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edmonton criminal lawyer Tag

Edmonton Criminal Lawyer Ziv > Posts tagged "edmonton criminal lawyer"
26 July
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A Game Changer? R. v. Sharma 2020 ONCA 478

Posted by Rory
in sentencing

By a 2:1 margin the Ontario Court of Appeal have struck down legislation which prevented drug traffickers from receiving house arrest as an alternative sentence to jail. See  https://www.ontariocourts.ca/decisions/2020/2020ONCA0478.pdf.

I anticipate, that because there was one judge who disagreed with this law change the Crown will appeal this decision to the Supreme Court of Canada. While this law was struck down because it discriminated unfairly against Aboriginals, the effect of the ruling means that non-Aboriginals will benefit too.  This decision only applies in Ontario but it sets up a framework for challenging the legislation in the rest of Canada.

Why is this case a game changer? Well if it remains law, and that is a big “if”, it means that those who traffic in drugs only minimally (say to support a habit) or who have other exceptional circumstances, such as in the Sharma case, will avoid actual jail.

Furthermore, it opens the door, and gives those who have been caught with trafficking in more than minimal amounts, a chance to begin genuine rehabilitation in hopes of convincing a court not to sentence them to jail proper. A person who is charged with trafficking, knowing that jail in unavoidable, will not have the same incentive to turn their lives around as someone who believes jail can be avoided.

08 June
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NEW IMPAIRED LAW COMING

Posted by Rory
in dui, Impaired Driving

 

Alberta’s Proposed New Impaired Driving Law

[1]          About ten years ago British Columbia implemented a new legislative scheme whereby impaired drivers were not charged criminally if they were caught by police drunk driving. The trade off to not charging a person criminally was that a police officer was given the power to suspend a person’s license on the spot. A major criticism of this legislation was that the police officer, in effect, became “judge, jury and executioner”. Last week Alberta introduced similar legislation.

[2]          A typical investigation runs something like this: A police officer stops a vehicle and if he suspects the driver has been drinking, he administers what is called an approved screening device “ASD” test on the driver. The ASD is an instrument that collects a person’s breath sample. If the breath sample analyzes higher than a certain amount, typically “over 80”, the police officer has the authority to suspend the driver’s license license immediately.

[3]          Under Alberta’s proposed new law the “Provincial Administrative Penalty Act”, for first offenders, this will mean an automatic license suspension of 15 months. The driver will be allowed to drive again after 3 months with a “blow-box” which is costly. There will also be a fine issued of $1000.00, a vehicle seizure with associated impound fees, reinstatement fees and courses to take. In addition, there is a major silent cost. The cost of insurance premiums increasing.

[4]          A chief concern regarding this new regulatory scheme is proper oversight.  At the road side when a police officer is administering an ASD test there needs to be a process that ensures that the testing that is conducted is accurate. The Supreme Court of Canada in R. v. Goodwin 2015 SCC 46 recognized that ASD’s can register false positives.

[5]          For the scheme to be constitutionally sound police may have to inform drivers that if they fail an ASD test they are entitled to provide a second sample into another ASD to verify the accuracy of the first test (Goodwin paras 77 and 84).

[6]          Another method of ensuring further police accountability it to video record the taking of breath samples. Currently, RCMP policy is to record driver stops. However, other police services in Alberta do not have this recording requirement. I suggest this recording policy needs to be implemented uniformly in all Alberta.

[7]          Under the new legislation, if a driver is given a roadside suspension “a notice of administrative penalty” they will have 7 days to challenge the suspension. The review process is intended to move swiftly with one adjudicator deciding whether to confirm or cancel the administrative sanction within 30 days of the suspension. That adjudicator’s decision would also be subject to further judicial review.

[8]          The Government has touted the new legislation as being more effective in combating impaired driving both in terms of ‘cost of litigation’ and ‘reduced occurrence of impaired driving’. Police resources will increase because police officers will spend less time processing impaired drivers and less time in court. Furthermore, Crown Prosecutors will have more time to focus on serious cases.

[9]          Is this process fair? The issue has largely been decided by the Supreme Court of Canada in the Goodwin decision cited above. A case by case analysis will be required to determine if an issued suspension is valid.

09 February
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ARSON — DON’T BURN THE HOUSE DOWN

Posted by Rory
in specific or general intent offence

Burning Down the House

R. v. Tatton 2015 SCC 33

[1]          Mr. Tatton decided to cook some bacon.  He put some vegetable oil in a pan, turned the pan on high (although he thought it turned it low) and made a quick run to Tim Hortons to get a coffee and returned to a burning home. He was drunk.

[2]         At the trial and appeal, Mr. Tatton, was acquitted. Both the trial judge and majority of the appellate court concluded, albeit for different reasons, that ARSON was a specific intent offence and that Mr. Tatton did not have the requisite intent necessary to cause the damage he did.

[3]          The Supreme Court of Canada did not agree. They concluded that ARSON is a general intent offence.

[4]          They set about a formula for determining how to classify offences as being general of specific.

(1)    Determine the mental element of the offence in question (statutory interpretation);

(2)    Classify the offence as general or specific by:

(a) Consider existing jurisprudence, if the law is unclear or not yet settled then;

(b) The relative importance of the mental element – that is, the “the complexity of the thought and reasoning process that make up the mental element of a particular crime”.  The more sophisticated the reasoning process the more important the mental element and therefore the more likely a specific intent offence;

If after consideration of the above one cannot determine whether the offence is a specific or general intent offence then go onto consider:

(3)    Policy consideration. Is it a crime frequently associated with alcohol consumption? If yes, there is a strong rational for classifying the offence as a general intent offence.

SCC’S DECISION

[5]          The SCC decided that it was not necessary to resort to the policy consideration to dispose of the issue. Had it done so it would have further supported the position that ARSON is a general intent offence. The SCC concluded at para 48:

The actus reus is the damaging of property by fire. The mental element is the intentional or reckless performance of the illegal act — the causing of damage to property. No additional knowledge or purpose is needed. No complex thought or reasoning processes are required. On its face, the level of intent required for the offence would appear to be minimal.

[6]          A new trial was ordered.

Practical Application

[7]          When will someone be held criminally liable for causing damage to property by fire? The answer to this question as it pertains to recklessness is not clear cut. Recklessness is defined in Sansregret v. The Queen [1985] 1 SCR 570 as follows:

In accordance with well‑established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.[emphasis added]

[8]          Let’s say you start a fire in a fire pit in your backyard. A gust of wind blows ash onto your house resulting in fire. In this scenario, the gust of wind was random, and liability should not follow. Contrast this with making a fire in a campground on a slightly windy day. Would liability attach if your camp fire got out of hand resulting in a bush fire or other property damage? What about a very windy day?

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.

 

 

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.

15 March
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Colour of Right

Posted by Rory
in Defences, Uncategorized

Theft and Colour of Right

Theft

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

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

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

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

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

Motor vehicle theft

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

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

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

 

WHAT DOES THE CROWN NEED TO PROVE?

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

Fraudulent Intent

R v Laroche, [1964] SCR 667

Honest but mistaken belief works

Colour of Right

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

Honest but mistaken belief works

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

 

Noting up Colour of Right Cases

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

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

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

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

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

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

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

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

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

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

R. v. DeMarco  [1973] O.J. No. 533

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

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

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

R. v. Pena – [1997] B.C.J. No. 1405

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

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

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

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

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

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

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

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

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

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

08 February
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Recollection and Demeanour Evidence

Posted by Rory
in credibility

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

 

Evidence based on recollection

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

Demeanour evidence                           

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

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.