Canadian Criminal Appeals - Week of August 3, 2020

Cases:

In R v Tessier, 2020 ABCA 289, the ABCA (per curiam) provides welcome appellate review of the voluntariness rule in the context of a first degree murder conviction appeal. Despite “extensive reasons” the trial judge (“TJ”) applied an “impoverished understanding of the modern confession rule”, treating the well-known headings from Oickle “as a checklist” and failing to zero-in on the ultimate question of whether the appellant made a “meaningful choice to speak to the police” (46). Moreover, the TJ focused exclusively on the rule’s concern with false confessions but failed to “recognize the other policy reason for the confessions rule, namely, fairness and the repute of the administration of justice” (47). In this case, the incriminating statements were made during un-cautioned, non-custodial interviews where the appellant had not spoken with a lawyer. The TJ fell into particular error with his narrow view of the so-called “operating mind” inquiry: “[m]inimal cognitive ability is a necessary pre-condition to voluntariness, but not a sufficient one” and the TJ never addressed “whether [the appellant] made a meaningful choice to speak to the police knowing that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence" (54). The ABCA explicitly endorsed the trial decision of R v Worrall where Watt J (as he then was) held that voluntariness rule requires that a suspect have an “awareness about what is at stake in speaking to persons in authority, or declining to assist them” (53-56).

In R v July, 2020 ONCA 492 the ONCA (per Pepall JA) was asked: do the police need to establish investigative necessity when they obtained a production order (s. 487.012 now s. 487.014)) for the search and seizure of someone’s historical text messages? The appellant argued that such a prerequisite should be read-in as constitutional requirement for the law to be reasonable under s. 8 of the Charter. In concluding that investigative necessity was not a constitutional requirement for production orders, the ONCA concluded, based on recent precedent from the ONCA, that it was not even a constitutional requirement for seizing prospective communication, or wiretap authorizations (49-66). Indeed, the ONCA refused the appellant’s request for a 5-judge panel to revisit this precedent (67-75). In any event, the ONCA reasoned, there are important differences which justify considering investigative necessity for prospective text messages and not historical ones: the former “engages a different mechanism, unique privacy concerns, speculation and surveillance that may continue over a prolonged period of time, and “real-time access to information””; the latter do not (77). While acknowledging the concern about the police “sidestepping” the more onerous wiretap provision - “by waiting until immediately after the text messages have been exchanged before seeking judicial authorization using a production order” - the ONCA noted that just because ”a search power may be used impermissibly or unlawfully” does not mean “that the lawful and permissible use of the power violates an individual’s s. 8 Charter rights” (80).

In R v NG, 2020 ONCA 494 the ONCA (per Fairburn JA) declined the invitation to revisit the holding in R v Mabior that a “realistic possibility of transmission” of HIV during the sexual activity in question could be negated where the non-disclosing person’s viral load at the time was “low” and a condom was used. In this case, it was “indisputable” that the appellant did not have a low viral load but that he had worn a condom. The sole issue was “whether, at law, the use of a condom alone – despite the presence of a non-low or perhaps even high viral load – should remove HIV non-disclosure cases from the reach of the criminal law, barring proof that the condom failed in some way”. In extensive reasons, about which this summary cannot do justice, the ONCA declined to change the “legal foundations upon which the Mabior decision rests”, noting that “sex happens in the real world and that, in that world, human error and condom failure are concerns across the population”.

Ryan Clements