The Defence Toolkit – December 3, 2018

This week our top three summaries cover: Crown seeking Defence waiver of 11(b), the privacy interest of Over 80 detainees while they go to the washroom, exclusion of images of the face of the deceased in a homicide case

R. v. Ali (ABPC)

[Nov 21/18] Charter 11(b) – Reasonable Crown Actions to Limit Delay – 2018 ABPC 272[A.A. Fradsham Prov. J.]

AUTHOR’S NOTE: The Courts continue to grapple with the fall out from R v Jordan.  The ruling has shifted the battle ground between defence and the Crown from the definition of “prejudice” to the meanings of “discrete events”, “particularly complex cases”, and “reasonable steps.”  The answers remain far from definitive on any of these issues.  In this case, Judge Fradsham holds that the Crown asking for a waiver from Defence of a period of delay is not a “reasonable step” because it does nothing to reduce delay.  It merely gets the Court to ignore it.

Pertinent Facts

“The only issue in dispute is whether the Crown discharged its obligation to take “reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.”” (Para 2)

“On March 19, 2018 in Courtroom 1107, the Accused appeared in person and Defence Counsel applied for the initial Trial Judge to recuse himself due to a reasonable apprehension of bias. The Defence application was based on the following comments from March 1, 2018 with respect to the Court ordering transcripts:

THE COURT I typically say no on commercial drug transactions and impaireds just so you know, so theycan buy their own if they are the game. So, those are the two games I don’t usually order for. I order it for theindigent who are addicted. Okay. But in this case I will say yes, they can have a copy because they’re makingit for me anyway so. All right. That copy will be available in a couple of days. (Transcript March 1, 2018 p.171. 16-21)

The initial Trial Judge declared a mistrial and recused himself from the trial (Transcript March 1, 2018 p. 8 l. 24).The matter was adjourned to March 23, 2018 in Courtroom 505 to set a new date for trial.” (Para 3(33))

Reasonable Steps to Address Discrete Events

Summarizing R v Jordan: To elaborate on point 4(b) above, the Crown “must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.” “The Crown…is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.”(Para 4(6))

“In the case at bar, the circumstances leading to the March 19, 2018 declaration of a mistrial made that declaration reasonably unforeseen. The declaration of a mistrial constituted a discrete event: R. v. Wu, 2017 BCSC 2373, at paragraph 78. 1” (Para 5)

“The remaining question is: upon the occurrence of the discrete event, did the Crown take reasonable available stepsto avoid and address the problem before the delay exceeded the ceiling?” (Para 7)

“ A  body of  case  law is  developing  as courts  across  the country  apply  the directions  in  R. v.  Jordan,  supra, and, specifically, consider what constitutes, or does not constitute, “reasonable available steps” taken by the Crown “to avoid and address the problem before the delay exceeded the ceiling.”” (Para 9)

“…the case law suggests that the analysis of whether the Crown took the required reasonable steps will vary depending on each situation.” (Para 14)

“These cases suggest that reasonable steps in addition to usual efforts to schedule a re-trial after a mistrial will be required, even if those steps are unsuccessful.” (Para 19)

“….These cases indicate that extra efforts to streamline the progression of a case may not always be possible, and that when it is clearly evident that no such reasonable efforts would ameliorate the delay, then the failure by the Crown to take what would clearly be futile steps will not preclude the Crown from relying on the “discrete exceptional circumstance” provision in the Jordan analysis.” (Para 20)

“Ultimately,  the case  law  suggests,  and I  respectfully  agree, that  when  performing  the discrete  exceptional circumstance analysis, courts should consider both whether there were reasonable steps the Crown could have taken that could have realistically mitigated the delay, and whether the Crown took those steps. If there were no reasonable steps that might have mitigated the delay, the Crown may still be able to rely on the discrete exceptional circumstance provision even if it cannot point to special efforts to expedite and prioritize the matter.” (Para 21)

“In the case at bar, the only step taken by the Crown when the mistrial was declared was to reschedule the new trial before another member of the Court.” (Para 22)

“A waiver of delay is not a step which reduces delay. The Supreme Court of Canada in R. v. Jordan, supra, made it clear that the obligation of the Crown, if it wished to rely on a discrete event as being an exceptional circumstance which would reduce the amount of delay in a section 11(b) Charter calculation, was to take steps to reduce the delay, not gain agreement to ignore it.” (Para 29)

“In the case at bar, there were, in my respectful view, realistic steps the Crown could have taken to address the problem of delay. Before the mistrial was declared, witnesses had been heard in the first trial. The Crown could have used the evidence already called as a basis for a request for admissions by the accused. Concrete proposals to defence counsel could have been made with a view to either eliminating the calling of witnesses who had previously testified, or reducing the scope of their testimony. The Crown could have sought agreement from defence counsel about limiting the contested issues in the second trial.” (Para 31)

“It might be that if the Crown had undertaken those steps, it would have met with resolute and steadfast intransigence on the part of the accused. It might be that no delay would have avoided or reduced. However, those steps were not, on their face, doomed to failure, and should have been undertaken.” (Para 32)

“I am forced to conclude that the Crown did not take “reasonable available steps to avoid and address the problem before  the  delay exceeded  the  ceiling.”  Consequently,  the Crown  is  not able  to  rely on  the  mistrial as  an  exceptional circumstance  warranting  the deduction  of  the resultant  delay  from the  section  11(b) Charter  calculation.  The delay between the laying of the charge and the assumed end of the trial exceeds 18 months and is presumptively unreasonable.” (Para 33)

R. v. Andre (ABPC)

[Nov 9/18] Charter 8 – Depriving Detainee of Privacy in the Washroom – 2018 ABPC 261[R.C. Shaigec Prov. J.]

AUTHOR’S NOTE: Police officers in Over 80 investigations often need to be vigilant in watching detainees for signs of vomiting so that they can ensure that excessive mouth alcohol does not undermine the reliability of the breath testing procedures.  However, they must still balance the privacy interests of the detainee.  Herein, Judge Shaigec outlines that even minimal cross-sexual observation of a detainee in the bathroom crosses the line.

Pertinent Facts

“When Ms. Andre was taken to the police station to provide breath samples, she asked to use a washroom. A male police officer then escorted her to a cell with a toilet, and he watched as she urinated.” (Para 2)

“The female police officer who had searched Ms. Andre moments earlier was still at the detachment. As well, there was a separate washroom at the detachment used by female police members. However, at 2120 hours Constable Mbaria escorted Ms. Andre to a prisoner cell for use of the toilet. The officer described the cell as a “bare room” with only a toilet, sink and bench.” (Para 8)

“In accordance with instructions he received from the breath technician, Constable Mbaria kept “constant” watch over Ms. Andre while she was in the cell and using the toilet, ensuring that she did not ingest any food or water prior to the breath testing.” (Para 9)

Reasonable Expectation of Privacy in the Use of a Washroom

“Ms. Andre had a subjective expectation of privacy. “At the subjective stage of the test … The question is whether the appellant had, or is presumed to have had, an expectation of privacy … This is not a high hurdle”: R v Patrick, [2009],1 SCR 579 at para 37. Ms. Andre had a direct personal interest in her washroom activities. Using a toilet is inherently private, and it is an activity that takes place separate and apart from people of the opposite gender. Men and women do not share public washrooms, and this privacy expectation extends to female detainees. I agree with Justice Monahan’s observation in R v Wijesuriya, 2018 ONCJ 211 at para 34: “… the situation with male detainees required to use a urinal in police custody much the same way they would in any public washroom has no application to female detainees” (see also R v Dean, 2017 ABPC 37 at para 14).” (Para 15)

“Further, Ms. Andre’s privacy interest was objectively reasonable. As stated by Justice Campbell in R v Singh, 2016 ONSC 1144 at para 28: “This conclusion is supported by the great weight of the jurisprudence in this area.” The monitoring of detainees using the toilet by police officers of the opposite gender is a highly intrusive invasion of the right to privacy, and impinges upon personal dignity: R v Mok, 2012 ONCJ 291 at para 103; R v Mok, 2014 ONSC 64 at para81: R v Mok, 2015 ONCA 608 at para 5; Singh at para 28; Wijesuriya at paras 32-33.” (Para 16)

“Ms. Andre was not strip searched. However, many of the same principles apply given the privacy interests at stake.In this regard, our law has long recognized that an essential ingredient to a constitutionally valid strip search is that “…the police officer(s) carrying out the strip search are of the same gender as the individual being searched”: R v Golden, [2001] 3 SCR 679 at para 101.” (Para 17)

“Finally, the Crown emphasizes that Ms. Andre was subject to a lawful arrest, and was in police custody with a reduced expectation of privacy, when she used the toilet. Being in police custody does result in a reduced expectation of privacy. However, Ms. Andre, who was held by police for investigative reasons, is presumed to be innocent, and was entitled to constitutional protection from police activity that interfered with her bodily integrity and personal dignity: R v Stillman, [1997] 1 SCR 607 at para 61.” (Para 18)

24(2) – Exclusion Analysis – Connection between Breach and Charter Violation

“Was the blood alcohol evidence “obtained in a manner” that infringed section 8 of the Charter? R v Pino, 2016 ONCA 389 at para 72 guides my approach:

The approach should be generous, consistent with the purpose of s 24(2). The court should consider the entire “chain of events” between the accused and the police. The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three.” (Para 22)

“Pino was recently followed in Alberta in R v Kenowesequape, 2018 ABQB 135 at para 33 by Justice Khullar (as she then was).” (Para 23)

“These events all formed partof the same transaction and course of conduct. A temporal and contextual connection exists. The blood alcohol evidence was “obtained in a manner” that infringed Callie Andre’s s 8 Charter rights.” (Para 25)

24(2) Analysis – Seriousness of the State Violation

“The  Charter-infringing  state conduct  was  serious. As  set  out in  paragraphs  15 through  18  of this  Judgment, Constable Mbaria’s monitoring of Ms. Andre while she used the toilet constituted a significant invasion of her privacy, and impacted upon her personal dignity. The serious nature of the Charter breach weighs heavily in favour of exclusion.”[T]o preserve public confidence in and ensure state adherence to the rule of law,” it is necessary that this court “dissociate”itself from the intrinsic harm caused by the Charter-infringing state conduct: Grant at para 72.” (Para 26)

Moreover, this was entirely avoidable – the female police officer was still present at the station (Para 28)

24(2) – Impact on the Charter Protected Interests of the Accused

“Regarding the impact on the Charter-protected interests of Ms. Andre, this breach was far from technical. The privacy interests engaged by the infringed right impacted upon Ms. Andre’s personal dignity. “An unreasonable search that intrudes on an area in which the individual enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not”: Grant at para 78. Again, this branch of the test weighs in favour of exclusion.”

On balance evidence of the breath samples was excluded leading to an acquittal

R. v. Salifu (ONSC)

[Nov 15/18] Prejudical v Probative Value – Photos of Face of the Deceased in a Homicide – 2018 ONSC 6748 [D.E. Harris J.]

AUTHOR’S NOTE: In recent years there has been much said about the exposure of juries to graphic autopsy and scene photos in homicide matters.  It has been said that people are, through exposure to these images, subjected to psychologically damaging material which can lead to symptoms associated with Post-Traumatic Stress Disorder (PTSD).  Often, there is a litigation advantage to presenting graphic imagery of this story that favours the Crown which results in the Crown advancing this sort of evidence on even the most minimally probative pretext. Herein, Justice Harris recognizes the this sort of evidence for what it is and recognizes the ability of the Defence to successfully challenge the admission of this sort of prejudicial evidence because of it’s minimally probative value.

Pertinent Facts

“This is my after-the-fact ruling explaining decisions I made with respect to the admissibility of photographs tendered by the Crown in their case. The accused Hassan Salifu was charged with second degree murder of his mother, Galina Alexander. There is no dispute that the accused killed his mother on August 15, 2015 in an apartment she rented at 33 Kennedy Road South in Brampton. The sole issue at trial was whether the accused is guilty of murder or manslaughter.  The jury had to decide if the Crown had proven that the accused intended to kill his mother or intended to cause her bodily harm which he knew was likely to cause death. If so, he was guilty of murder. If not, he was guilty of the lesser and included offence of manslaughter.” (Para 1)

Scene and Autopsy Photos

“The need for a trial judge to balance probative value against prejudicial effect goes back at least to the civil caseof Draper v. Jacklyn, [1970] S.C.R. 92, 9 D.L.R. (3d) 264. In that case, the court held that photographs tendered before the jury at trial were inflammatory and required a new trial.” (Para 5)

“The photographs if relevant, are presumptively admissible. It is difficult if not impossible to look at the photos –for example the one of the body lying on the floor with the towel over the face — and say that they tend to show that the Accused intended to kill her. I agree with the defence to this extent. But to require this is to expect too much. This narrow framing of the issue sidesteps various other manifestations of probative value. A photograph can illuminate secondary sub-issues and need not be focused on the ultimate issue. It can also be admitted anticipatory of defences or explanations which are likely to be raised.” (Para 6)

Images of the scene were probative to the blood spatter evidence and utterances of the accused in his statement to police (Para 8)

Images of the autopsy were probative to location and degree of force used (Para 9)

Both sets of images were admitted

Images of the Face of the Deceased

“The issues with respect to the two photographs tendered by the Crown must be dealt with together. The Ministry of Transportation photograph was put forward as a “before” depiction of the deceased. It shows an attractive woman of 40 years old in a relatively ordinary driver’s licence photograph.” (Para 12)

“The “after” photograph is of the deceased immediately following the assault by the accused. It is quite impossible to identity the person in the “before” and “after” photographs as the same person. The forensic purpose of the “before”photograph  was to  set  it side  by  side with  the  “after”  photograph,  illustrating  the horrendous  consequences  of the catastrophic assault to her face.” (Para 13)

“In the very disturbing “after” photograph, the deceased’s face appears flattened and swollen. Her cheeks and eyes, indeed the whole face, all appear badly swollen. The swelling has homogenized the features of the face.” (Para 14)

“Looking first at the admissibility of the “before” photograph, its only purpose is to illustrate the damage that was done by the accused to the deceased’s face as shown in the “after” photograph. The Crown did not argue there was probative value independent of what was generated by the comparison between the two.” (Para 16)

“But the prejudicial effect is the real problem with admissibility. To see the deceased in life side by side with her in death is very troubling. This juxtaposition would likely awaken a strong natural protective instinct in a jury member. Of course, this instinct is not based in logic. The deceased is dead. But the urge to protect Ms. Alexander does not follow logic or rational rules. It rests on a purely emotional level.” (Para 18)

“A related prejudicial effect arises from the reflection that the vibrant woman in the “before” picture was subjected by the accused to a vicious and tumultuous force, resulting in the “after” picture. This could produce outrage and a wave of emotion against the accused.” (Para 19)

“The “before” photograph viewed together with the “after” photograph produces an inflammatory effect. This effect outweighs the legitimate value-added to the trial. The “before” photograph is inadmissible.” (Para 20)

“Analyzing the “after” photograph, I recognize that the key point from the Crown’s point of view is to demonstrate the accused’s use of force, both the degree of force and how it was applied. From a conclusion of the force used, an inference can be drawn that the accused intended the consequence of death and is guilty of murder: R. v. Walle, 2012 SCC41, [2012] 2 S.C.R. 438, at paras. 55-68. This line of reasoning is the most important facet of the Crown’s case for murder.” (Para 21)

“The “after” photograph must be viewed in context of the total evidentiary record, including the other photographs presented, the pathologist’s evidence and the evidence of the identification officer. Viewed in this context, the photograph of the deceased face adds very little. Probative value is not primarily conveyed by the surface injuries but rather by the devastation under the surface as attested to by the pathologist.” (Para 27)

“In summary, I would rank probative value of the “after” photograph on the low side of the scale. The information conveyed to  the  jury on  the  issue of  the  force used  is  not high.  The  true source  of  information  on this  subject  is the pathologist’s  evidence.  Second, I  would  place prejudice  in  the middle  of  the range.  I  accept that  modern  day jurors have generally seen graphic images in the media and on television. However, I believe that the horrific nature of this photograph is well above what most lay people have been exposed to. Add to that the high emotions of the trial and I believe placing prejudice in the middle of the scale is, if anything, charitable to the prosecution.” (Para 31)

“Balancing the two together in the full context of the other evidence in the case, the prejudicial effect of the “after”photograph, exceeds its probative weight. For these reasons, I ruled it inadmissible.” (Para 32)

Copyright, 2018 – Sitar & Milczarek Prof. Corp.

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