Other Key Cases and Takeaway
(1) R. v. hanan, 2023 SCC 12
KEY TAKEAWAY: There is no bright-line rule whereby all of the delay from a defence rejection of trial date to the date offered by the court must be characterized as defence delay.
Defence delay comprises “delays caused solely by the defence’s conduct” or “delays waived by the defence”.
Accordingly, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.
All relevant circumstances should be considered to determine how delay should be apportioned among the participants.
(2) R. v. spicer, 2023 onca 232 & r. v. donnelly, 2023 onca 243
KEY TAKEAWAY: Court draws important but subtle distinction - While a trial judge is not permitted to use “common sense” reasoning to mask myth-based or stereotypical assumptions, a trial judge is permitted to draw inferences that track this type of reasoning so long as the inference is derived from the evidentiary record in a given case.
(3) r. v. bruzzese, 2023 onca 300
KEY TAKEAWAY: A trial judge has a duty, independent of any objection or lack of objection by counsel, to redress any prejudice to an accused that is caused by the Crown’s closing submission to the jury that “contains gross inaccuracies, seriously misstates the evidence or misuses the evidence in connection with the inferences to be drawn”.
Trial judges are not held to a standard of perfection in the crafting of jury charges.
On appellate review, a function approach is taken to the substance of the charge by examining errors in the context of the evidence, the entire charge and the trial as a whole. The question on appeal is whether the jury charge properly equipped the jurors to decide the case assigned to them.
However, the Court of Appeal may intervener where the trial judge errs in law in the charge including where a trial judge does not address sufficiently prejudicial or significantly inaccurate statements made by Crown counsel or provides an erroneous instruction on a point of law.
Such errors may justify a new trial where they cause a “substantial wrong or miscarriage of justice”.
While counsel are entitled to a “fair degree of latitude” in their closing submissions to the jury, there are clear limits on Crown advocacy. They must misstate the facts or the law, invite the jury to engage in speculation or express personal opinions about the evidence, or advert to any unproven facts.
(4) R. v. abdelrazzaq, 2023 onca 231
KEY TAKEAWAY: On a sentence appeal under s. 687 of the Criminal Code, the Court of Appeal does not have jurisdiction to remand the matter for sentence to the trial court. Section 687 permits the Court of Appeal to either (1) allow the appeal and vary the sentence, or (2) dismiss the appeal (see also R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.)).
While R. v. A.S., 2010 ONCA 441, seems to suggest without explanation that a matter can be remitted to a trial court for sentencing, the decision contains no analysis of the relevant statutory provisions and makes no reference to relevant case law that holds to the contrary. As a result, the Court of Appeal concludes that A.S. must be read as overtaken by several subsequent decisions which conclude, after an analysis of the relevant provisions, that the Court of Appeal has no jurisdiction on a sentence appeal to remit the matter of sentence to the trial court.
(5) R. v. A.b., 2023 ONCA 254
KEY TAKEAWAY: It is an error in principle for a sentencing judge to fail to give parties’ notice and an opportunity to make submissions where just intends to exceed the sentence sought by the Crown (See also R. v. Nahanee, 2022 SCC 37).
A sentencing judge must notify the parties (and provide an opportunity for submissions) if the judge is considering imposing a higher sentence than that sought by the Crown.
The failure of a judge to do so, alone, however, does not justify appellate intervention. An appellate court may only intervene either (1) where the appellant can show that the error in principle had an impact on the sentence; (2) where the trial judge has given insufficient reasons for imposing a harsher sentence than sought by the Crown; or, (3) where the trial judge relied on flawed or unsupportable reasoning for imposing the harsher sentence.
The appellant was convicted of sexual interference. At trial, the appellant sought a conditional sentence of two years less a day, or in the alternative, 2-3 years of imprisonment. The Crown sought a sentence of 5 years. The trial judge ultimately imposed a sentence of seven years’ imprisonment. The judge did not provide the parties with notice or on opportunity to provide additional submissions prior to doing so. Court of Appeal granted sentence appeal and substituted a sentence of 5 years as the judge gave insufficient (in fact, no) reasons for exceeding the Crown’s position on sentence.
(6)R. v. HAeVISCHER, 2023 SCC 11
KEY TAKEAWAY: Motions in the criminal context should only be summarily dismissed where they are “manifestly frivolous”
This threshold preserves fair trials, protects the accused’s right to full answer and defence, and ensures efficient court proceedings.
The “frivolous” part of the standard weeds out those applications that will necessarily fail, and “manifestly” captures the idea that the frivolous nature of the application should be obvious. If the frivolous nature of the application is not manifest or obvious on the fact of the record, then the application should not be summarily dismissed, it should be heard on its merits.
The party bringing the motion for summary dismissal bears the burden of persuading the judge that the underlying application is manifestly frivolous.
When applying this standard, the trial judge should not engage in even a limited weighing of the evidence. This is left to the hearing of the application itself. The judge must assume the facts alleged by the applicant to be true, and take the applicant’s arguments at their highest.
(7) R. v. PAN, 2023 ONCA 362
KEY TAKEAWAYS:
In long and complex cases, a trial judge has a discretion to allow certain materials (such as summaries, PowerPoints or other aids) to go to the jury to assist them with understanding the evidence, even in the absence of consent from counsel.
Trial judges, however should also be cautious in permitting material that is not evidence to go into the jury room under the guise of being a “jury aid”, particularly where it is subject to an objection.
The trial just must be satisfied that it is necessary to assist the jury in their deliberations and that the materials are “accurate and fair”.
As part of their closing submissions, the Crown used a PowerPoint presentation that detailed some of the voluminous cell phone evidence. The presentation has been prepared by the OPP 18 months prior to the start of trial; the OPP was not involved in the investigation in this case. A voir dire was held to determine the admissibility of the PowerPoint at the trial proper given there were some issues surrounding the authorship of the presentation. All parties, however, agreed that it could be used by the Crown during its closing. The trial judge agreed that the presentation was useful and reliable, but that the prejudice caused by the court time and resources involved in the calling and cross-examination of the author exceeded the probative value. The Crown then applied to have the PowerPoint go to the jury during deliberations. The appellants objected to the same. The trial judge ruled that the presentation would go to the jury room duty to the prosecution’s closing submissions.
Generally, only two categories of evidentiary material will go to the jury room:
(1) trial exhibits (subject to health and safety concerns relating to things such as firearms or drugs), and
(2) material that the parties consent to being given to the jury (often timelines, maps, etc. that counsel agree will be of assistance to the jury in their deliberations).
Notwithstanding the agreement of counsel, however, the trial judge must still be satisfied of the appropriateness of this material being left with the jury and retains a discretion to not allow any such materials to go to the jury if the trial judge concludes that they may cause prejudice or mislead the jury.
Similarly, the trial judge maintains a further discretion to permit other materials to go to the jury room even where there is no consent to do so.
In exercising that discretion, trial judges must be cognizant of certain practical realities such as the inequality of resources that often exists between the Crown and the defence. For example, in this case, the defence was realistically not in a position to match the Crown’s access or ability to create such a PowerPoint.
While courts must be more receptive to the use of new technology or technological aids in facilitating the trial process, there must be limits to that receptiveness. There is not a blanket permission (as the trial judge suggested) for the jury to be entitled to “anything which would assist them in dealing with the evidence reasonably, intelligently and expeditiously”. Trial judges must decide on a case by case basis whether a particular aid ought to go to the jury, particularly where that aid only reflects one side’s view of the case.
In this case, the court concluded that the trial judge did not err in permitting the PowerPoint to go to the jury given:
The cell phone evidence was complicated, dense and lengthy;
The defence had a copy of the presentation before they made their closing addresses and were therefore able to comment on any shortcomings during the same;
The trial judge also permitted the defence to give the jury other charts that reflected the evidence they intended to emphasize; and
the trial judge gave careful and explicit instructions to the jury on the inherent limitations of such a presentation.