NR-CRIMADVISOR 2014-11

Criminal Law Newsletters

November 1, 2014

— Milligan's Criminal Law Advisor—By Jeffrey Milligan (Formerly The David

Rose Criminal Law Advisor, and Neuberger Rose Criminal Law Advisor)

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights

reserved.

Table of Contents

1. Section 719(3.1) of the Criminal Code is struck down as unconstitutional by the Ontario Court of Appeal

2. The test for evaluating evidence when the Crown's case is entirely circumstantial

3. The accused found in the driver's seat of a vehicle who cannot rebut the statutory presumption of "care or

control" must be convicted even if there is no risk of danger

4. A finding that an accused charged with "care or control" might change his or her mind and drive must be

based on more than mere conjecture

5. Even where an accused is detained arbitrarily in a drinking and driving investigation, observations of

impairment are not necessarily excluded

6. The test for evaluating whether an officer has a "reasonable suspicion" that there is alcohol in a driver's

body

7. The police ought to videotape dialogue with defendants regarding their right to counsel and their access

to counsel especially where language problems are apparent

1. — Section 719(3.1) of the Criminal Code was struck down as unconstitutional by the Ontario Court

of Appeal

Section 719(3.1) of the Criminal Code was introduced by the Truth in Sentencing Act in 2009.

That provision, in effect, limited repeat offenders for whom a justice of the peace denied bail to credit of one

day for each day spent in pre-sentence custody — and made it impossible for them to get the new maximum

credit of one and a half days for each day spent in pre-sentence custody — if the justice of the peace noted

that he or she denied bail because of the offender's prior criminal record. Where bail was denied primarily

because of the applicant's prior criminal record, the presiding justice was required to make a written

endorsement to this effect by reason of s. 515(9.1) of the Code.

The Ontario Court of Appeal struck down s. 719(3.1) as unconstitutional, holding (at paragraph 73) that "the

principle of proportionality in sentencing — a principle expressed in the Code itself and rooted in Canada's

legal tradition — is a principle of fundamental justice". The impugned provision offended the proportionality

and parity principles, both enshrined in s. 7 of theCharter, by subjecting identical offenders to possibly widely

different periods of incarceration, depending on whether they were able to obtain bail. The greater the time

spent in pre-sentence custody the greater the disparity in sentences will be even for offenders who have the

same criminal records and who committed the same offences where one was released on bail and the other

detained primarily because of his or her record.

Justice Strathy, who wrote for a unanimous court, said, at paragraphs 95-97:

[95] One effect of s. 719(3.1) will be that the most vulnerable members of society — the poor, those without

a support network and Aboriginal people — may be reluctant to exercise their bail rights out of concern that

the denial of bail will result in a s. 515(9.1) endorsement and a greater proportion of their sentence being

served in custody.

[96] In my view, s. 719(3.1) is a structural impediment to the determination of a proportionate sentence and

therefore to a just sentence. It skews the sentencing process, by making the outcome of the bail process a

determinant of the length of the custodial portion of the sentence. But the bail process, and the

considerations that go into granting or denying bail, are markedly different from the sentencing process....

[97] Whether or not an offender was released on bail is entirely irrelevant to the determination of a fit

sentence. An offender denied bail is entitled to the same sentence as an equally placed offender who has

been released on bail.

At paragraph 101, the Court concluded:

[101] This is not to say that the legislative purpose of s. 719(9.1) — increasing the custodial terms of repeat

offenders — is not an appropriate objective. Nor is it to say that it cannot be achieved in accordance with the

principles of fundamental justice. Unfortunately, however, like many attempts to replace the scalpel of

discretion with a broadsword, its application misses the mark and results in unfairness, discrimination and

ultimately unjust sentences. Instead of ensuring that repeat offenders serve a greater portion of their

custodial sentences, the law targets only those denied bail due to their previous convictions.

R. v. Safarzadeh-Markhali (2014), 2014 ONCA 627, 2014 CarswellOnt 12258 (Ont. C.A.)

2. — The test for evaluating evidence when the Crown's case is entirely circumstantial

The appellant was convicted of an aggravated assault upon a victim who was very badly beaten in his (the

appellant's) house.

The case against the appellant (and his co-accused) was entirely circumstantial. The victim did not see who

assaulted him.

The appellant had a motive to assault the victim and his fingerprint, made with the victim's blood, was found

on the living room door in his house.

The victim was an unsavoury witness, with a long criminal record, and he admitted to lying under oath.

In his reasons, the trial judge asked if there "...were proven facts from which I could draw the inference that

there is an innocent explanation for the placement of the fingerprint?" He held that there were none and

convicted the appellant.

The British Columbia Court of Appeal held that this was an error that warranted a new trial. At paragraph 10,

the court held, "In stating that an inference inconsistent with guilt that is capable of raising a reasonable

doubt must rest upon a foundation of proven facts ... the judge appears to have made essentially the same

error recognized in R. v. Khela, 2009 SCC4."

Following the recent Ontario Court of Appeal decision in R. v. Bui, 2014 ONCA 614, the court held, at

paragraph 10:

The assessment of the circumstantial evidence does not require that inferences found to be inconsistent

with guilt must arise from proven facts. Certainly the defence is not burdened with having to establish facts

from which such an inference may be drawn. As stated in Bui (paragraph 28), the question of whether there

exists a reasonable doubt concerning guilt is to be assessed on the totality of the evidence, not simply on

proven facts.

R. v. Pryce (2014), 2014 BCCA 370, 2014 CarswellBC 2899 (B.C. C.A.)

3. — The accused found in the driver's seat of a vehicle who cannot rebut the statutory presumption

of "care or control" must be convicted even if there is no risk of danger

The Crown's appeal from acquittal was allowed by Trotter J., sitting as a judge of the summary conviction

appeal court.

Mr. Blair was found in the driver's seat of a van and tried to start it at least eight times. He ended up in a van

which had gone off a road and was parked in the wrong direction, having taken out a fire hydrant.

The trial judge acquitted him because there was no evidence from which he could infer that the vehicle could

be put into motion either intentionally or accidentally. The motor was not operative because the starter motor

was not functioning. Thus, because there was no proof "realistic risk of danger" required by the Supreme

Court in R. v. Boudreault (2012), 290 C.C.C. (3d) 222, the trial judge had a doubt that Mr. Blair was in "care

or control" of the vehicle.

Justice Trotter, in a very well written decision, held that the ratio in Boudreault, supra, applied only when the

statutory presumption of "care or control", set out in s. 258(1)(a) of the Code, had been rebutted by the

accused. There are, in essence, two ways by which the Crown may prove "care or control": by the statutory

presumption, where the accused was found in the driver's seat; and by "de facto" "care or control". When the

accused is found in the driver's seat, he or she must rebut the presumption of "care or control" before there

is any consideration of whether his or her conduct amounted to "de facto" "care or control". In the event that

he or she rebutted the statutory presumption, the test enunciated in Boudreault, supra, came into play and

the court had to assess whether there was satisfactory evidence that the accused's conduct gave rise to a

realistic risk of danger.

Trotter J. allowed the Crown's appeal and entered a conviction.

R. v. Blair (2014), 2014 ONSC 5327, 2014 CarswellOnt 12675 (Ont. S.C.J.)

4. — A finding that an accused charged with "care or control" might change his or her mind and

drive must be based on more than mere conjecture

In another Ontario case, a summary conviction court had occasion to consider "de facto" "care or control".

The appellant went to a bar and drank to the point of impairment. He asked a friend to drive him home and

then he went to the vehicle, which was parked in the parking lot of the bar, had a cigarette and waited for his

friend. He fell asleep sitting in the vehicle with the motor running when he was found by the police.

According to the reasons of Mr. Justice Gunsolus, the summary conviction appeal court judge, the trial judge

found that the appellant had a "concrete plan to go to his vehicle, have a cigarette and listen to music while

waiting for his driver": see paragraph 26 of the reasons for judgment of the summary conviction appeal

court. The trial judge found that the plan "changed slightly" because he decided to go to sleep and "was

going to wait however long it was necessary to wait, for his designated driver to drive him home".

Nonetheless, he entered a conviction because he might have changed his mind and tried to drive home.

Mr. Justice Gunsolus allowed the appeal and ordered a new trial. He concluded that the trial judge erred in

basing liability on a merepossibility of changing his mind. Following R. v. Smits, 2012 ONCA 524, Gonsulus

J. wrote, at paragraph 31:

The Crown must demonstrate inn a matter of this nature, a risk that the accused, while impaired, would

change his or her mind and put the vehicle in motion. The risk must be based on more than speculation or

conjecture. As stated in Her Majesty the Queen and Jody Smits, at page 21, saying that, as the trial judge

did here, that any person whose ability to operate a motor vehicle is impaired to a degree, might change his

or her mind, is not sufficient.

R. v. Topfer (2014), 2014 ONSC 5669, 2014 CarswellOnt 13752 (Ont. S.C.J.)

5. — Even where an accused is detained arbitrarily in a drinking and driving investigation,

observations of impairment are not necessarily excluded

An accused was convicted of impaired driving but acquitted of "over 80 mgs" at trial.

He crashed into a barrier, injuring himself. Officers who attended found him mumbling, incoherent and

"reeking of alcohol". He was, in the words of Mr. Justice Goldstein, "clearly drunk".

The officer who arrested him relied on his self-identification as the driver. The trial judge found that the arrest

was based on statutorily compelled statements and excluded the utterances made to the officer and the

breath results that were taken at the hospital: see R. v. Soules, 2011 ONCA 429. The trial judge also found

a breach of s. 10(b) and an arbitrary detention.

At appeal, the appellant argued that the trial judge erred in not excluding the observations made of the

appellant by the police officers during the course of his arbitrary detention. Justice R.E. Goldstein dismissed

the appeal. He did not interfere with the trial judge's finding that the appellant was arbitrarily detained, but

observed, at paragraph 9, "There is no basis to conclude that because the arrest was made without

reasonable and probable grounds everything that followed must be excluded."

Goldstein J. held that the Ontario Court of Appeal "rejected" the appellant's argument in R. v. Lutchmedial,

2011 ONCA 585. He also relied on the summary conviction appeal court decision of Flynn J. in R. v.

DeWitte, [2012] O.J. No. 976 (Ont. S.C.J.).

In Lutchmedial, supra, the appellant was arrested without the requisite reasonable and probable grounds for

impaired driving but his driving was "horrendous", according to the Ontario Court of Appeal. Thus, it would

have been open to the police to arrest him for dangerous driving and take him to the police station for

investigation there and the observations made by the breath technician could have been made by any officer

at the police station. Thus, the court said at paragraph 4, "the lack of reasonable grounds to arrest the

appellant for impaired driving did not convert his detention into an arbitrary detention".

In DeWitte, supra, the breath results were excluded because of a breach of s. 10(b) of the Charter. Mr.

DeWitte was lawfully at the police station.

It may well have been open to the police to arrest the appellant for dangerous driving in view of his hitting a

guard rail. But the trial judge made a finding, which was not disturbed on appeal, that the appellant was

arbitrarily detained. With the utmost respect, without interfering with that finding, Lutchmedial, supra,

and DeWitte, supra, are distinguishable and it may be argued that they do not support the analysis essayed

by the learned summary conviction appeal court judge in that regard.

R. v. Kelly (2014), 2014 CarswellOnt 13540, 2014 ONSC 5617 (Ont. S.C.J.)

6. — The test for evaluating whether an officer has a "reasonable suspicion" that there is alcohol in a

driver's body

Mr. Justice R.E. Golstein allowed a Crown appeal against an acquittal for a charge of failing to comply with

an approved screening device demand.

An officer stopped the respondent who was driving a motor vehicle. The officer smelled an odour of alcohol

coming from the vehicle. He then asked the respondent to "puff" into his face and he smelled a "slight odour

of an alcoholic beverage" on her breath. Having a reasonable suspicion that she had alcohol in her system,

he made an approved screening device demand but she did not comply with that demand.

The accused testified that she had had nothing to drink that night but had been driving passengers, who had

been drinking, home from a friend's party.

The trial judge had, he said, a "reasonable doubt" that the respondent had alcohol in her system. He did not

doubt the credibility of the officer but the officer could have been mistaken of about whether she had alcohol

on her breath (and therefore in her system). He acquitted the respondent.

Goldstein J., in a very well written decision, held that the learned trial judge applied the wrong test. The test

was not whether the respondent in fact had alcohol in her body but whether the officer's suspicion that she

did was "reasonable" in the circumstances known to him at the time. A new trial was ordered.

R. v. McCann (2014), 2014 CarswellOnt 13529, 2014 ONSC 5618 (Ont. S.C.J.)

7. — The police ought to videotape dialogue with defendants regarding their right to counsel and

their access to counsel especially where language problems are apparent

Where "special circumstances exist" — such as where an accused apparently has a lack of proficiency in

English — it is incumbent on police officers to ascertain if an accused understands their constitutional right

to counsel and can exercise those rights: see R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.).

In most cases, this will involve having an accused speak to a lawyer who can communicate in their first

language or have an interpreter available to assist an accused. Marin J. of the Ontario Court of Justice

provided a useful summary of the law on this issue and its application in R. v. Shmoel, [1998] O.J. No. 2233

(O.C.J.).

In a recent case in the Toronto Ontario Court of Justice, Justice Peter Harris held that the s. 10(b) rights of

an immigrant from Mexico had been breached. The accused had only a "very basic" grasp of English. He

excluded the results of the breath tests taken by the accused under s. 24(2) of the Charter and acquitted him

of the offence of "over 80 mgs" as a result.

Justice Harris made two points that are worthy of note.

First, he found fault with the police for failing to make a proper record of dialogue with the accused that

might have a bearing on whether "special circumstances" existed. He specifically recommended that, if

possible, the police videotape the recital of the right to counsel and the accused's responses in that regard,

especially where language difficulties are present. (The booking procedure, upon arrival to the police station,

and the breath tests are routinely videotaped by Toronto Police.) His observations at paragraph 48 are

quoted below:

[48] The major systemic concern was the fact that the arresting officer was not aware of any obligation on

police officers to provide a proper record of all communications with an accused person in detention

concerning the right to counsel and the informational and implementational duties the constitution imposes

on the detaining authorities. Most importantly, the administration of the defendant's right to counsel was a

matter of so little importance that the officer "neglected" to put in his notes what specific questions he asked

and what answers were given by the defendant....The only note he had in reference to all communications

he had with the defendant about counsel was a sticker in his book that said, "Duty counsel called at 4:10"....

Ideally to avoid perpetual litigation about what information was conveyed and what answers were given, this

information/implementation process should take place on video prior to any request to provide breath

samples, particularly where language difficulties are present. This was a perfunctory exercise in which there

was a faulty understanding of police duties, a neglectful recordkeeping process and a failure to conduct a

constitutionally appropriate information and implementation process amounting to a lack of awareness of

police obligations under the Charter.

Second, Justice Harris when assessing the impact of the s. 10(b) breach of the Charter-protected interests

of the accused expressly took exception to the Supreme Court of Canada's characterization that breath tests

were "non-intrusive" in R. v. Grant, [2009] 2 S.C.R. 353. He noted that a majority in the same court in R. v.

Bernshaw, [1995] 1 S.C.R. 254 thought otherwise. Moreover, to quote Justice Harris at paragraph 53:

... in my view the instrusiveness factor associated with the process of arrest, handcuffs, search, detention,

parading before a staff sergeant, and being held in custody for hour and deprived of contact with friends and

family, amounts to a relatively serious incursion into ht protected interests of privacy, liberty and security of

the person. I would adopt the phraseology in R. v. Bartle [1994] (S.C.C.), "Not only has this person suffered

a deprivation of liberty, but also this person may be at risk of incriminating him — or herself." In my view, the

impact on these Charter-protected interests is serious and would also favour exclusion.

R. v. Cabrera-Gonzalez (2014), 2014 ONCJ 510, 2014 CarswellOnt 13689 (Ont. C.J.)