The Defence Toolkit – November 12, 2018

This week our top three summaries cover: the proper weighing of joint submissions on sentence, a Charter s.9 infraction by handcuffing a suspect without individualized officer safety concerns, and a the case of a driver-cancelled Uber trip leading to an acquittal of kidnapping.

R v Belakziz (ABCA)

[Nov 8/18] Sentencing – Proper Judicial Weighing of a Joint Submission on Sentence -2018 ABCA 370 [Marina Paperny, Frans Slatter, Brian O’Ferrall JJ.A.]

AUTHOR’S NOTE: Overall, this decision may provide significant assistance in clearing out the backlog of cases in the system. The ABCA articulates a firm respect for the resolutions leading to joint submissions before the courts. Absent an error in principle in the issues considered by counsel to come to the joint submission, a court should not interfere.  Moreover, the proper comparison for the overall sentence is NOT other sentences received after a trial in similar circumstances, but rather similarly situated joint submission resolutions. Finally, the moment of initiation of resolution discussion can militate towards a finding akin to an early guilty plea.

Pertinent Facts

“The appellant pled guilty to conspiracy to commit robbery, but the joint submission for a sentence of 6 months less one day, plus two years’ probation, was rejected [citation omitted]. She was subsequently sentenced two years less one day, reduced to  18 months  for  pre-trial  custody and  delay [citation omitted]. The  appellant appeals the sentence imposed….”(Para 1)

“The appellant was an employee of the Bank of Montreal, and in a romantic relationship with  her co-conspirator  Nasery.  They, and  two  other co-conspirators,  formed  a plan  to  rob the bank. The appellant provided the others with confidential information…” (Para 2)

“The appellant  abandoned  the plan  to  participate  in the  robbery,  and tried  to  convince Nasery not to go ahead with it. On the day of the planned robbery, she deliberately left her cell phone in Nasery’s car, so that she could not text them as contemplated.” (Para 3)

“Having concluded that the joint submission was (having regard to conventional sentencing principles) “demonstrably unfit”, the sentencing judge then turned to a consideration of the joint submission itself….The  sentencing  judge concluded,  however,  that the appellant’s decision to give up her right to a trial only merited “a small decrease in her sentence”. Her abandonment defence was weak. Her late guilty plea did not save a significant amount of court resources.  He  also concluded  that  the immigration consequences  had  been over  emphasized  in settling  on the  joint  submission…The sentencing judge accordingly rejected the joint submission.” (Para. 14)

Judicial Consideration of Joint Sentences

“The concept of the “repute of the administration of justice” is very generic. It is like the concepts of “abuse of process”, and “the public interest”, which must take their particular meaning from the context: R. v Morales, [1992] 3 SCR 711 at pp. 731-2, 751. The policy factors that drive the promotion of the administration of justice in Charter remedies, or judicial interim release, are not the same factors that drive the promotion of the administration of justice when considering joint submissions.” (Para 15)

Anthony-Cook described the test as “reasonable and informed persons would believe that the proper functioning of the justice system had broken down” and the submission was “unhinged from the circumstances of the offence and the offender”. It is perhaps futile to attempt to further refine the test in the abstract. An important policy consideration (absent in Charter remedies and judicial interim  release)  is the  systemic  benefits to  the  criminal justice  system  arising from  the resolution  of prosecutions.  Another  missing element  involves  the admissions, concessions,  and “give-and-take”  between  the prosecution  and  the defence  that  may have  generated  the joint submission.” (Para 16)

“In  other  words, it  is inappropriate  to first  determine  what sentence  would  have been  imposed  after a  trial,  and then compare it to the joint submission. …the analysis should start with the basis for the joint submission, including the important benefits to the administration of justice, to see if there is something apart from  the  length of  the  sentence that  engages  the broader  public  interest or  the  repute of  the administration of justice.” (Para 18)

The trial judge’s error is summarized as follows “Paragraph  78 of  the reasons (quoted supra, para. 12), which essentially sums up the analysis, heavily emphasizes that absent  any  joint submission  a  different  sentence would  likely  have been  imposed.  The analysis then  proceeds  to subordinate  the  importance  of the  resolution  of prosecutions  by  examining whether the presumptive “correct” sentence has been “outweighed” by other considerations.” (Para 19)

“In particular, the emphasis on “parity” ignores the fact that the joint submission can only be compared (if at all) to other joint submissions relating to similarly situated offenders, in cases with similar strengths and weaknesses, not to sentences generally. The validity of a joint submission cannot be decided by comparing it to numerous other sentencing decisions for the same offence. Sentences imposed after trial do not, by definition, weigh weaknesses in the Crown’s evidence, abandoned defences, or the other advantages of joint resolutions.” (Para 21)

“It was problematic for the reasons to try and re-evaluate the compromises made in reaching the joint submission. This approach resulted in the comment that the guilty plea, combined with the Crown’s evidentiary problems, only merited “a small decrease in her sentence”.” (Para 22)

Anthony-Cook  confirms  at para.  5  that the sentencing judge can inquire into the circumstances leading to the joint submission, but that does not justify  a  minute re-examination  of  the costs  and  benefits achieved  by  each side.” (Para 23)

“Just  because  the joint  submission  is not  the  resolution  that the  sentencing  judge would have agreed to does not mean that it would bring the administration of justice into disrepute. There  must  be some  error  in principle  underlying  the joint  submission  before it  becomes “unhinged from the circumstances of the offence and the offender”.” (Para 24)

“Joint  submissions  are justified  and  supportable  because they  enable  the resolution  of criminal trials. The efficacy of the system depends on both the Crown and the defence being able to rely on the agreed resolutions, knowing that in the vast majority of cases the arrangement agreed to  will not  be  second-guessed  by the  Court:  Anthony-Cook  at paras.  37-8;  Nixon at  para.  48, [2011] 2 SCR 566. An overly intensive scrutiny of the positions of the Crown and the defence, the negotiating  abilities  of each,  and  the strength  of  the case  undermines  the certainty  of  joint submissions.” (Para 25)

“In  conclusion,  the appellant  has  demonstrated  reviewable  error. The  joint  submission, while arguably lenient, was not so disconnected from the offence and the offender as to bring the administration of justice into disrepute. The trial judge over emphasized the fact that if a sentence had been imposed using a conventional analysis, and without the presence of a joint submission, a different sentence might well have resulted. The sentence appeal should be allowed.” (Para 30)

The Value of Early Negotiations

“The sentencing judge discounted the importance of the appellant’s guilty plea because it was only  entered  3 years  after  the charges  were  laid.   The  appellant  had, however,  initiated resolution  discussions  18 months  earlier.    The duration  of  the resolution  discussions  cannot be weighed against the appellant.” (Para 28)

R v Latzkowski (SKPC)

[Oct 4/18] Charter s.9 – Arbitrary Form of Detention – Uncessarry Cuffing – 2018 SKPC 56 [B.G. Morgan Prov. J.]

AUTHOR’S NOTE: In accordance with the Aucoin line of authority from the SCC, just because an officer is legally placed to detain someone, that does not mean they can employ any and all forms of detention. Herein, Judge Morgan outlines how cuffing an impaired suspect can result in an otherwise rock solid case falling apart. 

Pertinent Facts

The accused was at the airport to pick up his wife, her flight was delayed. (Para 5)

At one point he approached a commissionaire and volunteered “I shouldn’t have been driving” – the commissionaire noted that his speech was “slurred a bit” and he noticed “a little bit of stumbling” – his vehicle was still parked at the curb when the commissionaire was clearing the curb by the airport – he called the police (Para 4, 6)

“At 2:41 a.m. Constable Crawford read the Approved Screening Device (ASD) demand, had the defendant step out of the vehicle, “placed the handcuffs to the rear for officer safety, for my safety”, and escorted him to the passenger side rear door of the police vehicle.” (Para 11)

After four attempts at one device, the device showed an error message and the officer tried to get the accused to blow into another device – he refused. (Para 13-14)

The accused was in cuffs for 16 minutes prior to his arrest (Para 15)

Charter s.9 – Arbitrary Detention

“This officer was with another officer, no other individuals were present in the vehicle with the accused and there was no suggestion whatsoever in the behaviour of the accused to suggest that he was a risk to flee, or that he was a risk to officer safety.” (Para 25)

“As  noted  by Mr.  Justice  Laing in  Vulic,  investigative  detention  does not  justify  interfering  with the  liberty  of an individual  by  handcuffing  an individual  under  investigative  detention,  in the  absence  of some  facts  justifying  the handcuffing in the interest of officer or public safety.” (Para 29)

“In this case, Constable Crawford testified that he handcuffed the defendant because he had concerns, not knowing the accused, that the latter may have weapons, and he also had concerns about the potential for unpredictable behaviour by an individual. However, in cross-examination, Constable Crawford agreed that the accused did not pose any trouble, referring to him as “polite, cooperative gentleman.” I find that this officer handcuffed the defendant without doing an analysis of this person’s alleged risk; rather, he relied on experience with other individuals he had dealt with in his career. He certainly made no assessment of this individual.” (Para 30)

Citing Vulic:  “In para 16, Justice Laing specifically held that “an investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interests of officer or public safety, which facts are lacking in this matter”. As I do not accept the officers reasoning, the same situation applies here. This action clearly exceeds a brief pat-down search.” (Para 38)

“However, looked at objectively, I cannot determine that the facts of this case allow for this type of action. There were two male police officers at the scene of the Saskatoon Airport in the early morning hours. There is no suggestion there was any flight risk from Mr. Latzkowski, nor is there any reason to believe he may have had weapons on him. That is, of course, always a possibility. However, the overall test is what is objectively reasonable in the circumstances, and in the circumstances of this case, handcuffing should not have been done. This is particularly so when one considers the fact that someone being detained, as Mr. Latzkowski clearly was for the purposes of providing an ASD breath sample, is at this point presumed completely innocent. Failing an ASD is not an offence.” (Para 49)

Charter breach established on ss.7, 8, 9. (Para 51)

Evidence was excluded on balance and acquittal entered (Para 58-59)

The 24(2) Analysis – Seriousness of State Infraction

“In my view, this conduct falls on the more serious side of the equation. Whereas it is true that Mr. Latzkowski, being under detention for the purposes of providing an ASD demand, is in the same situation of countless other Canadians, what I do find tends to make this more serious is that the police officer handcuffs innocent individuals as a routine practice, and appears not to consider any other options, such as a pat-down search.” (Para 52)

The 24(2) Analysis – Affect on the Charter Protected Interest of the Accused

“I  find  this to  be  a serious  impact  upon Mr.  Latzkowski’s  right to  be  treated fairly  by  the police.  The  breach, by handcuffing this individual during an investigation detention when there was no need for such action, I find to be quite  intrusive.” (Para 53)

R v Singh (ONCJ)

[Oct 25/18] Kidnapping & Honest but Mistaken Belief in Consent – 2018 ONCJ 738 [Richard Blouin J.]

AUTHOR’S NOTE: In a truly modern take on kidnapping, an Uber driver cancelled a trip and took the customer on a ride to a liquor store – she called the police.  In issue was whether she consented to the change in trip.  In terms of courtroom tactics the case is remarkable in that defence counsel did not call the accused to testify and won on the basis of an honest but mistaken belief in consent… 

Pertinent Facts

“Danielle Reiss (18 at the time) ordered an Uber to take her from Yonge and Eglinton in Toronto to her home in Mississauga. Nearing the Hershey Centre in Brampton, the Uber driver (the defendant, 24) cancelled the trip and circled back towards his home in Toronto. Approximately 45 minutes later, he stopped his vehicle in a plaza in Scarborough to buy some vodka at the LCBO. Ms. Reiss took this opportunity to exit the vehicle, enter a Winners’ store and make contact with police. The defendant stood trial on charges of unlawful confinement of Ms. Reiss and assault (for holding her hand).” (Para 1)

“This case  turns  on whether  Ms.  Reiss consented  to  the cancellation  of  the trip  home,  and the  re-routing  to Scarborough. And, if she did not consent, on whether the defendant knew, or was willfully blind to the fact, that she was not consenting.” (Para 2)

Honest but Mistaken Belief in Consent

“In examining the parameters of the defence, the belief does not necessarily have to be reasonable, only honestly held (that is R. v. Pappajohn, 2 S.C.R. 120, 1980 SCC). As a matter of logic, and indeed common sense, I find it nearly impossible to assess the honesty of the defendant’s belief that the complainant consented, when I don’t know what he believed. As mentioned, he did not testify. Nor was any statement by the defendant introduced into evidence. However, Mr. Weisz submits that the law provides that the belief evidence does not have to come from the mouth of his client.” (Para 4)

“In  Pappajohn,  the facts  did  not allow  a  finding of  mistaken  belief. In  this  case, he  continues,  there is  some support for a mistaken belief in consent contained in the evidence of the complainant. There are two examples of that evidence that I consider particularly instructive of that issue.” (Para 6)

“Firstly, the complainant was cross-examined regarding what she said to the defendant during the nine-minute period after the trip home was cancelled. When it was suggested that she did not tell the defendant that she did not want to go to his place and wanted to go home, she maintained “Yes, I did”. Then, she allowed that it was only possible that she did say that. Then, that she was not certain. And finally, that she may not have said anything to the defendant about wanting to go home.” (Para 7)

“Secondly, after being told by her sister on the cell call that she must come home immediately, the complainant hung up. Ms. Reiss testified that she then “played along”, meaning that she was trying to make it appear that she was agreeing with the defendant regarding his desire to take her to his home.” (Para 8)

“In addition, Mr. Weisz points to the LCBO video as further support for the honesty of the defendant’s belief in consent. It is abundantly obvious that Mr. Singh is in no particular hurry to buy vodka. It even appears he is asking a sales associate for advice on the right selection. I find this behaviour to be inconsistent with a man who knowingly has a young woman confined in his unlocked vehicle. I placed great weight in that video because of its independent recording of the last five minutes of this evolving scenario.” (Para 9)

“Mr. Singh’s conduct was reprehensible — both morally and professionally. As a driver for hire his is a position of trust. How he could have decided that ending an Uber ride with a barely legal young woman was appropriate, even if he thought she was consenting to drinks with him, is unfathomable. However, when I assess the complainant’s evidence outlined above, eventually conceding doubt as to what she communicated to the defendant and playing along with his wishes, and, most significantly, the LCBO video evidence, I conclude not only an “air of reality” to the honest belief submission, but a reasonable doubt that the Crown has established the necessary mens rea, including wilful blindness.” (Para 12)

Copyright, 2018 – Sitar & Milczarek Prof. Corp.

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About the Author:

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