Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
[. . .]
An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases. 

LT

Crown Advocacy 101 - Lessons from MacBeth

Introduction

In the course of prior writings, I have sought to point out how criminal law advocates and prosecutors in particular may profit immensely from the many plays penned by the Bard.[1]  This summer, my interest in this subject has been rekindled by reason of excellent local productions. Accordingly, I offer these observations on the subject of persuasion,[2] based on Macbeth, in the expectation that it may prove profitable to counsel.

Discussion

Reversing the proposition: The building block of a successful argument

I have argued elsewhere, and in great detail,[3] that one of the fundamental tools with which to form a successful submission is the technique of reversing the proposition.  If the defence, for example, were to submit that the account of the event advanced by a prosecution witness does not dovetail well with the testimony of a second Crown witness, it should be stressed that incidental errors and inconsistencies support the credit of the supposedly mistaken witness.  After all, his account was not suspiciously “too pat”. 

Hence, counsel must be alert to the possibility of “flipping” any theory and certainly any argument - the famous phrase uttered by the three “weird” sisters in Act I, scene I of Macbeth, “Fair is foul, and foul is fair” should serve as an easy mnemonic in this respect.  What is fair and what is foul in any given situation depends on a subjective view, and is often tributary to one’s wishes and needs.  A terrible snowstorm is always a welcome event in the lives of schoolchildren wishing a break from their responsibilities, more so in the case of those delinquent with an assignment, and thus a mention in a report that a witness was enjoying herself at home one day during a blizzard might be explained by the context, and thus a potential area of impeachment may be foreclosed with a bit of preparation. 

An even handed account will win your witness favourable credit

In Macbeth, Act I, scene II, a Sergeant states, in response to a question as to the way the battle was fought, “… Doubtful it stood; As two spent swimmers, that do cling together And choke their art…”  In other words, the witness undertook his testimony by making plain that the subject matter is not without controversy and the ultimate answer depended on a review of all of the information.  If one reverses the proposition, and puts these words in the mouth of the Sergeant, “… I knew all along we would win! ...”, one may doubt that the judge or trier of fact will view the evidence with the same degree of consideration.  Thus, it may well be wise to instruct a witness to make sure that they refer to the good and the bad in whatever they viewed and are called upon to describe.  If a prosecution witness, for example, was consuming narcotics at the relevant time, this should be drawn out from the witness at the outset. 

Make allowance for any idiosyncrasies in how a witness speaks

Counsel must always be alert, at the stage of preparation, for any particular elements in the manner or fashion by which a witness communicates in order to forestall any unnecessary lack of credit that might be assigned to the testimony in question.  Macbeth includes this passage, at Act I, scene II, wherein the King asks if Macbeth was worried when the enemy was able to count on reinforcements: “Duncan: Dismay'd not this Our captains, Macbeth and Banquo? Sergeant Yes; As sparrows eagles, or the hare the lion…”  Stated otherwise, some persons have a very particular way of communicating, and questions should be framed in order to lessen any potential concerns in the minds of fact finders.  In the case under study, the witness was ironic and if that is the typical form of response, it must be addressed, if possible.

Witnesses collaborating in the recitation of their understanding of the events

Quite often, the prosecution’s case will be impugned on the basis that the witnesses had an opportunity to “rehearse” their testimony when they discussed what had happened quite soon after the event, with a view to planting the seed of contamination.  Often, defence counsel seek to underscore how police officers consulted prior to, or during, the writing of their notes.  And yet, it may be that the manner by which the witnesses reviewed the event, let us say what happened as the third party driver, and later accused, sought to overtake another vehicle, ensures a correct understanding and a clear “anchor” to a sound memory.  This is illustrated in Macbeth, Act I, scene III, after the sisters have advanced a number of predictions:

BANQUO: Were such things here as we do speak about?

Or have we eaten on the insane root

That takes the reason prisoner?

MACBETH: Your children shall be kings.

BANQUO: You shall be king.

MACBETH: And thane of Cawdor too: went it not so?

BANQUO: To the selfsame tune and words. Who's here?

In truth, by reviewing the words of the three sisters immediately after such a dynamic event, in this strict fashion, the two witnesses have ensured that neither would labour under any misunderstanding.  By contrast, the passage consigned in Act I, scene III, “Give me your favour: my dull brain was wrought With things forgotten…” illustrates the opposite situation. 

The dangers of demeanour evidence

The works of Shakespeare, and Macbeth in particular, contain multiple examples of the dangers associated with demeanour evidence, a very controversial form of “testimony”, a subject that I have discussed critically in extra-judicial writings.[4]  Perhaps the best known and the one that counsel should resort to most often, given its universal understanding, is found in Act I, scene IV: “Duncan: There's no art To find the mind's construction in the face…” The companion reference that is best suited to underscore this point is set down in Act I, scene VII: “Macbeth … Away, and mock the time with fairest show: False face must hide what the false heart doth know.”

I note as well the oft quoted observation, from Macbeth, Act I, scene V: “Your face, my thane, is as a book where men May read strange matters…” In fact, Macbeth’s features made plain his anxiety.  In this vein, noteworthy also is this passage from Macbeth, Act III, scene II: “Macbeth: … Present him eminence, both with eye and tongue: Unsafe the while, that we Must lave our honours in these flattering streams, And make our faces vizards to our hearts, Disguising what they are.”

Of further interest on the question of demeanour evidence is the following passage, in which the son of the slain king states that he has not yet had time to weep in sorrow, in light of the circumstances: “… Let 's away; Our tears are not yet brew'd.”  See Act II, scene III.  Drawing further attention to the concern that certain witnesses may be adept at feigning emotions, consider the words found at Act II, scene III of Macbeth: “… Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy…”

A great number of further examples might be offered in attempting to demonstrate the soundness of the proposition that outward demonstrations of facial demeanour are simply too unreliable as bedrocks for any precise conclusions, but I will limit myself to these.  On the issue of interpreting smiles, Act II, scene III, of Macbeth includes the words: “… There's daggers in men's smiles…” What of the expression “goose look” found in Macbeth, Act V, scene III: “Macbeth The devil damn thee black, thou cream-faced loon! Where got'st thou that goose look?” 

At all events, it is relatively simple for one to adopt a guise that may well hide the true nature of one’s thoughts and actions.  In this context, Justice O’Halloran cautioned against the fear that a good actor might hoodwink the Court.  Refer to Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10, and to para. 46 of the judgment of Ryan J. A. in R. v. Sue, 2011 B.C.C.A. 91:

46   There are a number of cases which caution judges not to rely too heavily on demeanour in determining credibility. As stated by O'Halloran J.A. in the frequently cited case from this Court, Faryna v. Chorny, [1952] 2 D.L.R. 354 at paras. 10 and 11:
[10] If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

Circumstantial evidence: A good example of

The passage found at Act II, scene III, in which Lady Macbeth sets out how she will incriminate the King’s chamberlains by smearing them with blood affords a well-known example of circumstantial evidence by means of which innocent persons stand accused most foully.  As we read: “… Give me the daggers: the sleeping and the dead Are but as pictures: 'tis the eye of childhood That fears a painted devil. If he do bleed, I'll gild the faces of the grooms withal; For it must seem their guilt.” Later on, we note her counsel at Act II, scene II: “… Go get some water, And wash this filthy witness from your hand. Why did you bring these daggers from the place? They must lie there: go carry them; and smear The sleepy grooms with blood.”

Circumstantial evidence: The dangers when raising “flight” against an accused

Case law abounds with illustrations of persons who are innocent who took flight upon the discovery of a crime, for a variety of innocent reasons, and prosecutors must always be wary of such circumstances.  One example found in the world of fiction arises in Macbeth, Act II, scene IV: “… Malcolm and Donalbain, the king's two sons, Are stol'n away and fled; which puts upon them Suspicion of the deed.”  And yet we know that they were innocent and we also know that they had good reason to fear that unjust suspicion would arise against them. Consider as well these passages, from Macbeth, Act IV, scene II: “Lady Macbeth … His flight was madness: when our actions do not, Our fears do make us traitors. Ross You know not Whether it was his wisdom or his fear.”[5]

One ought not to expect that each person will react the same to the same situation

An advocate is often confronted with a situation in which different persons have reacted differently to the same factual situation, let us say the reaction to an armed confrontation in which one or more flee whilst another does not. In seeking to make plain that the response of the one who remained was, amongst other things, not proportionate, it must be expected that the defence will raise the suggestion that different reactions are not only common, but to be expected, in situations of stress.  As illustrated in Macbeth, Act II, scene II, Lady Macbeth states: “That which hath made them drunk hath made me bold; What hath quench'd them hath given me fire.”

An additional example of the potential for a variety of reactions to a certain situation is seen in Act II, scene III, upon the discovery of King Duncan’s murder and Macbeth’s reaction, that of killing the two guards.  When asked why he had acted in this fashion, Macbeth responds: “Who can be wise, amazed, temperate and furious, Loyal and neutral, in a moment? No man…”

Cross-examination

Admittedly, the best-known example of advice on cross-examination advanced by Shakespeare is found in Hamlet, Act II, scene I: “Lord Polonius “… Look you, sir, Inquire me first what Danskers are in Paris; And how, and who, what means, and where they keep, What company, at what expense; and finding By this encompassment and drift of question That they do know my son, come you more nearer Than your particular demands will touch it …” Nonetheless, Macbeth contains some “backwards” advice, along these lines: “Lord He did: and with an absolute 'Sir, not I,' The cloudy messenger turns me his back, And hums, as who should say 'You'll rue the time That clogs me with this answer.'”  Stated in direct terms, the advocate must not allow a witness to “clog” the case adversely.

Memory is adversely affected by alcohol and other intoxicants

I doubt very much that any authority is required in support of the proposition that a witness who has consumed intoxicants may well be thought to have perceived events poorly and, certainly, to have retained the memory of the perception less than fully and fairly.  But if the occasion does present itself, reference may be made usefully to the following, from Macbeth, Act I, scene VII: “… his two chamberlains Will I with wine and wassail so convince That memory, the warder of the brain, Shall be a fume, and the receipt of reason A limbeck only: when in swinish sleep Their drenched natures lie as in a death…”  If you believe that further authority is called for, quote the Porter, at Act II, scene III.

Conclusion

It is the hope and expectation of every advocate that he or she has, in the words found in King Lear, Act V, scene III, succeeded in moving the trier of fact.  As Edmund states: “… This speech of yours hath moved me, And shall perchance do good: but speak you on; You look as you had something more to say.”  It is my hope that these classic citations will assist the advocate in achieving that ambition and though this article is directed to prosecutors, the essence of advocacy is the capacity to “flip” arguments and defence counsel may well profit as equally from the thoughts penned herein. 

Justice G Renaud

 

END NOTES:

[1]           Refer to Advocacy: A Lawyers’ Playbook, Carswell, 2006, and to the following articles: “Shakespeare’s Instruction for the Advocate: An Overview”, June 1999, 21 Advocates’ Q. 457-464, “Shakespeare and the art of judging”, (Spring 1999) 23 Prov. Judges J. 29-33 and “Shakespeare’s Instruction for Defence Counsel”, posted in Alan D. Gold’s Netletter, Quick Law, ADGN/RP-078, January 26, 1999.

[2]           On this subject, I commend without reservation Power of Persuasion, Essays by a Very Public Lawyer, by Sir Louis Blom-Cooper Q.C., Hart Publishing, Oxford, 2015.  My very favourable book review will appear in (2015), Vol. 39 Crim. L.J. 221-223. 

[3]           Advocacy: A Lawyers’ Playbook, Chapter 6, at pages 119-161. 

[4]           Refer to Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008.

[5] In addition, Act V, scene II, of Macbeth provides a good example of circumstantial evidence favourable to the prosecution.  Hence: “Angus … now does he feel his title Hang loose about him, like a giant's robe Upon a dwarfish thief.”  In other words, clothes that evidently do not fit may well make plain that they were obtained unlawfully.

All Talk and No Action

Marshall and Wong were both found guilty conspiracy to commit robbery: 2015 ONSC 4593. There was no evidence that the conspiracy was ever carried out.

As part of a larger police investigation Marshall and Wong’s telephone conversations and text messages were being intercepted. Sixteen of those intercepts were filed as exhibits at trial. A police officer with expertise in coded language and slang testified about some of the words and language used in the recorded conversations. That said the ‘code’ used was neither sophisticated or particularly difficult to understand, essentially Marshall and Wong don’t use the term firearm but instead say ‘it’ or ‘one’ or ‘that thing’ or ‘the girl’.  Justice Code summarized the first of the sixteen intercepts as follows:

The first of the sixteen intercepts is the most important one. The parties agreed that the subject matter of this initial telephone discussion is a robbery. The call was made by Wong and it was received by Marshall on May 8, 2013 at 4:14 p.m. Wong immediately told Marshall that a man is "counting fifteen stacks right now". Marshall clearly understood Wong's reference to "fifteen stacks" and he replied by asking "where?" It is agreed that this exchange about a man "counting fifteen stacks" is a reference to money and I infer, in the context of all the evidence, that it likely means $15,000. Wong then asked Marshall, "you don't thing it, you don't have it?" Marshall replied, "I can get, I'm going for that right now". It is agreed that these cryptic terms -- "thing", "it", and "that" -- in the context of all the evidence, are references to some kind of offensive implement that Wong and Marshall needed in order to carry out the robbery that was under discussion. I am satisfied that these references, which are repeated and added to in the subsequent intercepts, are to a weapon of some kind and that they likely refer to a firearm, although the exact kind of weapon is not an essential element of the offence and it is unnecessary to decide whether it is a firearm or some other kind of weapon at this stage of the proceedings. [@para 9]

Another 15 exchanges took place between Wong and Marshall setting out their difficulties and frustrations as they tried and failed to find a weapon. There are spats between Wong and Marshall as they grow concerned that each is telling others of their score.

Their communications wind down and the two expressed their frustration at not having capitalized on the opportunity: “Marshall stated, "I'm cheesed ... we could've did something with that right here". Wong replied, "I know".” [@para 31]

Ultimately no robbery was ever committed. The only issue at trial whether the offence of conspiracy had been perpetrated.  

Code J stated the essential elements of the offence of conspiracy as follows:

it is now settled law that three essential elements must be proved by the Crown in a conspiracy case: first, an intention to agree; second, the completion of an agreement to commit an indictable offence; and third, an intention to carry out the agreement (which is sometimes referred to as the common design or as an intention to put the common unlawful design into effect [@para 40]

Defence argued “that the evidence disclosed mere talk, discussion and negotiation about a robbery, none of which can amount in law to an agreement.” [@para 41]

Code J rejected this argument and convicted Marshall and Wong. The Court held:

(…) that Marshall and Wong did reach an agreement to rob the man who had been seen counting money. Their agreement was conditional or was premised on Marshall securing a weapon that he had access to and it was conditional or premised on Wong checking with his "girl" in order to learn the present whereabouts of the man. In other words, it was an agreement to rob the man "if it is possible or propitious to do so", as explained in Mills and Root. The two conditions or premises -- concerning the weapon and the man's whereabouts -- related only to the parties' ability to successfully carry out the agreement. These conditions did not detract from the existence of an "overall dominant plan" to commit a criminal offence.[@para 49]

Although 16 intercepts were tendered Code J found that:

By the end of the second intercept, I am satisfied that an agreement had been reached to rob the man who had been seen counting money. The only rational inference from these two discussions between Marshall and Wong is that they were enthusiastically committed to a common goal of acting together in order to carry out a robbery. They assumed that Marshall would and could get his weapon, Wong had made inquiries as to the present whereabouts of the target of the robbery, and they agreed to meet in order to attempt the robbery. There was uncertainty as to the present location of the money but this was simply a contingency related to the ultimate success of the planned robbery. In all these circumstances, I am satisfied that there was an agreement between them to act together and carry out a robbery. [@para 51]

All talk and no action…. Still guilty. 

LT

Not so Endless Summer(s)

Mr Abdullahi was convicted after a trial of four offences relating to the possession of loaded restricted firearm. The only issue at trial was whether the accused was in possession of the firearm; he claimed he was not. The trial judge rejected the accused’s evidence and convicted him of the offences before the court. At the time Abdullahi was found to be in possession of the loaded restricted firearm he prohibited from doing so.

The trial judge imposed a global sentence of 6 years. The breakdown of the sentence was as follows:

  • Count 1:  Possession of a loaded restricted firearm (s. 95(1)):  4 years;
  • Count 3:  Possession of a firearm knowing its possession is unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and
  • Counts 4 and 5:  Possession of a firearm and possession of ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

Quigley J credited Abdullahi at a rate of 1.5:1 for 72 days of presentence custody as those days the offender was held in very crowded conditions. Abdullahi received no credit for the remaining 448 days of presentence custody.

Abdullahi appealed conviction and sentence.

The appellant’s main argument on the sentence appeal was that the trial judge erred in his assessment of the credit for pre-sentence custody. The Court of Appeal rejected that argument: 2015 ONCA 549.

In dealing with this argument the Court of Appeal noted first, that the sentencing judge did not have the benefit of the Supreme Court’s judgment in Summers, 2014 SCC 26.

The Court of Appeal briefly reviewed the principles in Summers and summarized them as follows:

First, the quantitative rationale for an enhanced credit is grounded in the loss of eligibility for early release and parole during pre-sentence custody.

Second, the qualitative rationale for an enhanced credit is to be applied to account for the relative harshness of the conditions in a detention center.

The Court of Appeal noted that the trial judge correctly applied the qualitative rationale in accounting for the harsh conditions during the 72 days where Mr Abdullahi shared a cell with two others.

The Court then noted that although loss of eligibility for early release is generally sufficient to grant enhanced credit it does not mean that such a credit is automatic. In fact, the specific circumstances of a particular offender may result in an adjustment or even denial of such a credit.

The Court held the following:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1.  The credit is not, however, automatic.  If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit:  Summers, at paras. 71, 79; R. v. Nelson, 2014 OJ. No. 5729, at para. 51-53. @para 18

In Mr Abdullahi’s case the Court noted that:

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges.  His conduct could hardly be worse.  Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody.  There is no realistic possibility that the appellant will be given any form of early release or parole.  Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit. @para 19

As such even though the sentencing judge did not have the benefit of the decision in Summers, the Court of Appeal found no error in the allocation of the credit for pre-sentence custody.

This decision serves as an important reminder that the enhanced credit is not automatic but requires a quantitative and qualitative analysis, based on a sound evidentiary record, to be undertaken by the sentencing judge. 

LT

Handguns: The cause of so much devastation

Louis Woodcock apparently liked to carry around a handgun. On Boxing Day 2006 he allegedly was doing so on Yonge Street in Toronto. The Crown alleged he handed it to JSR who engaged in a shootout with other men. One of them shot and killed Jane Creba. Woodcock was charged with murder. He was convicted of manslaughter. He appealed: 2015 ONCA 535.

On appeal Woodcock advanced three grounds.

First, Woodcock alleged that the trial judge erred in relation to expert evidence. Two points were raised. One, that the evidence should not have been admitted as it was “common sense”. The trial judge rejected this position:

I am satisfied that this evidence is necessary to give the jury the tools to appreciate the evidence. It would not be surprising if most or all of the jurors will have never handled a handgun, much less carried an illegal firearm. Such an object is not an ordinary household object with which most persons can be presumed to be familiar. [Cited @12]

The Court of Appeal agreed.

Two, that the expert should not have been allowed to view the video in re-examination. Initially the trial judge ruled that the expert could not view the video in the presence of the jury and offer an opinion on it. However, during cross-examination defence counsel raised the video and challenged the expert on it. In light of this, the trial judge’s decision to allow it to be played in re-examination was reasonable.

Second, Woodcock alleged that the trial judge erred in her charge on causation. In essence, he alleged there was no direction on the issue of causation. In addressing this issue the court noted that it has previously considered the theory of causation in R v JSR, 2008 ONCA 544. The court then reviewed the charge given by the trial judge and held that it was sufficient; in doing so, the court cited, with approval, the following portion of the charge by the trial judge:

The Crown submits that this was, in effect, a mutual shootout, and that the issue of who fired the first shot is of no moment and only reflects who reacted the fastest. The Crown submits that Jane Creba died as a result of a decision by both the accused and Jeremiah Valentine to participate in a shootout on Yonge Street, and that the conduct of the accused in firing, or passing a gun so [J.S.R.] could fire it, was a contributing cause of the death. [Cited @22].

This theory of liability, together with the conduct of the accused (if accepted by the jury, as it apparently was) – which included carrying the handgun used by JSR and handing it to him – was sufficient to support the conviction.

Woodcock is another ruling in a long list of rulings on the prosecutions related to the killing of Jane Creba. It also emphasizes the generous approach to causation that courts are taking in cases of firearm related killings. This is appropriate and necessary. Handguns are designed for the purpose of killing (or at least seriously wounding) other human beings; that is their sole purpose. Those who choose to illegal carry such deadly weapons in our communities and brandish or provide them to others must be held responsible for the foreseeable consequences thereof. The convictions of Woodcock and others – even though they were not the ones that actually shot Jane – are appropriate and just.

DM

Not so Black and White

Merith White lived in a condominium unit. The police searched it. Evidence obtained during that search led to him being charged with drug trafficking and possession of stolen property. He was acquitted - as a result of evidence being excluded under section 24(2) after the trial judge found that the search violated section 8. The Crown appealed. That appeal was dismissed: 2015 ONCA 508.

White lived in a condominium unit. It was one of 10 in a four story building. That unit was visited by Yianni Papadolias. Unfortunately for White, the police had Papadolias under surveillance via GPS tracking. The police suspected Papadolias was involved in drug trafficking.

As a result of that information, an officer entered the condominium unit on three occasions. On the first occasion he followed a postal worker in through the front door which was otherwise locked. On the second and third occasions he entered an doorway that would normally be locked, but for reasons not fully explained, the door was not locked and the officer entered. As a result of observations made during those entries the police obtained a warrant to enter White's residence.

At trial White successfully excluded the results of the search on the basis that it violated section 8. The Crown appealed.

On appeal the court cited Edwards and noted the factors set out therein. The court also recognized that there were "lower courts" that had found no expectation of privacy in "common areas of multi-unit buildings" - but the court rejected the applicability of those cases: 

 

It is clear that lower courts have rendered decisions rejecting reasonable expectation of privacy claims in several cases involving the common areas of multi-unit buildings: see e.g. R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.); R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), rev’d on other grounds 2007 ONCA 793 (CanLII), 231 O.A.C. 19; R. v. Nguyen, 2008 ABQB 721 (CanLII),462 A.R. 240, aff’d 2010 ABCA 146 (CanLII), 477 A.R. 395; and R. v. Verrett, 2013 ABQB 658 (CanLII), 574 A.R. 212. But the lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case. [@44].

Having rejected the applicability of those cases, the court offered the following (in part) as the basis for concluding that White had a reasonable expectation of privacy in the common areas and thus the entry thereto constituted a violation of section 8:

Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building’s common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated. [@47-48].

The court further upheld the trial judge's conclusion that the exclusion of the evidence under 24(2) was no in error.

With respect, it is not easy to accept these conclusions.

First, to the extent there was any expectation of privacy, it was significantly diminished and not breached by the police. The court does not discuss explicitly the nature of the privacy interest at play, but it seems clear that it must be territorial. Here, however, the territorial privacy is one that the court acknowledged was accessible by others - including strangers to the accused. Moreover, while the police did not have permission to access the area, they did not do anything illegal to access the area. Indeed, on two occasions, they entered through an unlocked door. In short, while territorial privacy interests can be significant, here, where they are impacted by strangers and accessed so easily, the nature (if any) of such an expectation is significantly diminished.

Second, applying the Edwards factors does not reveal an objective basis for the expectation: (i) the accused was not present at the time; (ii) the accused could permit access, but had no real control over access; (iii) the accused had no "ownership" over the common areas; (iv) while he did have historical use over this area, many others did as well; (v) the accused has no real ability to regulate access (other than to permit). What remains are subjective and objective assessments of the accused's expectation of privacy. In light of these it is hard to accept that there is an objective expectation of privacy from plain view observations in such common areas.

Third, even if there was a breach, it is not obvious that the evidence should be excluded. If the above analysis is, at least, reasonable, the seriousness of the breach must be minimal. The evidence obtained is reliable. The offence is serious. In these circumstances, exclusion should not follow.

DM

Burning Down the House (Generally Speaking)

Paul Tatton had a drinking problem. On September 10, 2010, he grew upset and jealous that his ex-girlfriend would be away in Kingston. At the time, he was living in a guest room at her home. Mr. Tatton began to drink heavily that day, and continued drinking into the evening. Eventually, Mr. Tatton passed out. When he awoke in a drunken state, Mr. Tatton placed a pan with vegetable oil on the stove, set the burner to high, and left the house to get a coffee at Tim Horton’s. When he returned, the house was up in flames. Although the home was salvaged, the fire destroyed all of the contents inside [para 1-7].

Mr. Tatton was charged with arson causing damage to property under s. 434 of the Criminal Code. At trial, he insisted the fire was an accident. He thought he had set the temperature to low, and did not intend or foresee the consequences of his actions. A central issue at trial was whether Mr. Tatton had the requisite intent to commit the offence, and more particularly, if the court could consider his state of self-induced intoxication [para 8].

The trial judge determined that s. 434 was a specific intent offence, which allowed for the defence of intoxication to be raised. Mr. Tatton was acquitted. Although the majority of the Court of Appeal upheld his acquittal, Goudge J. dissented, and would have allowed the appeal and ordered a new trial. The Crown then appealed to the Supreme Court of Canada as of right: R v Tatton, 2015 SCC 33.

The main issue squarely before the Supreme Court was whether arson is a specific or general intent offence. This required the Court to undertake a review of how the distinction between these types of offences should be drawn. Ultimately, the Court adopted the Crown’s position, finding that arson is an offence of general intent. As a result, self-induced intoxication falling short of automatism is not available as a defence [paras 8-20. See generally R v Daviault, [1994] 3 SCR 63 and R v Bernard, [1988] 2 SCR 833].

In writing for the majority, Moldaver J. recognizes that drawing the distinction between general and specific intent offences “continues to perplex counsel and trial courts alike…the task has proved formidable to those who have been schooled in criminal law, and daunting to those who have not” [paras 22, 35]. The Court highlights that legislative intervention is “sorely needed” to spell out the mental element of offences to address this confusion [paras 22, 25].

In beginning his analysis, Moldaver J. relies on R v Daviault as a starting point. Daviault outlines that distinguishing between general and specific intent offences is a two-step process:

First, there is an examination of the nature of the mental element and its relative      importance to the crime in question.
Second, there is a consideration of the social policy sought to be attained by criminalizing the particular conduct [para 26, citing Daviault].

In Daviault, Sopinka J. specified that general intent crimes involve “the minimal intent to do the act which constitutes the actus reus”, and also tend to be “offences that persons who are drunk are apt to commit.” In contrast, specific intent crimes are those which “require a heightened mental element” and often include “the formation of further ulterior motives and purposes.” On the one hand, as more complex thought and reasoning processes are required for specific intent offences, it is more readily understandable how intoxication short of automatism may negate the require mental element for these types of crimes. On the other hand, allowing intoxication to operate as a defence to general intent crimes would contradict the social policies underlying them [paras 27-28].

Relying heavily on the principles set out in Daviault, Moldaver J. then offers the following further clarification in identifying the type of intent of a particular offence:

  • The starting point is determining the required mental element. This is an exercise in statutory interpretation, not a factual assessment [para 30].
  • The next question is determining whether the crime is one of general or specific intent. This is not a precise science – logic, intuition, and policy all play a part [para 31].
  • Existing jurisprudence may have already determined the appropriate classification of a particular offence. Where done so satisfactorily, there is no need to examine the question again [para 32].

Moldaver J. then turns to addressing two additional questions left unanswered by the court in Daviault [para 33]:

  1. What is meant by the “importance” of the mental element?
  2. Do policy considerations always come into play, or only if an examination of the mental element leaves the classification of the offence still unclear?

First, in addressing “the importance” of the mental element, Moldaver J. clarifies that what was meant was an assessment of “the complexity of the thought and reasoning processes that make up the mental element of a particular offence.”

General intent crimes require little mental acuity. They are straightforward, and do not require an intent to bring about certain consequences external to the actus reus [paras 34-26].

In contrast, specific intent offences involve a heightened mental element. While in Daviault the court limited its discussion to specific intent crimes where an ulterior motive is involved, Moldaver J. clarifies that an ulterior motive is not always required. Instead, there could be knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes [para 37-40].

Second, Moldaver J. writes that only if the analysis of the thought and reasoning processes required fails to yield a clear answer should policy considerations come into play. The nature of the mental element itself is already intertwined with policy considerations. If no clear answer is apparent, assessing whether alcohol consumption is habitually associated with the crime in question may be of assistance. If it is, then allowing an accused to raise self-induced intoxication as a defence would seem counterintuitive, and the offence is likely one of general intent. If it isn’t, then the offence would likely be one of specific intent.  Other residual policy considerations, such as the inclusion of a lesser included general intent offence and judicial sentencing discretion, may also come into play.

In the context of determining the intent requirement for arson causing damage to property, Moldaver J. makes the general observation that alcohol habitually plays a role in crimes involving violent or unruly conduct, and that alcohol also tends to be prevalent in crimes involving damage to property. While there are exceptions (such as murder), the Court concludes that it makes little sense from a policy perspective that self-induced intoxication is a defence available where people or property are harmed or endangered. [41-45].

Applying the legal framework set out in the Court’s decision, the Supreme Court ultimately concludes that the offence of arson causing damage to property is one of general intent. The actus reus is the damaging of property by fire. The mental element is the intentional or reckless performance of the illegal act – the causing of damage to property. No additional knowledge or purpose is needed. The level of intent required would appear to be minimal. Having determined the intent requirement as being general, the Court then moves on to provide a thorough assessment of how the intent required under s. 434 should be made out, given it “can be a tricky exercise” [paras 48-54].

In Mr. Tatton’s case, the Supreme Court also determined that the trial judge’s erroneous conclusion that the offence was one of specific intent, and that intoxication was an available defence, played a material role in the outcome [see R v Graveline, 2006 SCC 16]. For these reasons, the appeal was allowed, the acquittal set aside, a new was trial ordered.

Comment:

Tatton is a two-fold decision. Not only does the Court expressly offer a detailed review of the framework for assessing how to distinguish between general and specific intent offences, the Court’s reasons for why s. 434 is a general intent offence is bound to have a broader impact on the intent requirement for the other arson-related provisions in the Criminal Code.

Further, while the Court did not set down a “general rule”, the express reference to the common intersection between alcohol use and crimes of violence was notable; suggesting that allowing self-induced intoxication to be raised in such cases would be illogical and counter-intuitive to good public policy.

SS 

Implied Duty to Google It?

Marshall, a pediatrician was charged with 32 counts of sexual assault and sexual interference in relation to 20 of his former patients and two young males who were not patients. At the conclusion of the trial Marshall was acquitted of all the allegations involving the 20 patients and one of the non-patients.

Marshall was convicted of one count of sexual assault in relation to a young man PM, who was not a patient. PM testified that on three occasions when he was between the ages of 16 and 18, Marshall touched him in a sexual manner. Marshall was found guilty of touching PM’s genitals, rubbing his crotch against PM’s buttocks and laying on top of PM. In the last incident PM was able to break free and run away as Marshall “I am not trying to fuck you yet.” [at para. 8]

Marshall was sentenced to 8 months in custody. He appealed both conviction and sentence and sought to tender fresh evidence. The Ontario Court of Appeal dismissed the appeals from conviction and sentence: 2015 ONCA 518

The Court also declined to admit the fresh evidence. On appeal Marshall sought to tender evidence that PM suffered from PTSD, anxiety and depression, all of which arose following his return from a difficult tour on active duty as a member of the Canadian Armed Forces. Additionally, Marshall wished to tender evidence that in 2006 PM had been charged with two counts of assault causing bodily harm and two counts of assault and that a stay of proceedings was entered following the plea of guilty of a co-accused.

The Court found that none of the proposed fresh evidence met the threshold for admissibility as set out in the Supreme Court’s decision in Palmer. In reaching this conclusion the court noted that the evidence was in fact “available at the time of trial in that it was posted on the internet.” [at para 19].  Such a statement of course begs the question, do lawyers have an implied duty to google it?

LT

 

 

 

Protecting privilege, for everyone

Mike Rutigliano was a police officer. He was charged with various criminal offences including obstruct, breach of trust and fraud. As a result of a ruling related to a pre-trial motion the Crown stayed the proceedings. The Crown then appealed from that stay: 2015 ONCA 452.

Rutigliano was working for the OPP and was, at the time, responsible for the courts bureau at the Toronto detachment. An RCMP investigation uncovered ties between Rutigliano and organized crime individuals. As a result of a suspicious bank transaction he became the subject of an investigation.  As part of the investigation the police obtained four Part VI authorizations.

One of the pre-trial motions launched was an abuse of process motion seeking a stay of proceedings. The allegation of abuse related to the pursuit and obtainment of wiretap authorizations. In short, the abuse surrounded the actions of the police in their use of potentially privileged communications contrary to the Part VI authorization. The court outlined it this way:

Contrary to the wiretap authorization, his telephone communications were not live monitored but were automatically recorded and retained. The computer system was not set up in a way that would have permitted live monitoring. Summaries of intercepted solicitor calls were provided to the investigative team through daily call logs. Investigators examined communications with solicitors after they had been classified as “privileged” without obtaining a court order for access. Hundreds of presumptively privileged communications were intercepted and recorded. Summaries of intercepts with solicitors that should not have been intercepted were recorded, stored and disseminated to investigators. Summaries of the content of solicitor calls were relied on in an application to unseal some of the information gleaned from the first wiretap. In one case, although a live monitor warned that a communication with a solicitor was about to be intercepted through a room probe, an investigator listened to the entire call, knowing it was presumptively privileged.
[…]
In early 2009, the Commissioner of the OPP waived any privilege attached to any communications between Rutigliano and any Crown Attorney for the period January 1, 2004 to February 11, 2009. Investigators took this as authority to listen to and record all such communications and to access any such previous communications without obtaining court permission, although the wiretap authorizations forbade this practice. The waiver would have supported an order to unseal those communications, but did not authorize their interception or examination. Again, this conduct was said to be supported by legal advice. [@16 and 18].

The defence sought to explore this “privileged advice” about how to handle the wiretaps as part of its abuse of process motion. The motion judge ordered the communications between the investigators and the Crown to be produced for his inspection, despite the assertion by the Crown that it was covered by solicitor-client privilege.

The Crown then stayed the proceeding and appealed.

The first issue on appeal was whether the appeal itself was an abuse of process. The court held that it was not. Citing United States of America v. Fafalios, 2012 ONCA 365 the court accepted that such a decision by the Crown could be permissible if: (1) the effect of the interlocutory ruling is to leave the Crown without a case, or (2) “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”. [@34].

In this case the criteria were satisfied: I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. [@37].

The second issue was whether the privileged had been waived by officers during their testimony on the motion – by indicating they had advice from the Crown. The court agreed with the motion judge that privileged had not been waived. Part of the reason was that the individual officers lacked the authority to waive the privilege, but the court also noted:

The motion judge further held that, quite apart from the authority-to-waive issue, officers’ responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to trigger a waiver of solicitor-client privilege. As witnesses, the officers were bound to answer the questions put to them and this could not amount to waiver of solicitor-client privilege. [@40].

A third issue dealt with on appeal was whether the ruling – aside from the merits of the issue – was premature or unnecessary. The court concluded that it was:

I agree with the Crown’s position that, in the circumstances, the disclosure order was premature. Even if it is open to a court to order disclosure of privileged communications between the Crown and police in the abuse of process context, the Supreme Court has made it clear that solicitor-client privilege should only be abrogated as a last resort.
[...]
In my view, the motion judge erred in ordering production of privileged materials prematurely and absent a finding of necessity, that is to say, a finding that there was no other way of establishing an abuse of process and obtaining a stay. He should have waited until at least the end of the abuse of process motion, and applied the R v. Babos test for abuse of process, at para. 32, without the privileged information. [@50 and 59].

The appeal was allowed and the matter remitted to the motion judge. Rutigliano is a very interesting case and the court’s ruling offers some helpful guidance on this issue. It is interesting – and important – to track the court’s handling of solicitor-client privilege in a way that is uniform regardless of whom the client is. This important privilege must be respected by the courts and this ruling goes a long way toward that end.

DM

Take notice, jurisdiction is predicated on it!

Andrew McCann, Jamie Masse and Patrick Thompson blocked a cattle truck from leaving the Frontenac Penitentiary. The blockade was part of a peaceful protest. They were convicted of mischief and received conditional discharges. Their appeal to the summary conviction appeal court was dismissed. They appealed to the Ontario Court of Appeal: 2015 ONCA 451.

On appeal the appellants presented arguments that ultimately were based on the assertion that “the court below erred in finding that their peaceful protest was not protected expression under s. 2(b) of the Charter” [@3]. The court rejected this argument:

The impediment to this argument is that the appellants did not serve a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. A Charter argument was not made at first instance and in fact the appellants, who were self-represented, disclaimed a Charter argument. [@4].

The failure to serve notice was fatal the court held:

Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska, Jr. v. Cava (2002), 59 O.R. (3d) 469 (C.A.); R. v. Briggs (2001), 55 O.R. (3d) 417 (C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 – to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.
We agree with the respondent that the appellants’ submissions raise the constitutional applicability of s. 430(3) of the Code. This court has no jurisdiction to grant relief in the absence of notice or in the absence of the circumstances discussed in para. 23 of Paluska, none of which exist here. Moreover, the appellants concede that the record before us does not permit us to assess the Charter arguments or to grant a Charter remedy. [@6-7].

McCann is a helpful decision which clearly recognizes that notice is not merely a procedural formality, it is a substantive pre-requisite to the consideration of a constitutional issue. In the absence of notice the court lacks jurisdiction to grant a remedy. This principle has universal application; it is unaffected by the importance or prevalence of the issue at hand. While the issue is well settled law, it seems that remains at issue in some cases: see Nicholson, 2014 OJ No 3860 (where the court overturned a constitutional ruling by the lower court which proceeded in the absence of notice). McCann therefore offers a helpful reminder from the Ontario Court of Appeal.

DM