February 2021 Recap
February 2021 Recap
Here are some of the most impactful cases from the Court of Appeal for Ontario published in February 2021.
R v Blakes-Samuels, 2021 ONCA 77
In R v Blakes-Samuels, the Court of Appeal for Ontario makes clear that where a sentencing judge exceeds the Crown’s proposed sentence, the judge must give counsel notice, the opportunity to make further submissions and provide reasons as to why the proposed sentence was rejected (see paras 30-33). This is a matter of fundamental fairness.
This finding was then re-affirmed in R v Mohiadin, 2021 ONCA 122 where the court imposed a sentence 7 months higher than the Crown’s proposed sentence without giving counsel the opportunity to make submissions. The Court of Appeal undertook its own sentencing analysis and determined that the Crown’s original sentencing proposal was appropriate.
Following a trial by judge and jury, Mr. Abdullahi was convicted of a number of firearm offences as well as a count of participating in a criminal organization for the purpose of trafficking weapons. Mr. Abdullahi appeals both his conviction and sentence. The Court of Appeal ultimately dismissed his conviction appeal. He raised a number of issues relating to the trial judge’s charge to the jury as well as the qualification of an officer tendered as an expert witness in relation to translating intercepts from Somali to English. This summary focuses solely on Mr. Abdullahi’s sentence appeal.
The Crown sought a sentence of 12-13 years whereas Mr. Abdullahi’s trial counsel sought a sentence of six to eight years. The trial judge imposed a sentence of 12 years. Mr. Abdullahi is a Black man. In sentencing Mr. Abdullahi, the trial judge wrote the following about the need for denunciation and deterrence for firearm offences:
“Crimes involving the use of firearms that are committed by people of racial minorities… may lead to stereotypical or other racist attitudes against the minority group at large.”
On appeal, Mr. Abdullahi argued that this comment was an improper basis for increased emphasis of denunciation and deterrence. The Court of Appeal concluded that the trial judge’s imposition of a unique aggravating factor on members of minority groups has no place in Canadian sentencing and amounts to an error of law. The Court of Appeal adopted the Appellant’s submission that:
“The implicit logic of this statement is that crimes committed by members of marginalized communities that align with stereotypes or other prejudicial beliefs about their community are necessarily more serious and merit greater denunciation because they can reinforce bigoted attitudes…its result is to apply a unique aggravating factor to members of minority groups and convey that marginalized offenders are responsible for bigotry directed against their communities.
The Court went on to find that this error impacted the sentence imposed by the trial judge. The Court reduced Mr. Abdullahi’s sentence by 2 years to reflect this impact.
In Mann, the Court of Appeal for Ontario reminds us of its holding in R v Darnley, 2020 ONCA 179 and R v Brown, 2018 ONCA 1064 with regards to jury instructions pertaining to the concept of “reasonable doubt.” The Court reminds us that:
A reasonable doubt does not need to arise from the evidence. It arise from the absence of evidence (see R v Villaroman, 2016 SCC 33 at para 28)
An inference need not arise from “proven facts” - a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.
An acquittal does not need to be based on a “conclusion” or “belief” about innocence but can rest on an inability to conclude guilty.
It is an error to suggest that an exculpatory inference (one that is inconsistent with guilty) must be “stronger” than a speculation or guess. The inference only needs to raise a reasonable doubt.
These types of errors, in effect, places the burden on the accused to prove something from which a reasonable doubt could arise. This type of burden is inconsistent with the presumption of innocence and cannot stand. New trial ordered.
The Mann appeal also dealt with issues relating to an accused’s right to counsel under section 10(b) of the Charter. Following his arrest, Mr. Mann made a number of statements in response to an officer asking him whether he had been stabbed. The statements were largely incriminating, implicating the accused in the attack that had taken place. Once placed in the police cruised, the accused was given his right to counsel. The accused indicated he would speak to duty counsel. The trial judge concluded the utterances were made in violation of the accused’s s. 10(b) Charter rights given that the Mr. Mann was not given his right to counsel at the first opportunity. No issue is taken with this finding. Despite concluding there was a s. 10(b) breach, the trial judge did not exclude the statements pursuant to s. 24(2).
The Court of Appeal made the following comments with regards to the trial judge’s Grant analysis:
The fact that officers do not deliberately delay providing an accused with their rights to counsel does not lessen the nature of the breach, it simply does not aggravate it.
The right to counsel is an extremely important right as accused persons are in a position of vulnerability the moment they are detained. There are real risks about self-incrimination. The implementation of this right lay at the feet of the police - police must do so at the first opportunity.
In assessing the second factor under Grant, the impact of the breach is not lessened by the fact that there is similar evidence available properly obtained.
In Al-Enzi, the Court of Appeal found that spousal testimonial privilege under s. 4(3) of the Canada Evidence Act does not survive divorce.
Throughout the course of the investigation, the police obtained judicial authorization to intercept the appellant’s private communications. As a result, the police intercepted a number of communications between the appellant and his wife at the time, Ms. Abdul-Hussein. At the time of the appellant’s trial (his second trial), the appellant and his wife were divorced.
The Crown sought to introduce these intercepts as evidence and argued that while the communications occurred while the parties were married, any spousal privilege that may have attached was no longer in effect due to the parties’ divorce. The appellant’s trial counsel disagreed arguing that spousal privilege was based on the nature of the relationship at the time of the communication, not the relationship status at the time privilege is sought to be claimed. The trial judge agreed with the Crown.
On appeal, Mr. Al-Enzi submitted that the trial judge erred in finding that spousal privilege does not survive divorce on the basis that this conclusion does not accord with the wording of s. 4(3) of the Canada Evidence Act.
Section 4(3) of the CEA reads as follows:
“No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.”
Spousal privilege is testimonial in nature. This means a spouse can refuse to testify about matters covered by the privilege. It also includes the right to exclude certain communications from evidence. It belongs to the spouse receiving the communication. Spousal privilege can be waived by the receiving party. The rationales underlying spousal privilege are the promotion of marital harmony and the prevention of indignity of having one spouse testify against another. Of note, spousal privilege does not apply to common-law spouses.
The admissibility of intercepted spousal communications is governed by both s. 4(3) of the CEA and s. 189(6) of the Criminal Code which states that any information obtained by an interception that but for the interception would have remained privilege is inadmissible as evidence (without the consent of the person holding privilege).
The Court of Appeal concluded that spousal privilege does not survive divorce. As a result, the intercepts were admissible at trial given that the parties were no longer married at that time. The Court reached this conclusion by examining the plain language of s. 4(3) which makes clear that the class of people who are not compellable to disclose marital communications are husbands and wives, not former husbands and wives.
As such, there are two requirements under s. 4(3) of the CEA:
1) that the communication is one that is made during the marriage; and
2) that the person claiming the privilege is, at the time of the claim, a husband or wife.
ZWC is a must read for defence counsel regarding the permissible uses of prior discreditable conduct evidence.
The accused was convicted of sexual assault with regards to both his wife and his daughter. At trial, the Crown sought to rely on evidence of uncharged prior discreditable conduct, namely prior instances of physical and sexual abuse, related to incidents that occurred both in China and Canada. The Crown brought an application to admit this evidence on three grounds: (1) that it established animus towards the complainants demonstrating a pattern of control and possessiveness, (2) contextualized why the accused’s wife stayed in the relationship and (3) why the complainants did not initially report the abuse to the police. The defence objected to the application on the basis that the evidence was highly prejudicial and that the Crown failed to give proper notice of the application. Ultimately, the trial judge granted the Crown’s application on the basis that the evidence explained the nature and dynamic of the parties’ relationship and that it demonstrated the accused’s animus towards the complainant.
The Crown made several references to the prior discreditable conduct throughout their opening submissions to the jury, but did not distinguish which acts were the subject of the charges before the courts and which were only part of the “context.” The defence did not object to the opening at the time it was delivered but later objected during the trial. The objection was dismissed.
Throughout the trial, the jury heard several references to the accused’s uncharged conduct through both complainants’ evidence. For example, the accused’s wife described how the accused lied about his background and age, that the accused was regularly violent in the home and that their relationship was “not good.” The Crown then asked the complainant wife what made the relationship “not good” and whether any incidents came to mind to which the complainant referred to a violent incident not contemplated by the Crown’s initial application that was highly prejudicial to the accused. In the absence of the jury, the trial judge expressed concern about this type of evidence, reminding Crown counsel that his ruling was to allow evidence of the parties’ relationship not to paint the accused as a “bad” person. The trial judge gave a brief mid-trial instruction to the jury to this effect. The complainant wife continued to testify at length about prior uncharged incidents. The complainant daughter also testified about prior uncharged incidents involving the accused. The trial judge did not provide a mid-trial instruction with regards to this testimony, but did warn (in the absence of the jury) the complainant daughter to avoid giving editorial comments in her testimony.
In his charge to the jury, the trial judge advised the jury of the limited use of the uncharged prior discreditable conduct evidence. He instructed the jury that this evidence is to allow them to understand the nature of and the state of the family relationship, to demonstrate the accused’s animus towards the complainants and to explain why the allegations were not reported earlier. He cautioned the jury that they cannot use the evidence to conclude that the accused is a bad person who is more likely to have committed the charged offences. The accused was subsequently convicted on all counts.
Prior Discreditable Conduct
Evidence of an accused’s uncharged prior discreditable conduct is presumptively inadmissible due to the exclusionary rule against bad character and general propensity evidence (See R v Handy, 2002 SCC 56 at para 36). As an exception to this rule, however, this type of evidence may be admitted if it is relevant, material and the Crown establishes, on a balance of probabilities, that its probative value outweighs its prejudicial effect. The admissibility of this evidence is generally determined by a Crown application. In assessing the probative value of the evidence, the judge will consider:
the strength of the evidence that the extrinsic acts in question occurred;
the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make; and
the extent to which the matters the evidence tends to prove are live issues at trial
In other words, the Crown must be prepared to establish what inferences it will be asking the jury to draw from the evidence.
The court must then consider the prejudicial effect of the evidence which includes both moral prejudice and reasoning prejudice. Moral prejudice refers to the risk that the jury may convict the accused on the basis of “bad personhood” (see Handy at paras 31). Reasoning prejudice diverts the jury from its task and contemplates the risk that the jury will give the evidence more weight than is justified (see Handy at para 31).
In assessing prejudicial effect, the court will consider:
how discreditable the conduct is (the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice);
the extent to which the evidence may support an inference of guilt based solely on bad character;
the extent to which the evidence may confuse the jury; and
the ability of the accused to respond to the evidence.
In the domestic assault context, evidence of uncharged prior discreditable conduct has been admitted to describe the nature of the parties’ relationship to provide “context” or “background”, as well as to establish animus between the parties. This does not mean, however, that uncharged prior discreditable conduct evidence is presumptively admissible in the domestic violence context.
Where this type of evidence is admitted, the trial judge is required to instruct the jury on its use and should identify the evidence in question as well as the permitted and prohibited uses of the evidence.
The Court of Appeal offers the following reminder to Crown counsel at para 122:
“Vague terms, such as “narrative”, “context” and “background” cannot be permitted to serve as a substitute for a careful assessment of how the evidence will assist the jury in understanding other admissible evidence, what inferences the jury may properly draw from the evidence and how impermissible reasoning can be prevented.”
The Court goes on to encourage both Crown and defence counsel to consider whether the need for uncharged prior discreditable conduct evidence can be eliminated and its prejudicial effects avoided through the use of appropriate admissions or undertakings.
With regards to the case at hand, the Court of Appeal concluded that the trial judge failed to assess and balance the prejudicial effect of the significant uncharged prior discreditable conduct by allowing the probative value to overwhelm his analysis. As a result, there was a real risk that the jury convicted the accused for his prior conduct rather than the charged offences. This risk was not attenuated by the jury instruction. New trial ordered.