely has corroborative evidence.  The use of drugs to stupefy the victim of a sexual assault frequently results in a victim who believes she has been abused but is unable to describe what has happened to her because her memory is completely missing.  Often by the time she gets to a hospital there is no longer any trace of the drug in her system, which makes it an even more difficult case to prove.  Not only are assaults committed in this manner difficult to prove and therefore attractive to their perpetrators, they are also extremely dangerous for the victims.  For this reason, general deterrence is of particular importance in sentencing crimes of this nature. @para 68

LT

Silence: A right, yes; an innocent explanation, no

Albert Brown lived in an apartment. He was the only male living there. The police obtained a warrant to search the apartment for drugs and drug related items. They found both. In a pair of pants hanging on the bathroom door they found 17 one gram packets of cocaine as well as $1275; elsewhere they found a digital scale with cocaine residue on it and bulk marijuana. Brown was charged. He was convicted. He appealed: 2015 ONCA 220.

On appeal Brown argued (i) that the trial judge erred in not excluding the items recovered in the search under 24(2) and (ii) that the verdict was unreasonable.

With respect to the first ground, the Court of Appeal noted that Brown must establish that “the trial judge erred in principle, considered irrelevant facts, or made unreasonable findings” [@6]. Brown failed to do so, that ground was dismissed.

With respect to the reasonableness of the finding, Brown argued that it was unreasonable to conclude that the pants in the bathroom were his. The court rejected this ground.

The appellant places specific emphasis on the police officer’s opinion that the pants found in the bathroom containing the cocaine “could fit the appellant”. He argues that this is not sufficient to prove ownership of the pants, thus knowledge of and control over the cocaine in a pocket, beyond a reasonable doubt. However, the whole of the circumstantial evidence – including the fact that an investigating police officer said the pants belonged to a man and that the appellant was the only man living in the apartment – was sufficient to find the appellant in constructive possession of the cocaine. [@9].

Notably, the court commented on the fact that Brown had not testified in concluding that the verdict was reasonable:

We note that there was no explanation whatsoever for the presence of the cocaine in the appellant’s bathroom. He chose not to testify. This court, when considering the reasonableness of a verdict, is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: see R. v. Dell, [2005] O.J. No. 863 (C.A.), at para. 35. [Emphasis added]; [@10].

This principle is certainly not new, but it seems that it bears repeating once and a while.

DM