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alberta criminal lawyer Tag

Edmonton Criminal Lawyer Ziv > Posts tagged "alberta criminal lawyer"
11 March
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HE SAID–SHE SAID

Posted by Rory
in credibility

 

It’s not a Credibility Contest!

[1]          We often hear the term used “it’s he said — she said” to explain how a judge will decide a case concerning the testimony of two witnesses. Who should the judge believe? A credibility contest?

[2]          It is well settled in law that it’s not actually a credibility contest. The judge doesn’t need to decide whose evidence to believe. A trial judge doesn’t have to “prefer” one version of events over the other. The ultimate question is whether a person’s evidence which is not “preferred” (the competing version) may nevertheless still be capable of leaving a judge with reasonable doubt.

[3]          In a recent decision the Ontario Court of Appeal in R. v. Esquivel-Benitez 2020 ONCA 160, allowed an appeal from sexual assault for several reasons including the fact that the trial judge treated the testimony of the two witnesses as being a credibility contest. The language the trial judge used included the following:

“I prefer the complainant’s evidence”

“I find the complainant’s version of facts to be more credible”

“I am left with a significant doubt as regards [the appellant’s] evidence …”

“I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility I prefer [the complaint’s] version of the facts, which I find more credible.”

[4]          The Court stated that the trial judge failed to “step back” and ask whether the whole of the evidence left her with a reasonable doubt. A new trial was ordered.

12 September
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Strip Searches and Charter Rights

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

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

R. v. Golden 2001 SCJ No 81 para 101

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

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

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

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

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

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

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

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

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

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

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

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

strip search was conducted? [emphasis added]

 R. v. Fearon 2014 3 SCR 621

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

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

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

R. v. Ly 2016 ABCA 229 at para 12

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

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

 

ADGN/2010-172

Ontario Court of Justice

M. Greene J.

March 17, 2010

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

 

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

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

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

Stay of charge granted as appropriate remedy.

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

 

 

 

 

 

 

 

 

 

 

 

 

30 July
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Hearsay Evidence and Inadmissibility

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

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

Background

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

Analysis

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

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

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

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

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

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

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

The Court quashes the conviction and orders a new trial.

 

 

26 July
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The Demand for Identification is a Search or Seizure

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

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

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

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

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

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

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

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

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

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

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

 

16 July
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Hearsay and Reliability in Sexual Assault Cases

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

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

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

Background

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

Analysis

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

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

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

16 July
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Eyewitness Identification

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

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

Background

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

Analysis

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

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

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

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

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

16 July
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Conditional Discharges in Spousal Assault Cases

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

Conditional Discharges in Spousal and Domestic Assaults

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

03 February
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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
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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
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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.