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18 November
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Sentencing: Pre-trial House Arrest

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

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

R. v. Lau, 2004 ABCA 408

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

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

R. v. Hennessey, 2009 ABQB 60

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

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

R. v. Downes, 2006 CanLII 3957 (ONCA)

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

R v Soto, 2016 ABCA 85

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

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

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

R. v. Tsuruoka, 2013 ABPC 295

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

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

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

R. v. Penney, 2008 ABPC 339

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

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

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

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

R. v. Coupal, 2010 ABQB 229

Impaired causing death case

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

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

R. v. Salter, 2009 ABCA 220

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

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

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

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

R v White, 2016 ABQB 24

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

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

R v PF, 2011 ABQB 628

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

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

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

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

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

R. v. Herchuk, 2011 ABPC 367

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

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

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

 

 

06 October
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Conditional Sentence Order and Suspended Sentences

Posted by Rory
in Conditional Sentence Orders, Suspended Sentences

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

Conditional Sentence Orders

R. v. Sim- 2004 ABCA 349

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

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

R. v. Stewart – [2005] A.J. No. 1942

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

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

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

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

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

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

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

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

R. v. Burlington, 2008 ABPC 136

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

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

R. v. Perepelecta, 2004 ABPC 88 

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

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

Suspended Sentences

R. v. Perry- 2011 ABPC 221

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

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

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

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

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

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

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

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

12 September
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Strip Searches and Charter Rights

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

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

R. v. Golden 2001 SCJ No 81 para 101

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

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

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

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

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

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

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

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

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

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

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

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

strip search was conducted? [emphasis added]

 R. v. Fearon 2014 3 SCR 621

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

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

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

R. v. Ly 2016 ABCA 229 at para 12

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

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

 

ADGN/2010-172

Ontario Court of Justice

M. Greene J.

March 17, 2010

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

 

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

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

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

Stay of charge granted as appropriate remedy.

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

 

 

 

 

 

 

 

 

 

 

 

 

12 July
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Trial Within a Reasonable Time

Posted by Rory
in Charter Rights, trial within a reasonable time

Trial Within a Reasonable Time

R. v. Jordan, 2016 SCC 27 and R v Williamson 2016 SCC 28: The Right to be tried within a Reasonable Time

In R v Jordan, a majority of the Supreme Court devises a new framework for determining whether the s. 11 right to be tried within a reasonable time has been violated. A minority of four Supreme Court Justices, while achieving the same result as the majority, rejects the new framework and insists that a modified version of the Morin framework is appropriate for the s. 11 analysis.

The tension between the Jordan framework and the revised Morin framework is revisited in the companion appeal of Williamson, where the court is similarly divided on the issue of what framework to use in such matters.

In Jordan, the accused was charged was charged in December 2008 for his role in a dial‑a‑dope operation. His trial ended in February 2013. The majority found the delay to be unreasonable.

Post-Morin: A new Framework for measuring Delay

Rejecting the Morin framework that had been the basis for the trial judge and the Court of Appeal’s reasoning in dismissing the S 11 application, the majority proposed a new framework. The Court found that the Morin framework had led to both doctrinal and practical problems, and instead of reducing delay, it encouraged delay.

The majority found that a new framework was required. This framework would encourage all participants to reduce delay and achieve the important objectives of S 11.

The Presumptive Ceiling

The central feature of this new framework is a presumptive ceiling beyond which the delay will found to be presumptively unreasonable. The only justification for delay beyond the presumptive ceiling is extraordinary circumstances and the onus is on the crown to prove the same. Exceptional circumstances will likely be of two kinds, discrete events and complex cases. Discrete events may involve situations such as illness or other unexpected events at trial. For discrete events, the delay will be subtracted from the total delay in the calculations.

Case complexity will automatically result in the delay being found reasonable and no further analysis will be required.

The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

Note: The Court also says

“  There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.”

If the delay does not exceed the presumptive celling the burden is on the defence to prove that the delay has been unreasonable.

“To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.”

Transitional Exceptional Circumstances

For cases where the charges were laid before this decision, the Court says that reliance on existing law will be a factor in the delay analysis. While the Jordan framework will apply, if the time exceeds the presumptive ceiling the crown will be allowed to rely on a “transitional exceptional circumstance”,

“This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice”.

“This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings.”

For the defence, a similar exception will apply. The defence, because of reliance on existing law, will not have to demonstrate reasonable steps. As well, institutional delays that were previously acceptable will generally be tolerated.

A note about Prejudice

The Majority in this case says that while prejudice will no longer form a part of the S 11 analysis, once the presumptive ceiling is breached, prejudice does not have to be shown. It can be inferred.

“As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.”

Application to the Case

In this case the delay was 49.5 months. Jordan was only responsible for 5.5 months. A delay of 44 months was found to be clearly unreasonable.

Williamson is a sister appeal that uses the Jordan framework. In Williamson, there was a delay of 35.5 months. Williamson only caused 1.5 months of the delay, and therefore this was a case where the presumptive ceiling was breached. The majority in this case found that S 11 was breached. The majority did not found any exceptional circumstances in the form of discrete events or case complexity. The majority rejected the argument that the transitional exceptional circumstance applied in this case.

The majority also found that the accused was proactive in moving the matter along, whereas the Crown did little to nothing in doing the same.

The majority dismissed the dissent’s suggestion that Williamson’s “guilt” had any bearing on the analysis.

“At the beginning of his reasons, Cromwell J. references Mr. Williamson’s guilt (paras. 43, 44). This is troubling, as the ultimate question of guilt or innocence has nothing to say about whether the time taken to try him was reasonable. At the time of his s. 11 (b) application, Mr. Williamson was presumptively innocent. It is wrong to give after-the-fact effect to his convictions when the only question presented by this appeal is whether his right to be tried within a reasonable time was infringed at the time the application was brought.”

While the majority recognized that these charges were serious, it rejected the dissent’s opinion that that should be a factor in the reasonable delay analysis.

“ In this regard, we note that s. 11 (b) guarantees the right “to be tried within a reasonable time”. It does not admit of gradients of reasonableness where the charges are serious. For example, it does not guarantee the right to be tried within “somewhat longer” than a reasonable time, or within a time that is “excessive but not so long as to be clearly unreasonable” when the charges are serious (Cromwell J., at paras. 43, 80). Delay is either unreasonable, or it is not. As a result, our point of departure with our colleague is on what we consider reasonable. In short, we have different perspectives on a subjective standard.”

Indeed, the Court goes further and notes that

“These are precisely the cases that should be heard promptly, on the strongest possible evidence.”

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.

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