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Edmonton Criminal Lawyer Ziv >  Blog
14 February
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Seinfeld Saves the Day

Posted by Rory
in Uncategorized

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.

09 February
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ARSON — DON’T BURN THE HOUSE DOWN

Posted by Rory
in specific or general intent offence

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?

04 October
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IMPROPER POLICE STOP

Posted by Rory
in Know your rights

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

25 May
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Capacity to Consent

Posted by Rory
in Assault, consent, sexual assault

The Cab Driver – Incapacity to Consent

This is a follow-up to a blog I posted concerning a case where a cab driver was found with a highly intoxicated patron who essentially had her pants down when a police officer stumbled upon them parked (click here for old blog).

At the trial, the trial judge felt that he was left with a factual vacuum so that he could not decide whether the complainant consented to sexual activity at the crucial time. His comment “that a drunk can consent” was the subject of a significant amount of media attention and scrutiny.

Ultimately the Court of Appeal, R. v. Al-Rawi 2018 NSCA 10, stated that this statement of the law was correct but that the trial judge failed to consider s a significant amount of circumstantial evidence in the case about the complainant’s inability to consent. The trial judge’s judgment that “the Crown had no evidence to present on the issue of consent prior to Constable Thibault arriving on scene” was held wrong. There was evidence on the issue of consent or lack thereof.

The Court concluded that the test for incapacity, remembering that, it is a codified provision of the Criminal Code that “no consent is obtained [if] the complainant is incapable of consenting to the activity” is:

(1)    A person must understand the nature of the specific sexual act in question;

(2)    A person must understand that he or she has a choice as to whether to participate;

(3)    Know the identity of the person they are engaging in the sexual activity with;

In this case there was evidence that she was incapable of consenting at the relevant time including losing consciousness after the police arrived, having a blood alcohol level in excess of 240 mg, urine soaked pants, being found in the opposite direction of her home and no memory of her time in the taxi. A complete list is found at para 94 of the judgment.

29 September
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Proving Lack of Consent

Posted by Rory
in Assault, consent

The Cab Driver – Failing to Prove Lack of Consent

A controversial case is before an appeal court in Nova Scotia.  When reading the facts please take into account this proposition.

The Crown have to prove beyond a reasonable doubt that the complainant did not consent.

Here are the facts:

On the evening of May 22, 2015, a young woman went to a bar. Her last memory at the bar was drinking two tequila shots and a vodka-and-cranberry mixed drink. Her next memory was speaking to a police officer. She does not recall if this conversation happened in an ambulance or at the hospital.

Other evidence (none of which the complainant remembered) showed that she was prevented from re-entering the bar at one point because of her level of intoxication, she also had a fight with her best friend, sent several text messages to her friends (and therefore was able to carry out a conversation) and hailed a cab.

A police officer came upon the parked cab she was in naked from her breasts down and the cab driver had her urine soaked underwear and pants in his hands.

Based on her alcohol level (220 mg) an expert said her short term and long-term memory would be affected but she would still be able to interact with others.

The trial judge found the cab driver not guilty of sexual assault. His reasoning was that a drunk person can consent to sexual activity and although she may not remember today what happened at the relevant moment he had no other evidence to help him determine what did happen at the relevant time. “But I do not know whether [cab driver] removed her pants at her consent, at her request, with her consent, without her consent, I don’t know.”

Analysis

Drunkenness is not the same as incapacity and a drunken consent is still a valid consent (see R. v Jensen (1996) 106 CCC3d 430).

It is very frustrating that there is a factual gap in this case and because alcohol can make people “say and do strange things” was implausible for the complainant to have stated or somehow consented to the sexual activity in question?  Let’s try to imagine how that would have transpired.

She hails a cab and immediately says to the cab driver “park the car, I’m horny, I want to have sex with you”. The cab driver obliges.

Is this scenario implausible or impossible? If the scenario is impossible then the trial judge got it wrong. If it is implausible (that is unlikely but still possible) it may be dangerous to convict.

I’ll update this blog on the Appeal outcome of this case.

15 April
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NEW MARIJUANA AND DUI LAW

Posted by Rory
in Charter Rights, Defences, dui, lawyer, lawyer edmonton, search or seizure, Search Warrants

NEW MARIJUANA AND DUI LAW Sucking and Blowing

Two new bills were proposed by the government of Canada this week. The new marijuana bill which legalizes possession of 30g or four marijuana plants and new impaired driving legislation.

The link for the new marijuana bill is here:

The link for the new impaired driving link is here:

The Marijuana Bill

I can’t help but to notice that the new marijuana bill is – confusing. Confusing not because its badly worded, structured or illogical but because it sends a conflicting message:

The purpose of the act is set out in section 7 which states:

The Act’s purpose is to “protect public health and public safety” by restricting its access (especially to children), deterring illegal activities associated with cannabis, while at the same time, relieving the burden it places on the criminal justice system and providing access to quality controlled products.

In the same breath, the government is underscoring that marijuana is dangerous “to protect public health and safety” yet advocating for its access.

I’m not advocating a position on marijuana. I’m only highlighting the apparent contrast in the new Act.

The Impaired Driving Bill

I read in a newspaper piece that stated that impaired driving laws have “softened” because of “high priced lawyers” are finding “loopholes”.  Without commenting more on this naïve perspective of the role of criminal defence lawyers, my reading of the new Act (which seems to be cut and paste) of our previous Government’s work (which was not enacted because of the regime change at the last election) the new Act is certainly going to test our relationship as individuals with our government.

One of the glaring new sections 320.27(2) authorizes a peace officer to demand a sample of your breath without any grounds whatsoever to believe you have any alcohol in your body.

This is going to create a significant amount of DUI litigation.   To begin, people don’t like to be told what to do and now we are going to force them to provide a sample of their breath when they have done nothing wrong.

What I find interesting is there has been a push to cease DUI litigation with alternative provincial administrative type enforcement. In British Columbia for example, DUI cases are no longer prosecuted (with some exceptions) because the Provincial government has found other more cost effective ways to deter and punish people for impaired driving. This new legislation coupled with the legalization of marijuana is going to reverse the progressive steps taken in jurisdictions like British Columbia.

Since the legalization of marijuana is coupled with get tough on crime and impaired driving initiatives, I can’t help to feel like the Government is sucking and blowing. We may have taken one step forward by legalizing marijuana but I wonder if we have also taken two steps back?

10 April
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Counsel of Choice

Posted by Rory
in Charter Rights, right to counsel

Counsel of Choice

In a prior blog a wrote about cases that dissuade police agencies from “steering” detainees to speak with duty counsel (see for example R. v. Street 2016 SKPC 7 , R. v. Lafrance, 2015 SJ No. 35 and a new decision R. v. Clayton 2017 ONCJ 199). This counsel of choice issue continues to pop-up on a regular basis.

There is an inherent tension with the state making available free legal advice and an accused person being allowed to choose his/her own counsel.

In R. v. Clayton, supra Harris J at para 25 states:

… the government of its agents should not be involved in decisions about which counsel a person chooses and the subjective choice of the accused must be respected and protected and that the spectre of state interference in the choice of the accused must be avoided. Agents of the state have a duty to fastidiously avoid any interference with the personal decision … and make every reasonable effort to ensure that contact with the counsel of choice is facilitated”

Borrowing from the last thought “ensure that contact with counsel of choice is facilitated” I would add that police must ensure that detainees have been given every resource possible to obtain counsel of choice which includes a phonebook (See R. v. Wolbeck 2010 AJ No No 508 (ABCA) at para 21 and R. v. Juneck 2014 AJ No 1066 at paras 32-34), computer access as well as access to a 3rd party who can facilitate obtaining counsel of choice.

Duty counsel should not be the default position even when a detainee expresses the need for a “free” lawyer and he/she should not automatically be steered to duty counsel. There may be other lawyers who provided free preliminary legal advice, as well, and a detainee should be given a full opportunity to explore all avenues or obtaining legal advice.

 

10 April
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Counsel of Choice

Posted by Rory
in right to counsel

Counsel of Choice

In a prior blog a wrote about cases that dissuade police agencies from “steering” detainees to speak with duty counsel (see for example R. v. Street 2016 SKPC 7, R. v. Lafrance, 2015 SJ No. 35 and a new decision R. v. Clayton 2017 ONCJ 199).

There is an inherent tension with the state making available free legal advice and an accused person being allowed to choose his/her own counsel.

In R. v. Clayton, supra Harris J at para 25 states:

… the government of its agents should not be involved in decisions about which counsel a person chooses and the subjective choice of the accused must be respected and protected and that the spectre of state interference in the choice of the accused must be avoided. Agents of the state have a duty to fastidiously avoid any interference with the personal decision … and make every reasonable effort to ensure that contact with the counsel of choice is facilitated.

Borrowing from the last thought “ensure that contact with counsel of choice is facilitated” I would add that police must ensure that detainees have been given every resource possible to obtain counsel of choice which includes a phonebook (See R. v. Wolbeck 2010 AJ No No 508 (ABCA) at para 21 and R. v. Juneck 2014 AJ No 1066 at paras 32-34), computer access as well as access to a 3rd party who can facilitate obtaining counsel of choice.

Duty counsel should not be the default position and in fact just because a detainee expresses the need for a “free lawyer” should not automatically be steered to duty counsel. There are many, I think, lawyers who provided free preliminary legal advice out of a sense of duty.

When defending clients counsel should be aware of this counsel of choice issue and not be satisfied that a client spoke with duty counsel. If I was a detainee I wouldn’t make duty counsel my first choice.

24 February
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Bail

Posted by Rory
in Bail, burden of proof

BAIL

The Primary Ground

Strength of the Crown’s Case

“The expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown”.

            R. v. St Cloud 2015 SCJ NO 27 at paras 57-9

“In considering all of the relevant circumstances, the hearing judge must not become so focused on the gravity of the offence and the strength of the Crown’s case as to overlook that there are no categories of offences for which bail is not a possibility. There are few crimes of violence or of murder where one could not say that the gravity of the offence, considered on its own, without regard for the purpose of bail, justifies detention. There are also many cases where the strength of the Crown’s case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such. Giving undue weight to this factor becomes a means to start punishment before conviction.”

R. v. Blind (1999), 139 CCC (3d) (Sask C.A).

‘… there may be some danger in Placing too much emphasis on this factor … [t]his is why the courts have been willing to acknowledge the relevance of this factor, but have emphasized that a strong (even a overwhelming Crown case) is not determinative of bail”.  [1]
The Accused is an Australian Citizen (not a Chinese citizen)

In R. v. Aldrich [1976] BCJ No 421the accused was charged with murder. At para 6:

The Crown forcefully submitted that as a pilot he could move at any time and work anywhere in the world. The Crown further submitted, amongst other things, that there did not appear to be any motive for the killing and if such was the case — such a killer was the most dangerous type of person to be on the loose in the community. A further forceful argument was that in addition to the murder charge the police had found five restricted weapons in the applicant’s possession at the residence which he shared with the victim and he has been charged with offences relating to these weapons.

At para 12:

… [t]he Crown’s submission that being a pilot gives him special advantages does not impress me, as in this day and age one can just as easily flee by commercial airline or other modes of transportation. The applicant’s background as disclosed in his affidavit and testimonial letters submitted on his behalf indicate to me that up to the present time he has been a responsible citizen. I am accordingly satisfied that the applicant’s detention is not necessary to ensure his attendance at his trial.

·         This is true of virtually any person released from custody, resident or not “in this day and age” can flee;

·         Globalization;

·         Extradition Treaties;

Standard of Proof – Balance of probabilities

It seems to me that the burden should be the minimum burden of proof known to the law, not the maximum burden or proof beyond reasonable doubt, as upon the Crown on criminal trials. It seems completely unreasonable that, in such applications which come, ordinarily, in the very early stages of criminal investigations, the burden upon the Crown should be more than that minimum burden that I have indicated.

R. v. Julian 1972 NSJ No. 189 at para 5

Onus of Proof and the presumption of innocence

Parliament has established a clear reverse onus burden on Mr. Alde: pursuant to the provisions of s. 515(6) of the Criminal Code, a judge considering bail must detain him in custody until his trial unless Mr. Alde can “show cause why [his] detention is not justified”. In this case, the reasons of the bail judge make it clear that the bail judge would not consider Mr. Alde’s release unless Mr. Alde could prove his innocence. That standard of proof is more onerous than the burden of proof to establish an accused’s guilt: proof beyond a reasonable doubt. It would be illogical for an accused to have to prove that he is innocent when he is still presumed to be innocent and in circumstances where, at trial, the Crown will only have to prove that he is guilty beyond a reasonable doubt. Not only is it illogical, it is also contrary to the provisions of the Charter: sub-paras 11(d) and (e). Therefore, while the burden on an accused in a reverse onus in a bail situation is a heavy one, he does not have to prove that he is innocent.

R. v. Alde [2008] A.J. No 1585 (Alta Q.B.) at para 15 (J. Veit)

[1][1] The Law of Bail in Canada (3rd edition) Gary T. Trotter, Carswell, 3-7