780-686-7948

Available 24 hrs

Always here for you!

780-686-7948

Call Us Today!

Contact Us
logo
mobile logo
 

Author: Rory

Edmonton Criminal Lawyer Ziv > Articles posted by Rory (Page 4)
12 September
0 Comments
Sticky

Strip Searches and Charter Rights

Posted by Rory
in Charter Rights, Know your rights, search or seizure, strip searches, Supreme Court

Strip Searches engage important Charter Rights. The following cases shed some light on the constitutionality of strip searches.

R. v. Golden 2001 SCJ No 81 para 101

In this connection, we find the guidelines contained in the English legislation, P.A.C.E. concerning the conduct of strip searches to be in accordance with the constitutional requirements of s. 8 of the Charter.  The following questions, which draw upon the common law principles as well as the statutory requirements set out in the English legislation, provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter:

1.     Can the strip search be conducted at the police station and, if not, why not?

2.     Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3.     Will the strip search be authorized by a police officer acting in a supervisory capacity?

4.     Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

5.     Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?

6.     What is the minimum of force necessary to conduct the strip search?

7.     Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8.     Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

9.     Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?

10.   If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?

11.   Will a proper record be kept of the reasons for and the manner in which the

strip search was conducted? [emphasis added]

 R. v. Fearon 2014 3 SCR 621

Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest. [emphasis added] para 82

In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched — is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why (at para 4)

In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden. Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity. That cannot be said of cell phone searches incident to arrest (at para 55).

R. v. Ly 2016 ABCA 229 at para 12

Cellphone searches, the Court went on to explain, may also be appropriate as a search incident to arrest subject to two additional conditions: the search must be tailored to its purpose and the police are required to take detailed notes of what they examined and how they examined it.  [emphasis added
R. v. Saeed 2016 SCC 24 at para 89

Mr. Saeed was informed in advance of the procedure for taking the swab and the purpose of the swab.  The swab itself was conducted quickly, smoothly, and privately.  The swab took at most two minutes.  Mr. Saeed took the swab himself.  There was no physical contact between the officers and Mr. Saeed.  The officers involved took detailed notes regarding the reasons for and the process of taking the swab. [emphasis added]
R. v. Smith [2010] O.J. No. 1596

 

ADGN/2010-172

Ontario Court of Justice

M. Greene J.

March 17, 2010

CHARTER OF RIGHTS — SECTION 7 — Abuse of process — Strip search — Stay of charge.

 

Fact that a small amount of cocaine is in one’s wallet,
coupled with accused’s original denial that he was in
possession of any narcotics, was not a sufficient basis
to warrant a strip search.

“… I do not agree that merely because Mr. Smith had a
very small amount of cocaine in his wallet it was
reasonable to conclude that he had more on him, hidden in
personal areas like under his testicles or between the
cheeks of his buttocks. I note that Mr. Smith was not a
drug dealer and it was not reasonable to conclude that he
had had more drugs concealed on him in these particular
areas. By the time the strip search was ordered, Mr.
Smith had already been subjected to a second, more
thorough and intrusive pat down search which yielded
nothing.

… I find that objectively, looking at all the facts,
while there was a slight possibility of more drugs on Mr.
Smith, there was not reasonable and probable grounds that
drugs were on him. The fact that a small amount of
cocaine was located in Mr. Smith’s wallet provided the
basis to conduct a more thorough and invasive pat down
search. When this yielded nothing, given that Mr. Smith
was not suspected of being a drug trafficker, there was
no basis to believe on reasonable and probable grounds
that more narcotics would be found on Mr. Smith. While it
was a possibility, it did not reach the standard of
reasonable and probable grounds.”

Stay of charge granted as appropriate remedy.

“Had the breach been limited to the strip search without
proper grounds, I would not have granted the stay. As
previously stated, I believe that Detective Eckland was
acting in good faith and that while the breach is
serious, had the search been conducted in a respectful
fashion with a full understanding of the gravity of the
search, it would not have been one of the clearest of
cases and would not have warranted a stay of proceedings.
When I take into consideration Officer Johnson’s blatant
disregard for the Toronto Police Services policies in
relation to strip searches and his disregard for Mr.
Smith’s privacy and dignity by conducting the strip
search in a room with the door partially open I find that
a stay of proceedings is warranted. As was stated in R.
v. Golden, supra at para89, strip searches can be
“humiliating, embarrassing and degrading for those who
are subject to them and any post facto remedies for
unjustified strip searches cannot erase the arrestee’s
experience of being strip searched”. The lack of regard
by P.C. Johnson to the impact of a strip search on a
detainee coupled with the absence of grounds to conduct
the strip search warrants the most serious remedy our
Courts can offer. In my view, the continued prosecution
of Mr. Smith, in light of the violation that occurred,
would cause irreparable prejudice to the integrity of the
judicial system.”
 

 

 

 

 

 

 

 

 

 

 

 

 

30 July
0 Comments
Sticky

Hearsay Evidence and Inadmissibility

Posted by Rory
in admissability, criminal lawyer edmonton, expert evidence, hearsay, lawyer edmonton, Uncategorized, ziv

R v Threefingers, 2016 ABCA 225 is a good case on the inadmissibility of Hearsay evidence. This case illustrates the difficulty courts have in admitting hearsay evidence if it does not meet the requirements under the Modern Principled Regime. Live questions of reliability will always give the accused a fighting chance in criminal proceedings.

Background

This is a sexual assault involving a complainant with the mental age of 14 years. After the alleged sexual assault, the complainant made a video-taped statement recounting the details of the sexual assault. The trial judge admitted the video-taped statement for the truth of its contents even though there were serious question marks about the reliability of the statement. The trial judge also admitted expert evidence where there were serious question marks over the credentials of the expert.

Analysis

The Court of Appeal notes that hearsay admissibility is a question of law reviewable on a standard of correctness. For the video-taped statement, the Court finds that while necessity was not an issue, the statement failed to meet threshold reliability, noting that

A)    Procedural reliability was absent because the Complainant did not remember the videotaped statement or the alleged incident

B)    Substantive reliability was absent because of a number of factors

i.                 There was no oath or caution given to the Complainant

ii.               The Complainant did not wish to be at the police station, there was an indication that her mother was directing her statement including giving evidence at some points, the Complainant was high both at the time of the incident and during the statement;

iii.              The Complainant suffered from a mental disorder and a problematic perception of reality, and many things described by the complainant were not backed by the evidence

The Court of Appeal also finds that the Expert Evidence was admitted in error, because of the inappropriate credentials of the expert.

The Court quashes the conviction and orders a new trial.

 

 

26 July
0 Comments
Sticky

The Demand for Identification is a Search or Seizure

Posted by Rory
in Charter Rights, criminal lawyer edmonton, identification, lawyer edmonton, search or seizure

Police officers have no power to demand your identification- “The common law does not require a citizen to identify oneself or carry identification of any sort. Therefore, while it may be a mark of a good citizen to identify oneself when asked to do so, a police officer must not use force to compel someone to identify oneself if he or she refuses; otherwise, the officer will be guilty of criminal assault and liable to civil damages: Koechlin v. Waugh, (1957), 118 C.C.C. 24. C.C.A.”

R. v. S.H.  [2005] O.J. No. 1735 2005 ONCJ 131

A request for information or identification documentation is a search or seizure within the meaning of the Charter. For the reasons given, I find that the defendant has established, on a balance of probabilities, that this search and seizure is unreasonable.

R. v. Duncan  [2012] O.J. No. 6405 2013 ONCJ 160

28     If no lawful basis for the stop has been articulated, there was no lawful basis for the demand for identification. If there was no lawful demand for identification, the arrest for the alleged “failure to identify”7 was unlawful. If the arrest was unlawful, assuming that Mr. Duncan resisted as described, he was entitled to do so.

“The evidence before me failed to demonstrate that the purported arrest of Mr. Duncan was lawful. A citizen is entitled to resist an arrest that is unlawful. Thus, even assuming that I were to accept the police evidence of Mr. Duncan’s actions as making out the assault beyond a reasonable doubt, an issue that is not entirely free of controversy, a nonsuit and thus an acquittal is the only outcome that is lawfully open to me on the evidence before me.”

R. v. Chronopoulos, 2009 CanLII 18288 (ON SC)- Applies Harris

PC Hayford spoke to both passengers. He asked them for identification and whether they had been in trouble with the law.  Both men were polite and cooperative. Mr. Chronopoulos verbally identified himself and the passenger in the rear seat provided photo identification. This request, in the circumstances, constituted a violation of the Applicant’s right to be free from unreasonable search and seizure for the reasons that were articulated by Doherty J.A. in Harris para. 43-44:

In the present case, when [the officer] asked for identification, he intended to use that identification to conduct a CPIC search, one of the purposes of which was to determine whether the appellant was under any court orders and in breach of any court orders. I think the officer’s intention to use Harris’s identification to make the various inquiries available through CPIC is akin to an intention to conduct a further more intrusive search after receiving the answer to the request for identification. Grant offers support for my conclusion that the request for identification in the circumstances of this case amounted to a search or seizure for the purposes of s. 8.

44     I conclude that Harris was subject to a seizure when he gave [the officer] his identification. The seizure was warrantless and without reasonable cause. There is no evidence that Harris was aware of, much less waived, any rights under s. 8 of the Charter.

 

16 July
0 Comments
Sticky

Hearsay and Reliability in Sexual Assault Cases

Posted by Rory
in admissability, best lawyer in edmonton, burden of proof, criminal lawyer edmonton, hearsay, lawyer edmonton, reliability, ziv

R. v. B.P.  [2016] O.J. No. 3550 2016 ONSC 4244: Reliability

This is a case which addresses addresses issues of hearsay and reliability  in a sexual assault scenario.

Background

In this case the 9 year victim suffered from a “number of disabilities, including autism, anxiety disorder, seizure disorder and a syndrome known as Prader-Willi, which affects his hypothalamus.” The victim did not recall the incident in question, and his mother lead hearsay evidence against the accused, testifying that her son had told him of the alleged incident.

Analysis

The Ontario Superior Court of Justice found that the Trial Judge improperly admitted hearsay evidence in this case. There were problems with both procedural reliability and substantive reliability. The victim was not available for cross-examination, and the statement was not recorded in any way. As well, the surrounding circumstances indicated that there was a degree of unreliability about the statement.

The victim was suggestible and unreliable. As well, the victim’s mother was unreliable and her lack of credibility affected the reliability of the hearsay statement. The trial judge did not consider these important aspects regarding the hearsay statement, and improperly admitted it.

The Court also finds that the trial judge improperly accepted the evidence of the complainant and rejected that of the accused, shifting the burden of proof, and committing a basic error.

16 July
0 Comments
Sticky

Eyewitness Identification

Posted by Rory
in best lawyer in edmonton, criminal lawyer edmonton, Eyewitness Identification, Jury instruction, lawyer, lawyer edmonton, Murder, ziv

R. v. Bailey, 2016 ONCA 516, is an interesting case from the Ontario Court of Appeal on the perils of Eyewitness Identification.

Background

Bailey was charged with first degree murder during an attempted robbery. The mother of his victim identified him in court 2 ½ years after the alleged incident. Moreover, there was suggestion that the identification was improper because at other points in the criminal proceedings, most notably in the preliminary inquiry, the mother had testified that she was unable to identify the offender. The case involves an appeal of a conviction from the jury at trial, on the primary ground that the trial judge’s instruction on Eyewitness Identification was misdirection resulting in reversible error.

Analysis

The Ontario Court of Appeal finds in favour of the Appellant. The Court finds that it is not enough that a trial judge give model instructions regarding Eyewitness Identification. Instead, the instructions must be tailor made to reflect the particular situation before the jury. In this case, the Court found that it was not enough that the Judge urged the jury to give the Eyewitness Identification little weight and warned that it would be dangerous to rely on the Eyewitness Identification.

Instead, the Court ruled that in this case, the trial judge should have warned of specific dangers of the Eyewitness Identification evidence. These included the temporal gap in the original incident and the in court identification, earlier testimony by the victim’s mother that she was unable to identify the assailants, as well as the questionable nature of her claim that she was able to identify the appellant because she recognized his forehead.

There were other grounds of appeal in this case that the Court did not significantly address. On the question of whether the jury instruction regarding the “Jailhouse Informant” or the Vetrovec Instruction was proper, the Court reserves its verdict, finding it unnecessary to decide the appeal on this ground. Rather bizarrely, the Court goes on to suggest that the instruction was proper, and if anything if the instruction had been more “proper”, i.e. if the specific circumstances of the witness had been mentioned in this particular case it would have become clear that the dangers typically associated with jailhouse informants were less at play here, the jury would have been more likely to find against the Appellant.

This raises the question of whether the Court is suggesting that in situations unfavourable to the accused, instructions given to the jury regarding witness testimony may not need to be as context driven as in situations unfavourable to the accused.

On the Appellant’s suggestion that Crown Counsel’s closing comment, whereby it was pointed out that the Appellant did not introduce testimony from his friends or family for the purposes of alibi, had the effect of shifting the burden of proof and was improper, the Court notes that it does not think the comment was improper, and if it was it was significantly tempered by the Trial judge’s suggestion that the burden of proof rested at all times with the Crown.

16 July
0 Comments
Sticky

Conditional Discharges in Spousal Assault Cases

Posted by Rory
in Assault, best lawyer in edmonton, Conditional Discharge, criminal lawyer edmonton, Spousal Assault

Conditional Discharges in Spousal and Domestic Assaults

It would seem that Conditional Discharges in Spousal or other domestic assault cases are granted relatively easily.

R. v. A.G. [2005] A.J. No. 1226

is a case where conditional discharge was granted where the accused grabbed stool and threw it, took complainant by the hair and bent her head backwards, and struck her in the face. The accused was only scratched on the face by complainant. The accused was a police officer and the complainant did not want him charged. The parties used to be married, and had reconciled.

Sentence: Conditional discharge; 15 months’ probation; 100 hours community service; $100 victim fine surcharge.

R. v. Aymont [2008] A.J. No. 1150 2008 ABPC 285

A Conditional discharge imposed for 15 months, with accused on probation for that length of time. The couple were married. The nature of the assault is described as follows.

“Specifically, as the complainant Jenna Aymont proceeded upstairs purportedly to get the child and leave the residence, Trevor Aymont followed her, pushed her down onto the stairs, and began choking her. In her statement to the police Jenna Aymont indicated that this caused her to “black out a bit.” She responded to this by punching the accused in the face. The accused then dragged Jenna Aymont down the stairs she was on, but she then broke away and proceeded back up the stairs. The accused followed her to an upstairs bedroom where he again held her by her neck and slapped her several times with an open hand.”

R. v. D.E.D. [2007] A.J. No. 1531 2007 ABQB 508

This is another case where a conditional discharge was granted. This is a case of a father’s assault on his daughter.

“The Appellant put his right hand on D.D.’s neck and pushed her back onto a blanket on the bed where she was sitting, holding her there for a few seconds (without restricting her breathing) and telling her that he would find her and bring her back if she tried to run away again.” The Appellant also cuffed her on the left side of the head earlier.

R. v. Dunn [2013] A.J. No. 418 2013 ABQB 181

HELD: A conditional discharge and 12 months’ probation were imposed.

Sentencing of the accused, 43, for assault. The complainant was the accused’s wife. When she told the accused that the marriage was over, an argument ensued. The accused then pushed the complainant down onto the bed and crawled on top of her, pinning her to the bed. The accused had no prior record and pleaded guilty. Subsequent to this incident he attended counselling. Both spouses were employed as correction officers. The accused sought a conditional discharge.

R. v. Knowlton [2005] A.J. No. 193 2005 ABPC 29

Knowlton received a conditional discharge with a 20 month probationary period.

Sentencing of Knowlton following his guilty plea to a charge of common assault. Knowlton assaulted his estranged common law spouse while intoxicated. The assault involved slapping the complainant, pushing her to the floor, kicking her in the face and slamming her wrist between a door and its frame. The motive for the assault was jealousy. Police noted sizeable bruising and swelling on the complainant’s face, wrist and knee. Knowlton had no recollection of the assault when arrested the following day. Knowlton was an aboriginal man raised in an environment of alcohol abuse and physical violence. He had three children with the complainant with whom he reconciled following the offence. He attributed his difficulties in his life to alcohol, drug abuse, impoverished living conditions and the lack of employment opportunities on his Reserve. A positive presentence report stated that Knowlton abstained from drugs and alcohol following the offence. Knowlton also enrolled in school, attended counselling courses directed at anger management, spousal abuse and family violence prevention. Knowlton had a prior criminal record of two dated convictions.

R. v. Serafinchon [2009] A.J. No. 1139 2009 ABPC 308

A conditional discharge was imposed. The accused was placed on 18 months’ probation

Sentencing of the accused for assault. The accused pleaded guilty. The accused sought a conditional discharge. The complainant was the accused’s common law partner and the mother of his young child. The accused kicked her on the street while she lay at his feet. The complainant’s face was bloodied as a result of the injuries sustained in the assault. The accused, 26, was employed as a trucker. The parties reconciled after the incident and the accused had been taking steps in order to deal with issues of alcohol abuse. The accused has no prior criminal record and had shown remorse for the incident.

12 July
0 Comments
Sticky

Trial Within a Reasonable Time

Posted by Rory
in Charter Rights, trial within a reasonable time

Trial Within a Reasonable Time

R. v. Jordan, 2016 SCC 27 and R v Williamson 2016 SCC 28: The Right to be tried within a Reasonable Time

In R v Jordan, a majority of the Supreme Court devises a new framework for determining whether the s. 11 right to be tried within a reasonable time has been violated. A minority of four Supreme Court Justices, while achieving the same result as the majority, rejects the new framework and insists that a modified version of the Morin framework is appropriate for the s. 11 analysis.

The tension between the Jordan framework and the revised Morin framework is revisited in the companion appeal of Williamson, where the court is similarly divided on the issue of what framework to use in such matters.

In Jordan, the accused was charged was charged in December 2008 for his role in a dial‑a‑dope operation. His trial ended in February 2013. The majority found the delay to be unreasonable.

Post-Morin: A new Framework for measuring Delay

Rejecting the Morin framework that had been the basis for the trial judge and the Court of Appeal’s reasoning in dismissing the S 11 application, the majority proposed a new framework. The Court found that the Morin framework had led to both doctrinal and practical problems, and instead of reducing delay, it encouraged delay.

The majority found that a new framework was required. This framework would encourage all participants to reduce delay and achieve the important objectives of S 11.

The Presumptive Ceiling

The central feature of this new framework is a presumptive ceiling beyond which the delay will found to be presumptively unreasonable. The only justification for delay beyond the presumptive ceiling is extraordinary circumstances and the onus is on the crown to prove the same. Exceptional circumstances will likely be of two kinds, discrete events and complex cases. Discrete events may involve situations such as illness or other unexpected events at trial. For discrete events, the delay will be subtracted from the total delay in the calculations.

Case complexity will automatically result in the delay being found reasonable and no further analysis will be required.

The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

Note: The Court also says

“  There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.”

If the delay does not exceed the presumptive celling the burden is on the defence to prove that the delay has been unreasonable.

“To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.”

Transitional Exceptional Circumstances

For cases where the charges were laid before this decision, the Court says that reliance on existing law will be a factor in the delay analysis. While the Jordan framework will apply, if the time exceeds the presumptive ceiling the crown will be allowed to rely on a “transitional exceptional circumstance”,

“This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice”.

“This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings.”

For the defence, a similar exception will apply. The defence, because of reliance on existing law, will not have to demonstrate reasonable steps. As well, institutional delays that were previously acceptable will generally be tolerated.

A note about Prejudice

The Majority in this case says that while prejudice will no longer form a part of the S 11 analysis, once the presumptive ceiling is breached, prejudice does not have to be shown. It can be inferred.

“As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.”

Application to the Case

In this case the delay was 49.5 months. Jordan was only responsible for 5.5 months. A delay of 44 months was found to be clearly unreasonable.

Williamson is a sister appeal that uses the Jordan framework. In Williamson, there was a delay of 35.5 months. Williamson only caused 1.5 months of the delay, and therefore this was a case where the presumptive ceiling was breached. The majority in this case found that S 11 was breached. The majority did not found any exceptional circumstances in the form of discrete events or case complexity. The majority rejected the argument that the transitional exceptional circumstance applied in this case.

The majority also found that the accused was proactive in moving the matter along, whereas the Crown did little to nothing in doing the same.

The majority dismissed the dissent’s suggestion that Williamson’s “guilt” had any bearing on the analysis.

“At the beginning of his reasons, Cromwell J. references Mr. Williamson’s guilt (paras. 43, 44). This is troubling, as the ultimate question of guilt or innocence has nothing to say about whether the time taken to try him was reasonable. At the time of his s. 11 (b) application, Mr. Williamson was presumptively innocent. It is wrong to give after-the-fact effect to his convictions when the only question presented by this appeal is whether his right to be tried within a reasonable time was infringed at the time the application was brought.”

While the majority recognized that these charges were serious, it rejected the dissent’s opinion that that should be a factor in the reasonable delay analysis.

“ In this regard, we note that s. 11 (b) guarantees the right “to be tried within a reasonable time”. It does not admit of gradients of reasonableness where the charges are serious. For example, it does not guarantee the right to be tried within “somewhat longer” than a reasonable time, or within a time that is “excessive but not so long as to be clearly unreasonable” when the charges are serious (Cromwell J., at paras. 43, 80). Delay is either unreasonable, or it is not. As a result, our point of departure with our colleague is on what we consider reasonable. In short, we have different perspectives on a subjective standard.”

Indeed, the Court goes further and notes that

“These are precisely the cases that should be heard promptly, on the strongest possible evidence.”

03 June
0 Comments
Sticky

Expanding McNeil Disclosure

Posted by Rory
in Uncategorized

R v Lam 2016 ABQB 201: First Party vs Third Party Disclosure

This case deals with the issue of whether records pertaining to a criminal investigation of an Officer involved in the case of the accused is first party disclosure under Stinchcombe or third party disclosure properly dealt with an O’Connor application.

The Court conducts an analysis of the law and notes that under Stinchcombe Crown has the obligation to disclose all materials that constitute fruits of the investigation save for those that are clearly irrelevant or legally privileged. Relevance is broadly defined and the threshold for relevance is very low.

The Court notes that the issue before it was address in McNeil where Charron J held that first party disclosure includes records relating to findings of serious misconduct by police officers involved in the investigation against the accused, where the police misconduct is either related to the investigation, or the finding of the misconduct could reasonably impact on the case against the accused. The investigating Police is not a third party for the purposes of disclosure. Indeed, if it were it would be tremendously difficult for the Defence to meet the O’Connor requirements to get the relevant disclosure.

Charron also noted that Crown entities or agencies are considered third parties in relation to the Crown.

Charron J also noted that production of criminal investigation files involving third parties, and of police disciplinary records, is to be determined by an O’Connor application.

Analysis:

This case falls between the first party and third party disclosure positions in McNeil. The records in question do not directly concern the Lam investigation, however at least some of them will have an impact on the case for the accused.

The Court seems to dismiss the argument that because the crown entities or agencies are third parties, this is not first party disclosure. That the first party disclosure is held by third parties is not particularly relevant. If there are any privacy concerns, the PPSC can address them.

The Court expresses some disdain at the PPSC’s lack of movement on providing relevant first party disclosure in this matter even after it had been made aware that such disclosure existed. The Court finds that this is a violation of the Crown’s obligations.

The Court is also unhappy with the EPS’ policy of only disclosing “findings” in investigations against police officers. The Court notes that this only scratches the surface, and a more fulsome disclosure is demanded by McNeil.

Ultimately the Court orders for all relevant and non-privileged information to be made available to the accused. The Court also orders that any information not disclosed must be sufficiently identified so as to enable challenge of refusal.

*google

03 June
0 Comments
Sticky

The Relevance of Third Party Charter Violations

Posted by Rory
in Search Warrants

R. v. Guindon (the relevance of 3rd party charter violations)

[2015] O.J. No. 7169

2015 ONSC 4317

In this case the issue to be determined was whether evidence obtained in violation of the Charter rights of a third party should be excised from affidavits and ITOs that were used to obtain orders that do engage the applicants’ privacy interests.

The Crown took the position that “in relation to unconstitutionally obtained evidence, an applicant can only seek excision of it if it involved an infringement of his personal Charter rights”. In support, the Crown cites Chang, [2003] O.J. No. 1076, an ONCA decision. In Chang, the ONCA found that the applicants did not have the standing to challenge certain Quebec authorizations where they were not the named party. The Crown takes this decision to stand for the proposition that an applicant can never “challenge a search warrant or wiretap authorization based on a violation of a third party’s Charter rights.”

L.A. BIRD J rejects this proposition, and notes that in Chang the applicants engaged in a full Garafoli review, unlike this case where the applicants are challenging the validity of the evidence upon which the authorizations are based. In fact the Judge notes that Chang also acknowledged the applicants’ right to question the evidence upon which their authorizations are based, and this is something distinct from a full Garafoli review.

The Judge notes that there are other cases that support the Crown’s view, but these are against the tide of general jurisprudence in Ontario. The judge states as a matter of law that

·         “The law clearly requires the excision of all references to evidence that was obtained in violation of an applicant’s Charter rights: R. v. Grant, [1993] S.C.J. No. 98, R. v. Plant, [1993] S.C.J. No. 97 and R. v. Wiley, [1993] S.C.J. No. 96.”

·         “The law is well established that all erroneous material must be excised from an affidavit on a Garofoli review (R. v. Araujo, [2000] S.C.J. No. 65 at paragraphs 57 and 58).”

In conclusion, the Judge disagrees with the Crown’s position and grants the application. The Judge finds that the Applicants are entitled to challenge any unconstitutionally obtained evidence, and it is irrelevant whether they are the named party or a third party in the authorization in question.

* google

 

 

 

15 April
0 Comments
Sticky

WD

Posted by Rory
in credibility

WD

R. v. Kennedy.  [2015] N.J. No. 107, 2015 NLCA 14

Facts: This is a rather straightforward sexual assault case. The accused forced himself on the complainant, inserted a finger and his penis into her vagina. There was evidence before the court in the form of the complainant’s testimony, a witness’ testimony, text messages between the accused and the complainant, and testimony of the accused’s girlfriend. There was also forensic evidence, and the testimony of a nurse. The accused was convicted. The decision was appealed.

Issue: The central issue before the Court of Appeal was the manner of the trial judge’s reasoning. In particular, the Court had to decide whether the reasonable doubt analysis could properly be used in evaluating individual pieces of evidence, or whether a more cumulative method was needed.

Analysis: The Court of Appeal overturned the decision, and ordered a fresh trial. The Court stated that it is a clear legal principle that the reasonable doubt analysis involves the cumulative effect of all the evidence before the court. The analysis cannot be done in a piecemeal fashion. The Court cites a number of important cases to establish this essential proposition. . R v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197.  R. v. Morin [1988] 2 S.C.R. 345, and R. v. B. (G.)  [1990] 2 S.C.R. 57.

The Court goes on to note that it is not enough that the Judge knew the law in this case. A misapplication of the law will not save the decision, even when there is a clear statement of the correct law.

 In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 32-33,

“A correct statement of the law can scarcely save its evident misapplication … [J]udges may know the law, yet err in its application.”