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18 November
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Sentencing: Pre-trial House Arrest

Posted by Rory
in credit, criminal lawyer edmonton, house arrest, sentencing, Uncategorized

A number of cases deal with the issue of the application of Pre-Trial House Arrest in a sentencing determination.

R. v. Lau, 2004 ABCA 408

Similarly, a trial judge may take account of very strict bail conditions and treat that as akin to custody in calculating a sentence: R. v. Spencer(2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.); R. v. Gray (2003), 338 A.R. 270 (Q.B.); R. v. Hames, 2000 ABQB 958; R. v. Ticknovich, 2004 ABQB 421 (CanLII).

[16]           But whether or not to give such credit, and how much, is a matter within the judge’s discretion, having regard to such factors as the intrusiveness of the terms of the judicial interim release:  R. v. Nguyen, 2004 ABQB 618 (CanLII). This Court has considered giving credit for time served on judicial interim release with strict conditions:  R. v. Ewanchuk (2002), 2002 ABCA 95 (CanLII), 299 A.R. 267.  Ewanchuk is different than the current case as it involved interim release after conviction.  This Court stated at para. 87: “… time spent in house arrest must be taken into account.”  I interpret that to mean that a sentencing judge must consider whether it is appropriate to give credit for time served under strict bail conditions, not that the judge is obliged to give credit.  In the current case, the judge did not err in exercising his discretion to deny credit for time served on interim release

R. v. Hennessey, 2009 ABQB 60

[100]      In my view, pre-trial interim release without any house arrest type provisions would not justify any credit being given. On the other hand, bail conditions amounting to a full house arrest of an accused might well justify a 1 for 1 credit as such a condition would essentially fully deprive an accused of his liberty.

[101]      Where an accused is under a partial house arrest in the sense that he is allowed out of the house for only a limited time (to work for example) and his liberty is severely restricted, consideration may be given to some credit between the two extremes. For example, where an accused is only allowed out of his home to work and is otherwise confined to his house at all other times, a court might well consider some compromise, such as credit on a 1 for 2 basis, that is, credit amounting to one half of the time on releas

R. v. Downes, 2006 CanLII 3957 (ONCA)

Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre‑sentence house arrest. I agree with Ms. Paine that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre‑sentence house arrest into account. The failure to do so will constitute an error in principle as explained by Laskin J.A. in Rezaie, supra, at 103: (ONCA in R. v. Ijam, 2007 ONCA 597 says this is not an error in principle)

R v Soto, 2016 ABCA 85

In this case, as I see it, the only arguable ground of appeal is whether the sentencing judge gave proper consideration to the 18-month period of house arrest imposed on the appellant as a bail condition pending disposition of the charges. I cannot say that he ignored it. I do say that he gave it inadequate effect

This appellant who played a far less significant role was sentenced to 6 1/2 years less only 90 days credit for 60 days in remand for a net sentence of 6 years and 3 months. This appellant, unlike Harper, received no credit for strict house arrest.

[5]               I note my colleague’s acknowledgment that the pre-sentence report indicates a promising recent history and that his probation officer noted that the appellant has feelings of remorse, and is motivated to make positive choices (infra para. 10). Taking into account all aggravating and mitigating factors, and mindful of the principle of parity, I would allow the appeal and substitute a net global sentence of 5 years imprisonment.

R. v. Tsuruoka, 2013 ABPC 295

I generally agree with the comments of Conrad J.A. in Hilderman,(  2005 ABCA 249 (CanLII)) supra, at para. 20:

Any rehabilitation during pre‑trial house arrest is excellent for society and an objective in sentencing. That does not mean a sentencing judge cannot still impose the sentence he or she deems necessary to comply with all of the sentencing principles, including denunciation at the time of sentencing. The sentencing judge is not required to give a mathematical deduction. The court will merely have to consider what impact the pretrial house arrest should have on the sentence he or she eventually imposes.

In the circumstances of this case, based upon those authorities I give him a credit of one-third of 824 days or 275 days

R. v. Penney, 2008 ABPC 339

r. Penney was on bail for seven and one half months. During that period he was subjected to 18 bail conditions. The most restrictive bail condition dealt with house arrest. This condition was subject to a number of exceptions including: employment, lawyer’s appointments, religious observances, attending at counselling sessions, voting, and reporting to his bail supervisor once per week. He was subject to counselling for gambling addiction, substance abuse, and psychiatric counselling. He was prohibited from having drugs and alcohol and subject to a voluntary enforcement order relating thereto.

[78]            Certainly, some of those conditions, especially the house arrest condition, restricted his liberty.

[79]            Mr. Royal submitted that the time spent by the offender on restrictive bail conditions should be credited to reduce his sentence. Further, he submitted that the appropriate credit was nine months. Mr. Royal conceded that a two for one credit for the bail restrictions was not appropriate.

In my view, the impact on his liberty toward the end of his bail was not much different than many normally employed people. As such I decline to give him nine months credit for time while on bail. I will give him four months credit for the time while on bail. In my view, this is an extremely charitable result for him.

R. v. Coupal, 2010 ABQB 229

Impaired causing death case

[36]           On the material before me, Mr. Coupal’s bail conditions allowed him to carry on his employment and a number of other normal activities, such as going to his children’s soccer games, shopping and other special events. While the conditions no doubt impacted his liberty and he was closely monitored, I am of the view that a one-for-one credit, as sought by counsel for Mr. Coupal, is overly generous and I decline to give such credit on a one-to-one basis. I do however, take it into account as a mitigating factor.

If I was sentencing Mr. Coupal after trial, I would consider a sentence for the impaired causing death and the impaired causing bodily harm in the range of six years, taking into account the aggravating factors including his prior impaired conviction and prior alcohol-related traffic offence. However, in taking into account Mr. Coupal’s guilty plea, which is a strong mitigating factor, his pre-trial custody and his release conditions, I sentence Mr. Coupal to four years imprisonment on the impaired causing death count and four years concurrent on each of the two impaired causing bodily harm counts.

R. v. Salter, 2009 ABCA 220

Trial judge’s sentence not interefered with, trial judge took house arrest into account, serious assault, multiple stabbings, and other offences, sentence of 2 years less a day

R. v. Morrisseau, 2010 ABPC 404
[98]           In real terms, Mr. Morrisseau’s ability to work in the community over the entire time of his release has been foreclosed.  His ability to attend school has also been restricted except in the later stages of his release.  Given Mr. Morrisseau’s youth and the length of time he has lived under these restrictions, he is deserving of some reasonable and discernable credit against his sentence.  The effect of these restrictions must be tempered by recognizing he had some opportunity to attend school, pursue rehabilitation and retain some limited movement in the community under supervision.

[99]           I also cannot overlook the fact that Mr. Morrisseau’s record for compliance under these restrictions wasn’t perfect.

[100]      All considered, I am still prepared to exercise my discretion to reduce his sentence given the unique nature of these restrictions and the particular history of Mr. Morrisseau’s release.  A reduction against his pre-credit sentence on a one-for-two basis would be unsuitable in the circumstances.  Something in the order of one day for each three days of the 582 days he has spent on release is more appropriate.

R v White, 2016 ABQB 24

Having regard to the conditions imposed on Mr. White, and recognizing that in the main, he was able to work and raise his son during the entire period he was not incarcerated, I conclude that an overall credit of .5 to 1 is appropriate. Less credit than that is appropriate for the early period when he was not under house arrest; greater credit than that is appropriate for the later period. Having regard to the self-inflicted increase in the severity of conditions, I do not think that the overall average here should exceed 50 percent.

[71]           Mr. White is thus entitled to credit for half of 1,143 days, or 572 days, on account of judicial interim release conditions.

R v PF, 2011 ABQB 628

Pre-trial restrictions on Mr. PF’s freedom also may affect the duration of his sentence, specifically Mr. PF:

1.         spent approximately three months in pre-trial custody and if given a custodial sentence, his sentence would be reduced on a ‘two for one’ basis which would amount to approximately six months; and

2.         was released on recognizance for 3.5 years; the conditions of his release placed very strict obligations and responsibilities on Mr. PF. In this respect, Mr. PF has effectively been under “house arrest”. Specifically, the conditions of Mr. PF’s recognizance are:

[101]      I clearly have a broad discretion to reduce Mr. PF’s sentence on the basis of his pre-trial recognizance, which is acknowledged as very strict. The appellate authorities make clear that this factor is not one that ought to be applied in a strictly mathematical manner, but rather consistent with the general objectives of sentencing.

[102]      As a consequence I reduce Mr. PF’s sentence from just under 24 months to a custodial sentence of 90 days. A custodial sentence of 90 days may be served intermittently, with the offender under probation during the period he is not in custody: Criminal Code, s. 732.

R. v. Herchuk, 2011 ABPC 367

69]           As to the accused, Palmer, I am satisfied that for approximately 21 months, while on bail, he was subject to house arrest, and other stringent bail conditions that were tantamount to a Conditional Sentence Order.

[70]           I am also satisfied, based on the submissions of Defence Counsel, that his stringent bail conditions had a significant impact on him. Initially, he was required to live at his half-sister, Grace Palmer’s residence. She was newly married at the time. The residence was a small and only had 2 bedrooms. He was required to live there in close quarters with Grace and her husband, who also agreed to act as surety for him in the amount of $8,000. As a result of his presence, there was stress in the marriage which ultimately led to early separation and divorce. The divorce caused a rift between Grace and her father. With the divorce, the Accused’s bail conditions had to be reviewed and amended by this Court during the trial. He was taken into custody pending this Court’s review. On being re-released, he moved into another modest residence with Grace in the remote outskirts of northwest Calgary. There was no public transportation in the area, and he was very much isolated there throughout the course of the trial. Getting back and forth to work, and coming to Court was a real problem for the Accused. He was also prohibited from associating with his girlfriend, Tamara Pejakov, except while at that residence.

[71]           The Accused’s compliance with the bail conditions in this case was onerous, and I agree with the submission of Defence Counsel, that he is entitled to a pre-trial bail credit of 21 months calculated on a 1:1 basis.

 

 

06 October
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Travis Vader CAse

Posted by Rory
in Contemporary Cases, Murder

Vader Strikes Back– A review of the Travis Vader decision.

 

The Travis Vader decision[1] has captured the interest of Albertans. Apparently as the decision was being broadcast live, a novelty in Canadian trial law, commentators were contemporaneously questioning the correctness of the trial judge’s decision on social media.

I have decided to review the case for myself and offer some insight.

The case itself is long. It is full of dense factual findings. I have included a summary of the judges overall findings:

…. While I have concluded that a firearm was used during the interaction between Mr. Vader and the McCanns, and that firearm caused the hole in the Boag’s hat, I cannot establish who fired the gun or at whom, and the blood drop and spatter pattern on the Boag’s hat does not suggest the bullet that passed through the hat and caused an injury to someone wearing that hat. The blood, largely from Lyle McCann, is on the top of the hat.

      My conclusion on that point, however, does not affect my conclusion that violence occurred in the interaction between the McCanns and Mr. Vader. There was bloodshed. A gun was discharged. While I cannot reconstruct the exact detail of what occurred, I also have no doubt about the overarching relevant fact – the McCanns were victims of violence. Mr. Vader inflicted that violence. The McCanns suffered bodily harm. The presence of their blood makes that obvious.[2]

     Linking the facts I have found there is no question that Mr. Vader committed homicide. The McCanns are dead. They were the subjects of violence that caused bloodshed. Mr. Vader’s biological material is mixed with blood from Lyle McCann. Mr. Vader’s motivation to interact with the McCanns was theft. Forensic and witness evidence links Mr. Vader to the McCanns’ property.

    Mr. Vader caused what happened to the McCanns. The Crown’s evidence and the inferences I have drawn from that evidence do not permit a detailed reconstruction of the circumstances that led to the McCanns’ death, and how Mr. Vader caused those deaths. However, I conclude beyond a reasonable doubt that Mr. Vader, in one manner or another, caused the death of the Lyle and Marie McCann. My next step is to determine the legal implications of that fact.[3]

What the learned trial judge does next is conclude that the McCanns death was caused during the commission of a theft by Vader on the McCanns. The trial judge relies on section  s. 230 of the Criminal Code (outdated section) which states that you are guilty of murder when a person dies in the course of committing a robbery.[4]

     I have concluded beyond a reasonable doubt that Mr. Vader intended to and did steal property from the McCanns. I have also concluded beyond a reasonable doubt that the McCanns experienced bodily harm, as is demonstrated by the forensic blood evidence. The McCanns are dead, and the only reasonable inference I can draw is the bloodshed evidence indicates the McCanns were killed by Mr. Vader’s actions.[5]

The legal problem in this case is as follows:

In Canada a murder is committed when you intended to cause death or grievous bodily harm knowing death is likely.

The learned trial judge did not find that Vader meant to cause death or meant to cause bodily harm — just that he did cause it.

In one portion his judgment he says:

     The problem is there are other reasonable possibilities that can take us from a robbery gone bad to two dead senior citizens. The most obvious is that Mr. Vader encountered the two McCanns together while trying to commit a robbery, the McCanns both physically resisted Mr. Vader, that fight escalated, and in that struggle both McCanns were fatally injured.[6]

So if Vader didn’t deliberately kill the McCanns or inflict bodily harm on them knowing death was likely then where does the case go?

Some Crown prosecutors I have spoken to suggest that Vader could still be convicted of manslaughter, which is an unlawful act that causes death.  They suggest that the learned trial judge made good findings of fact that should not be disturbed.

If a court, I suspect this case will go to the Alberta Court of Appeal, was going to determine that manslaughter was committed they will have to make a finding of fact that the learned trial judge hasn’t made. How did Mr. Vader kill the McCann’s and was it unlawful violence?

The unfolding of the remainder of this case is going to be interesting … stay tuned!
[1] http://www.canlii.org/en/ab/abqb/doc/2016/2016abqb505/2016abqb505.html?resultIndex=5
[2] Paras 674 and 675
[3] 676 and 677
[4] A robbery is theft with violence.
[5] Para 688
[6] Para 686

06 October
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Conditional Sentence Order and Suspended Sentences

Posted by Rory
in Conditional Sentence Orders, Suspended Sentences

The following are some cases where Courts have made Conditional Sentence Orders or Suspended Sentences for charges of assault causing bodily harm, or assault with a weapon, and aggravated assault. The cases and the descriptions have been taken from CanLii and Quicklaw.

Conditional Sentence Orders

R. v. Sim- 2004 ABCA 349

Appeal by the Crown from the sentence imposed on the accused Sim. Sim was convicted of break and enter, assault with a weapon and uttering threats to cause serious bodily harm. He was 18 when he committed the offences and 19 when he was sentenced. Sim broke into a residence in search of the complainant. The complainant was alleged to have sexually assaulted a girl who was a friend of Sim. He found the complainant and assaulted and threatened him. Sim received a suspended sentence, two years probation and a 10-year firearms prohibition. The judge was satisfied that the requirements of denunciation and deterrence would be satisfied by a suspended sentence. Sim did not have a prior record.

HELD: Appeal allowed. The sentence was set aside and was replaced with a conditional sentence of one year of imprisonment. The sentence was demonstrably unfit. It did not meet the legitimate requirements of deterrence and denunciation. However, the court recognized the importance of rehabilitation for this youthful offender.

R. v. Stewart – [2005] A.J. No. 1942

Sentencing hearing following the accused’s guilty plea to charge of assault causing bodily harm — Accused swung his goalie stick with two hands towards the head of another hockey player during a hockey game — The blade struck the victim just above the mouth cutting it and knocking out three teeth and their roots — Counsel submitted joint submission — Counsel suggested 12 month conditional sentence — Accused had prior record including conviction on a drug charge and impaired driving — Accused was 51 years of age and had been married for 33 years — Accused had continuous work history and was a correctional officer for 25 years — Accused was semi-retired — He was actively involved in the community — Court heard victim impact statement — HELD: Accused received one year conditional sentence — Accused was not a danger to the community — Primary sentencing objectives were general deterrence and denunciation and rehabilitation — Accused expressed remorse — Accused was ordered to perform 150 hours of co mmunity service — $200 victim fine surcharge

R. v. Dooley- [2005] A.J. No. 1367

Offender pleaded guilty to assault causing bodily harm — The complainant sustained scarring on her face which required plastic surgery — Costs of plastic surgery would be $3,100 — Offender had paid the complainant $500 — Offender had no prior criminal record and was remorseful — A conditional sentence was appropriate — Sentence: Three month conditional sentence, $2,600 compensation order.

R v Perepelecta, 2004 ABPC 88 (CanLII), the accused was charged with aggravated assault in a case involving a beer bottle. The court found that the accused’s offence was “best characterized as an impulsive act as opposed to premeditated or planned.” It went on to say at para 25:

She did not deny her assault of the victim, just her legal motive or responsibility for it. Ms. Perepelecta’s relative degree of moral culpability is thereby at the minimum end on the scale of fault for this type of offence, and an appropriate sentence should reflect this.

[32]           Based on the various factors that the court outlined, it concluded that a 12-month conditional sentence would be a fit and proper sentence in that case.

 In R v Neuberger, 2014 ABPC 275 (CanLII),

Assault causing bodily harm Redman PCJ was dealing with a road rage incident in which the accused and two others beat up the victim. The accused continued to beat the victim even when the victim was down. Redman PCJ convicted the accused of assault causing bodily harm. The Crown was seeking a sentence of 7 to 12 months incarceration. The accused was seeking a conditional sentence order. The accused had positive pre-sentence report and Redman PCJ held that a conditional sentence would impose hardship on accused’s family and employment. He found that there was an element of pre-meditation, it was an unfair fight with 3 against 1, and there were multiple blows struck when complainant was on ground. He imposed a $5,000 fine, which was suitable punishment in the circumstances. He found that denunciation and deterrence were important principles although specific deterrence was not necessary as accused was not community safety risk and assault was an aberration from his normal behavior. He also said that the accused’s conduct had to be denounced and sentence had to serve as substantial warning to others that this type of behaviour would not be tolerated.

R. v. Burlington, 2008 ABPC 136

The Accused has pled guilty to a charge of assault causing bodily harm. While intoxicated in a bar, he hit the victim in the face with a beer bottle. The bottle broke, and the victim sustained serious personal injury. The matter is before the Court for disposition, and the issue is a fit sentence. For the reasons that follow, the Accused is sentenced to 12 months’ imprisonment to be served in the community, pursuant to a Conditional Sentence Order (CSO).

R. v. Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 S.C.R. 780. In that case, the accused pled guilty to illegal possession of explosives and possession of a weapon for a purpose dangerous to the public peace. He had a lengthy history of mental illness and of dangerous handling of explosives. The Supreme Court of Canada restored the decision of the trial judge who imposed a conditional sentence, which was to be served in a locked, secure psychiatric facility, at his request. In referring to its earlier decision in Proulx, the Court stressed that dangerous offenders were not excluded from consideration for conditional sentences (para. 26). Further, despite the accused’s history, the risk of re-offending while serving the conditional sentence was no greater than it would be if the accused was ordered to serve his sentence incarcerated.

R. v. Perepelecta, 2004 ABPC 88 

[23]            Having reviewed numerous cases from other jurisdictions and Alberta, I recognize that where the offence is committed by an offender with a criminal record, where the nature of the attack is relatively brutal or premeditated, and the injury to the victim severe, a sentence of incarceration is likely to flow.  I find these cases distinguishable from the present one, in part, because Ms. Perepelecta is a first offender, and because her assault of the complainant was not premeditated and not completely unprovoked.  She did not break the bottle and use it as a knife-like weapon.  The assault itself was an instantaneous reaction in a tense situation and consisted of a single blow with a bottle.  The injuries suffered by the complainant while serious, were, nevertheless,  less severe than those suffered in the cases where the offenders intended to injure their victims.

ll of the circumstances and having particular regard to this offender and the nature of the offence, I find that the appropriate sentence is one to be served in the community.  The length of sentence and the conditions prescribed shall be appropriate so as to satisfy the objectives of denunciation and deterrence in these unique circumstances.  Accordingly, I sentence Ms. Perepelecta a term of imprisonment of 12 months, but as I am satisfied that the serving of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of theCriminal Code, I am ordering that Ms. Perepelecta serve the sentence within the community subject to the following principal conditions that she:

Suspended Sentences

R. v. Perry- 2011 ABPC 221

Sentencing of Perry who was found guilty of assault causing bodily harm and mischief. In June of 2009, Perry entered into a heated verbal argument with the victim over the use of a batting cage in a public park. Both were coaches of their sons’ baseball teams. While the victim’s back was turned, and he was kneeling down engaged in picking up his baseballs, Perry approached him from behind and with a low undercut, punched the victim in his face. The victim consequently sustained an injury to his nose, requiring constructive surgery, and time off work. Counsel for the Crown sought a short, sharp period of intermittent incarceration. The Crown submitted that an intermittent sentence with two years’ probation would be an appropriate sentence as the primary sentencing factors were deterrence and denunciation. The Crown pointed to the aggravating factors being the severity of the victim’s injuries and the context of the offence. In mitigation, the Crown noted Perry’s positive pre-sentence report, positive character references and his lack of criminal record. The Crown took the position that a conditional discharge would not be appropriate because denunciation and deterrence were paramount sentencing factors. On the other hand, defence counsel did seek a conditional discharge, indicating that, but for this incident, Perry was of exemplary character. The defence argued that Perry was a responsible and active member of his church and his community, who had already paid enough of a price by being penalized by release conditions for over two years; suffering adverse publicity; and being frozen out of coaching for two years.

HELD: Perry given suspended sentence and one year probation. Taking all of the aggravating and mitigating factors into consideration, as well as the pre-sentence report, the case law cited and the arguments presented, a conditional discharge was not appropriate in all the circumstances of the case. Perry had not been provoked, and so a suspended sentence, with the attendant conviction registered, could be structured to combine both the requisite deterrent and rehabilitative requisites mandated by the circumstances. The entering of a conviction was an important factor in this case. Sentence: Suspended sentence; one year probation.

R. v. Yaholnitsky- 123 A.R. 151

The accused was sentenced after pleading guilty to charges of assault and assault causing bodily harm to his two daughters, aged 12 and 16. The 44-year-old accused hit each of his daughters on the buttocks with a wooden tennis racquet after they had been arguing with their mother about cleaning up their rooms. Both daughters suffered bruising to their legs, one had a broken finger, and the other a swollen knuckle. Both of the daughters wrote letters for the bail review hearing supporting family reunification. Neither they nor their mother wished the accused to be jailed. The Crown argued that the offence warranted incarceration.

HELD: The accused received a suspended sentence and a term of probation. The court agreed with the case law stating that courts should not tolerate child abuse and should send strong messages of deterrence. However, this case had unusual aspects which could not be overlooked. This was a single occurrence of a controlled, culturally learned disciplinary technique. The father, who quickly realized that the extent of the discipline had been excessive, apologized and sought immediate psychological help for himself and his family. According to the psychologist, the offender had been rehabilitated and would likely never offend again. Further, if this offender were jailed, the whole family would suffer financially and psychologically. The court considered whether the principle of general deterrence required incarceration, and determined that in this particular case, with its unusual circumstances, it did not.

R. v. C.R.P. -2009 ABPC 32

Sentencing of the accused for sexual assault. The accused pleaded guilty. The 17-year old complainant, a friend of the accused’s daughter, had been riding her horse at the accused’s acreage. After she finished riding, the accused engaged her in some unwanted discussion about sex. After he stood up to leave, he momentarily touched her vaginal area outside her clothing. The accused, 59, was married and had children. His family was supportive. The accused had been sexually abuse as a child. Since this offence occurred, the accused, of his own volition, had been attending counseling. The accused had a 1984 conviction for sexual assault and a 1977 conviction for indecent exposure after he urinated outside a drinking establishment.

HELD: Sentence suspended for two yeas. This was an assault at the very low end of the sexual assault continuum. Although this was not a parent-child or analogous trust situation, the accused did breach an element of trust with respect to this victim in that she was entitled to expect that she would be safe in his company while attending at the acreage to ride her horse. The prior record was dated and not weighed. The accused was not a recidivist, he did not represent a danger to the community and was clearly rehabilitable. The court considered the accused’s immediate guilty plea and cooperation with police, as well as the remorse shown. The circumstances of the offence and its consequences were not so egregious as to demand prison to achieve denunciation and deterrence. Denunciation and deterrence could also be served by this accused living in the community under the terms of community supervision. Suspending the passing of sentence for a period of two years subject to terms of a probation order appropriately addressed the principles of sentencing, including the primary objectives of denunciation and deterrence. Sentence: Two-year suspended sentence; DNA order.

12 September
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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
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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
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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
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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
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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
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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
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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.”