2020 Year in Review
2020 Criminal Law Recap - A Year in Review
-2020 A YEAR IN REVIEW-
With 2020 coming to an end, here’s an overview of some of the most impactful criminal law cases in Ontario of the year.
Supreme Court of Canada
Jury Selection - R v Chouhan - In the fall of 2020, the Supreme Court heard the highly anticipated appeal with regards to the elimination of peremptory challenges under Bill C-75. While full reasons have not yet been released, the Court allowed the Crown’s appeal from the bench finding that the statutory change was constitutional and purely procedural thereby making it retrospective in application.
Sentencing - R v Friesen, 2020 SCC 9 - In Friesen, the Supreme Court considered the appropriate sentencing range in the context of sexual offences against children. The Court reaffirmed the standard of review in sentencing appeals outlined in the seminal case Lacasse (2015 SCC 64):
Appellate courts owe significant deference to sentence judge’s findings of facts and identification of aggravating and mitigating factors absent the sentence being demonstrably unfit, or the SJ committing an error of principle.
In relation to starting points and sentencing ranges, the Court made clear that they should only be created for categories of offences that share enough in common, and that in doing so, appellate courts must provide a clear description of the category. Both sentencing ranges and starting points are guidelines, not brightline rules. A departure from or failure to refer to a range or sentencing point is not an error in principle.
Sentencing sexual offences against children is focused at the emotional, psychological and physical harms caused by these types of offences. Sentencing must reflect the multitude of harms perpetuated by sexual violence in order to be proportionate, including the inherent wrongfulness, the potential harm to children, and the actual harm to the specific victim. Denunciation and deterrence are the primary sentencing objectives for offences involving the abuse of children by virtue of s. 718.01.
While the Supreme Court declined to set a starting point or sentencing range, they provided the following guidance to sentencing judges:
Sexual offences against children should generally be punished more severely than sexual offences against adults;
sexual interference with a child should not be treated as less serious than the sexual assault of a child; and
An upward departure from prior precedents may be required to impose a proportionate sentence given our contemporary understanding of the harms caused by sexual violence against children.
Judicial Interim Release - R v Zora, 2020 SCC 14 - The Supreme Court unanimously held that the mens rea component of breaching a bail condition is to be assessed subjectively. In essence, this means that the Crown must prove that the particular accused knew, or was reckless to the fact that they were breaching their bail condition. Canadian criminal law is premised on the principle that an individual should not be punished for morally innocent behaviour. This is the rationale underlying the presumption that mens rea is assessed subjectively unless Parliament indicates otherwise in the language of any given provision. The Court also gave another reminder RE: Antic and Myers that any bail conditions imposed should be the least onerous possible. Only conditions tailored to the individual accused will satisfy this criteria. Boilerplate conditions will not. Restraint is required to limit the use of bail conditions as they limit the liberty of someone presumed innocent, and create new sources of potential criminal liability.
Court of Appeal
Extreme Intoxication - R v Sullivan (R v Chan), 2020 ONCA 333 - In Sullivan/Chan, the Court of Appeal considered the constitutionality of s. 33.1 of the Criminal Code which prohibits the use of “non-mental disorder automatism” as a defence where the state of automatism is self-induced by voluntary intoxication and the offence charged includes an element of assault or violence. The majority of the Court of Appeal found that section 33.1 of the Criminal Code violated sections 7 and 11(d) of the Charter and were not saved under section 1. The majority found that section 33.1 was contrary to the fundamental principle of voluntariness. Individuals should not be convicted for truly involuntary acts.
This decision, likely the most controversial of 2020, garnered a significant amount of media attention which suggested that intoxication is now a defence to any sexual assault or violent crime. While Sullivan/Chan is no doubt an important doctrinal case, it also serves an important reminder about the important of informed journalism and making legal decisions accessible to the public at large. Misinformation, such as suggesting that intoxication is a defence to sexual assault, is both inaccurate and dangerous. Ultimately, misinformation undermines public confidence in the administration of justice.
On December 23, 2020, the Supreme Court of Canada granted leave to Sullivan/Chan. One to watch for 2021!
Sentencing - R v Sharma, 2020 ONCA 478 - Ms. Sharma, an Indigenous woman charged with drug offences, argued that sections 742.1(c) and 742.1(e)(ii) violated her section 15 and 7 Charter rights. Section 742.1(c) removes the availability of conditional sentences where the offence carries a maximum term of imprisonment of 14 years or life. Section 742.1(e)(ii) removes the availability of CSOs for offences, when prosecuted by indictment, carries a maximum term of ten years that involved the import, export, trafficking or production of drugs. The Court of Appeal for Ontario concluded that the impugned provisions created a distinction based on race and that this distinction exacerbated and perpetuated disadvantages faced by Indigenous offenders thereby violating s. 15 of the Charter. The Court also concluded that Ms. Sharma’s liberty interests were violated, and that the violation was not in accordance with the principles of fundamental justice. Specifically, they found that the provisions were overbroad thereby violating s. 7. The purpose of the provisions is to ensure serious offences always attract a period of incarceration. The offences and underlying criminal conduct captured by the provisions, however, range low to high in terms of seriousness. The Court of Appeal found that neither violation was saved under s. 1 of the Charter. As a result, the Court struck down s. 742.1(c) and s. 742.1(e)(ii) thereby expanding the availability of conditional sentences.
Self-Defence - R v Khill, 2020 ONCA 151 - Mr. Khill was charged with second-degree murder following the shooting and death of Mr. Jonathan Styres. Mr. Khill admitted to shooting Styres but testified that he was acting in self-defence, believing Styres was armed and about to shoot him. In Khill, the Court of Appeal considered the law of self-defence in Canada, post-Criminal Code amendments. Self-defence renders an act that would otherwise be criminal, not culpable. Self-defence is governed by section 34 of the Criminal Code which was amended in 2013. Self-defence, under section 34(1) has three elements:
(1) The accused must believe, on reasonable grounds, that force is being used or threatened against him (the trigger),
This element focuses on the accused’s subjective belief that force is being used or threatened against him. This belief must be based on “reasonable grounds” which imports an objective assessment of the accused’s belief. It is important to note, however, that reasonableness must be assessed in the context of the given accused’s personal circumstances.
(2) The act of the accused said to constitute the offence must be done for the purpose of defending himself (the motive), and
This inquiry is subjective: why did the accused do the impugned “act”?
(3) The act said to constitute the offence must be reasonable in the circumstances.
This element examines the accused’s response to the perceived or actual threat. The accused’s response which would otherwise be criminal, is not criminal where it is reasonable in the circumstances. Section 34(2) enumerates a number of factors in determining what is “reasonable.” Again, this is both an objective and subjective consideration. It includes honest but mistaken beliefs held by the accused, where that belief is reasonable.
In assessing one of the factors listed under s. 34(2)(c), the Court of Appeal held that the legal actions of an accused under “the person’s role in the incident” can render their use of lethal force in the face of an imminent threat “unreasonable” under the third element. In other words, the conduct of the accused in the incident may colour the reasonableness of the ultimate act. Triers of fact must consider whether the accused’s behaviour throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminates in the impugned act.
The Court of Appeal allowed the Crown appeal and ordered a new trial. Khill was granted leave to appeal in August 2020, watch out for this important appeal headed to the SCC in 2021.
W(D) Analysis - R v Smith, 2020 ONCA 782 and R v TA, 2020 ONCA 783 - Important reminder from the Court of Appeal that the analysis under W(D) is not an “either/or” contest. In fact, this is the very type of reasoning W(D) is aimed at avoiding. W(D) is about if the trial judge does not believe the defence’s evidence, is the trial judge still left with a reasonable doubt. W(D) is not about choosing which version (the accused or another witness) of events is true. A complainant can be credible, and the trial judge can still be left with a reasonable doubt. W(D) is not a credibility contest. Treating credibility as an either/or proposition in effect shifts the burden of proof to the accused by suggesting that an accused can only be acquitted if the accused’s story is believed over that of the complainant’s. See also R v Darnley, for a recent and detailed look at the reasonable doubt standard.
Disclosure Obligations - R v Pascal, 2020 ONCA 287 - A significant Crown witness’ criminal record and/or outstanding charges are first party disclosure under Stinchcombe as they are obviously relevant. This type of information is clearly relevant given that this information can be used to impeach a witness called by the Crown, and can be relevant to the defence in deciding whether to call certain defence witnesses in the event they are not called by the Crown. The Court of Appeal reminds s that relevance is the controlling principle, not the likelihood of us or prospect of success that arises from disclosure of certain documents.
Trial Courts
Forensic Evidence - R v Hiller, 2020 ONSC 6097 - A must-read by Justice Pomerance who provides a model for any trial judge faced with expert evidence and the need to carefully evaluate forensic pathology evidence. The Crown’s case was essentially that the accused, Mr. Hiller, caused the death of the victim during a fight. The victim died from cardiac arrest which the forensic pathologist concluded was caused by a headlock. There was no direct evidence of a headlock. No one saw it. The Crown’s theory was solely based on the testimony of a forensic pathologist. Citing both the Goudge Inquiry and the Motherisk Independent Reviews, Justice Pomerance reminds us of the important gatekeeper function trial judges have in independently assessing expert opinions. As a gatekeeper, it is crucial for trial judges to question and, if appropriate, reject an expert opinion. Judges should not merely trust a witness since they are experts. This gatekeeper function is essential in preventing miscarriages of justice such as wrongful convictions. With respect to competing inferences, Pomerance J reminds us to avoid the “human temptation to fill the gaps with speculative inferences in order to arrive at a cohesive story” (see para 112).
Sentencing & Systemic Racism - R v Marfo, 2020 ONSC 5663 - In sentencing a young Black man convicted of a variety of firearm offences (and a simple possession count of crack cocaine), the sentence judge, Justice Ducharme, concluded that courts must be open to paying attention to the reality of anti-Black racism. Ducharme J noted that like Gladue reports in the context of Indigenous offenders, there are a variety fo systemic reasons Black individuals are over-represented in our criminal legal system and in our jails. Justice Ducharme held that it is the duty of judges to consider the impact of anti-Black racism and discrimination has had on an accused when they engage in the sentencing of that individual. Evidence of systemic anti-Black racism can mitigate a harsher sentence than would otherwise be imposed. Judges must also ensure that neither the process nor the result of sentencing furthers this systemic discrimination.
See you all in 2021!
Best,
Sara Little from Little Legal Summaries