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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.”

03 June
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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
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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
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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.”

 

15 April
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Garofoli Procedure

Posted by Rory
in Search Warrants

Garofoli Procedure

R. v. Burgher, [2014] O.J. No. 6449, 2014 ONSC 4527

PRE-TRIAL RULING
THE PROCEDURE PURSUANT TO R. V. GAROFOLI

Background: This is a pre-trial application on the nature of the steps articulated by Sopinka J. in Garofoli in challenging a wiretap or a search warrant. It is useful to reproduce the six steps here.

1.      1-Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2.      The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3.      After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4.      After the determination has been made in (3), the packet material should be provided to the accused.

5.      If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6.      If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

The accused contends the nature of the judicial summary in Step 2 and Step 6 is fundamentally different. Whereas, the judicial summary requirement in step 2 can be fulfilled by a generic description of the kinds of excised information, the accused maintains that the judicial summary in step, while like the judicial summary in step 2 is of no evidentiary significance in determining the validity of the warrant, must “be detailed enough to make the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

The Crown maintains that the nature of the judicial summaries in both steps is essentially the same, and further contends that the judicial summary in step 2 can form part of the evidentiary record in the Crown’s application under step 5.

The accused also submits that the Crown must choose between step 5 and step 6.

Analysis: The Court agrees with the accused’s contention that the judicial summaries in steps 2 and 6 are fundamentally different. While the summary in step 2 is of generic nature, the summary in step 6 will be more detailed. In rare cases, however, the summaries may be the same.

The Court also notes that “judicial summaries created at step two and step six of the Garofoli procedure are designed to serve as a substitute for full disclosure to fairly help the accused participate meaningfully in the process. They were not intended to serve as a more expansive evidentiary record to determine the legal sufficiency of the search warrant.”

The Court goes on to note that the Crown does not have to choose between step 5 and step 6, but may proceed with both simultaneously. The Court is concerned that making the Crown choose would simply result in the Crown proceeding with step 6, which would be more time-consuming. While the Court recognizes that simultaneous Step 5 and Step 6 applications are also time-consuming, it holds that that is the law as per Garofoli.

15 March
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Colour of Right

Posted by Rory
in Defences, Uncategorized

Theft and Colour of Right

Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Motor vehicle theft

333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable

(a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or

(b) on summary conviction, to imprisonment for a term of not more than 18 months.

 

WHAT DOES THE CROWN NEED TO PROVE?

This case will hinge on whether the alleged theft took place fraudulently and without colour of right. Case law suggests that both defences are related and will hinge on similar facts.

Fraudulent Intent

R v Laroche, [1964] SCR 667

Honest but mistaken belief works

Colour of Right

R v Lilly (1983), 34 CR (3d) 1, R v. Shymkowich, 19 CR 401

Honest but mistaken belief works

“With respect, this is clearly, in my view, misdirection in law. The fate of the accused’s defence of colour of right was not dependent upon the jury determining when the commissions were payable. That question was indeed important as relevant to whether the monies were his or those of his clients. The fact that they still be the property of the client was a prerequisite to his having to raise a defence to the taking or conversion. Rather, the accused’s defence was dependent upon whether they, the jury, were satisfied beyond a reasonable doubt that he, the accused, had not, at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent upon what they, the jurors, thought his rights were.”

 

Noting up Colour of Right Cases

Lilly is the foundational case in this area. It is important to note that in Lilly, a case decided in ’83, the alleged theft involved almost 27 thousand dollars, a lot of money now. But the SCC was very clear in stating that honest but mistaken belief is always a defence to theft.

R. v. Abramenko  [2008] A.J. No. 61, 2008 ABPC 23

Alberta Provincial Court case that does a good job of canvassing the law.

Further, I am satisfied that the accused had a colour of right when he withdrew the monies from Brent’s account. In R. v. Dorosh (G.) (2004) 241 Sask. R. 180 (Sask. C.A.), Bayda C.J.S., speaking for the panel, at paragraphs 16 – 18 inclusive, gave the following explanation of the concept of “colour of right”:

“[16] The jurisprudential history surrounding the phrase ‘colour of right’ indicates that the meaning of the phrase has a certain quality of elusiveness (see The Law of Theft and Related Offences by Winifred H. Holland (Toronto: Carswell, 1998) at pp. 150-170). The definition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O., and Estey J.A.), in R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372 may be taken to have settled many, if not all, of the contentious issues raised by earlier Canadian cases where the phrase was considered. He said:

‘The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact: see R. v. Howson, [1966] 3 C.C.C. 348; 55 D.L.R. (2d) 582, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.’

[17] Since DeMarco was decided, the Supreme Court of Canada has dealt with the ‘colour of right’ issue in two cases: R. v. Lilly, [1983] 1 S.C.R. 794; 48 N.R. 140; 24 Sask.R 50 and R. v. Jones and Pamajewon, [1991] 3 S.C.R. 110, 137 N.R. 321. Nothing said in the judgments in either of those cases in any way detracts from Martin, J.A.’s, definition. If anything, the court’s decision in Lilly may be said to impliedly support the definition. In two other cases, R. v. Lafrance, [1975] 2 S.C.R. 201 and R. v. Milne, [1992] 1 S.C.R. 697; 135 N.R. 202; 125 A.R. 135; 14 W.A.C. 135; [1992] 3 W.W.R. 97; 85 Alta. L.R. (2d) 257; 12 C.R. (4th) 175; 70 C.C.C. (3d) 481, the ‘colour of right’ issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detracts from the DeMarco definition.

[18] A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see: The Law of Theft and Related Offences p. 153) or in a mistake in a state of facts. The mistake in each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which if it actually existed would at law justify or excuse the act done.”

40     In the case at Bar, the accused honestly believed that he had the right to borrow money from his son’s AISH account (and, on the facts as I have found them, he did have that right). While the AISH monies were to be used for the benefit of Brent, I take from Ms. Mittelstadt’s testimony that the right to borrow did not depend upon the borrowing being for the benefit of the trust beneficiary. The fact that the accused had an honest belief that his borrowing and use of the funds was to the benefit of Brent goes not to the issue of “colour of right”, but rather it goes to the question of whether the acts of the accused were fraudulent (an issue with which I have already dealt).

41     I am completely satisfied that the accused had a colour of right to do that which he did.

R. v. DeMarco  [1973] O.J. No. 533

(This is an older case than Lilly, but on point)

Involved a vehicle, accused had kept a rental vehicle beyond due date, and had not paid, she thought there was nothing wrong with her behaviour and she could just pay them later

“The term “colour of right” generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact. Reg. v. Howson, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v. Howson, supra. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.”

R. v. Pena – [1997] B.C.J. No. 1405

Very interesting case, stands for the proposition that mistake of law is also included in colour of right defence. (On reflection, this is backed up in other cases too, plus this seems self-evident because colour of right is an element of the office and mistake about it (which can include mistake of law) should be a defence)

“However, as noted by Stuart in Canadian Criminal Law, supra at 308, “it now seems clear that colour of right can also result from a pure mistake of law.”

11     In R. v. Howson, [1966] 3 C.C.C. 348 (Ont. C.A.), a case where a car towing company had been charged with the theft of a car, Porter C.J.O. reviewed the law regarding colour of right and mistake of law, and held, at p. 356:

In my view the word “right” should be construed broadly. The use of the word cannot be said to exclude a legal right. The word is in its ordinary sense charged with legal implications. I do not think that s. 19 affects s. 269 [now s. 429]. Section 19 only applies where there is an offence. There is no offence if there is colour of right. If upon all the evidence it may fairly be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence of theft committed. The trial tribunal must satisfy itself that the accused has acted upon an honest, but mistaken belief that the right is based upon either fact or law, or mixed fact and law.

12     Accordingly, in R. v. DeMarco (1974), 13 C.C.C. (2d) 369 at 372 (Ont. C.A.), where the accused had rented a car and not returned it on time because she did not think that she was obliged to, Martin J. held:

The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact…The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done…The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.
13     An honest belief concerning property rights, whether based on a mistake in fact or in law, may constitute a colour of right: Lilly v. The Queen (1983), 5 C.C.C. (3d) 1 (S.C.C.). (I don’t think Lilly makes this clear at all, it talks about mistake of fact

14     Recently, in R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.), Lamer C.J.C. noted at pp. 102-103 of his dissenting opinion that:

Despite the importance of [the rule against ignorance of the law] some exceptions to it are already established in our law…a certain number of our Criminal Code offenses provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.

15     By implication, Lamer C.J.C. apppears to acknowledge that the colour of right defence includes mistake of law.

16     Finally, Penashue, supra, R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Ct.) and R. v. Potts, [Q.L. [1990] O.J. No. 2567] (Ont. Prov. Ct.) a11 involve fact situations similar to present case. The accused were charged with mischief for occupying what they claimed were aboriginal lands. In all three cases, it was accepted that mistake of law was included in the colour of right defence, and the Court instead focused on the issues of a moral as opposed to legal right, and the accused’s “honest belief.””

04 March
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Mistake of Fact

Posted by Rory
in Defences, mistake of fact

 

Mistake of Fact and consent

Thoughts re: Mistake of Fact w.r.t. consent

Mistake of fact:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Mistake of fact w.r.t. consent is therefore a valid defence.

It is important to note that mistake of fact (with the exception of sexual assault cases) does not have to be based on reasonable grounds.

R. v. Bulmer [1987] 1 S.C.R. 782

“The defence has been variously described and may be conveniently stated in these terms. If an accused entertains an honest belief in the existence of a set of circumstances which, if they existed at the time of the commission of an otherwise criminal act, would have justified his act and rendered it non-criminal, he is entitled to an acquittal. The law on this question as far as Canada is concerned has been stated authoritatively in Pappajohn v. The Queen, [1980] 2 S.C.R. 120. Dickson J. (as he then was), writing on this point with the concurrence of the majority of the Court, held that the defence was available in Canada, that it goes to the question of whether the accused had the necessary mens rea for the commission of the crime involved, and that the mistaken belief upon which the defence rests need not be reasonable, if honestly held. The subject has been further explored by my colleague, Wilson J., in her reasons for judgment in R. v. Robertson, [1987] 1 S.C.R. 918 (judgment delivered concurrently), with whose observations I agree.”

But I would argue that there were reasonable grounds for our client to believe that the complainant was one of the attackers. He is Latin American, and therefore brown skinned like the group of Arabs that attacked our client. Furthermore, email communication with the crown indicates that the complainant was friends with at least two of the Arab men in question, and he was by all accounts, near or at the scene of the crime. It is therefore not a stretch to believe that the complainant was one of his attackers. Impaired, and justifiably angry, our client had reasonable grounds to believe that the complainant was one of his attackers, and fleeing from him after subjecting him to significant bodily harm.

Note: R. v. Jobidon [1991] 2 S.C.R. 714: The limitation demanded by s. 265 vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.

Firstly, Jobidon specifically mentions that intention is needed to vitiate consent. This is also the requisite mental element for the assault offence (R v Danydink 253 C.C.C. (3d) 493 (B.C C.A) Did our client intentionally cause serious bodily harm? It is possible that he was reckless or careless, but quite unlikely that our client, impaired and justifiably angry, had the requisite intention to cause serious bodily harm to the complainant. Our client was simply reacting to the onslaught by a group of men. He was actively defending himself, rather than intentionally attacking the complainant with the intent of causing serious bodily harm. Mistake of fact w.r.t. consent is very much a live issue.

 

Even if we are to accept that our client had the requisite intention there are ways around the Jobidon problem. It is important to note that in Jobidon “the fight” resulted in death. In R. v. Nash  [1996] O.J. No. 4239, Quinn J. reviews Jobidon exhaustively and has some interesting insights into the decision.

at p. 491:

“Although there is certainly no crystal-clear position in the modern Canadian common law, still, when one takes into account the combined English and Canadian jurisprudence, when one keeps sight of the common law’s centuries-old persistence to limit the legal effectiveness of consent to a fist fight, and when one understands that s. 265 has always incorporated that persistence, the scale tips rather heavily against the validity of a person’s consent to the infliction of bodily injury in a fight …
Notwithstanding this conclusion, given the residual indetermination which admittedly lingers in the recent Canadian cases, it is useful to canvass policy considerations which exert a strong influence in this appeal, for they rather decisively support the respondent, bringing down the scales even more surely in support of the decision in the court below.
Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights … it is not in the public interest that adults should willingly cause harm to one another without a good reason. There is precious little utility in fist fights or street brawls. These events are motivated by unchecked passion.”
and at p. 492:

“Given the spontaneous … nature of many fist fights, I would not wish to push the deterrence rationale too far. None the less, it seems reasonable to think that, in some cases, common law limitations on consent might serve some degree of deterrence to these sorts of activities.”
and at p. 493:

“… If aggressive individuals are legally permitted to get into consensual fist fights and they take advantage of that license from time to time, it may come to pass that they eventually lose all understanding that that activity is the subject of a powerful social taboo. They may too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude. It is preferable that these sorts of omissions be strongly discouraged.
Wholly apart from deterrence, it is most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction to the sort of interaction displayed by the facts of this appeal. The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.”
and at p. 494:

“… it must not be thought that by giving the green light to the common law, and a red light to consent fights, this court is thereby negating the role of consent in all situations or activities in which people willingly expose themselves to intentionally applied force. No such sweeping conclusion is entailed. The determination being made is much narrower in scope.
How, and to what extent, is consent limited?
The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.
The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case-by-case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.”
and at p. 495:

“Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as ‘any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature’.”
15     Although the review, by Gonthier J., of the jurisprudence was sweeping, the end result was less so. I regard the ratio decidendi to be no more than this: in the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where serious hurt or non-trivial bodily harm is occasioned. Such a ratio, with nothing more, would logically support an inference that, in the case of a consensual, weaponless fist fight (brawl), between two adults, consent is effective where less-than-serious hurt or trivial bodily harm is occasioned. However, the matter ceases to be inferential and is rendered explicit, by the words of Gonthier J. just mentioned above (at p. 495):

“… the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm.”
Thus, Jobidon does not eliminate consent as a defence in cases of assault simpliciter.

2.
According to Jobidon, What Level of Bodily Harm Must Be Suffered Before Consent Is Rendered Ineffective As A Defence?

16     Earlier I set out this statement by Gonthier J. (at p. 494) which I now repeat:

“The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”
(Emphasis added.)
17     However, Gonthier also stated, as already indicated (at p. 495):

“Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as ‘any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature’.” (Emphasis added.)
18     So, what is the level of bodily harm that must be reached before consent ceases to be a valid defence? Should “serious hurt or non-trivial bodily harm” and “minor hurt or trivial harm” be read so as to be compatible with the definition of bodily harm found in s. 267(2) of the Criminal Code? Or, as Crown counsel submits, in using the words “essentially equivalent”, is Gonthier J. proposing another (and lower) threshold of bodily harm? I disagree with such a submission. To begin with, no good purpose would be served by setting up a new category of bodily harm. The law of assault would be complicated unnecessarily. It would result in a sliding scale for bodily harm. Furthermore, Crown counsel is putting too fine a point on the meaning of “essentially”. In The Shorter Oxford English Dictionary (Third Edition), “essential” is defined as “of or pertaining to the essence of anything”. Consequently, it is my view that Gonthier J. was not at all purporting to set up a new category of bodily harm. Instead, the bodily harm that vitiates consent is that which is found in s. 267(2) of the Criminal Code and nothing less. Support for this view is found in R. v. Welch (1995), 43 C.R. (4th) 225 (Ont.C.A.), where Griffiths J.A., writing for the Court, states at p. 249:

“In my view, however, the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined in s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” (Emphasis added.)
19     Accordingly, the ratio in Jobidon could be stated as follows:

20     In the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where bodily harm, as defined in s. 267(2) of the Criminal Code, is occasioned. Thus, the logical inference, of which I spoke earlier, would now be that consent is effective as a defence where the level or degree of bodily harm falls short of, or does not meet, the definition found in s. 267(2).

 

My thoughts on how we can use this: Jobidon is the leading case on consent being vitiated, and the policy considerations underlying the decision provide important insights into why the court came to this decision. The court talks of fist fights and brawls, and how public policy dictates that these activities be discouraged. It is clear that public policy had a huge role in Jobidon, and public policy does dictate that people not consent to their own deaths in voluntary fist fights. However, for our client, the situation was neither an active fistfight (He was attacked by another group of people, and he responded to defend himself), and it is not clear if public policy would dictate that consent or the mistake of fact with respect to consent be unavailable in this case. It would be entirely unjust if a person responding to a brutal attack is the one who is charged with assault, and cannot argue mistake of fact w.r.t. consent, while the instigators of the violence are used as witnesses against him. This is clearly not what Jobidon envisaged when it talked about consent being vitiated. Mistake of fact w.r.t. consent should be very much a live issue in our case.

In the above case (R. v. Nash  [1996] O.J. No. 4239), the judge finds that Jobidon did not eliminate consent as a defence in cases of assault simpliciter 2. According to Jobidon, the level of bodily harm that must be suffered, before consent will be ineffective as a defence, is “bodily harm” as defined by s. 267(2) of the Criminal Code. 3. The altercation, in the case at bar, is not of such a nature that public policy should proscribe the defence of consent.

Ultimately, Jobidon is a case about public policy. The court needs to consider whether public policy mandates that a victim of an assault by a group of men be the target of the criminal sanction. Other cases have cited Jobidon and discussed public policy reasons for finding the accused guilty or not guilty.

QUESTION: WHAT IF YOU consent to a fight and cause bodily harm but did not intend to do so? The law is less clear. Supreme Court cases after Jobidon suggest that bodily harm must be intended and caused. English law suggests that bodily harm must be intended or caused.

R. v. Amos [1998] O.J. No. 3047

1     THE COURT (endorsement):– The policy considerations and legal principles which inform the reasoning of the Supreme Court of Canada in R. v. Jobidon (1991), 66 C.C.C. (3d) 454 and this court’s decision in R. v. Welch (1995), 101 C.C.C. (3d) 216 have no application to the case at hand.

2     In Welch, Griffiths J.A. stated at p. 238 that, “the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” Griffiths J.A. went on to observe at p. 239 that — “[A]lthough the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.”

3     In Welch, the court was concerned with sado-masochistic sexual activity involving the deliberate infliction of pain and injury, conduct which the court described as being “inherently degrading and dehumanizing.” The same cannot be said about the sexual conduct engaged in by the appellant. There is no suggestion in the evidence that the appellant deliberately inflicted injury or pain to the complainant. Moreover, it cannot be said that anal intercourse is inherently degrading and dehumanizing or that it constitutes socially unacceptable conduct, particularly in view of s. 159(2) of the Criminal Code which excepts from criminal liability anal intercourse between consenting adults in private.

4     It follows, in our view, that the trial judge erred in concluding that the resulting bodily harm to the complainant rendered irrelevant the presence or absence of consent on her part. Given the trial judge’s finding that the Crown had failed to prove lack of consent beyond a reasonable doubt, in the particular circumstances of this case, the conviction cannot stand.

R. v. Bruce [1995] B.C.J. No. 212

The Jobidon case on its facts applied to the vitiation in law of apparent consent in fact where the force was intentionally applied in the course of a fist fight or brawl and the force was such as was intended to cause and did cause serious hurt or non-trivial bodily harm. Counsel for the appellant in this appeal argued the very same standard of public policy vitiation of consent as is derived from the facts of the Jobidon case should be applied in cases of family altercations. However, I do not think that the same standard that applies to brawls and fist fights between grown men should apply to domestic altercations between a man and a woman. In the public interest I think that the public policy discussed in Jobidon and which underlies the decision in that case must take a stricter view of the level of applied force which should vitiate apparent consent as a matter of law in domestic altercations than it does in brawls and fist fights. In my opinion, the intentional application of sufficient force as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercation between a man and a woman.