Other Key Cases & Takeaways

(1) R. v. Chu, 2023 ONCA 183

• Misapprehension of evidence raises questions of mixed fact and law, not questions of law alone: R. v. Minuskin (2003), 68 O.R. (3d) 577 (C.A.).

• Crown appeals as of right are limited to questions of law alone: s. 676(1)(a) of the Criminal Code.

• Key Takeaway: As a result, the Crown cannot appeal an acquittal on the basis of misapprehension of evidence.

(2) R. v. Davani, 2023 ONCA 169

• Key Takeaway: An accused’s ability to elicit a co-accused's discreditable conduct and/or bad character is not limited to a cutthroat defence so long as the principles from Pollock respected.

• The appellant (Mr. Davani) and his co-accused (Mr. Bigby) were jointly tried in relation to the shooting of Andrea White; the appellant was convicted by the jury, while Mr. Bigby was acquitted.

• On appeal, Mr. Davani argued his appeal was unfair, in part because the trial judge erroneously permitted Mr. Bigby’s counsel to cross-examine him on the facts underlying an earlier conviction on his criminal record (a robbery) as the accused were not advancing “cutthroat” defences.

• In a joint trial, co-accused parties may, in their own evidence, introduce evidence that could not be tendered as part of the Crown’s case, including relevant evidence that demonstrates the disposition or propensity of a co-accused to commit the offence charged: R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.).

• Before this type of evidence, however, becomes admissible, there must be some evidentiary foundation to support this assertion of relevance. Even where this foundation exists, however, there is discretion to exclude this evidence where the prejudicial effect substantially outweighs its probative value.

• The Court of Appeal dismissed the appeal concluding that:

  • An accused’s ability to elicit a co-accused's discreditable conduct and/or bad character is not limited to a cutthroat defence so long as the principles from Pollock respected.

  • In this case, the trial judge clearly instructed himself on the Pollock principles and properly applied them: The trial judge closely considered the probative value of the proposed cross-examination and recognized the requirement of an evidentiary foundation for such evidence. The trial judge recognized that he retained a discretion to exclude such evidence where its prejudicial effect substantially outweighs its probative value. As a result, the trial judge set strict parameters on what Mr. Bigby could cross-examine Mr. Davani on.

(3) R. v. o’brien, 2023 onca 197

• It is trite law that an otherwise lawful search can become unreasonable because it was executed unreasonably.

• The execution of a search warrant creates an “inherently coercive atmosphere” given that officers are empowered by law to enter a place, often a dwelling house, and to take control of the occupants to facilitate that search.

• It is also settled law that the seriousness of the breach is aggravated where there is a systemic problem or pattern of Charter-infringing conduct. In this case, Court concluded that the officers involved in the search understood the heightened expectation of privacy in electronic devices and in passwords for such devices, yet routinely asked for passwords while acting under the compulsory authority of search warrants, without concern for the validity of the consent they were seeking. Not surprisingly, given this finding, the trial judge expressed concern about the “apparent cavalier attitude” of the police in obtaining passwords and noted that this “is a serious matter which needs to be addressed by the police service.”

• The discoverability of evidence doesn’t affect the seriousness of the Charter breach under s. 24(2): the fact that evidence was discoverable without a breach is relevant and potentially important to the second Grant factor – the impact of the breach on the Charter-protected interests of the accused – but has nothing to do with the seriousness of the police misconduct. The seriousness of the breach is an evaluation of the mode that was used for the purpose of acquiring the evidence, a consideration entirely unaffected by the availability of alternative modes of discovering the evidence.

(4) R. v. Downes, 2023 SCC 6

• The accused was convicted of two counts of voyeurism for surreptitiously taking photos of teenage boys in their underwear in a hockey arena dressing room. The accused was their hockey coach.

• To establish the offence of voyeurism under s. 162(1)(a), the Crown must prove 4 elements:

  • The accused took the photos:

    • (1) intentionally;

    • (2) surreptitiously;

    • (3) in circumstances that give rise to a reasonable expectation of privacy; and

    • (4) in a place in which a person can reasonably be expected to be nude.

• Key Takeaway: This 4th element does not include a temporal component. In other words, the Crown does not need to establish that a person could reasonably be expected to be nude in the place at the specific time when the photos were taken.