April 2021 Recap
April 2021 Recap
Here are some of the most impactful cases from the Court of Appeal for Ontario and the Supreme Court of Canada published in April 2021.
Two appeals were heard together: (1) Thibault and Vaillant, and (2) Bashir and Muddei. The two sets of charges are unrelated but both prosecutions turns on the admissibility of communications intercepted pursuant to the same authorization. In both cases, the accused sought the exclusion of the evidence obtained under the authorization. The trial judge in Thibault/Vaillant found that the authorization was properly granted and that there was no violation under section 8 of the Charter. The trial judge in Bashir/Muddei fount the opposite: the authorization was not properly granted and there was a violation under section 8 (and thereby excluded the evidence under s. 24(2)).
It is important to note that the authorization in this case was obtained over 7 years after the offence in question (a murder). The police investigation had been stale for years.
While different judges asked to grant an authorization may reach different conclusions as to whether to grant an authorization, the question assessed by a reviewing judge as to whether the authorization could have been granted is a question of law. Only one trial judge can be correct.
Section 186(1) governs whether an authorization should be granted. The issuing judge must be satisfied:
that it would be in the best interests of the administration of justice to do so; and
that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed, or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using other investigative procedures.
Section 186(1)(a) - “Best Interests”
The “best interests” requirement imposes a “reasonable and probable grounds” standard. In other words, the issuing judge must be satisfied the affidavit in support of the application for authorization contains reasonable and probable grounds to believe the named offence(s) are being or have been committed and that the interceptions will afford evidence of those offences (see R v Beauchamp, 2015 ONCA 260). Reasonable and probable standard, also referred to as probable cause, requires more than suspicion, but less than proof on the balance of probabilities. There must be a credibly-based probability the interceptions will afford evidence of the named offences. An interception will “afford evidence” if the proposed interceptions are anticipated to shed light on the circumstances of an alleged offence, or the involvement of the named targets in the offence. The interceptions do not need to provide evidence that would be admissible at trial. The review of an authorization begins with the presumption that the order was properly granted.
The police in this case effectively wanted to wiretap first and use the fruits of these wiretaps to -hopefully- develop an investigative plan which would then, ex post facto, provide the necessary credibly-based probability to justify interceptions under s. 186(1). Section 186(1) does not permit the use of authorizations for information gathering purposes in the absence of reasonable grounds to believe the authorization will afford evidence of the named offences. It is insufficient that the authorizations will afford evidence at some point down the road.
Section 186(1)(b) - “Investigative Necessity”
In its application for the authorization in question, the police asserted that other investigative techniques were unlikely to succeed but provided no basis for that conclusion. Of note, the police conducted very little investigation to update their initial investigation prior to applying for authorization. In the absence of these attempts it is difficult to see how one can establish that other techniques are likely to fail.
The “investigative necessity” requirement must speak to the status of the investigation at the time the application is made, not some prior investigation years earlier.
Doherty JA upheld Justice Corthorn’s section 24(2) analysis excluding the evidence. Acquittals for Bashir and Muddei upheld. Convictions for Thibault and Vaillant quashed and acquittals entered.
Pepall JA, writing for the court, held that a deliberate plan to violate Charter rights to further investigatory efforts necessitates the exclusion of evidence under s. 24(2) of the Charter.
In 2011, the police began investigating a suspected criminal organization operating illegal online gambling in the City of Toronto. Detective Kevin Leahy was the lead investigator. The “take-down day” was to be at a 2013 Super Bowl party an even where members of the organization would congregate. By November 2012, the police believed the appellant was a central figure in the organization. They had conducted wiretaps and extensive surveillance which revealed that the appellant traveled regularly between London and to collect money which would get mixed with other monies when he got home. As a result, the investigators felt they were losing evidence every week. Detective Leahy wanted to seize evidence from the appellant without compromising the ongoing investigation.
Detective Leahy spoke with Andrew Sabadini, the assigned Crown, to ascertain whether the police could apply for judicial authorization using a general warrant under s. 487.01 of the Criminal Code to obtain evidence from the appellant’s vehicle without disclosing the investigation to him. The Crown indicated he would not be willing to bring forward this type of application and that it was unlikely to be authorized by a judge.
As a result, Detective Leahy devised a plan inspired by the police conduct in R v Dibble, 2011 ONSC 399. In that case, police told an accused that the vehicle was being searched for radar detection device when the true purpose was to obtain evidence of drugs. Court found that the police breached the accused’s section 10(a) and 10(b) rights but did not exclude the evidence seized [Section 10(a) refers to an accused’s right upon arrest or detention to be informed promptly of the reasons thereof, Section 10(b) refers to the right to counsel].
Detective Leahy’s plan was to conduct a stop on the appellant’s vehicle on his way home from a money collection regardless of whether he committed a Highway Traffic Act offence. They would advise the appellant that they knew he was associated with members of hells Angels and wanted to search his vehicle for contraband. This would allow the police to search for the evidence in question without arresting the appellant so as to not alert him that the police were investigating him for gambling related offences. Detective Leahy conceded, however, that the lawyer would have to be misled: the lawyer would be advised the individual was under investigative detention, not arrest. In Detective Leahy’s view, given that the appellant was arrestable for gaming and criminal organization offences, the police were justified in searching him and his vehicle.
Once the appellant was pulled over for speeding and an unsafe lane change. He was provided his right to counsel. The police conducted a search of his vehicle and seized approximately 75K in cash, a number of cellphones and a laptop. Despite being told not to do so, the officers questioned the appellant but he declined to answer. The appellant was detained for nearly 3 hours. Ultimately, a ticket was not issued and the appellant was released. The appellant was arrested over two months later at the Super Bowl party.
The appellant brought a Charter application to exclude the evidence seized during the traffic stop ruse. Application judge determined that the police had breached the appellant’s section 10(a) and (b) rights [but not his section 8 and 9 rights] but that the evidence should not be excluded under section 24(2) given that the police acted in good faith. The appellant ultimately entered a plea of not guilty for committing the indictable offence of possession of property obtained by crime over $5000 for the benefit of a criminal organization. The appellant was sentenced to 15 months’ imprisonment.
Section 24(2)
In determining whether evidence should be excluded under section 24(2), the court considers 3 factors, known collective as the Grant test:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protect interests of the accused; and
(3) society’s interest in an adjudication of the case on the merits.
At its core, this case involves a planned and deliberate violation of the Charter. The Crown advised the police prior to their plan that a general warrant would be granted based on their proposed plan. The police devised a plan they knew would result in a Charter violation. In other words, the violation was not incidental. The police’s plan anticipated a breach of the Charter.
The Court of Appeal distinguished prior cases involving police ruses such as R v Dibble, R v Grant and Campbell, and R v Whipple. In those cases, the impugned evidence was admitted under section 24(2). In those cases, however, the “ruse” in question occurred spur-of-moment in reaction to dynamic situations. This is materially different than the breaches in this case which were planned in advance.
In conducting a fresh section 24(2) analysis the Court of Appeal concluded:
Regarding the seriousness of the state conduct: the police were not relying on a well-established line of authority when they engineered this ruse. Quite the opposite, the police devised a plan they knew or ought to have known would breach the appellant’s rights. This is further aggravated by the fact that they planned to search him incident to arrest without ever arresting him. Moreover, this is the type of police conduct the court should dissociate itself from. This factor favours exclusion.
“Protection of Charter rights is the operative principle [of the criminal justice system], not planned circumvention for investigative purpose.”
Regarding the impact on the appellant’s Charter-protected interests: the appellant was subjected to an unlawful search. He was unable to have meaningful consultation with counsel as both the appellant and counsel were misled as to the appellant’s true jeopardy. This factor favours exclusion.
Regarding society’s interest in the adjudication of the case on its merits: this factor favours admission of evidence given the seriousness of the charges.
Ultimately, Pepall JA writing for the court excluded the evidence pursuant to s. 24(2) of the Charter and ordered a new trial.
The appellant, Mr. Alas, was convicted by a jury for second degree murder. On appeal, he alleges that the trial judge erred in failing to leave the defence of provocation with the jury despite his trial counsel agreeing the defence was unavailable given a lack of air of reality. Justice Tulloch, writing for the court, concluded that there was an air of reality to the defence and as such should have been left with the jury. New trial ordered.
The appellant and his fiancee attended a bar where they met Patricia Isaacs, a close friend of the appellant. The deceased attended the same bar with his friend Kelly Bonnell. The appellant and the deceased did not know each other. Ms. Isaacs, however, had encountered the deceased a few times at the bar. Throughout the evening, Ms. Isaacs and the deceased had a number of interactions which she described as “bullying” - although other witnesses described the interactions as “just joking around.” Outside the bar, the deceased became physical with Ms. Isaacs. Upon her return to the bar, Ms. Isaacs informed the manager and the appellant’s fiancee of what happened. The appellant overheard and was visibly upset. He “wanted to do something about it.” Ms. Isaacs and the appellant’s fiancee went outside to smoke. The appellant saw the deceased and Mr. Bonnell head for the door to leave. The appellant quickly went outside. A verbal altercation ensued between the deceased and the women. The appellant remained silent and did not interfere. The bartender tried to come outside but the deceased blocked the door. At this point, the appellant confronted the deceased for his behaviour. The deceased kept yelling at the women and flipped off the appellant’s fiancee. It is unclear what precipitated the physical confrontation that occurred next but a physical fight broke out between the deceased and the women. The deceased made a threatening gesture towards the women. The appellant, who carried a knife for protection, jumped in and stabbed the deceased. While he was aiming for the deceased’s chest, he stabbed his throat. The appellant’s fiancee began to choke the deceased to protect the appellant when she noticed blood. The appellant and the two women fled the scene. The deceased died from a stab wound to the neck. The appellant was arrested less than 48 hours later for murder.
At the conclusion of trial, defence counsel indicated he would likely not be seeking an instruction on provocation indicating it was “problematic” given his doubt of the connection between what occurred inside the bar and the ultimate altercation. At the pre-charge conference, defence counsel took the position that provocation was not available given the “cooling off” period between when the appellant first learned about the initial altercation and the stabbing. Defence counsel took the position that there was no air of reality. The Crown agreed. Accordingly, the trial judge did not leave the defence of provocation with the jury.
Provocation Defence
The provocation defence does not vitiate the mens rea for murder. Rather, it partially excuses an offender’s conduct out of compassion for human frailty where an accused reacts inappropriately and disproportionately but understandably given a sufficiently serious wrongful act (see R v Tran, 2010 SCC 58). There are 4 elements to the provocation defence:
1. There must be a wrongful act or insult;
2. The wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;
3. The accused must have acted in response to the provocation; and
4. The accused must have acted on the sudden before there was time for their passion to cool.
The first two elements are assessed objectively. The latter two elements are assessed subjectively.
The objective elements impose an “ordinary person” standard to ensure that only losses of self-control that are in-keeping with society’s norms are defensible. The '“ordinary person” must be taken of the same age, sex and must share other factors with the accused that would give the act or insult in question special significance (see R v Thibert, [1996] 1 SCR 37). In other words, the “ordinary person” must be contextualized - but must not be individualized to the point of rendering it a subjective standard.
The “sufficiency” of the wrongful act centres around its suddenness: “if a wrongful act or insult is not sudden or unexpected it is unlikely to satisfy” this requirement.
Air of Reality
All defences that arise on the facts must be left to the jury regardless of whether they’ve been raised by an accused. Similarly, trial judges equally have a duty to keep defences that do not meet the air of reality threshold from the jury.
The air of reality asks:
Whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.
In other words, the trial judge may engage in limited weighing of the evidence to determine if a jury acting reasonably could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty on the basis of a given defence.
The evidentiary burden rests with the accused. Whether there is an air of reality to a defence is a question of law assessed on a standard of correctness.
Case at Hand
1. Was there a wrongful act or insult?
There was evidence at trial that suggested the deceased was about to strike the women outside the bar.
2. Was the wrongful act sufficient to deprive an ordinary person of self-control?
The appellant was of relatively small statute, with health conditions and a history of bearing witness to violence against women. The ordinary person in this context could lose self-control when faced with a credible threat that the deceased would assault one of his female companions (particularly given that he was aware of a previous assault by the deceased against Ms. Isaacs).
3. Did the accused act in response to the provocation?
The stabbing occurred immediately after the deceased made threatening gestures towards the women. The appellant reacted to this threat - previous to this he demonstrated restraint.
4. Were the accused’s actions “on the sudden” before there was time for the passion to “cool”?
All parties at trial, including the trial. judge, were of the view that no properly instructed jury could reasonably conclude that the appellant’s actions occurred “on the sudden” given the cooling off period between the initial assault on Ms. Isaacs and the ultimate altercation outside.
Justice Tulloch, however, writing for the majority, concluded that there were two incidents that constituted potential provocative acts: (1) the assault on Ms. Isaacs and (3) the threatening gesture outside immediately prior to the stabbing. There was no such “cooling off” period between the threatening gesture and the stabbing. Justice Tulloch further rejected the Crown’s argument on appeal that the nature of this altercation was entirely predictable and therefore not sudden: the appellant joined the women outside knowing the deceased was leaving, he armed himself with a knife, etc. Tulloch JA found that it remained open to the jury to conclude otherwise: the appellant could have feared a confrontation and gone outside as a safety precaution. The appellant did not begin the confrontation and only interfered when the deceased made a threatening gesture. Moreover, the provocation defence is not automatically excluded in situations where an accuses arms themselves in anticipation of a potential conflict (see R v Gill, 2009 ONCA 124 and R v Buzizi, 2013 SCC 27).
Dissent - MacPherson JA
Keep your eyes peeled as this Alas will head to the Supreme Court of Canada as of right given Justice MacPherson’s dissent on an issue of law.
MacPherson JA agrees that whether there is an air of reality to a potential defence is a question of law assessed on a standard of correctness. In MacPherson’s view defence counsel, the Crown and the trial judge were correct in concluding there was no air of reality to the provocation defence given that:
There was a lengthy period of time between the deceased’s interactions with Ms. Isaacs inside and outside the bar, and the ultimate altercation;
When the deceased and appellant left the bar around the same time, the deceased was rude towards the women but did not verbally threaten them;
The deceased did not have physical contact with the women despite flipping them off;
The accused transferred his knife from his pants pocket to his jacket despite the confrontation at this point being purely verbal and the deceased not displaying a weapon;
The appellant saw the deceased form a fist and in reaction attempted to stab the deceased in the chest;
The appellant continued to stab the deceased (6 stab wounds).
While a failure to object to a jury charge is not fatal on appeal (see R v LK, 2020 ONCA 262) - the position taken by trial counsel assists appellate courts in determining whether the defence does properly arise on the evidence.
Moreover, an accused has a limited right to control his defence, and occasionally, counsel may not want to leave a defence with the jury for tactical purposes. At trial, the defence’s closing address focused on Mr. Alas; “self-defence of another person” - namely his fiancee and Ms. Isaacs. In MacPherson’s view, insisting that a trial judge leave a particular defence with the jury flies in the face of defence counsel’s explicit choices about how to present their defence and runs the risk of confusing the jury.
With regards to electronic evidence, the Court of Appeal reminds trial judges of the need to engage in a “rigorous” analysis of electronic evidence before determining whether or not it is admissible. The reliability and probative value of digital evidence must be scrutinized. The Court warns of the dangers of relying on text and other digital messages that are inherently fallible: they can be manipulated and falsified through the use of software or other apps. For example, software can be used to create new, or manipulate existing messages so they appear to be from one person when they are either fabricated or come from an entirely different person. Of the same vein, the timing/date of messages can be manipulated in the same way.
Moreover, in assessing the identity of a sender, it is unreliable to rely on the “tone, grammar and spelling” associated with an individual. Text messages are notorious for poor grammar and spelling. Similarly, the spell check function has the ability to alter the sender’s intended language. It is also unclear how a unique “tone” could be conveyed via text message that could be attributed solely to a particular sender.
The Court of Appeal reaffirms that the absence of a motive to fabricate does not conclusively establish that a witness is telling the truth. Trial judges must be wary to conflate the absence of evidence of a motive to fabricate or lie with a proven lack of motive. The mere absence of evidence of motive to fabricate cannot usurp the credibility assessment of a witness.
The appellant was driving home from a nightclub after consuming alcohol. The road was yet. He lost control which caused the vehicle to rotate, strike a curb, leave the roadway and hit a parked car which in turn struck a number of other vehicles. The appellant (the driver) and the front seat passenger suffered significant injuries but everyone (thankfully) survived.
The appellant argues that the trial judge erred in finding that the accident was caused by grossly excessive speed in part because these findings were contrary to the tendered Agreed Statement of Facts (“ASF”).*
Justice Watt, writing for the court, held that even though an ASF is named an “Agreed Statement of Facts” - it does not make the contents of the ASF facts that cannot be clarified amplified or even rebutted with other evidence.
*The appellant also argued that the trial judge misapprehended the evidence in reaching the conclusion that the collision was caused by grossly excessive speed. See paras 48-60 for an overview of the governing principles regarding misapprehension of evidence.