Canadian Criminal Appeals - Week of July 20, 2020

Cases:

R v Sharma, 2020 ONCA 478 was released today (after my deadline) so I will be brief. This is an important decision, with the majority (per Feldman JA, Gillese concurring) holding that two statutory prohibitions for a conditional sentence order - where the offence carries a maximum sentence of 14 years or life and where the offence carries a maximum sentence of 10 years and involves the importation of a drug - violate s. 15 and 7 of the Charter as applied to Indigenous offenders. Not saved by section 1, the law was immediately struck down in relation to all offenders. Miller JA dissented holding that the impugned provisions did not violate either s. 15 or 7 of the Charter. NB: at the trial, Justice Hill struck down the 2-year MMS for importation of cocaine under s. 12 of the Charter as applied to Ms. Sharma and to a reasonably foreseeable offender, a decision which was not appealed by the Crown. Hill J. did not find any violation of s. 15, and the s. 7 claim was abandoned at trial: R v Sharma, 2018 ONSC 1141.

Pleased to report on a recent success in R v Mantla, 2020 NWTCA 6, where Anthony-Cook meets a conditional sentence order. In a clear and cogent decision, the NWTCA (per curiam) affirmed the stringency of the public interest test from Anthony-Cook, and that “joint submissions cannot be viewed through the lens of a traditional sentencing approach, but rather, approached with restraint and a robust recognition of the systemic benefits joint submissions provide to the criminal justice system” (19). Falling into the same error as identified in R v Belakziz, 2018 ABCA 370, the trial judge’s analysis “mirrored a conventional sentencing” with an undue emphasis on parity and an almost complete disregard for “the systemic benefits of joint submissions and the admitted weaknesses in the Crown’s case” (21-22, 33-37, 39). Perhaps the most important holding is that, absent “exceptional cases”, trial judges must defer to the parties’ considered position on public safety where the joint submission involves a conditional sentence order and thus the public safety precondition under 742.1(a): “In the majority of cases, where the issue of public safety has been addressed by the Crown and a conditional sentence order is an available sentence in law, lingering concerns over public safety will not provide a trial judge with a conduit to reject a joint submission” (23-30). NB: In arriving at the correct result - restoring the joint submission - the NWTCA did not weigh in on some of the other serious concerns raised by the appellant, including the trial judge’s misapplication of Gladue and her apparent difficultly disavowing inadmissible but aggravating evidence on sentence (see my factum here). That said, I like to think that the NWTCA hinted at these concerns by implying the absence of a proper and “robust application of Gladue” and by stating that the trial judge “was obliged to disavow herself of the trial evidence and proceed solely on the agreed facts” (32 & 37).

In R v Mackey, 2020 ONCA 466, the ONCA (per Thorburn JA) overturned the trial judge’s determination that the DNA warrant was not supported by reasonable and probable grounds, thereby also vacating the exclusionary ruling that had doomed the prosecution; a new trial was ordered. The facts: the same male DNA profile was linked to three “residential break and enters” in early 2018; that same DNA profile was found on a cigarette butt in a stolen truck in 2013 that had been abandoned shortly after being taken; and the accused’s fingerprint - as well as another person’s fingerprint - were also found in the stolen truck at that time (thereby confirming that the accused was one of two individuals who had been in the stolen truck at some point). Because this meant that “[s]omeone who had been in that truck was involved in the break and enters in issue” this alone, according to the ONCA, was “sufficient to justify the issuance of the DNA warrant” (although there was also some confirmatory albeit generic surveillance evidence) (69, 70-72, 67). In other words, there was sufficient credible and reliable evidence upon which the issuing judge could reasonably be satisfied that reasonable grounds existed (61). The trial judge, who held that there were insufficient grounds - because “it was impossible to determine when and under what circumstances the fingerprint and cigarette butt were deposited” and “[w]e have no idea about the presence of others in the car at the time, or some other time, that could have been the source of the DNA found on the cigarette butt” - had improperly substituted his own view (60 & 43). NB: Although unclear, it appears that no evidence was lead to exclude the prior lawful occupants of the stolen truck as the source of the DNA, or even about the number of prior lawful occupants (65). The ONCA nevertheless appears to have assumed (or inferred, given it was an otherwise private vehicle) that the appellant was among a relatively small number of people who would have been inside the stolen truck. Close call.

In another warrant case from this week, R v West, 2020 ONCA 473 (per Tulloch JA), involving a production order for IP address subscriber information in a child pornography investigation, the affiant literally claimed to have only “reasonable grounds to suspect” in support of the Information to Obtain (“ITO”) (7, 21-22). Given that the correct standard is reasonable grounds to believe this was no small error (18-20). However, not only did the trial judge fail to detect this error, he actually adopted it (23). The ONCA held that there was “no way to reasonably read the ITO and come away with any conclusion other than that there were [only] reasonable grounds to suspect” (25). Accordingly the warrant was invalid ab initio and once this subscriber information was excised from the subsequent warrant - for the appellant’s residence and electronic devices - that warrant could not have issued either because “the police would not have been able to provide a location for the search or any details regarding the specific target” (27-28). With respect to section 24(2), the ONCA held that the affiant was negligent in failing to apply the correct legal standard in his affidavit, a legal standard that had been in force for more than a year (33). In rejecting the Crown’s argument that the (otherwise serious) impact on the Charter-protected interests was lessened because the evidence was discoverable (34), the ONCA held that there was an insufficient basis “that the production of the subscriber information would afford evidence of the commission of the offence”; after all, “the only information the police had was that an unknown person, using an unknown device, had accessed the account from the 67 IP address on September 19, 2016” (38-39). Confirming the McGuffie approach (in all but name) to section 24(2), the ONCA excluded the evidence and entered acquittals. NB: Some courts outside of Ontario seem a little cagey about the McGuffie approach: R v Moyles, 2019 SKCA 72 at 104; R v Garland, 2019 ABCA 479 at 60. But far from all: R v Villaroman, 2018 ABCA 220 at 30; R v Chapman, 2020 SKCA 11 at 125.

There was yet another appeal involving a warrant released this week: R v Slemko, 2020 BCCA 207 (per Willcock JA). At the voir dire the appellant made a subfacial challenge to the warrant (to search a suspected ecstasy lab) by attempting to undermine the affiant’s assertion that a subaffiant reliably observed “the odour of sassafras” from a nearby ‘vantage’ point “due to a wind from the west” (12). In this effort, the appellant was permitted to call expert evidence from a meteorologist who testified that on the date and location in question the wind “was blowing consistently from the southeast” (20). Further still, the appellant was permitted to call expert evidence from a forensic chemist who claimed that the odour would have been “too weak” for the police to smell from their vantage point (21-25). In dismissing the appeal, the BCCA stated, in obiter, that the defence evidence from the forensic chemist should not have been admitted because the purported expert “demonstrated remarkably little familiarity with safrole and did not testify to any particular expertise in the detection of safrole” (68). Moreover the “exercise” of trying to determine whether the subaffiant could reliably or credibly make the olfactory observation was “not appropriate on the voir dire”; rather, “the proper question was whether the affiant had any reason not to accept or to question his evidence”(71). While there may be cases where properly qualified experts might testify on a subfacial challenge to a warrant in order to undermine the reliability or credibility of olfactory observations, these cases will likely be quite rare and this was not one of them (74-75). NB: Safrole is derived from the sassafras tree and is a precursor in the synthesis of MDMA. Thanks Wikipedia!

The SCC granted the Crown leave to appeal the interlocutory constitutional ruling in R v JJ, 2020 BCSC 349 (unreported): R v JJ, 2020 CanLII 48929. The trial judge held that the seven day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1 of the Charter. The notice provision relates to the procedure that must be followed to determine the admissibility of complainant sexual activity evidence (s. 276) and of records relating to the complainant that are in the possession or control of the accused (s. 278.92). According to the SCC case summary, the trial judge read down s. 278.93(4) to not apply to the records relating to the complainant and otherwise held that this application should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. NB: Predictably, Bill C-51 has generated a lot of litigation.

Ryan Clements