780-686-7948

Available 24 hrs

Always here for you!

780-686-7948

Call Us Today!

Contact Us
logo
mobile logo
 

Blog

Edmonton Criminal Lawyer Ziv >  Blog
04 March
0 Comments
Sticky

Admissibility of 911 recordings

Posted by Rory
in 911 admissability, admissability

911 Recordings

Hearsay is presumtively inadmissible. 911 tapes are generally admissible because they fall under the res gestae exception. Alternatively, 911 tapes may also be admitted because they meet the necessity and reliability requirements under the principled approach. We can use both res gestae and the principled approach to question the admissibility of the 911 tapes.

Res Gestae:

R v Sylvain 2014 ABCA 153

“The starting point is this. As a general principle, res gestae statements are admissible as an exception to the hearsay rule: R v Khan (1988), 42 CCC (3d) 197, 27 OAC 142 at para 21 (Ont CA) [Khan]; R v Ratten, [1972] AC 378 at 389-391 (PC). Res gestae as a category has been criticized as being an unhelpful generality that actually encompasses several discrete exceptions to the hearsay rule: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Toronto: Irwin Law, 2011) [Paciocco and Stuesser] at 173. That said, the particular exception involved here relates to “excited utterances” as explained by Paciocco and Stuesser, supra at 177:

A statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement caused by the event or condition.

[31] The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction: see R v Klippenstein (1981), 26 AR 568 at para 17, 57 CCC (2d) 393 (Alta CA); R v Clark (1983), 42 OR (2d) 609 at 623, 7 CCC (3d) 46 (Ont CA); R v Slugoski (1985), 17 CCC (3d) 212 at 227, 43 CR (3d) 369 (BCCA). To avoid the prospect of fabrication, the statement should be reasonably contemporaneous with the alleged occurrence. However, exact contemporaneity with the event is not required: Clark, supra at 623; Khan, supra at para 25; R v Dakin (1995), 80 OAC 253 at para 20, 1995 CarswellOnt 4827 (CA).

[32] The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule: R v Mackenzie, 2011 ONSC 6770 at para 10, 2011 CarswellOnt 12578. The reliability of “excited utterances” comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the “excited utterances” exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.

R. v. DeSouza, [2012] O.J. No. 270 was a case where Ricchetti J. ruled in the course of pretrial applications, prior to the commencement of the jury trial, and importantly, on the basis of necessity, that the 911 tape was the best evidence of the state of mind of the complainant. However, he also acknowledged that there was no doubt that the statements made by the complainant during the 911 calls, being hearsay, would be inadmissible unless ruled to be spontaneous utterances or admissible under the principled approach exception to the hearsay rule. The key issue there was necessity and Ricchetti J. ruled that the statements were necessary.

 

[6] There are two basic requirements for a res gestae statement:

(1) there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of the observer, and

(2) the statement of the declarant must have been a spontaneous reaction to the occurrence or event, and not the result of reflective thought. The rationale for the exception lies in the special reliability that is provided when excitement suspends the declarant’s powers of reflection and fabrication. See McCormick on Evidence, 5th ed. (St. Paul: West Group, 1999) Vol. 2, 204.

Cases where 911 tapes were not admitted

When Prejudice exceeds probative value: For example “however, the contents of the tape and the high-end emotions, screams, and specific accusations of sexual assault that it reflects, makes clear to me that it’s very high prejudicial effect relative to what I regard as its very limited probative value cannot permit the 911 tape to be played. Perhaps the result would be different on a judge alone trial, but I have concluded that the risk of the jury giving undue weight to that recording and not just for the limited purposes for which it is sought to be admitted, but in a wider context relative to the case as a whole, means that it cannot be played in this case”. R. v. Kamal Barua, 2012 ONSC 1817

Where reliability not established:

The call here was not an emergency call. The fact that it was made to 911 is merely an accidental feature of the case. Further, the caller was not describing ongoing events – the call was made two hours and fifteen minutes after the incident had ended and two hours after the police investigation had commenced. In short, the circumstances that carried the hearsay in Chrisanthopoulos over the threshold reliability hurdle are not present here

R. v. Campbell, 2012 ONSC 6743

Concoctions:

I am also concerned there might have been a motivation for this call to achieve an

objective other than to report an assault. In this regard, it is noteworthy that Ms. Garrick

testified she and Mr. O’Connell were arguing that evening because her cat was dying and Mr.

O’Connell was not willing to spend money for its care. In cross-examination Ms. Garrick

also indicated that when she made the call, she wanted Mr. O’Connell out of the house. R. v. O’Connell, 2007 ONCJ 536

 

Motive to fabricate:

The 911 call was inadmissible. The 911 call was made 16 minutes after the offence. In addition, the evidence established that Mowatt acted deliberately and made the call because she was angry at Harbin. Furthermore, there was no oath or warning with respect to the statement and Mowatt had motive to fabricate when she placed the call. Therefore, the telephone call was not made as part of the res gestae and did not meet the test of reliability- R. v. Harbin

[2008] O.J. No. 2158

 

This would be the Crown’s only evidence against the accused. There is nothing else. The basis for admissibility is said to be that the complainant’s 911 call is a res gestae (excited or spontaneous utterance) statement, or alternatively that it constitutes an exception to the hearsay rule as being necessary and reliable. The defence opposes the admission of this evidence, adding that in the particular circumstances of this case, the probative value of this evidence, even if admissible, would be outweighed by its prejudicial effect. [5] I agree with the defence position that this evidence should not be admitted. First, I do not consider the 911 call to constitute a res gestae statement. Second, while the complainant’s statements to the 911 operator are necessary to the Crown’s case since the witness has no memory of making the 911 call, and denies that she was assaulted by the accused, they are manifestly unreliable; thus they are inadmissible as an exception to the hearsay rule. Finally, I would decline to admit the 911 call for a third reason: it would cause prejudice to the accused and the trial process; the prejudicial effect of the evidence is out of proportion to its probative value. The evidence is therefore ruled inadmissible. R. v. Grahovac, 2008 ONCJ 211

 

PRINCIPLED APPROACH

In R. v. Khelawon , (2006), 215 C.C.C. (3d) 161 the Supreme Court of Canada stated that where an established exception to hearsay does not apply to evidence that is sought to be adduced, it may be admissible if it is both reasonably necessary to admit the evidence and the evidence is sufficiently reliable. It is important to note that such evidence is presumptively inadmissible and that courts must find indicia of trustworthiness sufficient to displace the general exclusionary rule.

Necessity: R. v. Parrott.  [2001] S.C.J. No. 4: Necessity cannot be assumed, it must be demonstrated. In this case, the court found that the

“Stereotypical assumptions about persons with disabilities, be it testimonial competency or trauma, should be avoided. The video of the complainant’s out-of-court statement could not afford evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them. The trial judge having misdirected himself on the admissibility issue, his ruling must be set aside and the majority decision of the Newfoundland Court of Appeal ordering a new trial on the assault charge affirmed.”

In our case, we may question why more efforts have not been made to ensure the complainant’s presence in the court.

Reliability: The analysis here overlaps with what could be argued in challenging whether the 911 tapes on the facts properly belong to the res gestae exception. It would be useful to argue that while the 911 tapes were contemporaneous (an important part of the res gestae exception), there is a possibility that they may have been concocted….

04 March
0 Comments
Sticky

Right to Counsel

Posted by Rory
in Charter Rights, implemenational duties, right to counsel

Right to Counsel

Implementational Duties

 

In considering right to counsel, R v Street, 2016 SKPC 7, provides interesting insight into the nature of implementational duties under S 10 (b) of the Charter of Rights and Freedoms.

Facts: After being arrested for impaired driving, Street asked to speak to a lawyer by the name of McKay. The constable with her dialed the number, but did not wait for a response. He then dialed another number, and subsequently dialed Legal Aid. It was the Constable’s idea to call Legal Aid.

Analysis: Hinds J quotes R v Kreiser, 2013 SKPC 107 in explaining the nature of the duty under s 10 (b).

S 10 (b) or “the right to counsel has an information component and an implementation component. The information component requires the police to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aid and duty counsel: R. v. Luong, 2000 ABCA 301.”

“The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise the right to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel. Second, it requires the police to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations of urgency or danger): R. v. Luong, supra; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.”

The judge also uses Kreiser to note that these duties are not absolute and that reasonable diligence is required by the detainee in attempting to contact counsel.

The judge finds that the interpretational duty was violated in this case. In particular, he is concerned that the “Constable pushed Ms. Street in the direction of Legal Aid as a convenient way of fulfilling the requirements of section 10 (b) of the Charter when he dialed the telephone number for Legal Aid duty counsel at 3:24 a.m.”

The judge goes on to note that “Put another way, I am of the view that he streamed Ms. Street towards Legal Aid. I find that Constable Boprai did not act diligently in facilitating the right of Ms. Street to contact her counsel of choice. He could have and should have waited more than a few minutes for a return call from Mr. McKay. I find that Constable Boprai breached his implementational duty.”

Note: In cases where a detainee does not have a lawyer, or is unable to contact the lawyer of his/her choice, it is appropriate to remind him/her of legal aid options.

17 February
0 Comments
Sticky

Uttering Threats

Posted by Rory
in Defences

Uttering Threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

Elements of the Offence

Actus Reus: The actus reus is met by utterances that a reasonable person would consider a threat. In the reasonable person background factors play an important role, including the words used, the surrounding circumstances, the relationship between the parties and any other relevant factors.

 R. v. Clemente [1994] S.C.J. No. 50, Actus reus is uttering threats to cause serious bodily harm,

R. v. McCraw: [1991] 3 S.C.R. 72 Reasonable person, Viewed objectively in the context of the words spoken, with regard to the person to whom they were addressed, would the words convey a threat of serious bodily harm to a reasonable person.

Armstrong: 95 C.R. (6th) 46, Reasonable Person Test would objective person consider words threat? Taking into account the words uttered by the speaker, the circumstances of the speaker, and the person to whom the words are communicated or who is the subject of the threat

Bone : [1993] M.J. No. 222, In deciding whether to infer the specific intent to instill fear in someone, the trier of fact must consider evidence of D’s intoxication, together with all the other circumstances in which the threat is uttered

Batista: For Actus reus assessment of all relevant circumstances is required, the relationship between the V and D provides context

Mens Rea: For Mens rea to be met, there needs to be a subjective intention to intimidate or words to be taken seriously. Recklessness is not appropriate, knowledge is required. But this determination is arrived at using objective factors.

Leblanc Innocently made threat is not a threat, whether D intended to carry out the threat is not material

Noble: Knowingly: Subjective intent component (words/threats must be taken seriously or intimidate), recklessness not enough

Clemente [1994] S.C.J. No. 50. The mental element is that the words were meant to intimidate or be taken seriously, this depends upon the words used, the context in which they were spoken, and the person to whom they were directed.

It is useful to look at some cases where the offence wasn’t proven.

R. v. Fischer:  [1999] A.J. No. 1156

R. v. Eakin :  [2002] M.J. No. 349

As I see it, even if the accused did utter some words capable of being interpreted as a threat, which he denies, and no other witness was produced to confirm that he did utter them, they were uttered at a time when the accused may have been understandably upset about the lopsided loss of his son’s team and frustrated with the complainants’ behaviour in support of the other team. It is not inconsistent with all the evidence to view that any words beyond those admitted by Eakin were nothing but outbursts of disappointment and frustrations and were not intended to be taken seriously.

Twaddle: There were many reasons why threatening words alone would not suffice. The most obvious arose from the fact that people do not always say what they mean or mean what they say. There was thus the danger of misconstruing words, especially those which were spoken, and the further danger of assuming that a person actually intended to do what he or she had threatened. It is a well-recognized trait of human kind, found even in the sober and the sane, to make rash and extravagant statements of what they intend to do in the future without intending to do any such thing or, if they had such an intent, to regret the though and abandon it before harm is done.

R. v. Lee (1988) 3 W.C.B. (2d) 203:0803 (Ont. Dist. Ct.), , the accused, during the course of a heated argument, “told the victim that he would smash his face in”. The Court held that “while the words uttered here might in some circumstances constitute a threat, they were of such gross proportions that it represented simply a series of epithets used in circumstances of anger.” (I would say that this is very similar to what happened to our client)

R. v. Payne-Binder (1991) 7 C.R. (4th) 308 (Yukon C.A.).: “The questions (sic) to ask is, did the respondent intend the words to be taken seriously? To put it another way, did the respondent intend the parties to be frightened? Bearing in mind the context in which the words were spoken, another frustrating courtroom appearance and the background dealings between the parties….The respondent was trying to convey to the court her total desperation in the inability to resolve the problems of custody and access to two children following a separation. The words were used to convey that desperation that she wanted the matter to be resolved, but not with the intention to be taken seriously or to frighten the parties that she would kill or cause them serious bodily harm.”

R. v. Kontuk [2012] N.S.J. No. 306 2012 NSSC 204

50     Having considered the words spoken, in the context of the facts found by the trial judge, I cannot say that “could break the window and haul you out if I wanted to” would constitute a threat to a reasonable person. Mr. Avery was in the vehicle and though Mr. Kontuk had initially tried the door that was the only time he did so. (Common law relation, hadn’t been invited to son’s wedding)

Seems like a threat but because of the relationship, court quite happy to rule that there was no threat. Facts matter, background matters. In the leading cases of Clemente and McCraw the facts were quite troubling.

The Clemente case is distinguishable on the facts from the case at Bar, in that there the threats towards a caseworker were uttered within the context of five days of frustration in dealing with the caseworker on getting his case before the appeal board, and in the broader context of a long-standing obsession by the accused there over a failed real estate transaction that left him penniless and onto public assistance.

R. v. McCraw, [1991] 3 S.C.R. 72 (26 September 1991) 21684. In that case the appellant had written anonymous letters to three football cheerleaders detailing various sexual acts he wished to perform on them and concluded with the threat that he would have sexual intercourse with them “even I have to rape you”

Defence

On the Actus Reus front, it is more of a losing battle. But there is still an argument to be made. Did the complainant really feel threatened by the accused? She is a relatively fragile woman who keeps saying she will beat up people, in a strange house, where she is outnumbered at least 3-1. Did the complainants really conceive of this behaviour as an actual threat against them or did they believe it, as a reasonable person would in the circumstances, that the utterances were simply epithets in circumstances of anger. I’d suggest that this is far the more likely explanation. Both sides exchanged obscenities in anger. Mrs. Atcheson was clearly upset because she thought that her son had been endangered by reckless driving, and she lashed out. Her words, if we believe the allegations of the complainant, would not be construed as threats by the reasonable person.

Temporal proximity is also a factor in our favour. The alleged threats were made right after the dangerous driving, and point to being outbursts of frustration rather than being genuine threats.

Mens Rea: Far stronger case here. There are doubts as to whether Mrs. Atcheson had the requisite intention. Important to note that recklessness is not enough, and she must have subjectively, (and not in a momentary outburst of anger), intended to intimidate or for her words to be taken seriously. There is a level of premeditation required here that is just not an appropriate fix for the facts of this case. Mrs. Atcheson was angered by dangerous driving in proximity of her toddler, and she rushed to the house of the perpetrator, saying things in anger that any mother might.

I have analyzed the actus reus and mens rea on the assumption that the allegations of the complainant are true. Credibility is another issue.

 

 

08 February
0 Comments
Sticky

Unreasonable Search and Seizure — ACM –Airbag Control Modules

Posted by Rory
in Charter Rights, Search Warrants

Airbag Control Modules

In R v Hamilton 2014 ONSC 447, the Court conducts an exhaustive analysis of what constitutes unreasonable search and seizure as per section 8 of the charter. The issue in this case is whether accessing the data stored on the Airbag Control Module (“ACM”) without prior judicial authorization violates s8.
The court establishes that s8 analysis consists of asking if a) there is a reasonable expectation of privacy b) the search was reasonable.
A-Reviewing the case law, the court points out that whether an expectation exists, it is necessary to look at a)The Applicant’s Subjective of Privacy and b) Is the Expectation of Privacy Objectively Reasonable in the Totality of the Circumstances?
The subjective component is not a high threshold, and it depends upon the subject matter of the search and whether the applicant had a direct interest in it. The court notes that the subject matter of the search was not the ACM as a physical object, but the date stored within in, and that the applicant had a direct interest in the data.
Whether the expectation is objectively reasonable depends on a number of questions, suggested in Edwards. The court examines these questions and finds that the expectation was objectively reasonable.
Finding that a reasonable expectation of privacy exists, the court evaluates whether the search was reasonable. The court finds that -1-The search was not authorized by law and that 3-the search itself was not reasonable. 2-The court does not address whether the law in question was itself unreasonable.
It is important to note that the court’s analysis in both establishing that there is a reasonable expectation and that the search was unreasonable acknowledges the problematic nature of the officer’s conduct. There is not a single factor that the court finds in favour of the crown in this part of the analysis. And this forms the bulk of the decision. The court spends an awful lot of time in establishing that the conduct was a breach of s8.
However, when it comes to the remedy under s24, the analysis is brief and the court is quick to establish that the administration of justice will not be brought into disrepute by including this evidence. The court says that the 1- the charter breach is not particularly serious, and that the court must take into account the conduct of the applicant that led to the charter breach. 2-The court also says that the impact on the charter protected interests of the applicant is moderate and that 3- the reliability of the evidence weights in favour of inclusion (Society’s interest in an adjudication on the merits)
Balancing the factors, the court finds in favour of including the evidence.
My thoughts: This case was enlightening purely for the huge gulf between the s8 and s24 analysis. In the s8 analysis the court seems far more cognizant of the accused’s rights, whereas s24 seems to exist solely to provide legal sanction to include evidence that infringes charter rights.

R v Shaw 2016 ONSC 658
The Appellant was convicted of failing to provide a breath sample, but appealed because the testimony consisted of evidence by adult witnesses that was not sworn or affirmed.
The judge reviews the law and finds that for adult witnesses the proper way to receive evidence is by testifying under oath or by solemn affirmation. The cases provided by the crown deal with witnesses with specific considerations for testifying. No such considerations are in operation in the facts here.
The judge notes with approval the cases cited by the Appellant. In Matheson, failure to follow strict compliance with having evidence taken under oath, the process was rejected. Similarly, in Kalkhorany, the court found that a trial procedure could not be remedied when the trial began as a summary conviction, and when the six month time period for commencing expired, the process was converted into a trial by indictment. The court found that the formality of reconstituting the court and taking a proper plea on the process had to be followed or specifically waived.
Rejecting, the crown’s assertion that this was a procedural issue, the judge quashes the conviction.

08 February
1 Comment
Sticky

Recollection and Demeanour Evidence

Posted by Rory
in credibility

I took these articles from Alan Gold’s February 8, 2016 weekley newsletter. assessing evidence. demenour. recollection.

 

Evidence based on recollection

15.An obvious difficulty which affects allegations and 
     oral evidence based on recollection of events which 
     occurred several years ago is the unreliability of human 
     memory. 
 
     16.While everyone knows that memory is fallible, I do not 
     believe that the legal system has sufficiently absorbed 
     the lessons of a century of psychological research into 
     the nature of memory and the unreliability of eyewitness 
     testimony. One of the most important lessons of such 
     research is that in everyday life we are not aware of the 
     extent to which our own and other people’s memories are 
     unreliable and believe our memories to be more faithful 
     than they are. Two common (and related) errors are to 
     suppose: (1) that the stronger and more vivid is our 
     feeling or experience of recollection, the more likely 
     the recollection is to be accurate; and (2) that the more 
     confident another person is in their recollection, the 
     more likely their recollection is to be accurate. 
 
     17.Underlying both these errors is a faulty model of 
     memory as a mental record which is fixed at the time of 
     experience of an event and then fades (more or less 
     slowly) over time. In fact, psychological research has 
     demonstrated that memories are fluid and malleable, being 
     constantly rewritten whenever they are retrieved. This is 
     true even of so-called ‘flashbulb’ memories, that is 
     memories of experiencing or learning of a particularly 
     shocking or traumatic event. (The very description 
     ‘flashbulb’ memory is in fact misleading, reflecting as 
     it does the misconception that memory operates like a 
     camera or other device that makes a fixed record of an 
     experience.) External information can intrude into a 
     witness’s memory, as can his or her own thoughts and 
     beliefs, and both can cause dramatic changes in 
     recollection. Events can come to be recalled as memories 
     which did not happen at all or which happened to someone 
     else (referred to in the literature as a failure of 
     source memory). 
 
     18.Memory is especially unreliable when it comes to 
     recalling past beliefs. Our memories of past beliefs are 
     revised to make them more consistent with our present 
     beliefs. Studies have also shown that memory is 
     particularly vulnerable to interference and alteration 
     when a person is presented with new information or 
     suggestions about an event in circumstances where his or 
     her memory of it is already weak due to the passage of 
     time. 
 
     19.The process of civil litigation itself subjects the 
     memories of witnesses to powerful biases. The nature of 
     litigation is such that witnesses often have a stake in a 
     particular version of events. This is obvious where the 
     witness is a party or has a tie of loyalty (such as an 
     employment relationship) to a party to the proceedings. 
     Other, more subtle influences include allegiances created 
     by the process of preparing a witness statement and of 
     coming to court to give evidence for one side in the 
     dispute. A desire to assist, or at least not to 
     prejudice, the party who has called the witness or that 
     party’s lawyers, as well as a natural desire to give a 
     good impression in a public forum, can be significant 
     motivating forces. 
 
     20.Considerable interference with memory is also 
     introduced in civil litigation by the procedure of 
     preparing for trial. A witness is asked to make a 
     statement, often (as in the present case) when a long 
     time has already elapsed since the relevant events. The 
     statement is usually drafted for the witness by a lawyer 
     who is inevitably conscious of the significance for the 
     issues in the case of what the witness does nor does not 
     say. The statement is made after the witness’s memory has 
     been “refreshed” by reading documents. The documents 
     considered often include statements of case and other 
     argumentative material as well as documents which the 
     witness did not see at the time or which came into 
     existence after the events which he or she is being asked 
     to recall. The statement may go through several 
     iterations before it is finalised. Then, usually months 
     later, the witness will be asked to re-read his or her 
     statement and review documents again before giving 
     evidence in court. The effect of this process is to 
     establish in the mind of the witness the matters recorded 
     in his or her own statement and other written material, 
     whether they be true or false, and to cause the witness’s 
     memory of events to be based increasingly on this 
     material and later interpretations of it rather than on 
     the original experience of the events. 
 
     21.It is not uncommon (and the present case was no 
     exception) for witnesses to be asked in cross-examination 
     if they understand the difference between recollection 
     and reconstruction or whether their evidence is a genuine 
     recollection or a reconstruction of events. Such 
     questions are misguided in at least two ways. First, they 
     erroneously presuppose that there is a clear distinction 
     between recollection and reconstruction, when all 
     remembering of distant events involves reconstructive 
     processes. Second, such questions disregard the fact that 
     such processes are largely unconscious and that the 
     strength, vividness and apparent authenticity of memories 
     is not a reliable measure of their truth. 
 
     22.In the light of these considerations, the best 
     approach for a judge to adopt in the trial of a 
     commercial case is, in my view, to place little if any 
     reliance at all on witnesses’ recollections of what was 
     said in meetings and conversations, and to base factual 
     findings on inferences drawn from the documentary 
     evidence and known or probable facts. This does not mean 
     that oral testimony serves no useful purpose – though its 
     utility is often disproportionate to its length. But its 
     value lies largely, as I see it, in the opportunity which 
     cross-examination affords to subject the documentary 
     record to critical scrutiny and to gauge the personality, 
     motivations and working practices of a witness, rather 
     than in testimony of what the witness recalls of 
     particular conversations and events. Above all, it is 
     important to avoid the fallacy of supposing that, because 
     a witness has confidence in his or her recollection and 
     is honest, evidence based on that recollection provides 
     any reliable guide to the truth. 
 
     23.It is in this way that I have approached the evidence 
     in the present case. 
 
— Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor, [2013]
EWHC 3560 (Comm); URL:
http://www.bailii.org/ew/cases/EWHC/Comm/2013/3560.html 

Demeanour evidence                           

    “44 This court has repeatedly cautioned against giving 
     undue weight to demeanour evidence because of its 
     fallibility as a predictor of the accuracy of a witness’s 
     testimony: Law Society of Upper Canada v. Neinstein, 
2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 
2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, 
     at para. 85, “[i]t is now acknowledged that demeanour is 
     of limited value because it can be affected by many 
     factors including the culture of the witness, 
     stereotypical attitudes, and the artificiality of and 
     pressures associated with a courtroom.” 
 
          45 Although the law is well settled that a trial 
          judge is entitled to consider demeanour in assessing 
          the credibility of witnesses, reliance on demeanour 
          must be approached cautiously: see R. v. S. (N.), 
          2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 
          26. Of significance in this case is the further 
          principle that a witness’s demeanour cannot become 
          the exclusive determinant of his or her credibility 
          or of the reliability of his or her evidence: R. v. 
          A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at 
          para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 
          (C.A.), at pp. 313-14. 
 
          46 It is of note that the trial judge started his 
          assessment of the appellant’s credibility by 
          expressing his concern about how the appellant 
          testified: 
 
               It was my impression that the [appellant] 
               testified in a careful fashion which lacked any 
               spontaneity. He appeared to me to be a witness 
               who was prepared and aware of what his evidence 
               should be to raise a reasonable doubt as 
               opposed to a retired teacher wrongfully accused 
               of fondling a young male 20 years ago. 
 
          47 This paragraph troubles me for two reasons. 
 
          48 First, the trial judge found the appellant’s 
          credibility was diminished because he testified in a 
          manner that was too careful. The problem I have with 
          this is that the trial judge had no reference point. 
          He did not know how the appellant normally expressed 
          himself. Moreover, the appellant’s “careful fashion” 
          of testifying may relate to such factors as the 
          unfamiliar atmosphere of the courtroom, the 
          artificiality of the circumstances under which the 
          appellant was being asked to provide information and 
          the pressure he was under given what was at stake. 
 
          49 Second, I am concerned by the trial judge’s 
          finding that the appellant testified more like 
          someone trying to raise a reasonable doubt than 
          someone wrongfully accused of sexually assaulting a 
          student. The trial judge provided no insight as to 
          how he arrived at that conclusion, particularly how 
          the differences between the two types of testimony 
          might manifest themselves. General assertions such 
          as this are, with respect, not only unhelpful but 
          also defy appellate review.” 
 
— R. v. Hemsworth [2016] O.J. No. 505 (C.A.) 

04 February
0 Comments
Sticky

Approved Screening Devices

Posted by Rory
in approved screening devices, as soon as practicable, Defences, Impaired Driving, Intoxylizer Operation

Approved Screening Device

 

Calibration Logs

For many years I have been thinking about ways to challenge approved screening devices “ASD”.  In R. v. Black 2011 ABCA 349 I was a able to take a case all the way up to the Alberta Court of Appeal on a very interesting issue. I suggested that I was entitled to copies of calibration logs for the devices. At that time every two weeks the approved screening devices were calibrated before being used in service.

When one examined the logs it appeared that the devices they were using then the Intoxylizer 400D  were very unstable. In other words calibration records showed that the devices were sometimes off by as much as 30%. Practically what this meant is that someone with a Blood Alcohol Level of only 70 mg was being arrested because the ASD thought they were 100 mg. This I argued was akin to an arbitrary detention.

The Albert Court of Appeal said that the defence were not always entitled to the logs in a 2:1 decision. The logs were not relevant unless the officer knew the device was faulty. The officer could rather ely on a calibration sticker on the device itself. The exception to this rule was if the calibrator was also the investigating officer. Then the logs were producible.

In any event, shortly after this decision I then argued that if I wasn’t allowed the logs then I was entitled to see the calibration sticker on the ASD. I won a case when this wasn’t provided to me using the Court of Appeal’s reasoning in Black.

Waiting Time

Another very useful decision I came across recently was R. v. Bergen 2014 M.J. No 122. I suggest every impaired driving lawyer have this case handy.

In that case the officer chose to wait 15 minutes before administering the ASD because he saw the Accused pull out a bar and was concerned he may have consumed alcohol within the past 15 minutes. He did not ask the accused and had no specific reason to believe the accused had consumed alcohol within the past fifteen minutes. On appeal the conviction was overturned.  If an officer in those circumstances is not required to wait 15 minutes to administer an ASD, when he see’s a person leave a bar, why would he be required to wait 15 minutes without anything more?

This is an excellent decision on law and

03 February
0 Comments
Sticky

Criminal Harassment

Posted by Rory
in Defences, harassment, harrasment

Criminal Harassment Memo

 

Thoughts on Sillipp and related harassment Cases

I was able to look up a number of cases that cited Sillipp, and based on that have some thoughts on arguments that the offence of criminal harassment isn’t made out on the facts.
R. v. Sillipp 1997 ABCA 346

Sillipp read 264(1) to mean that criminal harassment is established when the crown can prove beyond a reasonable doubt that a) the defendant engaged in conduct described in 264 (2) (a-d) b) Victim was harassed c) intention can be established by knowledge, recklessness, or wilful blindness, d)the conduct caused V to fear for her safety e) V’s fear was reasonable
Mens Rea- Delusion?
Sillipp seems to be the foundational case for Criminal Harassment. In my earlier input into this case, I had suggested using the lack of mens rea as an argument, but case law seems scant on this point. In fact there is an actual case (R. v. Crook [2015] O.J. No. 5849 2015 ONCJ 627) where the judge rejected a psychologist’s testimony that the defendant was delusional and believed himself to be in love (Although in that case the crown prosecutor and the amicus curae-the accused was self represented-urged the judge to not take into account the psychologist’s testimony )
This may be useful for us, however. In Crook, the judge, after accepting the crown and the A.C’s suggestion to disregard the psychologist’s testimony, went on to consider whether mens rea was established regardless. In this case, it wasn’t because 1)the delusion was limited to another facet of the case and 2)the delusion did not properly explain Mr. Crook’s actions
20 First, the delusions identified by Dr. Van Impe are limited to the belief that Lisa and Brent were not the parents of the children living with them and that Lisa might ultimately enter into a relationship with Mr. Crook. These delusions do not extend to a belief that the Aube children had been abducted, although the suggestion of abduction is either explicit or implicit in the Abduction Communications. Absent that feature as part of Mr. Crook’s identified delusions, his references to abduction is an act naturally resulting in significant perturbation on the part of the Aubes and cannot be excused as part of any fixed and false set of beliefs.
21 Second, Ms. Ross and Mr. Jim point out that Mr. Crook, if the sender, went to some lengths to disguise his identity, posing, for example, as a concerned parent of another child, as a police officer, and as a Toronto Star reporter. As Ms. Ross put it in Exhibit 31, “had he truly wanted to ensure the safety of abducted children, he could and should have marched into a police station or CAS office”. Assuming Mr. Crook sent the Abduction Communications, his surreptitiousness in doing so would undercut the concern which I initially entertained that Mr. Crook was, from his delusional perspective, merely engaging in an exposure of the Aubes as wrongdoers. I accept from counsel’s submissions that Mr. Crook, as sender, perceived that the sending of the Abduction Communications was wrong. Moreover, even if Mr. Crook were incapable of an appreciation of the culpability of each consequence of the sending of the Abduction Communications, so long as the Crown proves mental culpability in respect of the sending itself, mens rea is established: R. v. DeSousa, [1992] S.C.J. No. 77 (S.C.C.); R. v.Krushel, [2000] O.J. No. 302 (O.C.A.).
Harassment
There is a case to be made that the complainant wasn’t harassed in this case. It is important to note that 1-criminal harassment is a high threshold.

R. v Alvarez-Gongora, 2014 ONCJ 712,
42 For the complainant to have been harassed or to have felt harassed, it is not enough for the complainant to have been “vexed, disquieted or annoyed”. To have been harassed means to have been “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”. I note that these terms are not cumulative. It can be enough for harassment if any one of these terms is established.
It is useful to look at some cases where criminal harassment has been found. We can argue that Mr. Khedr’s behavior isn’t similar.

R. v. Yannonie [2009] A.J. No. 121 2009 ABQB 4 467 A.R. 336

29 The evidence in Sillipp disclosed the following actions on the part of the Accused:
• – the Accused frequently drove past and parked near the home and office of the first complainant (his ex-spouse) and the apartment of the second complainant;
• – the Accused frequently followed the first complainant’s vehicle for short distances and swerved at her vehicle on one occasion;
• – the Accused followed the second complainant’s vehicle for short distances as well;
• – the Accused followed the complainants through several specific locales in St. Albert and Edmonton;
• – the Accused followed the second complainant to the Edmonton International Airport where she was to pick up the first complainant from an incoming flight.

R. v. R.G. [2001] Y.J. No. 12 2001 YKSC 2

51 The point is that conduct which causes a complainant to be “vexed, disquieted or annoyed” is not sufficient. The complainant must be “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered.”
52 It is clear from the evidence of M.O., Olga Anderson and Bruce Webber that M.O. was harassed. She was fearful and in a state of agitation that caused her to run for several blocks to find a safe haven. Constable Letendre, who attended at the 4050 Fourth Avenue apartment, described M.O. as very scared, anxious and talking quickly. In short, she was not annoyed, but rather, she was tormented, troubled and badgered.
R. v. P.R.B. [1999] A.J. No. 1589 1999 ABPC 158 263 A.R. 90

16 Ms. L.B. described the effect of the defendant’s actions on her and her family in the following words:
I live with my parents. We are fearful for our safety; we’ve had a security system installed in our house. We don’t even feel comfortable going into our back yard without looking over our shoulders. I’m constantly looking in my rear view mirror when I’m driving. It’s a very uncomfortable situation to say the least and I’m fearful for my safety. Like I said, he’s very unpredictable and I just don’t know what to expect next.
Looking at the totality of the defendant’s conduct, including the content of his voice-mail messages, and accepting the foregoing evidence, I am satisfied to the requisite standard that the complainant was indeed harassed.

2-This is related to the requirement that the victim must fear for her safety or someone else close to her. Either proving lack of fear or lack of harassment is good enough, both seem to rely on similar criteria.

R. v. Raymond [2014] Q.J. No. 2193 2014 QCCQ 1833

36 But here, the evidence only shows the complainant was on stress or on edge. She was uncomfortable. She did not have peace of mind.
38 The Crown did not establish beyond a reasonable doubt, that the conduct of the accused caused the complainant to fear for her safety or the safety of anyone known to her.
A case where fear wasn’t found.

R. v. Hnatiuk [2000] A.J. No. 545 2000 ABQB 314

41 However, as was pointed out in Sillip, in order to convict an accused of criminal harassment, it is not enough to be satisfied beyond a reasonable doubt that the conduct troubled or badgered the complainant, the court must also be satisfied that the conduct caused the complainant to fear for her safety or the safety of anyone known to her and the fear must, in all of the circumstances, be reasonable.

42 The evidence in this case fails to establish beyond a reasonable doubt that Ms. Haavaldsen reasonably feared for her safety. In fact, the evidence does not establish that Ms. Haavaldsen feared for her safety. Indeed, when the worst of the conduct occurred, which was the threat which occurred during the mediation, the Haavaldsens decided to continue with the mediation. When the mediation was unsuccessful, the Haavaldsens continued with their life, as before. The evidence establishes that they were annoyed by the Hnatiuks, but they were not in fear of them. Ms. Haavaldsen testified, for example, that she continued to go outside, continued to tend her garden, continued to meet her children, continued to walk her dog, etc. Ms. Hnatiuk has argued that the Haavaldsens “gave as good as they got”; the evidence may not go that far, but certainly the evidence establishes that the Haavaldsens were not in fear of the Hnatiuks.
2-Multiple cases stress that to establish criminal harassment, it is necessary to examine the background and context and the details of the relationship.

R. v Alvarez-Gongora, 2014 ONCJ 712,

44 When the Court is considering whether the elements of the offence have been made out, the approach is a contextual one. It is a question of fact for the Court to determine in each case. The Court must consider the conduct that is the subject of the criminal harassment charge against the background of the relationship and the history between the complainant and accused.

R. v. P.M.B. [2011] B.C.J. No. 2499 2011 BCPC 370

10 In order to examine whether the elements of the offence are made out, the court must look beyond the letters and their content and examine the context in which they were written.
Misc

R. v. Wease [2008] O.J. No. 1938 78 W.C.B. (2d) 381

29 The trial judge acknowledged that Mr. Wease did not actually know Mrs. Wease considered herself harassed. (might have some utility for us) Having acknowledged this, however, the trial judge found that the appellant was, at the very least, reckless or willfully blind, “in my opinion, and I think clearly willfully blind in this matter.” He points out that in the appellant’s testimony he made it clear that he, “just didn’t care what effect his actions would have upon the complainant”, and in the trial judges opinion that, “clearly amounts to an admission of willful blindness and by his very acts, I think, he can also be taken to be reckless as to whether or not Mrs. Wease was harassed. Therefore, the third essential element has also been established beyond a reasonable doubt in this matter.”
30 The evidence, however, must be taken in context and it is my view that it does not support such a finding.

R. v. Davis [1999] M.J. No. 477 143 Man.R. (2d) 105

Talks about subjective and objective fear

R. v. Pringle [1999] O.J. No. 3704 43 W.C.B. (2d) 487 No. 982384

14 In the case at bar, the “proscribed conduct” is that specified in para. 264(2)(b) of the Code, to wit, “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them”. Within the charge period, there are 2 written communications, eligible for consideration (Exhibits #1 and #3). I have considered all of the evident pre-charge period conduct of Accused toward Complainant, and find it to amount to no more than non-criminal “workplace harassment” (might have some utility, seem to be different kind of harassments), as between co-employees, notably weird and eccentric behaviour, but not manifestly “criminal” nor “threatening”.

08 January
0 Comments
Sticky

The Intoxilyzer

Posted by Rory
in Intoxylizer Operation

Operating the Breath Instrument (Intoxilyzer) Correctly

 

An excellent decision was provided by Judge Higgerty in Edson, Alberta. The defence counsel in the case was Alan Pearse.

Burping into the Intoxilyzer

The evidence was that the Accused was taken out of the phone room after speaking with a lawyer and asked to provide a breath sample. Given that 15 minutes had not elapsed between being taken out of the phone room and positive evidence that the accused had not burped the judge had reasonable doubt that the machine was not being operated properly. Here is an excerpt:

Depending on whether one is a defence lawyer or a prosecutor, one tends to refer to an Intoxilyzer as a machine or an instrument; being an ex-prosecutor, I will refer to it as an instrument. Certainly a very precise instrument authorized by Parliament to be the centrepiece, if you will, a tool of great use in weeding out impaired drivers on the road, but the fact remains that in many cases an accused is being convicted by an instrument. And I only say that, and it is perhaps a bit of an exaggeration, a bit of a stretch, but I say that in all seriousness because that underscores that the instrument must be operated correctly in order to bring it within the parameters of the Criminal Code of Canad which essentially allows hearsay evidence, a certificate, to be essentially the entire case against an accused.

The requirement is 15 minutes, as set out by the manufacturer, although it seems to be acknowledged by the case law that in most cases 5 minutes would be sufficient, but the manufacturer says 15 minutes. And there is a very good reason for this, the presence of mouth alcohol can result in an unreliable reading.

I did have a question earlier on, and I can perhaps answer my own question, does the accused have to adduce positive evidence that he burped or belched or chewed on a cough drop, that type of thing, during that 15-minute run-up to the first sample and, indeed, I suppose, prior to the second sample as well? And in the real world, given that Officer Jackson had difficulty on the subject of slurred speech, how could we expect an ordinary accused to remember if he or she burped within the 15 minutes prior to providing a sample? So I find that this 15-minute requirement is just as important for the operator to ensure as flipping the right switch at the right time. The 15-minute requirement is an integral part of the operation of the Intoxilyzer and the manufacturer’s requirement was not complied with. I will not speculate as to, and I am lapsing into the vernacular, aw, shucks, golly, it does not mean that much anyway. I will not go there. The facts, to me, are the instrument was operated incorrectly, the manufacturer required that 15 minutes, that 15 minutes was not observed and, therefore, in my view, the instrument was not operated correctly and the presumption cannot be relied upon. Therefore, on the over 08 charge, I also find the accused not guilty.

For a copy of the decision please contact my office at 780-429-4004.Intoxilyzer

 

03 January
0 Comments
Sticky

Expert Witness

Posted by Rory
in expert evidence

Expert Witnesses

 

A recent case I found to be very troubling. Thankfully, the judge made the right decision and refused to allow the evidence of an expert witness to be admitted to the jury.

In R. v. Calnen [2015] NSSC 330 the Crown sought to tender the opinion of an expert witness, a medical doctor, Dr. Marnie Woods, about the cause of death of the deceased. Let me say at this juncture I am troubled that the Crown would attempt to lead this type of evidence.

The case concerns a fall from a flight of stairs. The defence theory was that the fall caused the death of the deceased. The crown sought to tender expert evidence which went to “the cause and manner of death”.

Doctor’s Opinion

The doctor stated:

“instantaneous death after such a fall would be distinctly unusual given my experience and the reports described in the reviewed literature” but qualified her opinion “many variables and individual factors must be considered … it is not reasonable to describe one expected outcome … the ability to comment more specifically on this case is limited by the absence of a body [she did not examine the body]”.

If you dissect what the doctor is saying here, she is really saying nothing at all. Her evidence can be rewritten as follows:

falling from a flight of stairs usually doesn’t cause death but I can’t be certain that it didn’t in this case because I haven’t seen or examined the body.

The judge in this case found that the doctor’s evidence was too speculative to have merit. Rather, the judge was persuaded by another doctor’s opinion that the evidence sought to be tendered was “anecdotal” and that the cases Dr. Woods referenced were “unpublished”.

I am reminded of how important the scientific method is, and how in this case it was violated in many respects. The scientific method calls for a theory which can be tested. Results are then published so that they can be re-tested and scrutinized via peer review.

In this case the Crown doctor had a theory. She did not examine the body or review the medical history of the deceased to test her theory nor did she use published cases in support of her theory. The doctor’s opinion runs afoul of the scientific method.

Finally, in this case the judge also did not allow the expert evidence because it went to the ultimate issue of the case – murder v accident.

26 November
0 Comments
Sticky

Alcohol

Posted by Rory
in as soon as practicable, Defences, Impaired Driving

Taking Samples — Impaired Driving

Case Comment
R. v. Cole 2015 SKPC 109
A recent Saskatchewan Provincial Court decision applies some very important law concerning taking samples “as soon as practicable”.
When the Crown attempts to prove that someone\s blood alcohol limit is “over 80” they usually can do it one of two ways. Remember, the taking of a sample to determine the concentration of blood in a person’s body only tells you what their alcohol level at the time you the test is taken – not at the time of driving.

(1) The criminal code has evidentiary short-cut that allows a court to conclude that the blood alcohol of a person at the time of driving is or was the same at the as the time the test is taken. This is called the presumption of identity. In order for the presumption to apply several things need to be proven including: that each sample was taken “as soon as practicable after the time when the offense was alleged to have been committed”;
(2) Alternatively, the Crown could call an expert to extrapolate times back from when sample taken to when offense was alleged to have occurred.
In R. v. Cole, a classic defense was raised. Mr. Cole argued that samples where not taken as soon as practicable because the police officer’s waited for a tow truck before transporting the accused back to give a sample.

The judge concluded that it was not necessary for both officers to wait for the tow truck because the car was parked in a safe manner only a few blocks from the police station. Also, they could have called another police officer to assist, they could have waited to have his car towed and there were no passengers that had to be dealt with.
Although the delay in this case was short (12 minutes) the judge determined that the police did not act reasonably in the circumstances.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably (para 12 R. v. Vanderbruggen [2006] 206 CCC (3d) 489 Ont C.A.

Therefore, the Crown were not allowed to use the presumption of identity. The Crown then asked the judge to take judicial notice of the fact that the accused’s blood alcohol would not have been that different from the time of driving to the time the test was taken. He was not prepared to do that. The Crown needed to call an expert and they failed to do so.