The Defence Toolkit – December 10, 2018

This week our top three summaries cover: Good Faith and Police Detention of Racialized Minorities, the improper use of the Narrative exception to hearsay inadmissibility, and the readily ascertainable requirement for restitution orders.

R. v. Omar (ONCA)

[Dec 4/18] Charter s.9 – Arbitrary Detention – Racialized Minority – Charter s.24(2) – Meaning of Good Faith – 2018 ONCA 975 [Robert J. Sharpe J.A. and David M. Paciocco J.A. Majority, David Brown J.A. Dissenting]

AUTHOR’S NOTE: In this case, the Ontario Court of Appeal returns to the well-trodden ground of the definition of “good faith” in s.24(2) analysis.  Often, this terminology is thrown around in lower courts without precision and ends up being used as a last-ditch excuse for clear cut Charter violations. The end result being an inclusion of the evidence, despite clear violations of rights. This case is a good reminder that “good faith” means precisely, a good faith belief in the legality of police action which is not based in a negligent lack of knowledge about Charter law. In other words, it is not the absence of “bad faith.”

Pertinent Facts

“When the officers saw the appellant and Smith walking along the street in the same direction they were driving, they pulled their marked patrol car over, shone a very bright “alley” light on the appellant and Smith and directed them to stop and come over to the patrol car. Constable Ashton said: “Hey guys what’s going on?” The officers then got out of the patrol car, approached the two men, and asked them for their identification. The appellant handed over his wallet and informed the officers that he was headed to Mac’s Milk with Smith.” (Para 8)

“The appellant’s wallet had two health cards inside, one his own and a second belonging to someone else. Smith said he had no identification but told the officers who he was. Constable Haidar took the health cards to the patrol car to run the appellant’s and Smith’s names through the Canadian Police Information Centre (“CPIC”).” (Para 9)

“Constable Ashton, 5’11” tall and wearing full uniform, remained with the appellant and Smith while Constable Haidar checked CPIC. Constable Ashton stood less than four feet from the appellant and asked a series of questions, such as:

“What are you doing here?”

“What are you up to?”

“Where do you live?”

“You guys work?”

“You guys go to school?”

“How did you get to Windsor?” (Para 10)

“As he asked these questions, Constable Ashton told the two men to remove their hands from their pockets. He testified that he did so for officer safety. The appellant removed his hands but then put them back in his pockets. Constable Ashton told him to remove them again. The appellant removed only his left hand and Constable Ashton said “both hands”. The appellant complied and removed his right hand from his pocket.” (Para 11)

“At that point, Constable Ashton saw the barrel of a gun in the appellant’s pocket. Constable Ashton yelled “gun” and tackled the appellant, seized the .32 calibre loaded handgun and placed the appellant under arrest in handcuffs. The appellant was then searched. He had four .32 calibre rounds of ammunition in his vest pocket….”(Para 12)

“The trial judge’s finding as to the seriousness of the Charter- infringing state conduct lies at the heart of this appeal. The trial judge found, at para 43, that:

. . . Constable Ashton and Constable Haidar acted in good faith. They had a subjective belief that they were not detaining Mr. Omar. The police conduct was not abusive. Although the officers went too far in detaining Mr. Omar and asking him questions, the point at which an encounter becomes a detention is not always clear. Although I have concluded that Constable Ashton and Constable Haidar were in error in detaining Mr. Omar, the detention is understandable. The police conduct in committing the Charter breach was neither deliberate nor egregious and would not fall on the more serious end of the spectrum.” (Para 19)

“…On balance, she concluded that the fact that “the police subjectively believed that they were not detaining” the appellant and “acted in good faith”, combined with the fact that the evidence was “highly reliable” and the charge “very serious”, outweighed the “significant . . . albeit not an egregious” impact on the appellant’s Charter rights.” (Para 22)

Seriousness of the Charter-infringing State Conduct

“The trial judge’s findings that the detention was “understandable” and that the police acted in “good faith” are also inconsistent with her finding that this case was on all fours with Grant. Grant was decided several years before Constables Ashton and Haidar detained the appellant. The Supreme Court made clear, at para. 133, that its decision would “render similar conduct less justifiable going forward.”…. In my respectful view, following Grant, it should have been apparent to a properly trained and legally informed police officer that the appellant was detained without lawful justification.” (Para 30)

“First, the circumstances giving rise to the encounter. As in Grant, the police were not “providing general assistance, maintaining general order, or making general inquiries regarding a particular occurrence”. The police were not simply engaging members of the public on the street in the course of their duties. They did not call out to the appellant and his associate for a talk. Rather, they trained their attention specifically on the appellant and Smith, in a remote part of Windsor late at night with no one else present after shining a bright spotlight on them and asking them to come over to their cruiser. These features of this case arguably make for an even clearer case of detention than in Grant.” (Para 39)

“I add that while Grantholds that the subjective views of the accused and the police are not decisive, they may be considered: Grant, at para. 32; R. v. N.B., 2018 ONCA 556, at para. 117. Indeed, so that they can identify when a detention is apt to be occurring, police officers are required to consider whether the point has been reached where the subject of their attention may reasonably conclude that they are not free to walk away or decline to answer questions: Grant, at para. 41. Yet there is no indication here that the officers did so….[Omar] stated that “it’s almost instilled in every coloured person’s brain that if officers tell you to do something you’d better do it or else.” There is no evidence that the police informed the appellant that he could leave, refuse to provide identification, or decline to answer their questions. This option was open to the officers had they been uncertain about whether their actions were having a coercive effect on the appellant: Grant, at para. 32. It enables officers to avoid triggering detentions in close cases or where officers do not intend to detain where objectively a detention is apparent.” (Para 42)

Good Faith

“While the trial judge was entitled to find that Constables Ashton and Haider subjectively and honestly believed that they had not detained the appellant, she erred in law by concluding that a subjective honest belief was sufficient to support a finding of good faith….A subjective belief that no detention is occurring is a necessary condition to a good faith detention, not a sufficient basis for finding good faith. Nor can a good faith finding prevail where an officer’s belief that no detention is occurring is unreasonable.” (Para 44)

“While the police may not have acted in bad faith in this case, an absence of bad faith does not amount to good faith: [citations omitted]” (Para 45)

“Accordingly, claims of good faith should be rejected if based upon ignorance or an unreasonable application of established legal standards. As the Supreme Court stated inGrant, at para. 74, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” (see also R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 92). The Court has recently reaffirmed that “good faith errors must be reasonable”: [citations omitted]. (Para 46)

“In this case, the police should have known that they were exceeding their powers in detaining the appellant. Grant clarified the law on what constitutes a detention. Its emphasis on consideration of contextual factors did not leave the officers without guidance. Grant gave the officers everything they needed to make a reasoned assessment.” (Para 47)

“….There was no indication that the officers discharged their obligation to consider how things might appear to the two men they had stopped….. The trial judge was obliged to explain what specific features of this case caused the police to reasonably misunderstand their constitutional obligations. No such factors were identified, nor are any apparent to me….While the police may not have acted maliciously or with the deliberate intention of violating the Charter, they did act in apparent ignorance of the appellant’s well-defined Charter rights. That makes the Charter infringing state conduct serious: R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 88; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 168-169.

R. v. Leblanc (NBCA)

[Oct 18/18] Improper Use of Narrative Hearsay Testimony – 2018 NBCA 65 [Richard C.J.N.B., Quigg J.A., LaVigne J.A. ]

AUTHOR’S NOTE: In many cases, bad character evidence and other inadmissible hearsay gets heard in trials under the so-called “narrative” exception to hearsay.  That is, police officers testify to things they have learned during the context of their investigations so that the court may understand why they undertake subsequent investigative actions. This practice is particularly frequent with judge-alone trials because judges are expected to “disabuse” their minds of inadmissible evidence.  However, Juries are accepted in law not to disabuse their minds of inadmissible evidence unless specifically instructed to do so.  Here, the New Brunswick Court of Appeal finds not only that such an instruction should have occurred, but the judge should have stopped the evidence from going before the jury in the first place.

Pertinent Facts

The central issue at trial was whether Mr. LeBlanc had knowledge of the drugs found in the motorhome. The Crown’s case was based on circumstantial evidence.” (Para 3)

“Mr. LeBlanc did not testify but alleged in his submissions to the jury that the drugs in the motorhome belonged to Mr. Bujold and he had no knowledge of them. The jury returned with guilty verdicts on all counts. ” (Para 4)

“Staff Sergeant André Potvin, the unit commander, was the prosecution’s first witness. He provided a general overview of the investigation dubbed “Operation J-Teaser.” In so doing he revealed information and reports that he had received from other individuals. This type of evidence is generally referred to as narrative evidence — usually evidence necessary to put a context on the unfolding of the story. The content of statements admitted under the narrative exception is not hearsay because it is not admissible or received to prove the truth of its contents. In the present case, the narrative evidence was introduced without objection; however, the jury was not cautioned the allegations of discreditable conduct and other claims alluded to by Staff Sergeant Potvin were not admitted, nor could they be relied on, for the truth of their contents. They were not instructed about the limited permissible use of this evidence.” (Para 34)

The narrative evidence:

“he had been told that Mr. LeBlanc was already under investigation by the Integrated Proceeds of Crime Unit in response to “reports of Mr. LeBlanc having been involved in suspicious money transactions, as well as been recently having purchased…he acknowledged that no charges resulted from that investigation. ” (Para 35)

“the police had obtained information” through various sources of information which indicated that Mr. LeBlanc also was involved in bringing large amounts of drugs in the Greater Moncton area” (Para 36)

“the police sought and obtained judicial authorization to install a tracking device on Mr. LeBlanc’s vehicle. When prompted by Crown counsel to explain to the jury what a judicial authorization was, he answered:

It’s a court order based on an affidavit that is completed by a police officer. We appear before a — a judge and indicate that we have reasonable grounds to suspect, in this case, that a vehicle utilized by Mr. LeBlanc would be used to facilitate the transporting of drugs.” (Para 37)

The Dangers and Proper Use of Narrative Evidence

None of the above testimony should have been admitted. If it was being tendered for the truth of its contents then it was inadmissible hearsay. If it was not being tendered for the truth of its contents, as the Crown alleges, there had to be another purpose for tendering it. The Crown submits it was tendered as narrative evidence.” (Para 40)

“Was it necessary for Staff Sergeant Potvin to tell the jury: that he had been advised by other officers that Mr. LeBlanc was already under investigation for suspicious money transactions; that various sources of information indicated Mr. LeBlanc was bringing in large amounts of drugs to the Moncton area; that reports from the community indicated that some of the drugs were being sold out of the Old Cosmo Complex and that Mr. LeBlanc had recently purchased this bar? I do not believe so.” (Para 41)

“There was also no purpose in telling the jury that in order to obtain an authorization to install a tracking device on the motorhome, the police had to satisfy a judge they had reasonable grounds to suspect the vehicle would be used to facilitate the transporting of drugs. This could lead the jury to believe a judge had already endorsed the police theory that the motorhome would be transporting drugs. The grounds for obtaining a warrant to authorize the tracking were not challenged and they were not relevant for purposes of the trial.” (Para 42)

“The above evidence was highly prejudicial to Mr. LeBlanc because, if believed, it purported to show the accused as being someone who had the habit of transporting and selling drugs in the Moncton area.” (Para 44)

The evidence was not inherently innocuous as it contained allegations of other criminal conduct and claims that there were reasonable and probable grounds, endorsed by a judge, to suspect that Mr. LeBlanc was transporting drugs in his motorhome.” (Para 46)

“Evidence that an accused has engaged in discreditable or criminal acts is presumptively inadmissible as there is a risk the evidence will be used to draw the prohibited inference that the accused is the type of person likely to have committed the offences charged. Even where there is a good reason to admit such evidence, once admitted, a jury direction is required to avoid the prohibited inference and guard against the jury convicting the accused based on the prohibited inference.” (Para 47)

“Since the judge gave no…instruction concerning the disreputable conduct evidence, we could not fault the jurors for thinking they could rely on that evidence to come to their conclusion in this case.” (Para 50)

R. v. Davidson (BCCA)

[Oct 10/18] Restitution Orders – Only Allowed When Damages are Readily Ascertainable – 2018 BCCA 392 [MacKenzie J.A., Willcock J.A., Fitch J.A. ]

AUTHOR’S NOTE: Under the pressure of various victim’s rights groups, the government is continually increasing the role of victims in the sentencing process.  At times, victims are gaining a status akin to a party in criminal proceedings. That is undesirable, as victims do not govern themselves as judges or crown prosecutors (having to respect Charter rights, statutory law, or principles of sentencing).  Quite regularly, the fundamental principles that underpin our system are derided as technicalities upon which accused persons are able to “beat” their charges.  Herein, the British Columbia Court of Appeal admirably defends the principles involved in determining the appropriateness of restitution orders in what was undoubtedly difficult factual circumstances.

Pertinent Facts

By way of background, the appellant committed a cowardly and vicious assault on the victim, striking him three times on the head with a shovel. The victim, who was quadriplegic and wheelchair-bound at the time of the assault, was utterly incapable of defending himself from the attack.” (Para 5)

The victim requested a restitution order for $47,000 which he said would compensate him for the cost of moving to Vancouver ($2,000) obtaining a new wheelchair ($30,000) and replacing some of his personal property, including antique furniture he said was sold, presumably by his ex-wife, as part of divorce proceedings which occurred while he was hospitalized ($15,000).” (Para 6)

“The Crown and the appellant both opposed the restitution order.” (Para 7)

“The judge acknowledged that general damages do not lend themselves to arithmetic calculation. He estimated that on the facts admitted by the appellant a judge would, in the context of a civil action for battery, make an award of general or non-pecuniary damages in the range of $125,000-$150,000. He concluded that if punitive damages were also ordered, they would likely be in the range of $10,000-$20,000.” (Para 17)

Is the Restitution Sought Readily Ascertainable?

“As the sentencing judge acknowledged, the loss was not readily ascertainable. Further, it would appear that the victim was seeking compensation for losses unconnected with the commission of the offence. In these circumstances, and on well-established authority, the restitution order should not have been made: see R. v. Semeniuk, 2004 BCCA 233 (B.C. C.A.) at paras. 9-19.” (Para 25)

“In addition, the language of s. 738(1)(b) cannot reasonably bear the interpretation of the sentencing judge that “pecuniary damages” must be taken to include general and punitive damages. Further, I know of no authority that supports such a conclusion. Section 738(1)(b) is designed to provide reparations for established and readily ascertainable monetary loss caused to victims of crime as a result of the commission of an offence. It is not designed to provide compensation for general or non-pecuniary damages, nor is it intended to be the means through which non-compensatory punitive damages are awarded against an offender.” (Para 26)

Restitution Order set aside. (Para 27)

Author’s Note:  The relevant portions of R. v. Semeniuk, 2004 BCCA 233 (B.C. C.A.) are reproduced below:

Two banks in a fraud and forged documents case claimed damages (Para 3)

I refer to one of the leading cases on the topic, R. v. Fitzgibbon, [1990] 1 S.C.R. 1005, where Mr. Justice Cory giving the judgment for the court said at paras. 11 and 12:

[referring to R. v. Zelensky, [1978] 2 S.C.R. 940 ]: “Laskin C.J. further observed that a compensation order should only be made when the amount can be readily ascertained, and only when the accused does not have an interest in seeing that civil proceedings are brought against him in order that he might have the benefit of discovery procedures and the production of documents. Obviously, though, neither the production of documents nor the examination for discovery will be of much, if any, significance if the amount owing to the victims is fixed and acknowledged.” (Para 10)

“In the present case I do not think it can be said that the amount could be readily ascertained.  Section 738(1) the Criminal Code allows restitution “where the amount is readily ascertainable”. While defence counsel did not strongly contest the amounts presented by the two banks, he wanted to be able to demonstrate that the banks were not entitled to the full amount claimed. He was denied this opportunity and as a result I think the process was unfair to the applicant.” (Para 11)

Transcript of Defence Counsel:

Mr. Semeniuk and I don’t really know the basis for all these losses which is something of a civil matter, something we could determine, get some disclosure on how these losses came about and again, as I said, Mr. Semeniuk would have a range of defences available to him for repayment of the money if money were owed because of Mr. Semeniuk’s actions.” (Para 13)

“Defence counsel raised the question of late disclosure and its adequacy. The amounts claimed were presented rather informally by a Victim Impact Statement and brief letters without any detail or breakdown of the components of the loss. ” (Para 15)

“As mentioned, the trial judge awarded only half the amounts claimed in her order of restitution. She had the discretion to order less than the full amount: see R. v. Yates, 2002 BCCA 583 at para. 11 on this point and generally for a compendious discussion of the authorities; but in my respectful view that kind of rough reckoning was not appropriate in the circumstances of this case where the defence sought the opportunity to contest the amounts claimed. The 50% reduction may or may not be close to the mark but without disclosure, discovery, and the safeguards of a proper inquiry the outcome may be erroneous.” (Para 16)

This is said to indicate an informal and uncomplicated process for determining restitution orders; but with respect, the submission ignores the requirement that the amount be readily ascertained which is the principal difficulty in the instant case. I am unable to accept that the matters in question relating to the restitution order in this case were amenable to a speedy, informal and inexpensive process.” (Para 19)

By |2018-12-11T13:29:26-06:00December 10th, 2018|Uncategorized|0 Comments

About the Author:

Pawel is a partner at Sitar & Milczarek. When he's not litigating he writes the Defence Toolkit blog.