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Edmonton Criminal Lawyer Ziv > Posts tagged "arrest"
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

 

04 November
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Pretext Stops

Posted by Rory
in Charter Rights, detention

The “real” reason for the stop (pretext stops)

In Canada, Police are given generous police power when stopping motor vehicles. For example, they are allowed to conduct random stops to check that a driver is properly licensed and has his papers in order. However, Canadian law does draw a line. If it can be shown that that the sole purpose of the stop was to further the other criminal investigation and that there was no intention at all to investigate or pursue the other traffic infraction, the police action can be classified as a ruse or pretext (a pretext is a reason you give to hide the real reason you are doing something.)

The police stop – pretext stop

In R. v. Gayle 2015 ONCJ 575, Justice B. W. Duncan concluded that the a stop of a traffic infraction was nothing more than a ruse to investigate a subject about whether he was in fact following bail conditions (something that the police cannot stop a person for).  In deciding whether a stop has been carried out for a legitimate purpose or as a mere ruse the following questions are useful:

·        Did the traffic concerns continue to manifest themselves throughout the detention concurrently with the other investigation?

·        Was the traffic investigation immediately non-existent or almost immediately abandoned?

·        Was a ticket issued for the traffic violation or was it issued much later in the investigation?

·        Was the stop valid absent the traffic violation i.e. were there grounds for stopping the vehicle absent a traffic violation?

The Supreme Court of Canada

The leading case from the Supreme Court of Canada on this issue is R. v. Nolet [2010] 1 SCR 851. At para 39 of that decision the Courts stated:

Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the “predominant purpose” test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.

In Nolet a regulatory search led to the discovery of drugs. Although the officer had suspicion that something was out of place, his reason for searching a bag which ultimately was found to have drug-money in it was to search for vehicle related documents.

Some may view Nolet as being a very pro-Crown friendly case, but I beg to differ. Nolet is very factual. In most cases I suspect the door will be left wide open for a trial judge to find that a police authority was using regulatory authority as a pretext for conducting a criminal search. In Nolet the following para (44) illustrate the point I am making:

The trial judge did not express any doubt about the officer’s evidence that relevant papers were frequently dispersed around a cab, often collected in a bag similar to the one at issue here, and that when he “pushed down on the duffel bag, [he] felt and heard paper products inside” (A.R., vol. 2, at p. 181). In other words, the officer did not proceed immediately to open the bag without some preliminary evaluation of its likely relevance to the regulatory search. The paper contents felt more like items connected to the H&TA inquiry than if the contents had felt solid in a way that might have indicated personal clothing (or drugs). In the circumstances, it was not unreasonable, given the appellants’ very limited privacy interest, for the officer to open the bag. At that point, the cash was in plain view.

19 October
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Detention

Posted by Rory
in detention

Psychological Detention

R. v. Wong 2015 OJ No 5049

The Canadian Charter of Rights and Freedoms says “everyone has the right on arrest or detention  …  to retain and instruct counsel without delay and to be informed of that right;”

The Decision

In a recent Ontario Court of Appeal decision, R. v. Wong [2015] ONCA 657 the Court reaffirmed the proposition that detention includes psychological detention and not only physical detention. In the Wong decision a fully dressed police officer entered into an apartment with the consent of the accused. He started noticing some drug related items but didn’t arrest or formally detain the accused.

The Court concluded that as the interaction between Ms. Wong and the officer continued, the officer’s conduct became “increasingly authoritative”.  The detention in this case crystalized when the officer asked questions like “what’s going on here” “if the scale was for baking where are the baking supplies” “I could arrest you for being in possession of drug paraphernalia” .

The Court then also re-emphasized that “without delay” means “immediately” and therefore at the moment Ms. Wong was detained she was required to be informed of her right to counsel, immediately, and because this did not happen all subsequent evidence found (statements and drugs) were ruled inadmissible.  The Court concluded:

In this case, the officer did not know what the law was. He did not understand the circumstances giving rise to detention and he did not appreciate either his responsibilities or the appellant’s rights. The appellant’s rights were trammelled in his search for evidence. The administration of justice would be brought into disrepute by the admission of the evidence, and, in my view, it should have been excluded.

Conclusion

As a criminal defence lawyer who often utilizes the Charter in defence of clients’ it is sometimes very difficult to analyze when a police interaction with a person has become a de facto detention of arrest.  It is critical to know when this Rubicon has been reached because as Wong demonstrates, if evidence is gathered without proper Charter compliance then evidence could be excluded.

 

 

13 October
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Pat-Down Searches

Posted by Rory
in Pat-Down Searches

Pat-Down Search

Until 2004 the scope of police powers regarding their authority to do pat-down searches was uncertain.

In fact, as a law student I particularly found this area of the law especially interesting. Since 2004, the contours and limits of pat-down law have been for the most part well defined. Some recent cases have re-ignited the scope of the pat-down search.

1993

Up until 1993, in Canada, a police officer had no power or authority to conduct a pat-down search on a person unless they had reasonable and probable grounds to arrest that person for an offence. I have no doubt that as a matter of routine, pat down searches were conducted all the time, under the genuine concern for officer safety or perhaps as a ruse or guise to search for evidence. In the latter case such a search would really have been conducted on nothing more than suspicion, an educated guess based on “officer experience”.  In any, event prior to 1993 a bright line existed in the law: detention of a person and search was only permissible if a police officer had reasonable and probable grounds to arrest a person.  In 1993 in a case called R. v. Simpson (1993) 12 O.R. (3d) 182 the Ontario Court of Appeal decided that the police did not have what they termed “articulable cause” a term borrowed from U.S. jurisprudence to stop and do a pat-down search on the individual they were stopping. In that case, police followed a suspect from a known drug house. They stopped his vehicle, and did a “pat-down” search located narcotics. The Court excluded the evidence and held that the police did not have articulable cause to stop and search for investigative purposes which they defined as:
. . . a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

Although Mr. Simpson was acquitted, this decision ushered a new era in Canadian police enforcement. For the first time, a Canadian Court recognized a police power that fell below the status quo level “reasonable and probable grounds”.

2004

In 2004 the Supreme Court of Canada rule on a case R. v. Mann 2004 SCC 52 and endorsed the Simpson decision but replaced the terminology of articulable cause with “reasonable grounds”. The Court held that a pat-down search was permissible but only to the extent necessary to secure officer safety. A police first had to genuinely feel it necessary to conduct a pat-down search for his/her safety. Second, the search would not allow him to search pockets or objects on a person that were non-threatening. For example, a handbag may be searched or patted down but unless an hard object is felt inside the bag there would be no reason to open up the bag.

2015

Some recent cases have questioned the police practice of doing pat-down searches when investigation persons for impaired driving offences. See for example R. v. Schwab 2015 AJ No 903. Simply, if a motorist is transported to a police vehicle for a screening test (assuming that transport is valid), what gives a police officer the right to conduct a pat-down search on the person as a matter of practice?

Certainly, we have not heard the end of the pat-down search issue in relation to impaired driving cases. I will eagerly await an Appellate case and post if one becomes available.

 

05 October
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Citizen’s Arrest

Posted by Rory
in Charter Rights

R. v. Fitl 2015 AJ No 985

This is a case I conducted. The accused was acquitted after drug evidence was excluded.

The accused was at a rave and was subject to a citizen’s arrest. The trial judge found that the arrest was unlawful because the security guards at the rave did not actually see the accused committing an offence. Furthermore, when the police officer asked the accused for identification, this amounted to an unreasonable search or seizure of the accused. An illegal pat-down search and cell phone search was also found.

Canadian Charter of Rights and Freedoms