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Rory Ziv Tag

Edmonton Criminal Lawyer Ziv > Posts tagged "Rory Ziv" (Page 2)
04 March
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Right to Counsel

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

Right to Counsel

Implementational Duties

 

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

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

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

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

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

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

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

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

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

17 February
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Uttering Threats

Posted by Rory
in Defences

Uttering Threats

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

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

Elements of the Offence

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

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

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

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

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

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

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

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

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

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

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

R. v. Fischer:  [1999] A.J. No. 1156

R. v. Eakin :  [2002] M.J. No. 349

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

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

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

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

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

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

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

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

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

Defence

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

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

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

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

 

 

08 February
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Unreasonable Search and Seizure — ACM –Airbag Control Modules

Posted by Rory
in Charter Rights, Search Warrants

Airbag Control Modules

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

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

26 November
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Alcohol

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

Taking Samples — Impaired Driving

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

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

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

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

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

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.