03
November
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Author: Rory
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A Game Changer? R. v. Sharma 2020 ONCA 478
in sentencing
By a 2:1 margin the Ontario Court of Appeal have struck down legislation which prevented drug traffickers from receiving house arrest as an alternative sentence to jail. See https://www.ontariocourts.ca/decisions/2020/2020ONCA0478.pdf.
I anticipate, that because there was one judge who disagreed with this law change the Crown will appeal this decision to the Supreme Court of Canada. While this law was struck down because it discriminated unfairly against Aboriginals, the effect of the ruling means that non-Aboriginals will benefit too. This decision only applies in Ontario but it sets up a framework for challenging the legislation in the rest of Canada.
Why is this case a game changer? Well if it remains law, and that is a big “if”, it means that those who traffic in drugs only minimally (say to support a habit) or who have other exceptional circumstances, such as in the Sharma case, will avoid actual jail.
Furthermore, it opens the door, and gives those who have been caught with trafficking in more than minimal amounts, a chance to begin genuine rehabilitation in hopes of convincing a court not to sentence them to jail proper. A person who is charged with trafficking, knowing that jail in unavoidable, will not have the same incentive to turn their lives around as someone who believes jail can be avoided.
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NEW IMPAIRED LAW COMING
in dui, Impaired Driving
Alberta’s Proposed New Impaired Driving Law
[1] About ten years ago British Columbia implemented a new legislative scheme whereby impaired drivers were not charged criminally if they were caught by police drunk driving. The trade off to not charging a person criminally was that a police officer was given the power to suspend a person’s license on the spot. A major criticism of this legislation was that the police officer, in effect, became “judge, jury and executioner”. Last week Alberta introduced similar legislation.
[2] A typical investigation runs something like this: A police officer stops a vehicle and if he suspects the driver has been drinking, he administers what is called an approved screening device “ASD” test on the driver. The ASD is an instrument that collects a person’s breath sample. If the breath sample analyzes higher than a certain amount, typically “over 80”, the police officer has the authority to suspend the driver’s license license immediately.
[3] Under Alberta’s proposed new law the “Provincial Administrative Penalty Act”, for first offenders, this will mean an automatic license suspension of 15 months. The driver will be allowed to drive again after 3 months with a “blow-box” which is costly. There will also be a fine issued of $1000.00, a vehicle seizure with associated impound fees, reinstatement fees and courses to take. In addition, there is a major silent cost. The cost of insurance premiums increasing.
[4] A chief concern regarding this new regulatory scheme is proper oversight. At the road side when a police officer is administering an ASD test there needs to be a process that ensures that the testing that is conducted is accurate. The Supreme Court of Canada in R. v. Goodwin 2015 SCC 46 recognized that ASD’s can register false positives.
[5] For the scheme to be constitutionally sound police may have to inform drivers that if they fail an ASD test they are entitled to provide a second sample into another ASD to verify the accuracy of the first test (Goodwin paras 77 and 84).
[6] Another method of ensuring further police accountability it to video record the taking of breath samples. Currently, RCMP policy is to record driver stops. However, other police services in Alberta do not have this recording requirement. I suggest this recording policy needs to be implemented uniformly in all Alberta.
[7] Under the new legislation, if a driver is given a roadside suspension “a notice of administrative penalty” they will have 7 days to challenge the suspension. The review process is intended to move swiftly with one adjudicator deciding whether to confirm or cancel the administrative sanction within 30 days of the suspension. That adjudicator’s decision would also be subject to further judicial review.
[8] The Government has touted the new legislation as being more effective in combating impaired driving both in terms of ‘cost of litigation’ and ‘reduced occurrence of impaired driving’. Police resources will increase because police officers will spend less time processing impaired drivers and less time in court. Furthermore, Crown Prosecutors will have more time to focus on serious cases.
[9] Is this process fair? The issue has largely been decided by the Supreme Court of Canada in the Goodwin decision cited above. A case by case analysis will be required to determine if an issued suspension is valid.
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COVID 19
COVID 19 – Paths to Criminal Liability
Introduction
[1] As we start to practise social distancing – the obvious question emerges – what is our legal obligation to do so?
[2] Beyond this question – what if you knowingly have Covid 19 and pass it onto someone else? Can you be prosecuted criminally?
[3] In Canada, there appears, in theory, to be two paths to liability.
(1) Assault;
(2) Criminal Negligence;
Assault
[4] The Canadian definition of assault can be found in s. 265 of the Criminal Code. Basically, an assault is an intentional application of force, direct or indirectly without the person’s consent. Consent cannot be obtained by fraud.
[5] Let’s hypothetically say X who has been told he/she has the virus, is asymptomatic, kisses Y. If Y knows that X is COVID positive, and assumes the risk, then there is no fraud and no criminal liability under the law of assault. The trickier question becomes — what if X doesn’t tell Y? Whether Y gets ill or not becomes irrelevant. Was an assault committed? The HIV cases are instructive in answering this question.
[6] In order to be found guilty of (aggravated sexual) assault in HIV cases the following is required as per R. v. Mabior 2012 SCC 47 at para 104:
To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used. However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play. [emphasis added]
[7] It is not enough, and this is the important point, to simply have the disease and not disclose to your partner. There must be a “significant risk” of bodily harm couple coupled with a “realistic possibility” of transmission.
[8] In R. v. JTC 2013 NSPC 105 the medical evidence established that there was a 1/million chance of passing on the virus even with unprotected sex (low viral loads). The accused was found not guilty. Likewise, in R. v. CB 2017 ONCJ 545.
[9] In R. v. WH 2015 ONSC 6121 condom use and low viral load resulted in a finding of not guilty. See a contrary result in R. v. Goodchild 2017 ONSC 6739 were a detectable viral load and condom use resulted in a guilty finding.
[10] In R. v. Thompson 2016 NSSC 134, condom use only resulted in a finding of not guilty (aff 2018 NCSA 13).
[11] In theory, if you know you have COVID 19, have been told to self isolate, and have had contact, which includes indirect contact, with another person and therefore have created a “realistic possibility of transmission” you could be liable under the law of assault for transmitting the virus.
Negligence
[12] In Canada under ss. 219, 220 and 221 of the Criminal Code you could be liable for transmission of the COVID 19. Those sections hold a person liable for doing anything or omitting to do anything they have a duty to do and shows “wanton disregard or reckless disregard” for the lives and safety of other persons.
Conclusion
[13] I have been careful to frame the question and answer “in theory” because as the HIV cases show there are many factors that must be accounted for in determining whether someone will actually be found guilty and there is so much about Covid-19 we still don’t know.
[14] I wish everyone well over this difficult time and especially to my fellow criminal lawyers who without work for the foreseeable future are going to struggle.
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HE SAID–SHE SAID
in credibility
It’s not a Credibility Contest!
[1] We often hear the term used “it’s he said — she said” to explain how a judge will decide a case concerning the testimony of two witnesses. Who should the judge believe? A credibility contest?
[2] It is well settled in law that it’s not actually a credibility contest. The judge doesn’t need to decide whose evidence to believe. A trial judge doesn’t have to “prefer” one version of events over the other. The ultimate question is whether a person’s evidence which is not “preferred” (the competing version) may nevertheless still be capable of leaving a judge with reasonable doubt.
[3] In a recent decision the Ontario Court of Appeal in R. v. Esquivel-Benitez 2020 ONCA 160, allowed an appeal from sexual assault for several reasons including the fact that the trial judge treated the testimony of the two witnesses as being a credibility contest. The language the trial judge used included the following:
“I prefer the complainant’s evidence”
“I find the complainant’s version of facts to be more credible”
“I am left with a significant doubt as regards [the appellant’s] evidence …”
“I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility I prefer [the complaint’s] version of the facts, which I find more credible.”
[4] The Court stated that the trial judge failed to “step back” and ask whether the whole of the evidence left her with a reasonable doubt. A new trial was ordered.
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Don’t Forget about Consent
in consent, Uncategorized
Don’t Forget about Consent
[1] In R. v. Foster 2020 NBCA 2020 the court overturned a sexual assault conviction because the trial judge failed to put his mind properly to the issue of whether the Crown had proven beyond a reasonable doubt whether the complainant had in fact not consented to the sexual activity at issue.
[2] The trial judge conflated the issues of reasonable mistake of communicated consent (a mens rea issue) with the proof of lack of consent (an actus reas issue).
[3] At para 24 the court summarizes what must be proved:
• That the accused touched the complainant directly or indirectly;
• That the touching by the accused was intentional;
• That the touching by the accused took place in circumstances of a sexual nature;
• That the complainant did not consent to the sexual activity in question; and
• That the accused knew that the complainant did not consent to the sexual activity in question.
[4] With regard to the actus reus the court reminds us at para 26 that:
The actus reus of sexual assault is established by the proof of three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. The first two of these elements are objective. The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10 (QL), at paras. 25-26. The last element – the accused’s knowledge of the complainant’s lack of consent – deals with the mens rea of the offence, and this is where the defence of mistaken belief in communicated consent comes in.[emphasis added]
[5] However lack of consent is not necessarily proven by the complainant simply saying “I did not consent to the sexual touching”. Often in a criminal trial we hear Crown counsel put to the complainant the question “did you consent to this touching?”. Their answer is not dispositive of the issue. Rather, and this is important, an assessment of the totality of all the evidence in required. At para 41 and 44 of Foster:
A complainant may say she did not consent; however, the trier of fact must decide beyond a reasonable doubt that this is true. At this stage the question is purely one of credibility, which must be assessed by the trial judge in light of all available evidence, including the complainant’s conduct before and during the sexual activity in question, any words or gestures, evidence of any ambiguous or contradictory conduct by the complainant, and any other indication of the complainant’s state of mind at the time. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly conduct may contradict her claim, the absence of consent is established and the third component of the actus reus of sexual assault is proved. At this point, the actus reus is complete.
At the actus reus stage, the issue is: did the complainant consent? If there is a reasonable doubt that she did, the case is over. The complainant’s state of mind must be proved beyond a reasonable doubt, and the court must look at all available evidence, including the accused’s evidence of what the complainant was doing at the time. If the trial judge believes the complainant’s assertions that she did not consent, the Crown has discharged its obligation to prove the absence of consent. On the other hand, if the trial judge has any reasonable doubt with respect to the complainant’s claim that she did not consent, he or she is simply applying the burden of proof to the actus reus and must find the accused not guilty. [emphasis added]
Conclusion
[6] Counsel should be alive to all relevant issues and factors that may tend to cast a doubt on the complainant’s assertion that he or she did not consent at the relevant time. Saying “I didn’t consent” is only one factor to consider and must be assessed on the totality of the evidence, including the accused’s evidence.
[7] Foster even goes further and suggests that post allegation conduct may become relevant. At para 66:
In R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 (QL), the Court had to determine whether evidence related to the relationship between the parties following an alleged sexual assault was relevant. Doherty J.A., writing for the Court, held that evidence, although not determinative of whether an assault occurred, can be relevant in deciding whether the Crown had proved beyond a reasonable doubt that the incident described by the complainant (i.e. forced sexual activity) had in fact occurred. He wrote:
I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant. Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.). This evidence was relevant. [para. 89]
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Seinfeld Saves the Day
Seinfeld Saves the Day
[1] In a recent case, R. v. Burgess 2020 ABQB 50, Mr. Burgess was late for his trial regarding some bylaw infractions. He had mixed up the start time of his trial believing it to be at 130pm. In fact it was scheduled for 9 am.
[2] The trial judge refused to cancel “set aside” the convictions that had been entered due to his being late. He appealed that decision.
[3] The appeal judge noted that Mr. Burgess had actually showed up for his trial on time eight months earlier but that trial date had to be rescheduled because the court ran out of time. He cited a Seinfeld episode in support of his conclusion, that in these unique circumstances, it would be unfair not to allow the appeal and Mr. Burgess his day in court. At para 22 of the decision the appeal judge states:
In Seinfeld Episode 17, Season 6, called The Kiss Hello, George Costanza fails to give 24 hours notice of cancellation of a physiotherapy appointment, and the therapist charges him a $75 penalty. When she later, without notice, cancels an appointment George had booked, the therapist refuses to reimburse him the same amount for his time. George rails against this injustice.
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ARSON — DON’T BURN THE HOUSE DOWN
Burning Down the House
R. v. Tatton 2015 SCC 33
[1] Mr. Tatton decided to cook some bacon. He put some vegetable oil in a pan, turned the pan on high (although he thought it turned it low) and made a quick run to Tim Hortons to get a coffee and returned to a burning home. He was drunk.
[2] At the trial and appeal, Mr. Tatton, was acquitted. Both the trial judge and majority of the appellate court concluded, albeit for different reasons, that ARSON was a specific intent offence and that Mr. Tatton did not have the requisite intent necessary to cause the damage he did.
[3] The Supreme Court of Canada did not agree. They concluded that ARSON is a general intent offence.
[4] They set about a formula for determining how to classify offences as being general of specific.
(1) Determine the mental element of the offence in question (statutory interpretation);
(2) Classify the offence as general or specific by:
(a) Consider existing jurisprudence, if the law is unclear or not yet settled then;
(b) The relative importance of the mental element – that is, the “the complexity of the thought and reasoning process that make up the mental element of a particular crime”. The more sophisticated the reasoning process the more important the mental element and therefore the more likely a specific intent offence;
If after consideration of the above one cannot determine whether the offence is a specific or general intent offence then go onto consider:
(3) Policy consideration. Is it a crime frequently associated with alcohol consumption? If yes, there is a strong rational for classifying the offence as a general intent offence.
SCC’S DECISION
[5] The SCC decided that it was not necessary to resort to the policy consideration to dispose of the issue. Had it done so it would have further supported the position that ARSON is a general intent offence. The SCC concluded at para 48:
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. No complex thought or reasoning processes are required. On its face, the level of intent required for the offence would appear to be minimal.
[6] A new trial was ordered.
Practical Application
[7] When will someone be held criminally liable for causing damage to property by fire? The answer to this question as it pertains to recklessness is not clear cut. Recklessness is defined in Sansregret v. The Queen [1985] 1 SCR 570 as follows:
In accordance with well‑established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.[emphasis added]
[8] Let’s say you start a fire in a fire pit in your backyard. A gust of wind blows ash onto your house resulting in fire. In this scenario, the gust of wind was random, and liability should not follow. Contrast this with making a fire in a campground on a slightly windy day. Would liability attach if your camp fire got out of hand resulting in a bush fire or other property damage? What about a very windy day?
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IMPROPER POLICE STOP
A POLICE STOP – NOTHING MORE THAN A RUSE
In a recent decision, PCJ. L. Anderson held that my client was not stopped for enforcement of a by-law offence as stated by the officer (riding his bicycle on the side walk) but rather because the officer was suspicious of him. He provided a false name and was charged with obstruction of justice.
Police cannot use traffic law police powers as a ruse or guise to stop people when their true purpose is to investigate them for a crime.
Check out the decision at:
https://www.canlii.org/en/ab/abpc/doc/2019/2019abpc237/2019abpc237.html?searchUrlHash=AAAAAQADeml2AAAAAAE&resultIndex=1