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Author: Rory

Edmonton Criminal Lawyer Ziv > Articles posted by Rory

Rory Ziv in the Media: Spring 2022 Update

Here is a list of recent news articles involving Rory Ziv and the Edmonton Criminal Lawyer Ziv law firm.

https://www.cbc.ca/news/canada/edmonton/alberta-court-damien-starrett-manslaughter-murder-1.6477441

https://edmontonjournal.com/news/crime/crown-requests-manslaughter-conviction-for-damien-starrett-in-sons-death

https://nationalpost.com/news/canada/alberta-man-claims-his-sleep-disorder-the-reason-for-killing-his-one-year-old-son

https://www.theglobeandmail.com/canada/alberta/article-sentencing-hearing-to-begin-for-man-in-fatal-2019-shooting-outside/

https://www.reddeeradvocate.com/news/family-of-victim-read-impact-statements-at-sentencing-of-red-deer-walmart-shooter/

de minimis

Arbour J in her dissent in Canadian Foundation (though not on this point) provides an explanation for what a de minimis defence is, and how it functions.

There are three justifications for usage of a de minimis defence. (1) reserves the application of criminal law to serious misconduct, (2) protects accused from stigma of conviction and severe penalties for relatively trivial conduct, (3) it saves courts from a large number of trivial cases. Justice Arbour states that the theory behind this defense is that there are evils that are targeted by the relevant legislation, and in cases where a de minimis defence exists, that evil has not occurred. She states this is consistent with the dual fundamental purpose of criminal law she identified in her dissenting opinion in Malmo-Levine that there is no culpability for harmless and blameless conduct.

She identifies that the caselaw for de minimis is limited, but suggests this is because it is often not needed as police and prosecutors typically screen all criminal charges and ensure that only the cases deserving to be tried make their way to court. She notes that a judge would be justified in not exclusively relying on prosecutorial discretion to weed out cases undeserving of prosecution and punishment. Good prosecutorial judgement is necessary but not sufficient by itself to ensure the proper operation of the criminal law. Both prosecutorial discretion and discretionary use of the de minimis defense by judges serve the purpose of protecting against convictions for conduct underserving of punishment. “The judicial system is not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of ‘a crime’ (e.g., theft of a penny).”

Summary

de minimis exists as a sort of “stop gap” that can filter out cases undeserving of prosecution that are missed by the prosecutorial discretion “filter”. The cases brought before a judge are not automatically the ones deserving of prosecution, and a judge should retain discretion to reject those cases if they are trivial, trifling, or unworthy of prosecution.

Additionally, an act that meets the technical requirements of a crime but does not contain the “evil” the legislation intended to target, should not be punished. This is consistent with Arbour J’s dissenting opinion in Malmo-Levine that harmless and blameless conduct should not be punished. While the majority rejected this, Malmo-Levine specifically dealt with whether or not the “harm principle” was a principle of fundamental justice under section 7 of the Charter. So that should be a distinguishable fact that allows us to consider Arbour J’s words.

mens rea in Breaches of Conditions

In Zora, the SCC stated thatthe Crown must show beyond reasonable doubt that the accused knowingly or recklessly breached conditions of bail.

In Zora, the SCC states that knowledge of any risk of non-compliance is insufficient to establish recklessness. Rather, accused must be aware (subjective standard?) that their conduct creates a substantial and unjustified risk of condition non-compliance. The SCC notes that this is the standard adopted in Leary v The Queen [1978] 1 SCR 29 at 35 and R v Hamilton [2005] 2 SCR 432 at paras 27-29.

Factors to consider in evaluating the risk include the extent of the risk, nature of the harm, the social value attached to the risk, and the ease with which the risk can be avoided. The risk must not be far fetched, trivial, or de minimis

This standard of risk is necessary as the offence in question (bail conditions in this case) may criminalize everyday activities and have unforeseen consequences on peoples’ everyday lives.

The Court concludes that proof of mens rea is required to establish guilt of breach of conditions for bail. There is nothing within the text or context of s. 145(3) to suggest that Parliament intended not to apply a subjective MR standard. This is supported by the Court’s jurisprudence on interpretation of breach of probation offences. In Mr. X’s case, there is no indication that section 145(5) of the Criminal Code applies a different standard than s. 145(3). So, proof of mens rea should still be required, ie: did Mr. X knowingly or recklessly breach the conditions of the no contact order by bumping into his ex-wife on Halloween?

Courts across the country have been divided on which standard of mens rea to apply to breach of bail conditions. Alberta has a history of applying varying and modified approaches. 

Key part of determining the fault standard to apply in statutory interpretation rests on the presumption that Parliament intends for a crime to have a subjective fault element (cites R v ADH, 2013 SCC 28 and R v Sault Ste Marie, [1978] 2 SCR 1299).

ADH says that the presumption of subjective fault reflects the underlying view that the criminal law should not punish the morally innocent. While not a strict rule, ADH also says that there must be clear and express intent by Parliament to override the subjective fault presumption. Ambiguity regarding the required mens rea means that the subjective fault presumption is not overridden. In Justice Martin’s opinion, section 145(3) does not have wording that clearly overrides the subjective presumption. 

Subjective mens rea is proven when the Crown establishes that (1) the accused had knowledge of the conditions they were bound by, or they were wilfully blind to them, (2) the accused knowingly failed to abide by those conditions, and (3) the accused recklessly failed to act according to their bail conditions, meaning the accused knew of a substantial and unjustified risk that their conduct would likely cause them to fail to comply with their conditions and persisted anyways. All three elements must be proven by the Crown

Justice Kirkpatrick in R v Josephie in the Nunavut Court of Justice says in regards to failure to appear in court “[t]he introduction of an objective fault standard might make for a more efficient criminal justice system, but such a system would not necessarily achieve greater justice. Such efficiency would undermine the philosophical underpinnings upon which the criminal justice system is built. It would confuse society’s rationale for the punishment of crime.”

This decision is referred to by the Alberta Court of Queen’s Bench in recognizing that section 145(5) is not a strict liability offense. 

R v Eby involved a breach of probation (s. 733.1) but Judge Allen concluded that sections 145(5) and 733.1 operate in an analogous way. Therefore, his conclusion that a breach of probation order is not proven unless the Crown can demonstrate the accused knowingly acted contrary to the probation order, or was wilfully blind and engaged in conduct contrary to the order; this conclusion should be applied to s. 145(5). 

Loutitt lists other cases that interpret s. 145(5) and similar offenses in the same way, R v Mannuel (182 NSR (2d) 193), R v Blazevic (31 OTC 10), R v Custance (2005 MBCA 23), R v Bender (30 CCC (2d) 496), R v Hutchinson (25 WCB (2d) 51), R v Nedlin (2005 NWTTC 11), R v Brown (2008 ABPC 128), R v Stanny (2004 ABPC 149).

I HAVE NOT REVIEWED THESE CASES TO CONFIRM CONTENTS.

R v Antle, 2021 CanLII 93183 (NLPC)

Zora applied, Crown must prove that accused committed the breach knowingly or recklessly. Judge acquitted because evidence didn’t show that he knew that his presence at the door was being requested by police, and that the evidence is insufficient to show that he was reckless in failing to present himself. (at para 5)

R v Yaroslawsky, 2020 BCSC 1239

Zora applied, subjective standard for breach required. Accused in this case was convicted because he clearly knew of the conditions of the order, and attempted to mislead police about the theft of a truck, all while he knew he was under 24-hour house arrest. (at paras 87-88).

R v Eby, 2007 ABPC 81

Judge Allen ruled that subjective mens rea is required.

R v Vidovic, 2013 ABPC 310

Judge Allen indicated that he neglected to include recklessness in his decision in Eby, but still the same requirement of subjective standard.

Summary

Subjective mens rea appears to be required for this offense as there is no express indication that parliament intended to impose a different mens rea standard. This is also not a strict liability offense, therefore mens rea must be proven. The Crown must be able to prove that the accused knew what his conditions were, and knowingly or recklessly acted in noncompliance with them.


Canadian Foundation for Children, Youth, and the Law v Canada [Attorney General], 2004 SCC 4 at para 204 [Canadian Foundation]. 

Ibid.

3 Ibid; see also R v Malmo-Levine, 2003 SCC 74 at paras 234-235, 244 (Arbour J Dissenting).

4 Canadian Foundation, supra note 1 at para 203.

Ibid at para 200.

Ibid.

R v Zora, 2020 SCC 14 at para 110.

Ibid at para 118.

Ibid.

10 Ibid at para 119.

11 Ibid at para 4.

12 Ibid.

13 Ibid at para 31.

14 Cited in ibid at para 32.

15 Cited in ibid at para 33.

16 Ibid at para 33.

17 Ibid at para 35.

18 Ibid at para 109.

19 R v Josephie, 2010 NUCJ 7 at para 24.

20 Cited in R v Loutitt, 2011 ABQB 545 at para 7.

21 2007 ABPC 81.

22 Ibid at para 12.

New System Strikes the Wrong Balance

Alberta has entered into a new era of traffic enforcement. Impaired driving is now being governed by what is called Immediate Roadside Sanction (IRS) and soon all traffic tickets will be too.

For those who are not familiar with the process, it means that when an alleged contravention has occurred, police issue a person an IRS on the spot. Whether it be an immediate license suspension for impaired driving or a demerit and fine penalty for speeding, the point is that the penalty is imposed immediately. Hence the use of the word “immediate.” You are liable immediately unless you can show why the IRS should be cancelled – in a term more familiar — why you are ‘not guilty’. You have to pay an application fee to challenge the IRS.

This new process runs contrary to what Canadians have been accustomed to for probably well over a century: Neutral Judges and the presumption of innocence. 

Naturally, as a first reaction, it feels unfair, unconstitutional, and even a little totalitarian. It cuts against the grain and our natural sense of what is just.  

I have been defending driving infractions for almost 20 years and am currently involved in a significant amount of litigation under this new IRS system. 

There are some benefits to this new approach. I remember one of my first days in the Edmonton court house, wondering why so many police officers were mulling around outside court rooms. Sometimes there would be three officers attending court for one speeding ticket: The officer who thinks he saw a person speeding, the officer who then pulled the alleged speeder over, and the officer who wrote the ticket.

I called this a continuity defence. The government needed all three officers to prove one ticket. These three officers may all have been getting paid overtime if court ran outside their shift. For a $ 125.00 ticket!

In addition, three officers were in court rather than on the street preventing crime, which is inefficient. The new system removes this type of waste. 

Likewise, while first time impaired drivers who are caught under this new system will not have to face a court process (and criminal record), they will be subject to extremely severe penalties. Court time and prosecutor time are saved. I believe impaired driving litigation took up more than 50% of court resources. 

So, while this new system has some potential benefits, like reducing the strain on justice resources and giving first time offenders a break, it also has some significant flaws and has not struck the right balance. Hopefully, it will. There are at least three areas that need to be immediately addressed. 

If the government is going to hold onto the “immediacy” aspect of the sanction, that is, you are guilty or liable unless you prove otherwise, then they need to balance that approach, which arguably is harsh, with firstly, not requiring motorists to pay a fee to challenge their respective penalties; secondly, creating an adjudication system that instills confidence in the public’s perception that justice is actually being done; and thirdly, encourage adjudicators to uphold the Canadian Charter of Rights and Freedoms when police violate rights.   

Firstly, the ‘pay a fee’ to challenge your IRS is flawed. It creates a real and pressing access to justice issue. Those who can afford to pay the application fee can dispute the sanction and those who can’t … well, that’s too bad. A two-tier justice system must be avoided at all costs. 

The second issue relates to the adjudicators the government has hired to decide the validity of a person’s sanction. The adjudicators are government employees. They are not independent and impartial. If they are not biased, which is a big if, there remains a real perception of bias that must be erased.

In many administrative settings, adjudicators are appointed by government which establishes independence. 

An appointed official cannot be fired for their decision making. This is a crucial and necessary requirement if a fair system is going to be developed.

Finally, as the system currently stands, the adjudicators are not holding the police accountable for Charter violations. They claim they have no “jurisdiction” to do so and while this may technically be accurate, the higher courts have given them the power to ignore police evidence if motorists’ Charter rights have been infringed. In addition, the legislature can give them the power to do so. At present the adjudicators appear to be too cautious to act in meaningful ways when Charter concerns are brought to their attention. 

The former Chief Justice of Canada, Beverly McLaughlin said:

The Charter is not some holy grail which only judicial initiates of the superior courts may touch.  The Charter belongs to the people.  All law and law-makers that touch the people must conform to it.  Tribunals and commissions charged with deciding legal issues are no exception.  Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. 

These are some examples of some of the key issues that need to be addressed, although there are other issues as well. 

While the government may be on the right track with implementing this new system of justice, it is not fairly balanced. Until meaningful changes are made, I share the frustrations of many.

Rory Ziv is a criminal lawyer called to the bar in 2005. His law firm represent Albertans in all criminal matters throughout the province.

The Best Criminal Lawyer in Edmonton

(a guide to choosing the best criminal lawyer)

“I’m not the greatest. I’m the double greatest. Not only do I knock ’em out, I pick the round. I’m the boldest, the prettiest, the most superior, most scientific, most skillfullest fighter in the ring today.”

Mohammed Ali

Mohammed Ali’s positive attitude and confidence was infectious. He also had the record to back up his big talk. In a system like boxing or baseball where ‘wins’ and ‘losses’ are easy to tally, a claim of being the greatest is verifiable.

What does it mean to be “the best” lawyer? By whose standards? Here are some factors to consider when choosing to hire the best lawyer. 

Hard Work Beats Talent Every Time

I used to tell my son when he was growing up (he was a good hockey player and I am a proud father) “hard work beats talent every time”. This motto is a philosophy I hold true.  

The Best Criminal Lawyers are the ones who work the hardest. It’s really not that complicated. 

You have to work hard to achieve results. Some people and maybe even some lawyers think that justice is just the set point. That justice just happens. It doesn’t. If that were true, we wouldn’t need criminal lawyers. The Crown could just give the facts to the judge and the judge would make the right decision.  You have to fight for justice at every step. In my experience – justice seldom “just happens”. 

What is a Win?

Anyone looking to hire “the best” lawyer should have an understanding of what “the best” means. The law is not a finite game like boxing or baseball. Cases are complex, unpredictable and there is a real human aspect to it all. What is important to one client may not be important to another. 

Measuring “a win” in criminal law is not so easy. If someone is charged with murder and you are able to get the charge reduced to manslaughter, is that a win? What if you are successful because the Prosecutor was incompetent or made a mistake? Is that a win? What if you lose at trial but win on appeal? What if you win at trial but lose on appeal? 

Defining “a win” is context specific. It ‘s like playing the cards dealt. The question to ask is how well does the lawyer you hire play the cards he or she is dealt on a consistent basis? 

A win is doing the best you can with what you have. Look for a lawyer who leaves no stone unturned, is up to date with the law, who doesn’t worry about what others think of him or her. Sometimes you need to be brave to make the hard arguments. A lawyer who is too cautious in litigation often loses by default. 

The best criminal defence lawyers are creative, hard working and enthusiastic about their work. This usually translates into “wins”. 

Experience isn’t everything

My principal, the person who trained me in my first year of being a lawyer-article student, told me when I first started practising that it takes about 10 years to feel comfortable in the court room. Generally, I would have to agree with his observation. This however does not mean that less experienced lawyers cannot get the job done.

In fact, I would take a young lawyer who knows the law, is eager to make a name for himself, who is passionate about his work, conscientious, caring and committed to the client any day over an experienced lawyer who thinks he knows it all because he has seen it all and views the work more as a chore than a calling. 

Don’t get me wrong; there is no substitute for experience, but there is also no substitute for knowing the facts of your file inside and out, being up do date with the law, new legal trends and what goes on in the court house day in and day out. 

It is often the younger lawyer who has an eye on these important things. Do not hire on experience alone. You need to gauge whether the lawyer you hire is engaged in the process and is passionate about his/her work. 

Personality 

Some clients need more reassurance than others. Not every lawyer is willing to engage in this type of relationship. Genuine empathy is generally a good quality for a lawyer to have but not mandatory. It’s important that both parties know each others’ exceptions at the outset. 

Communication

Make sure the lawyer you hire is prompt in responding to emails and phone calls. This is key.

The Best Criminal Lawyers don’t need to say they are the best

The best criminal lawyers don’t need to say they are the best. Their results, reputation, referrals (repeat business) is proof enough. Take the time to read a lawyers reviews and case decisions. 

Price

“The best lawyers charge the most.” No. No. No. This is completely wrong. Many good lawyers choose to charge prices that are lower than lawyers who are not of the same quality. I’ve seen very good lawyers, maybe some of the best, do exceptional work for a fraction of the price of lawyers who think they are the best. Do not be fooled by the price a lawyer charges.   

The Role of Belief in Criminal Law

Belief: An acceptance that a statement is true or that something exists.

In R. v. Iqbal, 2021 ONCA 416, the Court overturned a home invasion conviction based on faulty reasoning by the trial judge. The trial judge rejected the evidence of the accused and based on this rejection concluded that he had fabricated his evidence.

The reasoning chain was as follows: “If I reject your evidence, it means that you have fabricated your evidence. If you have fabricated your evidence, then you must be guilty”. At first blush, there may seem nothing objectionable or illogical about this approach. However, there is a conspicuous problem with this reasoning. Before explaining why, it is useful to provide the law’s position.

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events.

R. v. Coutts 1998 40 OR (3d) 198 (CA)

For the law, disbelieving an accused person, without corroboration, cannot equate with fabrication. To do so effectively reverses the burden of proof.1 The notion that “I reject your evidence and therefore you are guilty” fails to answer the pivotal question of whether, regardless of the disbelieved evidence, has the Crown nevertheless proven guilt beyond a reasonable doubt. An example may illustrate the point.

A man is seen leaving an apartment complex at approximately 1 am. At approximately the same time, a woman calls from the same apartment complex saying she was raped by an unknown man. The man is arrested; he matches the general description of the assailant, but at trial denies he was the assailant, and gives an explanation for why he was at the apartment complex at the relevant time.

His explanation is disbelieved2. The law requires, and properly so, that the Crown nonetheless prove their case beyond a reasonable doubt. How was he described by the complainant? Did he match the description given by the complainant with enough specificity to warrant a conviction? While he may have matched the description of the assailant generally, what were the differences? Are those differences great enough to raise a reasonable doubt?

The fact that his explanation was disbelieved should not and in law cannot lead to the conclusion of guilt.

Belief
Subjective Belief —————————— Objective Belief

The Truth ———————————————— The Truth

I may believe the world is round because someone tells me it is or I may believe the world is round because I have seen credible pictures of the Earth’s shape; climbed a high peak and observed the Earth’s curvature; studied physics and verified Newton’s laws by conducting experimentation, or recently taken a ride on one of Musk’s, Branson’s or Bezos’s space machines.

While I may believe the world is round “because someone told me so” (and for this example that also happens to be true) it is really for the latter reasons that this belief is compelling. Objective verification. In a criminal trial the objective markers assist in deciding whether to belief someone or something. “He sucker punched me hard in the eye” could be believed independently (without corroborating evidence like another witness or photographs of injury) but with more objective evidence, the easier it becomes to endorse a particular belief.

This then is the crux – a trier of fact, judges or juries, are not all-knowing entities. Time and time and time again innocent people are convicted. A competent trier of fact must appreciate that while they have reached a conclusion, “a belief”, that belief may still be wrong. To disbelieve a person must not result in the fallacious and corollary reasoning that they fabricated evidence.

Disbelieving a person without independent evidence of fabrication should never result in a finding of deliberate concoction and therefore guilt. This is what the law demands. This is what logic suggests. Skepticism is our ally. Perfection is not within the purview of human judges.

1 See also R. v. Rodriguez 2014 ABCA 180 at paras 11-12. “lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” per R. v. JHS 2008 SCC 30 at para 13.
2 Perhaps he was visiting a secret lover or had some other personnel business he was attending to which he did not want to be made known publicly. Perhaps his explanation was a fabrication perhaps it was the truth but nevertheless disbelieved.

Bill Cosby Not Guilty of Everything

The Bill Cosbay Appeal

This week an Appeal Court reversed the conviction of Bill Cosby in relation to a sexual assault a jury found him guilty of. I’ve read the decision and would like to explain to my readers why his appeal was successful.

Understandably the result must be devastating for the complainant (and other woman who testified) but nevertheless the the case is a shining example of fair reasoning by a court. 

The Legal Issue

In the early 2000’s a complainant made a sexual assault allegation against Cosby. The District Attorney D.A. at the time concluded that he didn’t have enough evidence to prosecute Cosby but didn’t want do hinder the complainant from pursuing a civil law suit against Cosby and at least recover monetary damages.

As a result of this he issued a press release which reads in part as follows (I will emphasize the controversial part):

… [a]fter reviewing the above and consulting with County and Cheltenham detectives, the District Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt … As such, District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter …

Because a civil action with a much lower standard for proof is possible, the District Attorney renders no opinion concerning the credibility of any party involved so as to not contribute to the publicity and taint prospective jurors. The District Attorney does not intend to expound publicly on the details of his decision for fear that his opinions and analysis might be given undue weight by jurors in any contemplated civil action. District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise. Much exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering [J-100-2020] – 13 light. The District Attorney encourages the parties to resolve their dispute from this point forward with a minimum of rhetoric.

Bill Cosby was sued and required to give testimony in the civil suit. Ordinarily, if someone is facing criminal jeopardy they cannot be compelled to answer questions in a civil suit ( the 5th Amendment).

In the civil law suit Cosby did not “take the 5th” because legally he was under the impression he could not; relying on the representations of the of the D.A. that he would never be prosecuted for the criminal offence he was accused of committing.

The answers Cosby provided in the civil law suit where then used in the case at bar (where he was ultimately convicted).

The question for the Appeal Court turned on the meaning of: District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise.

The trial court determined that this statement would have signalled to Cosby that he may still be prosecuted for the initial sexual assault case. The case wasn’t completely closed. As a consequence, Cosby should have taken the 5th amendment in the civil case and he failed to do so. That was Cosby’s problem.

The Court of Appeal disagreed and said that when read in isolation this statement may suggest that; but when read in context it was clear that Cosby was entitled to rely on the press release (and that reliance was reasonable) as conveying to him the message that he would never be prosecuted for the offence.

The Court of Appeal concluded that the impugned sentence meant that the DA may make further public announcements about the case should the need arise. “Reconsider the decision” related to the decision to make further public announcements.

The court then went onto discuss appropriate remedies and concluded the only appropriate one that would restore Cosby to his original position would be a discharge of the charges.

Conclusion

I would encourage the reader to read this decision. It is well written and easy to read. It is an affirmation of the value and importance of the rule of law.

Guilty because I believe you are — A Case of Confirmation Bias

In R. v. Aslami 2021 ONCA 249 the Ontario Court of Appeal overturned a very serious case: the firebombing of an occupied residence.

The case is important for a number of reasons, including the Court’s affirmation that text messaging evidence must be scrutinized carefully before it is utilized.

For me, the case is important for another key reason; it is a case that typifies confirmation bias.

In short, confirmation bias is the tendency to accept or ignore evidence in order to conform with one’s theories or beliefs.

In this particular case, the decision maker erred when he put weight on certain evidence, specifically, text messages and weak video identification evidence.

It is likely that by the time the judge was required do an overall assessment of the case, he had already made up his mind about the guilt of the accused. You can tell this by the fact that he ignored three key pieces of evidence which were as follows:

  • that the Appellant stole the vehicle involved in the firebombing before he actually had a motive to commit the offence (the Crown’s explanation was maybe it was stolen twice in a 24-hour period) (para 45);
  • that the clothing of the Appellant and the perpetrator did not match (para 38) but this fact was ignored by the judge;
  • that the Appellant’s es-wife identified the Appellant by how he moved in the CCTV footage she observed. The problem with this evidence was that this is not what the ex-wife said (para 41).

This case, for me, is a classic confirmation bias case. There were key pieces of evidence that needed to be explained, analyzed and seriously considered. They were not because, at least by me estimation, the judge fell into confirmation bias reasoning.

Perfection is not the purview of human judges.

First Base, Second Base, Third Base, Home

In Canada the rules of sexual engagement are precise. You cannot have sexual relations with another person without their consent. This means that at every stage of a sexual encounter you need to ensure that your partner is consenting to the sexual act being performed or attempted to be performed. 

Yes, this does mean that a man who is kissing a woman deeply and passionately with her consent must obtain consent to then move his hands, for example, onto her breasts. For this act to be legal, the breast touching, there must be some form of “communicated consent”. Absent this consent you have committed a sexual assault. The law of course is not gender specific, the same applies to a woman kissing a man. Before she moves her hands say, onto his buttocks, she must be satisfied that her partner is in fact consenting to this. There is no “implied consent” in Canada. 

See for example R. v. M (ML) 1994 Canlii 77 –”The majority of the Court of Appeal was in error in holding that a victim is required to offer some minimal word or gesture of objection and that lack of resistance must be equated with consent.”

Furthermore, the Criminal Code requires a positive step be taken to ascertain consent s.273.2(b)(c):

It is not a defence … that the accused believed that the complainant consented … where … 

The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting or there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

The law says: before you go to second base you need permission to leave first. 

Under this backdrop that following case is worth noting; R. v. JC 2021 ONCA 131 where the trial judge disbelieved the accused because:

I found JC’s evidence suspect that on each and every occasion when he and HD had sexual activity, that he very carefully put the question of consent to her, and in all instances only proceeded after he specifically requested consent “at each progressive stage of the sexual encounters”. Defence counsel contended that there was no reason not to believe that, especially in respect of the first alleged assault. However, I did not believe JC’s evidence on that issue, and I found that declaration to be too perfect, too mechanical, too rehearsed, and too politically correct to be believed.

 JC wanted me to accept that at each and every stage of each and every sexual encounter, he continuously asked HD if he could go further, but this simply is not in accord with common sense and experience about how sexual encounters unfold. It seemed excessively rehearsed and staged, as he specifically turned to give this answer directly to me. 

So according to the trial judge the accused should not be believed because his actions did not accord with normal human behaviour, or “common sense”. The problem with this reasoning is that the accused did exactly what was required of him by law; request consent at each progressive stage. How can he be faulted for doing that? The Ontario Court of Appeal said the trial judge erred because it was improper to stereotype how normal sexual encounters unfold. Since the law requires “progressive consent”, it is only natural to positively ensure that permission has been granted before advancing further. 

Rory Ziv in the Media: Fall 2020 Update

Here is a list of recent news articles involving Rory Ziv and the Edmonton Criminal Lawyer Ziv law firm.

https://www.reddeeradvocate.com/news/charges-against-man-accused-in-red-deer-walmart-shooting-could-be-resolved/

https://rdnewsnow.com/2020/10/14/resolution-remains-possible-for-man-charged-in-red-deer-walmart-homicide/

https://www.reddeeradvocate.com/news/crown-prosecutors-continue-to-mull-resolution-proposal-for-walmart-shooter/

https://fortsaskonline.com/local/starrett-asks-for-transfer-after-death-threats-at-remand-centre

https://edmonton.ctvnews.ca/sentencing-adjourned-for-2017-mountie-assault-of-indigenous-man-1.5004297

https://edmonton.ctvnews.ca/mobile/charge-against-marginalized-man-dropped-after-judge-says-criminal-check-was-unlawful-1.4633527?cache=?contactForm=true

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https://www.dailyheraldtribune.com/2013/04/10/blind-sex-offenders-house-arrest-sentence-baffles-lawyers-mps/wcm/e6f03fb9-574f-4933-9601-e993c853d1e6

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Demeanour Evidence and Admissibility

[1] In certain instances demeanour evidence may fall into the category of “post-offence conduct”, or it may be gathered during testimony to determine credibility. Demeanour evidence is based on two assumptions; that there are normal or acceptable reactions to certain events and that the outward reactions of an individual are a reflection of their inner emotional state (R. v. Wall, 2005 CanLII 80695). 

[2] Dangers in the use of demeanour evidence were highlighted by Rothstein J. in R. v. White, 2011 SCC 13, speaking of hallmark flaws in paras. 75 and 76:

“…Such hallmark flaws are generally associated with evidence in the form of a witness’s impression of the accused’s mental or emotional state (e.g. appeared calm or nervous), as inferred by the witness from the accused’s outward appearance or behaviour. The accused’s mental or emotional state is then submitted as suspect and probative of guilt (see Nelles; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 150 O.A.C. 208, at paras. 24-27; R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 191 O.A.C. 322 at paras. 40-43 (an appeal was allowed by this Court and a new trial was ordered, but solely on the basis of fresh evidence, 2007 SCC 49, [2007] 3 S.C.R. 453)).

A problem with such evidence is that the inferential link between the witness’s perception of the accused’s behaviour and the accused’s mental state can be tenuous (Trotta, at para. 40). The witness’s assessment depends on a subjective impression and interpretation of the accused’s behaviour (Levert, at para. 27). Moreover, it appears to involve an element of mind reading (R. v. Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29, at para. 51). Additionally, insofar as the witness is inferring the accused’s state of mind from the accused’s outward appearance, there may be a legitimate concern that this is inadmissible lay opinion evidence. This is to be contrasted with evidence of objective conduct that allows the jury to draw its own inferences about the accused’s state of mind.”

[3] Rothstein refers to elements of mind reading and the subjective interpretation of the state of mind of an accused, based on outward appearance. The link between outward behavior and mental state can be tenuous and it is further marred by subjective impressions (White, 2011). 

[4] In R. v. Anderson, 2009 ABCA 67, the trial judge referenced the appellant seeming “unusually quiet” in the area of the crime scene and not looking at the hotel where a person had been murdered. Anderson mentions that there was merit to this complaint because the witness who gave the appellant a ride knew him and may have been in a position to comment on the appellant’s normal demeanour in a “conclusory manner.” The court went on to state that unusual demeanour such as drunkenness or shock may be circumstantial evidence of state of mind. The court then provided a caution about demeanour as a type of evidence in paras. 51 and 52: 

“Evidence of an accused’s demeanour is a risky type of evidence. It could be meaningless and prejudicial. The witness Erskine said that the appellant told him he had had a bad sleep. This evidence needed fairly compelling supportive indications of meaning and relevance in order to be of probative value here. Depending on the circumstances, a “demeanour” observation may be the sort of partial evidence that is more prejudicial than probative: R. v. Ferris, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756, [1994] S.C.J. No. 97 (QL). In a real sense, demeanour evidence involves a form of mind reading. Accordingly, such evidence should be approached with circumspection where it is proposed to take it to indicate guilty mind: R. v. Turcotte, [2005] 2 S.C.R. 519, [2005] S.C.J. No. 51 (QL), 2005 SCC 50 at paras. 36 to 59.

On the facts here, as the appellant asserts, this demeanour observation of the appellant was more prejudicial than probative. Such demeanour might have been consistent with some internalized concern about the Bentley Hotel, but equally it might have had no meaning at all. To be post-offence conduct, it must be more than neutral: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57 (QL). Accordingly, the trial judge erred in leaving this evidence with the jury as part of the package of post-offence conduct on the basis that he did. Whether or not it had some value as part of the narrative, it was simply too ambiguous to support an inference.”

[5] The court stated that the absence of specific evidence about the appellant’s demeanour from the record did not suggest that there was a reasonably possible alternative verdict available. The jury did not use it as evidence of planning and deliberation as they acquitted on the murder count. However, the court stated the demeanour evidence was too ambiguous to support an inference and the trial judge erred in leaving it as evidence with the jury in the way that he did (Andersen, 2009). 

[6] In R. v. Levert, 2001 CanLII 8606 (ONCA), the Crown introduced evidence of the appellant’s reaction when confronted with allegations. The evidence was that the appellant was “very, very, very calm”, “not on the defensive at all,” but ultimately denied the allegations. The Crown invited the jury to consider whether the appellant’s reaction was reasonable. There was no objection to this evidence at the time and the court had grave concerns about its admissibility and referenced R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.) at 542:

“In Director of Public Prosecutions v. Christie (1914), 10 Cr. App. R. 141, [1914] A.C. 545, which constitutes the foundation of the modern law governing the admissibility of statements made in the presence of the accused, the House of Lords held that evidence of an incriminating statement made in the presence of an accused is admissible notwithstanding that there is no evidence from which it could be inferred that the accused acknowledged the truth of the statement or any part of it, if the conduct and demeanour of the accused on hearing the statement are relevant facts in the case (at pp. 160 and 166). If, however, the evidential value of the conduct and demeanour of the accused on hearing the statement is slight and the prejudicial effect of the statement is great, the trial Judge has a discretion to exclude it: Director of Public Prosecutions v. Christie, supra, at pp. 161 and 165.”

[7] The lower court suggested that the evidence of the unusually calm demeanour was evidence of consciousness of guilt. This court then referenced the highly suspect nature of the probative value of this demeanour evidence in para 27:

“The probative value of this type of evidence is highly suspect.  In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused’s’ demeanour was found to have played a part in the wrongful prosecution.  The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence.  The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution.  Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.”

[8] Based on the preceding, the court continues on to say that the trial judge “might well have exercised his discretion to exclude this evidence on the basis that the prejudicial effect of the evidence outweighed its probative value.” The court found that a fair trial was not impaired however as the jury would not have attached undue weight to this part of the case and that it only received brief attention in the cross-examination. They stated it would have been preferable for the evidence to have been ignored by the jury, but it did not render the trial unfair (Levert, 2001). 

[9] The court in R. v. Enright, 2009 ABCA 236 the court criticized the trial courts reasoning on demeanour evidence in para. 298: 

“Finally, Mr. Enright’s father and cousin testified that within an hour of Mr. Longhurst’s death Mr. Enright was in their company. Mr. Lorne Enright testified that he was with Mr. Enright for close to an hour and that his emotional state seemed normal (see para. [86] above). Similarly, the cousin testified that Mr. Enright’s mood was normal (see para. [89] above). That his mood was normal is consistent with the events which had occurred less than an hour earlier in Mr. Longhurst’s house having proceeded as planned. It is not consistent with Mr. Enright having considered those events an unanticipated tragedy. It is consistent with his having planned and deliberated about the murder before committing it.”

[10] The court goes on to state that demeanour alone, as a feature of post offence conduct, is usually neutral when it comes to the determination of the accused’s level of culpability (see e.g. R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5 (QL) at para. 42, drawing from United States v. Myers, 550 F.2d 1036 (5th Circ. 1977); R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21 (QL), at paras. 45 ‑ 51). The court states that in many cases such evidence is so ambiguous that admissibility is doubtful (see e.g. R. v. Anderson, (2009) [2009] A.J. No. 176 (QL), 2009 ABCA 67 at paras. 51 ‑ 52). In the alternative, inferences of fact from demeanour could be left to the trier of fact as long as the inference is reasonably available. Ultimately, the trial judge made supportable findings that this was a pre-planned assassination. “If the appellant’s demeanour after the fact were used only to find the appellant’s scenario to be unlikely, there would be no error. The additional inference said to be error here is irrelevant, because once the other facts were resolved the way the trial judge did, the verdict of first-degree murder followed.” The error of law above is the additional inference made from the demeanour (Enright, 2009). 

[11] In R. v. Beckett, 2020 BCCA 262, a conviction of first-degree murder was entered by a jury at trial. The court allowed the appeal stating that the judge erred by providing jury instructions that allowed the use of the appellant’s statement to the police as evidence of fabrication. The court also erred by admitting evidence that was characterized as “inherently unreliable demeanour evidence” which let the jury to engage in improper speculation. The court discussed some of the evidence in paras. 58-60:

“Later, he observed Mr. Beckett driving his boat about 50 feet offshore, standing on the bow and “staring him down”. Mr. Titsworth said he felt uncomfortable and told the staff to avoid Mr. Beckett. In cross-examination he acknowledged that for the most part, other than the firewood discussion and the dirty look, Mr. Beckett’s actions that August were completely consistent with his normal behaviour: socializing and boating with other campers, acting as an unofficial host, jovial and a big talker who liked to have a drink.

The defence objected to this evidence on the basis that it was prejudicial evidence of bad character without any probative value. The trial judge ruled that the evidence was admissible because it was possible, from Mr. Beckett’s atypical demeanour, to draw an inference about the state of his marriage. In closing, the Crown submitted that the jury should take from this evidence that Mr. Beckett was acting differently because things were going badly in his relationship with his wife, or that he was fearful that his wife was going to leave him.

In my view, the judge erred in admitting this evidence. A disagreement over firewood and a dirty look or stare down cannot logically lead to an inference about the state of the Becketts’ marital relationship.”

The conviction was ultimately quashed, and a new trial was ordered. 

[13] In Furi v. R., 2020 PESC 34, the trial judge relied on the testimony of an employee’s opinion of the condition of the appellant, along with observations of the behavior of the appellant, as proof guilt beyond a reasonable doubt. Regarding the explicit emphasis improperly placed on the demeanour evidence by the trial judge, the court stated the following at paras. 14-15 and 30 to 32:

“I am unable to see a logical connection between the appellant’s passive demeanour in the liquor store and a conclusion, flowing from that demeanour, that his testimony at trial was either not credible or unreliable. This was not a situation where the in-court demeanour of a witness was observed by the trial judge and the overall impression created by his behaviour on the witness stand through gestures, tone of voice, eye contact, and the various other features typically referred to, independently resulted in rejection of the proffered testimony. Had that been the case, given the explicit emphasis placed on demeanour by the trial judge in the absence of other stated reasons, I would have found the credibility assessment to be based on an error of law.

In this case, any credibility finding based on Mr. Furi’s demeanour at the liquor store lacks logical validity. An assertion that the appellant was passive when confronted and his testimony is therefore untrustworthy lacks a connection between premise and conclusion.  I am therefore compelled to surmise that the trial judge inferred consciousness of guilt or, more precisely, consciousness of an essential element of the offence (i.e. impairment by alcohol) from the appellant’s demeanour. 

The demeanour evidence in this case should have been, as prescribed by White, either excluded or disregarded by the trial judge as having no probative value, more prejudicial than probative, or at a minimum the subject of a limiting self-instruction.[12] While I have some doubt that, in the circumstances of this case, the last option would have sufficed, none of those measures are evident from the record.  I believe the only reasonable conclusion from the use made of the evidence by the trial judge is that they did not occur.

In reaching this conclusion I wish to be clear that I am not proposing a general rule that demeanour evidence, whether before or after-the-fact can never be the subject matter of inferences regarding the state of mind of the accused.[13] As stated recently in R. v. Calnen, 2019 SCC 6, the specific context of the issue, purpose, and use to be made of the evidence is important.

Since the rejection of the evidence of the accused was unsound, the validity of the trial judge’s W. (D.) analysis must be revisited. This cannot occur without a new trial since the evidence of the accused is integral to the process. For the same reason, this is not an appropriate case for a substitution of the conviction with a verdict of acquittal” (Furi, 2020).

[14] In this case the demeanour evidence given by a witness about the accused amounted to a finding of guilt due to the rejection of the accused’s evidence. The court sent it back for a new trial as it was not appropriate for an acquittal (Furi, 2020).  

[15] In R. v. Short, 2019 ONSC 1180, in the two previous trials the jury heard about the actions and reactions of the accused where it was noted the accused “did not cry”, “did not seem to be grieving”, “acted unusually”, “was not at his usual place at the bar”, “odd and not normal”. These actions were being discussed in the context of the murder of his wife. Constable M. testified in front of the jury, that in his experience people in such circumstances did not react as the appellant did, and that he lacked emotion. The officer went o the provide the opinion that he thought the appellant was faking. In the appeal decision of the matter, the demeanour evidence was considered by Doherty J.A. as he provided some direction to the court as follows in paras. 51 – 55:

“The jury heard a great deal of evidence about how the appellant acted or reacted on various occasions on the night of the murder and in the days following. That evidence included testimony from various witnesses that the appellant seemed “normal” or, to the contrary, “unusual”.  The jury also heard evidence that some of the things the appellant did and said seemed to others to be contrived or rehearsed.

Evidence describing the demeanour of an accused when he did or said something can be admissible. The demeanour may be sufficiently unambiguous to give it probative value, or it may be an integral part of the witness’s description of the relevant event: R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), at para. 41.

Demeanour evidence is, however, often of little or no probative value. There is also a real risk that a jury might give too much weight to demeanour evidence unless clearly cautioned that the evidence can be misleading and often provides little or no real insight into a person’s state of mind, or the reasons for that person’s actions: R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27; R. v. Wall (2005), 2005 CanLII 80695 (ON CA), 77 O.R. (3d) 784 (C.A.), at paras. 49-50.

At the new trial, the trial judge may conclude that some of the demeanour evidence has virtually no probative value and should not be admitted. For example, if a witness describes the appellant as acting “unusually”, but does not know the appellant and cannot articulate any basis upon which the witness formed his or her opinion about the appellant’s behaviour, the trial judge may well conclude that the witness’s opinion about the appellant’s behaviour has no probative value and should not be admitted.

To the extent that demeanour evidence is properly before the jury, the trial judge must be careful to instruct the jury about the risks inherent in drawing inferences from a witness’s description of someone else’s demeanour: see Wall, at paras. 49-50” (Short, 2019).

[16] The court went on to find that the witnesses who provided comments about the appellant, who were friends from the bar he frequently attended, were not in a position to comment on what might be “normal, unusual, or odd” about the actions of the appellant. The court also found that the opinion of Constable M. was clearly of no probative value. While the witnesses may have been able to testify about the actions of the appellant, the interpretation of those actions made the evidence “dangerous”. The court found the evidence to be of virtually no probative value, and thus inadmissible (Short, 2019).

Other Cases to Consider:

R. v. Baltrusaitis, 2002 CanLII 36440 (ON CA), [2002] O.J. No. 464 (Ont. CA); 

R. v. Trochym, 2004 CanLII 1262 (ON CA), [2004] O.J. No. 2850 (Ont. C.A.) reversed on other grounds 2007 SCC 8; 

R. v. Perlett, 2006 CanLII 29983 (ON CA), [2006] O.J. No. 3498 (Ont. C.A.); 

R. v. Crerier, 2010 Q.C.C.A.; R. v. J.S.W. 2013 ONCA 593; 

Michif Child and Family Services v. V.E.M.B. et al, 2016 MBCA 13; 

R. v. Short, 2018 ONCA 1; 

R. v. Chafe, 2019 ONCA 113; 

R. v. N.M., 2019 NSCA 4;