May 2021 Recap
May 2021 Recap
Here are our picks for some of the most impactful cases from the Court of Appeal for Ontario published in May 2021.
In June 2018, the appellant was found not criminally responsible on account of mental disorder (“NCRMD”) by Justice Stone of the Ontario Court of Justice in relation to charges of arson, unlawful confinement, assault with a weapon and mischief.
The appellant raises a single ground of appeal: that he did not appreciate the nature of the proceedings that resulted in the NCRMD verdict. The appellant alleges that a miscarriage of justice occurred because the trial judge failed to explain the process of a NCRMD plea to him and to conduct an inquiry to ensure his admission was voluntary and informed. He alleges that he did not understand the meaning, process or repercussions of an NCRMD findings and that he did not intend to accept the facts based on evidence adduced at the preliminary inquiry.
In this case, the appellant elected to have a preliminary inquiry followed by a jury trial. Following the preliminary inquiry, the appellant was remanded to 60 days in a mental health facility for an assessment report to be completed. Following the 60 days, the appellant re-elected his mode of trial to be tried in the OCJ before the preliminary inquiry judge, Justice Stone. At trial, the appellant entered a plea of not guilty. The Crown relied on the evidence of the preliminary inquiry and invited the trial judge to find the appellant committed the impugned acts on that basis but to find the appellant NCRMD based on the assessment report. The defence did not make any submissions or call any evidence. The trial judge found the appellant not guilty of two counts but entered a verdict of NCRMD on the other counts referring the matter to the Ontario Review Board for a disposition hearing.
NCRMD & Guilty Pleas
Where an individual has a mental disorder that deprives them of the capacity to form criminal intent they may be exempt from criminal liability. In other words, if a mental disorder deprives the accused of the capacity to appreciate the nature and quality of their conduct, or of the capacity to know that their conduct is morally wrong the accused lacks the necessary criminal intent to be convicted. Due to the lack of criminal intent, mental disorder operates as an exemption from criminal liability (see s. 16(1) of the Criminal Code).
There is no special plea of “not criminal responsible on account of mental disorder.” Where an accused enters a general plea of guilty (governed by s. 606(1)), s. 606(1.1) requires the judge to conduct a plea inquiry to ensure that the guilty plea is voluntary, informed and unequivocal. The failure to conduct a full plea inquiry, however, does not necessarily invalidate a plea (s. 606(1.2)).
There is no equivalent inquiry when an accused pleads not guilty. When an accused pleads not guilty, it puts the Crown on notice that they must prove each essential element of the offence beyond a reasonable doubt. It is a denial of the alleged acts and does not amount to an admission of any of the essential elements (See R v PR, 2013 ONCA 53 at para 41).
Having reviewed the history of the proceedings, the Court of Appeal was satisfied that nothing occurred to compromise the overall fairness of the proceedings or the appellant’s ability to understand the NCRMD verdict. The appellant was represented throughout by competent defence counsel who advised the appellant at each stage of the proceeding what to expect and potential consequences whether they proceed to trial proper or pursued the NCRMD route. Similarly, prior to ordering the assessment report the trial judge explained to the appellant that the purpose of the report was to determine whether he was exempt from criminal responsibility for these offences on the basis of mental disorder. The appellant was given ample opportunity to review the report and to make an educated choice as to whether to proceed to trial or to raise an NCRMD defence. The appellant advised trial counsel that he wished to proceed with the NCRMD route.
The trial judge was not required to conduct a plea comprehension inquiry under s. 606(1.1) in the absence of a guilty plea. The Court of Appeal, however, notes that it is preferable for trial judges to conduct such an inquiry at the outset to ensure that the individual is aware of the nature and effect of the NCRMD procedure. The appeal is dismissed.
The police found drugs in the Appellant’s bedroom, in an apartment she shared with. her adult son. The appellant was arrested away from the residence shortly before the execution of a search warrant. The appellant was tried by a judge and jury. The sole issue at trial was whether the Crown could establish that the appellant had knowledge of the drugs found in her bedroom. The defence’s theory at trial was that it was a reasonable inference that her son moved the drugs without knowledge when the police gained entry to the residence. On appeal, the appellant argues that the trial judge erred in admitting an officer’s opinion evidence about the appellant’s demeanour, and in failing to instruct the jury to disregard the same.
At the outset of trial, the Crown sought to have demeanour evidence admitted by having various witnesses attest to how the appellant behaved at the time of her arrest. The trial judge ruled this form of opinion evidence was inadmissible. Regardless, throughout the trial, several officers testified about the appellant’s demeanour both at the time of her arrest as well as at the residence during the search. They testified that she seemed very nervous, very agitated, not answering the questions asked of her, appeared to be a “deer in headlights”, etc.
At the pre-charge conference, defence counsel raised the issue of the demeanour testimony. The trial judge admitted they regretted letting it in as it was akin to post-offence conduct and that he would advise the jury to be very reluctant to rely on this form of evidence. In addressing the demeanour evidence in his charge, the trial judge indicated that this type of evidence “does not really help you [the jury].”
This charge was deficient. Merely telling the jury that this type of evidence “does not really help” still leaves the jury free to apply their own view of it and leaves open the risk they will improperly rely on the evidence. The trial judge should have instructed the jury unequivocally to disregard this evidence. Similarly, the charge lacked the clear instruction that the jury was not permitted to make any conclusions from the appellant’s refusal to answer the police’s questions. These types of deficiencies render the trial unfair and require a new trial.
Where an individual does not have sufficient means to fund their own appeal, and is denied funding from Legal Aid Ontario, they can apply pursuant to s. 684 of the Criminal Code for court appointed counsel to assist with the appeal.
Mr. Griffith qualified for legal aid based on his income but was denied as Legal Aid Ontario concluded his appeal lacked sufficient merit. As a result, he applied to the Court of Appeal for a s. 684 order.
Section 684 Orders
Section 684 of the Criminal Code authorizes a Court of Appeal judge to assign counsel to represent an accused in a criminal appeal, funded by the Attorney General if (1) legal aid has been denied, (2) the accused lacks sufficient means to hire counsel, and (3) where it is in the interests of justice that the accused should have legal assistance.
In order to obtain a s. 684 Order, the applicant must show (see R v Budlakoti, 2021 ONCA 163 at para 14):
The appeal is arguable and not frivolous. This is a modest threshold; and
It is necessary that counsel be appointed having regard to whether the applicant is capable of effectively advancing his grounds of appeal without a lawyer and whether the court can decide the appeal without counsel’s assistance.
The Court may consider the complexity of the legal arguments to be advanced on appeal as well as the applicant’s ability to make those arguments.
The Court of Appeal also makes note that the potential assistance of the pro bono inmate appeal duty counsel program does not detract from the need for funded counsel. Pro bono duty counsel are not a substitute for fully-funded counsel, whether through legal aid or s. 684, where circumstances warrant counsel’s assistance (see also R v Lubin, 2016 ONCA 780 at para 18).
This case provides a helpful overview of the basic principles relating to the role of a preliminary inquiry judge and a reviewing judge in a certiorari application.
A preliminary inquiry judge’s jurisdiction stems from s. 548(1) of the Criminal Code, which reads as follows:
Order to Stand Trial or Discharge
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
The role of the preliminary inquiry judge is to determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. This does not require the judge to assess credibility or draw inferences from the facts as this is the role of the jury. Where evidence is circumstantial, however, the preliminary inquiry judge must engage in limited weighing to determine whether the evidence, if believed could reasonably support an inference of guilt. If more than on inference may be drawn from the evidence, only the inferences that favour committal are to be considered. If the evidence could result in a conviction, the accused must be committed. The leading case in this area is R v Arcuri, 2001 SCC 54.
Where a preliminary inquiry judge acts outside this jurisdiction, for example by engaging in impermissible weighing of the evidence, they commit a jurisdictional error. (see MM v United States of America, 2015 SCC 62).
Following the preliminary inquiry, the judge will either commit the accused to stand trial or discharge the accused. If a party believes the preliminary inquiry judge exceeded their jurisdiction in committing or discharging the accused, they can bring a certiorari application to review and quash the preliminary inquiry judge’s decision.
The reviewing judge’s role on certiorari is limited to whether the preliminary inquiry judge exceeded or declined to exercise their jurisdiction in arriving at that decision. It is not the reviewing judge’s role to redo the preliminary inquiry’s weighing or analysis, or to determine the correctness of the preliminary inquiry judge’s decision.
The reviewing judge’s decision can then be reviewed on appeal to the Court of Appeal for Ontario.
The Court of Appeal provides much needed clarity to the law on included offences.
The accused in this case, Mr. Tenthorey, was convicted by a jury of aggravated assault. He appealed this conviction on the basis that the trial judge erred in failing to instruct the jury on the included offences of simple assault and assault causing bodily harm. In support of this argument, he relied upon s. 662(1) of the Criminal Code which provides that a person charged with an offence is in jeopardy of being convicted not only of the charged offence but alternatively of any “included” offences. Tenthorey argued that simple assault and assault causing bodily harm are lesser included offences in a non-particularized charge of aggravated assault (non-particularized meaning a charge that does not specify the mode of committing the aggravated assault: wounding, maiming, disfiguring or endangering the life of another). The crux of his argument that had the jury been instructed to this effect they may have found him guilty of one of the lesser offences rather than the more serious offence of aggravated assault.
Lesser Included Offences - Governing Principles
As a matter of fundamental justice and fairness, an accused person is only called upon to meet the charge put forward by the prosecution (see R v GR, 2005 SCC 45). This is because an accused is entitled to fair notice of the charges they face. An offence is therefore an “included offence” if it forms part of the charged offence.
R v GR, 2005 SCC 45, has long been cited as the leading case articulating “the” test for determining included offences. GR holds that a lesser included offence is one that is necessarily committed in the commission of the principal offence. In reality, however, the test as stipulated in GR is only workable for offences where there is a single mode of commission.
Where there are multiple modes of committing the charged offence, an offence will be deemed an included offence if it is necessarily proved by establishing any one of the different ways in which the charged offence can be committed. For example, the Crown may establish a non-particularized aggravated assault by proving that the accused maimed, wounded, disfigured or endangered the life of an individual. Three of those mods (wounding, maiming, disfiguring) necessarily cannot be committed without also committing an assault causing bodily harm. As such, ABH is a lesser included offence of a non-particularized charge of aggravated assault.
To avoid this confusion, Justice Paciocco proposes a new test for determining whether an offence is an included offence, regardless of whether there is a single or multiple modes of commission:
At paras 51, 58 - “An offence will be an included offence if the essential elements f that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence.”
Included Offences - Jury Instructions
Even where an offence is deemed an included offence, trial judges are not required to instruct a jury on the law applicable to that offence unless there is an “air of reality in the evidence at trial to permit a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established.” (See R v Luciano, 2011 ONCA 89). The purpose of this threshold is to ensure that trial judges do not encroach on the role of the trier-of-fact.
In assessing whether there is an air of reality to a jury having a reasonable doubt on the charged offence but to convict on an included offence, the trial judge should not consider how likely or unlikely they believe that outcome to be. Similarly, the trial judge should not pay regard to concerns about the credibility or reliability of the evidence required to reach that outcome.
An included offence must be left with the jury where there is either (1) direct evidence , or (2) sufficient circumstantial evidence that yields logical inferences in light of human experience and common sense that the accused has committed an included offence but not the charged offence.
The Appellant, Mr. Sitladeen, is a Black man who was pulled over for suspected impaired driving. He was wrongfully arrested for driving while suspended. When the officers searched him incident to arrest they discovered a loaded firearm. He was convicted of possession of a firearm.
At trial, the appellant’s position was that the stop and subsequent arrest were unlawful due to racial profiling. As a result, he sought to have the firearm excluded from evidence under s. 24(2). The only issue on appeal is whether the trial judge misapplied the test for racial profiling by requiring a finding that the police lied about the reasons for the stop and arrest.
Background
The stop occurred shortly before 3am on march 5, 2017. The appellant was driving a rental vehicle. He was not speeding. Officers Delmar and King observed him activate his right turn signal, enter the right turn lane but not turn right. Instead, the car swerved back into the other lane without signaling. They suspected the appellant was impaired.
The officers pulled up beside the appellant, shone a light into the driver’s side of his car and saw that the appellant was a young Black man alone in the car. They activated their emergency lights and directed him to stop. The appellant had not been drinking and the officers could not detect the smell of alcohol. The appellant could not produce a driver’s license, ownership or insurance documents. PC Delmar asked the appellant for his name. The appellant provided his brothers name, Donovan Sitladeen. PC Delmar misspelled the appellant’s name in CPIC which resulted in a search result identifying an individual with a suspended license, subject to a weapons prohibition and who was known to be armed and dangerous. This prompted PC Delmar to inquire further about the appellant’s identity who now identified as Damaine Sitladeen. The officer made the same typographical error which returned a result with no photograph which was unusual. A third officer, PC Statham, arrived at the scene. The officers arrested the appellant for driving while suspended. As the appellant exited the car, a struggle ensued which revealed a gun in the appellant’s waistband.
At trial, the main issue was whether the stop, arrest and/or search were tainted by racial profiling. In applying the racial profiling test as articulated in R v Brown, 2003 Ont CA, the trial judge concluded that finding that the officer(s) lied was a crucial element in establishing racial profiling. The trial judge reviewed the officers’ notes and will-say statements, as well as the officers’ evidence relating to the stop and arrest. In doing so, the trial judge concluded that the arrest and search were not racially motivated as there was insufficient evidence that the officers were lying about why they conducted the stop and arrest.
Racial Profiling - General Principles
Definition of racial profiling - R v Brown, 2003 Ont CA at para 7:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
The attitude that underlies racial profiling may be consciously or unconsciously held. Consequently, a police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping.
The existence of the phenomenon of racial profiling by police is well established and supported by significant social science research.
Racial profiling claims are rarely proven by direct evidence as this would require an admission by the officer that racial stereotypes influenced the decision to stop the accused. Accordingly, if racial profiling is to be proven, it must be dawn by inference drawn from circumstantial evidence.
An inference of racial profiling can be drawn where there is evidence supporting the argument that the officer was not being truthful about the real reasons for the stop. This is often referred to as the “correspondence test”:
[W]here the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling
In Peart v Peel Regional Police Services Board, 2006 Ont CA - Doherty JA held that one way to prove racial profiling is to compare the facts with indicia of racial profiling to provide a basis for an inference that the officer is untruthful as to why the accused was singled out.
The Court of Appeal in Sitladeen makes clear that the “correspondence test” is not necessarily focused on whether the officer was lying but whether the circumstances of the case give the court a basis to reject the officer’s evidence as untrue because they are indicative of racial profiling (para 48). This is consistent with unconscious bias; some officers may unconsciously allow racial stereotypes to influence their decision to detain, stop, arrest, a racialized individual. The officer may not be consciously lying about his motivation, but this does not mean he did not engage in racial profiling.
In R v Le, 2019 SCC 34, the Supreme Court commented that racial profiling occurs when race or racial stereotypes are used, either consciously or unconsciously, and to any degree, in the selection or treatment of a suspect.
In R v Dudhi, 2019 ONCA 665, the Court of Appeal held that even where an officer has objective grounds to detain individual, those grounds cannot justify that decision if they are tainted by any degree of racial profiling.
It is the role of the trial judge to consider all of the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling. The trial judge can then decide whether the corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling.
In other words, contrary to the trial judge’s finding, a trial judge is not required to find that a police officer who testifies that race played no role in the decision to arrest or detain was lying.
Dissent - Miller JA
This case is one to watch! With Miller JA dissenting it has an appeal as of right to the Supreme Court of Canada where the SCC will have an opportunity to weigh in on this timely and important topic.
In Miller’s view, the majority has in essence created a rebuttable presumption of racial profiling wherever a police officer becomes aware of the racial identity of a suspect when making a traffic stop which is a substantial and unwarranted departure from the existing jurisprudence on racial profiling.