The Defence Toolkit – December 16, 2018

This week our top three summaries cover: Charter s.8 – Waiver of Others Reasonable Expectation of Privacy, Charter s.12 – Overturned Mandatory Victim Fine Surcharges, Inadmissible Hearsay Evidence, Unclear Jury Questions, and Defence Adjournments in a Jury Trial Prior to Opening Defence Case

R. v. Reeves (SCC)

[Dec 13/18] Charter s.8 – Reasonable Expectation of Privacy and Ability of Third Parties to Waive it – 2018 SCC 56 [Majority Reasons of Karakatsanis J. (Wagner C.J. and Abella, Gascon, Brown, Rowe and Martin JJ. concurring)]

AUTHOR’S NOTE: In this decision Justice Karakatsanis provides welcome clarity to the to the issue of how we determine whether someone has a reasonable expectation of privacy in information.  The determination is now clearly not dependent on the access of non-state or police personnel at all.  The fact that you share a computer or cell phone with another (non-police) person will not effect the existence of a reasonable expectation of privacy.  Other people’s access only becomes relevant at the 24(2) analysis of how much privacy is reasonable to expect in the information/place.  Further, the Court clearly reinforced the law in the area of waiver.  No one, including a spouse, can waiver another persons s.8 rights.  The police have no choice but to seek a warrant.

Pertinent Facts

The accused shared a home with a common-law spouse for 10 years. (para 6)

He was charged with a domestic assault and was given a no-contact order with an exception for written revocable consent. (para 6)

In 2012, the common-law reported child pornography she found back in 2011, on the shared home computer and revoked her consent for the accused to come to the residence. (Para 6-7)

The common-law signed a consent for the police to take the computer from the house. (Para 7)

The attending officer did not believe he had reasonable ground for a warrant. (Para 7)

The police kept the computer for 4 months without filling our a report to justice as required by s.489.1 of the Code. (para 8)

The Court of Appeal determined there was no breach of s.8 because Reeve’s reasonable expectation of privacy in the common areas of the home and the shared computer was greatly diminished – it was reasonable for him to expect his common-law would be able to consent to the taking of the shared computer. (Para 10)

Reasonable Expectation of Privacy

Further, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431 (emphasis added)).” (Para 13)

There is a presumption that the taking of an item by the police without a warrant violates s. 8 of the Charter unless the claimant has no reasonable expectation of privacy in the item or has waived his Charter rights.” (Para 27)

While the test in Edwards continues to apply, the focus must be that: “The reasonable expectation of privacy standard is normative, rather than descriptive (Tessling, at para. 42; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14). The question is whether the privacy claim must “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society” (R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 87, per Doherty J.A.).” (Para 28)

this Court has held that the subject matter must not be defined “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action” (Marakah, at para. 15, citing Ward, at para. 65). The guiding question is “what the police were really after” (Marakah, at para. 15, citing Ward, at para. 67).” (Para 29)

while the privacy interests engaged by a seizure may be different from those engaged by a search, Reeves’ informational privacy interests in the computer data were still implicated by the seizure of the computer. When police seize a computer, they not only deprive individuals of controlover intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preservedand thus subject to potential future state inspection.” (Para 30)

“…control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest” (Marakah, at para. 38). On numerous occasions, this Court has recognized a reasonable expectation of privacy in places and things that are not exclusively under the claimant’s control. In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, it held that a person had a reasonable expectation of privacy in a bus depot locker where he had stored and locked belongings, even though a company owned the lockers and could access them at any time (paras. 22-23). In Cole, it held that an employee had a reasonable expectation of privacy in the data he stored on his work computer, even though “both policy and technological reality deprived him of exclusive control over — and access to — the personal information he chose to record on it” (para. 54; see also Marakah, at paras. 38-45). Shared control does not mean no control. By choosing to share a computer with others, people do not relinquish their right to be protected from the unreasonable seizure of it.” (Para 37)

As Moldaver J. stated in Marakah, “[w]here a loss of control over the subject matter is involuntary, such as where a person is in police custody or the subject matter is stolen from the person by a third party, then a reasonable expectation of personal privacy may persist” (para. 130). Here, Reeves was in police custody when the computer was seized and he was restrained from accessing the house by court order. At no point did Reeves voluntarily relinquish control of his personal computer. Any resulting lack of control over the computer therefore cannot be said to be voluntary.” (Para 38)

The joint ownership of the computer does not render Reeves’ subjective expectation of privacy objectively unreasonable. Indeed, in Cole, this Court concluded that the accused had a reasonable expectation of privacy in a work computer, even though the device and the data were owned solelyby his employer (paras. 50-51 and 58).” (Para 39)

Although the legitimate interests of third parties can, in some circumstances, attenuate a reasonable expectation of privacy (see R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paras. 31-34; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 109, per McLachlin C.J. and Fish J., dissenting, but not on this point), they cannot eliminate it.” (Para 45)

Waiver of s.8 Rights by a Third Party

Admittedly, when we share a computer with other people, we take the risk that they will access information we hoped to keep private. They may wish to share the information they find with others, including the police. But, as noted above, the reasonable expectation of privacy standard is normative, not descriptive. The question is not which risks the claimant has taken, but which risks should be imposed on him in a free and democratic society.” (Para 41)

Referencing R. v. Duarte, [1990] 1 S.C.R. 30: “the Court distinguished between the “tattletale” risk (the risk that someone will tell the police what you said) and the risk that someone will consent to the police making an electronic record of your words (p. 48). The Court concluded that “[t]hese risks are of a different order of magnitude” — the tattletale risk is one that is reasonable to ask citizens to bear in a free and democratic society, whereas the surveillance risk is not (p. 48.).” (Para 42)

“Similarly, while it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co-user could consent to the police taking this computer.” (Para 43)

We are not required to accept that our friends and family can unilaterally authorize police to take things that we share. The decision to share with others does not come at such a high price in a free and democratic society.” (Para 44)

“In short, in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’ subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data.” (Para 47)

This Court has long held that a claimant can waive his or her s. 8 Charter rights by consenting to a search or seizure (Borden, at p. 162). In addition, “[t]he force of the consent given must be commensurate with the significant effect which it produces” (Borden, at p. 162, citing Wills, at p. 72).” (Para 49)

In Cole, this Court considered whether this first-party consent doctrine should be extended to third parties. …This Court rejected this argument, concluding that the doctrine of third-party consent should not be adopted in Canada, despite its acceptance in the United States.” (Para 50)

Seriousness of the Charter-infringing State Conduct

The Charter-infringing state conduct was serious in this case (Para 62)

Police should have known third parties cannot waive a reasonable expectation of privacy (Cole) (Para 62)

Failure to report a warrantless seizure as soon as practicable under s.489.1 of the Code enhances the seriousness of state conduct (Para 63)

The eventual warrant was found by the original application judge as a violation  “because the ITO reflected “‘a goal-oriented, selective presentation of the facts’ that resulted in an ‘unfair, unbalanced and misleading’ portrayal of the applicant” and was insufficient to have justified granting the warrant (para. 38).” (Para 64)

In short, there were serious Charter breaches throughout the investigative process. Overall, the police conduct in this case undermined “public confidence in the rule of law” and favours exclusion of the evidence (Grant, at para. 73).” (Para 65)

The fact that Reeves had a reduced reasonable expectation of privacy in the home computer diminishes the seriousness of the unreasonable search and seizure of this computer…” (Para 66)

Evidence was excluded on appeal. (Para 69)

R. v. Boudreault (SCC)

[Dec 14/18] s.12 Cruel and Unusual Punishment – Definition of Punishment – Test for Gross Disproportionality – 2018 SCC 58 [Majority Reasons of Martin J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Brown JJ. concurring)]

AUTHOR’S NOTE: In a welcome descent into the realities of many criminal litigants, Justice Martin overturns mandatory victim fine surcharges with immediate effect. In so doing, she helpfully defines “punishment” for further applications and provides a roadmap for other applications challenging mandatory minimums in the future.

Pertinent Facts

“Alex Boudreault was 21 years old at the date of sentencing.  He had no high school education, having quit school at age 15. He had never held a steady job and he had had no income for almost two years. The most serious crimes for which he was sentenced were committed at a time when he was homeless, unemployed, and addicted to marijuana.”(Para 15)

“The sentencing judge determined that he could exercise his discretion with regard to infractions that occurred before the 2013 Amendments. As such, he reduced the surcharge from $4,000 to $1,400. Being of the opinion that the $1,400 did not constitute cruel and unusual punishment, he dismissed Mr. Boudreault’s arguments and imposed the surcharge.” (Para 16)

Punishment under s.12/11 of the Charter

The meaning of punishment has been explored in some detail in this Court’s jurisprudence on ss. 11(h) and 11(i) of the Charter [citations omitted] The appellants and certain interveners argue forcefully that the test from this jurisprudence should also apply in the s. 12 context. I agree that punishment should be defined consistently across ss. 11 and 12 of the Charter.” (Para 38)

The most recent articulation of the test for punishment requires the claimant to show that the state action “(1) . . . is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) . . . is imposed in furtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests”: K.R.J., at para. 41.” (Para 39)

This test is clearly met in this case. The surcharge flows directly and automatically from conviction. A consequence that Parliament itself describes as punishment will form part of the arsenal of sanctions. Here, s. 737(1) itself sets out that the victim surcharge must apply “in addition to any other punishment imposed on the offender”. A plain reading of the words “in addition to”, “other” and “punishment” indicates that Parliament intended to create a further punishment that would apply in addition to any other punishment.” (Para 40)

Is the Punishment Cruel and Unusual?

“Since the victim surcharge constitutes a form of punishment, the next step is to determine whether that punishment is cruel and unusual. As this Court has stated many times, demonstrating a breach of s. 12 of the Charter is “a high bar”: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24. The impugned punishment must be more than merely disproportionate or excessive. Rather, “[i]t must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society”: Lloyd, at para. 24, citing R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26; see also R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. It is only on “rare and unique occasions” that a sentence will infringe s. 12, as the test is “very properly stringent and demanding”: Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417.” (Para 45)

Where a mandatory minimum sentence is challenged, this Court has set out a two-step inquiry for determining whether that sentence is grossly disproportionate. First, a court must determine what would constitute a proportionate sentence for the offence according to the principles of sentencing in the Code. Second, a court must ask whether the mandatory punishment is grossly disproportionate when compared to the fit sentence for either the claimant or for a reasonable hypothetical offender: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 46 and 77.” (Para 46)

In my view, when we look at these overwhelming similarities [between the appellants], it is not necessary to begin with the actual appellants and then consider a proposed reasonable hypothetical. Rather, all can be analyzed together…” (Para 55)

“I conclude that the sentencing judges for Mr. Larocque, Mr. Boudreault, and Mr. Michael would not have imposed the surcharge unless required to do so by s. 737 of the Code: para. 132. Fit and proportionate sentences would not include a surcharge that sentencing judges rightly concluded would cause undue hardship for offenders as impecunious as these.” (Para 57)

This is because sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing, while taking into account the particular circumstances of the offender as well as the nature and number of his or her crimes. ” (Para 58)

“For offenders like Mr. Boudreault, Mr. Larocque, and Mr. Michael, however, the story is very different: the actual imposition, operation, and effects of the mandatory surcharge, when combined, create a grossly disproportionate punishment.” (Para 61)

Crown Defence of the Legislation

“The respondents advance two justificatory objectives for the surcharge: (1) raising funds for victim support services, and (2) increasing offenders’ accountability to both individual victims of crime and to the community generally.” (Para 62)

However, in the case of offenders like Mr. Boudreault, Mr. Larocque, and Mr. Michael, these objectives are not likely to be realized. Regarding the first objective, no funds can be raised from individuals who have none to spare.” (Para 63)

In my view…accountability is best achieved when offenders serve fair, proportionate, and definite sentences. As will be discussed in more detail below, the victim surcharge forces people to endure the possibility of an indeterminate sanction.” (Para 64)

The surcharge regime causes four interrelated harms to offenders like Mr. Larocque, Mr. Boudreault, and Mr. Michael. These are (1) the disproportionate financial consequences suffered by the indigent, (2) the threat of detention and/or imprisonment [due to default], (3) the threat of provincial collections efforts, and (4) the enforcement of de facto indefinite criminal sanctions.” (Para 65)

In my view, in the specific circumstances of some offenders, the inference that the offender will not be able to pay the surcharge may be the only reasonable one. Some offenders are grappling with severe addiction and mental illness. While the hope is always that these individuals will undertake successful treatment for these issues, the experience is often that such treatment does not occur or is not immediately successful. Other offenders have a permanent disability or are of such an age that the prospect of a significant increase in income is unrealistic. For all of these offenders, the effect of the victim surcharge is that they must live with a criminal sanction that they are unable to acquit for the foreseeable future, if ever. These offenders face repeated appearances before a court to explain their inability to pay the surcharge — even if that inability is rooted in mental illness or physical disability. This ritual, which will continue indefinitely, operates less like debt collection and more like public shaming.” (Para 77)

“The problem with the victim surcharge regime is that it elevates this one objective above all other sentencing principles. Most obviously, it ignores the “fundamental principle” of proportionality set out in s. 718.1 of the Code. Relatedly, it does not allow sentencing judges to consider mitigating factors or to look to the appropriate sentences received by other offenders in similar circumstances: see Michael, at para. 91.” (Para 81)

Moreover, it utterly ignores the objective of rehabilitation: s. 718(d) of the Code. Rehabilitation must be designed with the specific offender in mind and is best advanced by appropriate treatment and/or punishment aimed at reintegration and future success. In my view, an insurmountable criminal sanction does little or nothing to foster this objective.” (Para 82)

I conclude that the victim surcharge scheme, although intended to achieve a valid penal purpose, violates s. 12 in the case of offenders like Mr. Boudreault, Mr. Larocque, and Mr. Michael. It leaves sentencing judges with no choice. They must impose the surcharge in every case. They cannot consider the most marginalized offenders’ inability to pay, the likelihood that they will face a repeated deprivation of liberty for committal hearings, or the indefinite nature of the punishment. They cannot apply the fundamental principles of sentencing, seek to foster rehabilitation in appropriate cases, or adjust the sentence for Indigenous offenders. To return to the ultimate question in these appeals, the impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable. Put differently, they are cruel and unusual, and, therefore, violate s. 12.” (Para 94)

R. v. Breaker (ABCA)

[Dec 12/18] Hearsay Evidence – Unclear Jury Questions – Adjournments by Defence to Consult Before Opening – 2018 ABCA 424 [Marina Paperny, Frederica Schutz, Dawn Pentelechuk JJ.A]

AUTHOR’S NOTE: Written like a model answer to a law school exam, the Court examined a number of errors in the case below. The hearsay errors were not novel.  Problems with the hearsay utterances of complainants in medical documents occur frequently and sometimes the issue gets lost in the shuffle of a busy trial court. Less frequent is the leading of evidence (without objection) regarding withdrawn charges against an accused.  It is noteworthy that there is a specific statutory ban on this evidence as pointed out by the court.  The clarification in the area of unclear jury questions was welcome – Defence can now insist that the Trial Judge clarify the question before answering an unclear one. Finally, despite R v Jordan, counsel requests for an adjournment before calling evidence should not be summarily rejected.  The Court outlines how courts should consider such requests in the future.

Pertinent Facts

The appellant and the complainant, Mr. Yellowhorse, were living together on the Siksika Nation when they became involved in a physical altercation on July 4, 2014. They had both been consuming alcohol throughout the day and neither was able to recall significant portions of the incident, although it clearly included the complainant flipping furniture and throwing books and a metal step stool at the appellant, as well as punching her in the face.” (Para 2)

“The appellant recalled finding herself on the floor of a bedroom with something heavy on top of her. The next thing she remembered was getting up, approaching the complainant in the hallway with a knife, and cutting his arm. She did not recall any other stabbing, although the complainant was taken to hospital with twelve knife wounds. The complainant also did not recall assaulting the appellant, but acknowledged that he may have caused her swollen black eye and bruising on her hands and arms.” (Para 3)

“The only issue at the trial was self-defence.” (Para 5)

Hearsay in Medical Documents and Withdrawn Charges

“The determination of whether evidence is hearsay and the application of the exceptions to the hearsay rule are questions of law reviewable on a correctness standard: R v Saddleback, 2014 ABCA 166 at para 8.” (Para 8)

The medical records of the complainant from the day of the incident were tendered in evidence under s 30 of the Canada Evidence Act, RSC 1985, c C-5. The records, which were tendered in their entirety, included multiple statements made by the complainant to medical personnel as to what had transpired. These statements were clearly inadmissible hearsay covered by the rule against prior consistent statements.” (Para 11)

Crown counsel acknowledged that the trial judge would need to provide a limiting instruction to warn the jury they should disregard any references to what transpired. Despite this, the trial judge failed to recognize the problem with the hearsay statements, and did not appropriately caution the jury against the impermissible use of the hearsay evidence. Indeed, she incorrectly instructed the jury that they could take the hearsay description of events contained in the medical records into account and give it whatever weight they felt was appropriate. This was an error.” (Para 13)

“During re-direct examination of the complainant, the Crown led evidence of an apparent without prejudice settlement of a prior criminal allegation against the appellant.” (Para 16)

“The evidence in question seems to describe a mediation program that might qualify as a Criminal Code Alternative Measures Program. Such programs are covered by section 717(3) of the Criminal Code, which would bar making any probative use of this line of questioning.” (Para 17)

Additionally, it was hearsay…the Trial Judge “failed to instruct the jury that the use of the evidence must be limited to an analysis of the elements of self-defence. This error was compounded by the trial judge referring to the dropped charges in her instructions to the jury. The danger of propensity reasoning was high. The appellant says this was not harmless error. We agree.” (Para 19)

Unclear Jury Questions

“The jury returned with a question:

Need clarity. Reasonable doubt plus credibility. Definition of credibility and how that applies to the witnesses. If we were to deem a piece of evidence said by one witness versus all the witnesses, does that lead us to automatically not guilty?” (Para 20)

“As both parties note, this was an opaque question….The trial judge did not clarify this question…” (Para 21)

“We agree with the submissions of the appellant that the question was of fundamental importance to the jury and needed to be answered correctly. A trial judge has a duty to provide clear, correct and comprehensive answers to a jury’s questions. Failure to clarify questions that are unclear or ambiguous may amount to reversible error: see R v Kahnapace, 2010 BCCA 227 at paras 48-50; R v H(LI), 2003 MBCA 97 at para 72. Rather than speculating as to what was being asked, the trial judge ought to have asked for some clarification of the question before embarking on a potentially non-responsive or incorrect answer. Failure to do so was an error.” (Para 23)

Adjournment Request by Defence to Prepare to Open Case

It was 3:30 p.m., one hour before the normal end of the court day, on day two of a five-day trial. Defence counsel requested an adjournment before electing whether to call the accused in her own defence….The trial judge refused the adjournment because she was “loathe to pass up trial time”, and noted that the Supreme Court of Canada had been very clear that the court ought not to waste time. ” (Para 25)

“The point in a trial where a decision must be made as to whether an accused should take the stand is of critical importance. Even if it is expected the accused will take the stand, they should, if possible, be afforded a reasonable opportunity to consult before they do so. In this case, there was no objective time pressure that would mandate pushing ahead. The parties had just completed two days of a five day trial, and defence counsel estimated that she could finish her case by the end of the third day.” (Para 28)

“The effect of the ruling was to put the appellant and her lawyer under extreme pressure to begin their case without a thorough final discussion. The transcript itself reflects the result: a very terse and incomplete answer to a most important question.” (Para 29)

“And while the appellant was able to speak to her counsel overnight and continue her evidence the next morning, we are not satisfied any harm would be ameliorated.” (Para 31)

Miscarriage of justice found – new trial ordered.

By |2019-01-07T10:51:10-06:00December 16th, 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.