This week’s top three summaries: R v McSweeney, 2020 ONCA 2, R v Starblanket, 2019 SKCA 130, and R v WM, 2019 ONSC 6535
R v McSweeney (ONCA)
[Jan 7/20] Charter s.10(b) - Detention and Rights to Counsel During Search Warrant - 2020 ONCA 2 [Reasons by Strathy C.J.O., with Doherty and Tulloch JJ.A. Concurring]
AUTHOR’S NOTE: Section 10(b) violations are rampant during the execution of a search warrant. Most often encountered is the police claim that giving the detained owner/occupier/target access to a phone will imperil the security of the evidence or the searchers. They delay the call to counsel until the search is complete. A less common, but also problematic, variety involves depriving people located within the searched location with access to counsel even though they are not removed from the premises. The usual difficulty in these scenarios is that it becomes arguable whether the person is actually detained within the meaning of the Charter. Herein, the reasons of Strathy CJO apply the Grant detention criteria to a person within the residence and find a violation of s.10(b). Defence counsel can expect to use this case often as arguments by analogy will likely be easy to make.
Pertinent Facts
[6] In May 2016, Detective Constable Lockwood of the Internet Child Exploitation Unit (ICE) of Durham Regional Police received a report that certain images, identified as child pornography, had been uploaded to the social networking site, Tumblr. Further investigation determined that the uploads originated from an internet account registered to a subscriber at an address in Whitby, Ontario. The appellant’s wife was the subscriber. The address was occupied by the appellant, his wife, and their two teenage children.
[7] .... The warrant was executed at approximately 6:03 a.m. on June 15, 2016. Nine police officers entered the house, including two from the Sexual Assault Unit; an Identification Officer; two officers from the E-Crimes Unit; three from the ICE Unit; and a patrol officer. Some of the officers were in police uniform and others wore vests identifying them as police.
[8] ....The appellant came downstairs shortly after police arrived. D.C. Lockwood showed him the warrant and let him read it. He then asked the appellant whether he knew why police were at his house. The appellant denied knowing anything about child pornography.
[9] As the appellant continued to read through the warrant, D.C. Lockwood asked him whether he could direct him to a computer in the house that might have child pornography on it. The appellant replied, “I’m not saying anything until I get my thoughts together.”
[11] In response to defence counsel’s suggestions that both questions were designed to have the appellant incriminate himself, D.C. Lockwood acknowledged: “They can be very incriminating, yes.”
[12] Within about 10 minutes of the police arriving, the family had been gathered in the living room. The operational plan for the search was to secure the scene to ensure that electronic equipment was no longer transmitting, and to make areas containing electronics “off-limits” to the family. Until that was done, the occupants would not be free to move about the home for fear that they would potentially interfere with the search or destroy evidence. D.C. Lockwood explained to the family what would be taking place during the search. They were told that they were not permitted to use their electronic devices, including cell phones. A police officer was stationed in the living room while this discussion took place and she remained there with the family throughout the search. The appellant’s wife wrote down the officers’ names and badge numbers. She asked whether she could go to the kitchen to use the land line to make a call and D.C. Lockwood told her that she could.
[13] ... The appellant remained in the living room while his wife was questioned on the porch. The interview lasted approximately 20 minutes.
[14] At about 6:53 a.m., D.C. Lockwood asked the appellant to come to the porch to give a recorded statement. The officer acknowledged that he had not cautioned the appellant up to that point. Nor did he caution the appellant before he took the statement or inform him of his right to counsel. He admitted that his failure to do so was a mistake, because he considered the appellant a suspect.
The First Interview - On Scene
[15] After D.C. Lockwood explained the background leading up to the issuance of the warrant, and that experts would be examining the family computers for images of child pornography, the interview continued:
Lockwood: Well, Peter, I want to be, I’ll be honest, I think it was you, man.
The Appellant: Ok.
Lockwood: Because it wasn’t your kids.
The Appellant: True.
Lockwood: Ok, kids can stumble into…
The Appellant: [Inaudible]…
The Appellant: So, I don’t want to, uh, I don’t want to say anything until I talk to people that could either help me, or not help me.
Lockwood: You’re talking about a lawyer.
The Appellant: Sure. Um, but then you’re going to say, well, you’re not under arrest anyways, so [inaudible]…
Lockwood: Everything you have to say is voluntary. I’m not here to make you talk about anything you don’t want to talk about, ok?
...
Lockwood: Um, anything you feel I should take into account, and you, if you think there’s someone in the house I should be questioning, I want you to tell me.
The Appellant: No.
Lockwood: Ok?
The Appellant: I think we’re, I think we’re, uh, we’re, we both know … that … it’s … myself.
[16] Moments later, the officer said, “I do appreciate your honesty because I don’t want to drag your kids into this.”
[17] After the interview, the appellant was arrested, cautioned, informed of his right to counsel, and taken to the police station.
The Second Interview - At Police Station
[20] Throughout most of the interview, the appellant maintained that he wished to remain silent. However, at one point in the interview, D.C. Lockwood asked the appellant whether there was “any chance that anybody else in the house is involved”, to which the appellant replied, “[a]bsolutely not.”
Trial Rejection of Detention
[21] The trial judge found that both statements were admissible. She found that the appellant was not detained during the search of his home. Her reasons on the issue of detention were contained almost exclusively in para. 8 of her reasons:
In the case before me, there is no evidence that Mr. McSweeney was physically restrained. There was also no evidence of psychological detention. Not only was Mr. McSweeney free to come and go during the search, he was present when his wife asked to use the landline telephone and get the children ready for school and these requests were granted. In reaching the conclusion that Mr. McSweeney was not detained I have rejected the submission that because an officer remained in the living room with the family, Mr. McSweeney felt he was under police guard and not free to leave. There was no evidence to support this submission. Also, Mr. McSweeney never asked to leave the living room even though he saw his wife and children leave and go about their daily business. [Emphasis added.]
The Law of Detention and The Nature of the Error Here
[33] ....In determining whether someone has been psychologically detained, the inquiry is an objective one, having regard to how a reasonable person would perceive the state conduct in the circumstances. An objective inquiry recognizes the need for police themselves to appreciate when detention occurs, so they can fulfill their Charter obligations to detained persons: Grant, at paras. 31-32; Suberu, at para. 22.
[34] The Supreme Court provided a helpful summary of the analysis of detention, at para. 44 of Grant:
In summary, we conclude as follows:
1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[35] I accept the appellant’s submission that the trial judge erred in failing to apply the objective test mandated by Grant and Suberu, namely whether a reasonable person in the appellant’s circumstances would conclude by reason of the state conduct that he or she had no choice but to comply. While the trial judge referred to Grant and Suberu, her analysis reflects the error this court identified in R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321: she treated the exercise largely as a subjective inquiry, asking whether there was evidence of the appellant’s state of mind. This was an error of law and this court is therefore required to apply the correct analysis.
Detention During Search Warrant Execution
[37] ...however, it is necessary to consider the fact that the encounter occurred in the exercise of the state’s authority through the lawful execution of a search warrant.
[39] However, there are limits to these powers. I accept as accurate the observation in R. v Owen, 2017 ONCJ 731, 397 C.R.R. (2d) 63, at para. 33:
However, once the police have “cleared” the house and ensured that they have accounted for all the occupants, they must have a basis for any continued detention of any occupant(s). They are not permitted to simply keep the occupants in a room, incommunicado, while they go about their search of the house. Once police have ensured their safety, they are not justified in holding the occupants in a room unless the occupants are being arrested or otherwise be[ing] lawfully detained. Provided the occupants are not interfering with the search, they are permitted to stay in and move about the residence; or, they may leave.
[44] However, where police have acted solely to ensure the integrity of the search, where the interference with liberty was modest, and where any questioning was not focused on the person’s involvement in a crime, courts have found no detention: Munkoh, at paras. 31-40; Water, at paras. 72-83; R. v. S.L., at paras. 72-84.
Application
[45] The first consideration under the Grant test is the circumstances giving rise to the encounter. As outlined above, in the context of the execution of the search warrant, a key consideration is whether the police were acting solely to ensure the integrity of the search, or whether they were engaged in a focused investigation. In this case, the appellant was clearly singled out for focused investigation. From the very outset of the encounter, D.C. Lockwood posed questions that were accusatory and invited self-incrimination. In substance, his questions amounted to: “Do you know why we are here?” and “can you tell us the location of computers in this house with child pornography on them?” Those questions would cause a reasonable person in the position of the appellant to conclude that they were a suspect, perhaps the prime suspect, in a police investigation into child pornography in their own home. As was the case in Owen, the police were not merely executing the search warrant, they were targeting and questioning a suspect.
[46] The segregation of the family in one area of the home, without the use of phones and electronic devices, is also a circumstance to be taken into account. While the police were justified in clearing the house to ensure the integrity of the search, the prolonged sequestering of the family in the living room was unnecessary for that purpose. There was no suggestion that they attempted to interfere with the search or were anything other than co-operative. The fact that the appellant’s wife found it necessary to ask for permission to use the land line in the kitchen, speaks to a perception that she was not free to do so without permission. The same is true of her request to allow her children to get ready for school.
[47] While his wife was being interviewed outside on the porch, the appellant was left sitting in the living room with his children, with a police officer continuing to stand guard over them. His isolation and separation from his wife (whom the police had treated more deferentially than he) would add to the perception of a reasonable person that an investigation was taking place and that they were a suspect.
[48] D.C. Lockwood then asked the appellant to come out on the porch to speak to him and give a recorded statement. This would enhance the perception of a reasonable person, in the circumstances, that they were the focus of the investigation.
[49] The second factor under Grant is the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter.
[50] Physical contact does not feature in the detention analysis in this case. However, as already identified, the language used by D.C. Lockwood after police entered the house was targeted and accusatory.
[51] It is noteworthy that the warrant was executed at 6:03 a.m. when most people are just waking up and when working people with children are getting ready for their busy day. This element takes on particular flavour when one considers the presence of some nine police officers executing the warrant in what appears to have been a typical, middle-class home. This would cause a reasonable person to feel the weight of the state in their home, the most private of places.
[52] The encounter itself, up to the time when the appellant was invited to give a statement on the porch, lasted approximately 40 minutes. It is not clear when the police had secured the areas they needed to secure, but there is no evidence of why it was necessary for the appellant to remain in the living room for that length of time. Nor is there evidence as to why police did not tell the appellant that he could leave or get ready for work, if he wished to do so.
[55] I conclude that the appellant was detained, at the very latest, at approximately 6:53 a.m. when D.C. Lockwood asked him to come to the porch to give a statement. Given all that had taken place during the preceding 50 minutes, including the focused and accusatory statements made to the appellant, the lengthy period of sequestration, under guard, and the officer’s request to come to another area of the home to make a recorded statement, a reasonable person in the appellant’s situation would conclude that they were obliged to comply. At no time before his arrest was the appellant informed of his right to counsel, even though D.C. Lockwood knew that he was required to do so. The appellant’s s. 10(b) right was infringed.
Second Interview - Connected to the First?
[Applying R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19-21]
[60] Having found a Charter breach in relation to the first statement, I would also find that there was a temporal, contextual, and causal nexus between the first and the second statements.
[61] The statements were relatively close in time to each other. About four hours elapsed between the end of the first statement in the appellant’s home and the beginning of the second statement at the police station. In the meantime, the appellant went through what must have been a head-spinning and stressful process of arrest, transportation to the police station, parading and processing at the station, waiting, and consulting with duty counsel. In the context of this case, the passage of time was not sufficient to sever the link between the two statements.
[62] The statements were also linked contextually. At the end of the first statement, D.C. Lockwood told the appellant that the questioning would continue at the station: “[W]hen I come back to the station, I’d like to sit down and chat with you, but that, talk to your lawyer first, ok?” While the appellant did speak to counsel, D.C. Lockwood was the only person present at the second interview. The officer’s presence served to connect the two statements.
[64] The statements were also contextually linked by virtue of the officer's conduct. During the second interview, D.C. Lockwood continued to employ the same investigative techniques he had used in the first interview....
[67] There was, however, another more calculated aspect of the questioning that was common to both statements. In both interviews, the officer used the implicit threat that if the appellant was not forthright, he would have to interview his children.
[68] During the first statement, a few moments before the appellant blurted out, “we both know… that… it’s… myself”, the officer said, “I’ll be honest. I think it was you, man. … because it wasn’t your kids.” The appellant replied, “[t]rue.” Moments later, the officer said “Ok, I do appreciate your honesty because I don’t want to drag your kids into this.”
24(2) Analysis
Seriousness of the Charter Infringing State Conduct
[79] In my view, the Charter infringement in this case was serious and amounts to wilful disregard of the appellant’s Charter rights. The officer acknowledged that the appellant was a suspect from the outset and that he should have cautioned him. Instead, he pursued a tactical and focused interrogation. He ignored the appellant’s statement that he did not want to say anything and that he wanted to “talk to people that could either help [him], or not help [him].” The officer clearly understood that the appellant wanted to speak to a lawyer....This wilful disregard of the appellant’s rights weighs heavily towards exclusion of the fruits of the interrogation.
The impact of the breach on the Charter-protected interests of the accused
[80] The impact of the breach was serious. The appellant was detained and “at the mercy of state actors”: R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 21. Section 10(b) protects the detainee’s right to make an informed choice about whether to cooperate with the investigation by giving a statement: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-28. The actions of the police deprived him of that right.
Society’s interest in the adjudication on the merits
[81] ....On the other hand, where the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: McGuffie, at para. 63.
[82] In this case, the evidence is reliable, but it is not critical to the Crown’s case. The Crown has circumstantial evidence regarding the possession and use of the computers. This may be enough to proceed with the charges: see e.g., R. v. Taylor, 2019 ONCJ 110; R. v. Erskine, 2017 ONSC 6782; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
Conclusion
[83] The state conduct was willful and in disregard of the appellant’s asserted Charter rights. It had a serious impact on those rights and on his attempt to exercise them. While society has a strong interest in the adjudication of the charges on their merits, the exclusion of the evidence will not preclude the Crown from proceeding with the charges, if it chooses to do so, relying on forensic evidence obtained from the computers themselves. This is not a case in which the Crown’s case will be gutted by the exclusion of the improperly-obtained evidence. It may be more challenging to prove, but it has not been suggested that it would be impossible.
[84] For these reasons, the appellant’s statements should be excluded pursuant to s. 24(2).
R v Starblanket (SKCA)
[Dec 12/19] Sentencing - Dangerous Offender Designation and Indeterminate Sentence - 2019 SKCA 130 [Reasons by Jackson, with Ottenbreit and Whitmore JJ.A. Concurring]
AUTHOR’S NOTE: Most dangerous offender hearings do not end well for the offender. In a rare bit of good news, the SKCA has reinforced some previous SCC jurisprudence regarding the 2008 amendments to these provisions. Dangerous Offender designations must take into account the offender's treatability in the community and, once that designation is made, there is NO presumption that an indeterminate sentence must follow. Here, errors in this regard let to a new sentencing proceeding being ordered.
Overview
[4] ....In summary, and for the reasons that follow, I conclude that the law as clarified by the Supreme Court in Boutilier, [ 2017 SCC 64 (CanLII)] which was released December 21, 2017, after the release of the Sentencing Decision, determines the outcome of this appeal and requires a new sentencing hearing....
Background and Facts of the Offence
Personal History
[7] Mr. Starblanket was born on September 21, 1982. As a child, he witnessed extensive domestic abuse. His home was characterized by chronic substance abuse and violence on the part of adult caregivers, with much of the violence being directed toward his mother and perpetrated by her various partners. He was first placed in the care of the Department of Social Services at the age of five because of his mother’s inability to care for him. He was placed in a number of foster homes as a child – as many as 10 to 15 according to Dr. Todd Tomita, the expert engaged by the court for the purposes of the dangerous offender application. Mr. Starblanket’s lifestyle has been such that he has either been the victim of violence or he has observed “many instances of violence”.
[8] Mr. Starblanket told Dr. Tomita that he was sexually molested or abused on several occasions: between the ages of five and seven, on approximately five to ten occasions, by his grandfather, a residential school survivor; at the age of seven, by a female cousin; and later, by an older white male at a swimming pool.
[9] At the age of 10 or 12, Mr. Starblanket was placed at the Regina Native Youth facility because his behaviour could not be managed in a regular foster home. At the age of 14, he began to commit offences. He was convicted of his first offence when he was 16. At that time, he was diagnosed with conduct disorder and showed signs suggestive of an antisocial personality disorder. By the time he was 17, a severe substance abuse problem had been identified. Interventions by his mother and various child and youth services were unsuccessful in moderating either his aggression or his substance abuse.
[10] Mr. Starblanket has been violent towards all of his female partners, and his relationships have all been short-lived with none lasting longer than a year. According to Dr. Terry Nicholaichuk, Mr. Starblanket’s associates fall into two non-overlapping groups: one being his pro-social relationships with his mother, older sister, one friend, and perhaps employers (although all employment has been short-lived); and the other composed of people who can supply him with drugs. He continues to have the support of his mother, his sister, a long‑time friend, and Father André Poilievre, the founder and driving force behind STR8 UP, an organization dedicated to supporting people who want to leave gangs and start new lives.
Offending History
[11] Mr. Starblanket has convictions for violent offences including, robbery with violence (1999); assault peace officer x 2 (2002); uttering threats (2002); assault with a weapon (2003); assault (2003); assault with a weapon, forcible confinement, uttering threats, and assaulting a peace officer (2003); assault causing bodily harm and uttering threats (2007); two counts of robbery and one of assault (2008); assault causing bodily harm (2009); assault and assault causing bodily harm (2010); and assault x 2 (2013).
Predicate Offence
[13] The circumstances of the predicate offence may be briefly described. A high-quality surveillance video recording showed Mr. Starblanket and a young woman, the co‑accused, entering a convenience store in the early evening. Mr. Starblanket was wearing dark clothes, a hoodie with the hood pulled up, and sunglasses. The co-accused was wearing dark clothes and a baseball cap. They walked around the store for several minutes during the course of which they placed items on the counter. While Mr. Starblanket stood by the door, the co-accused walked behind the counter and raised a Taser gun. The clerk emptied the cash register and placed the grocery items in two bags. Mr. Starblanket rushed to the counter, grabbed the grocery bags, and quickly left the store with the co-accused.
Expert Reports
1. Dr. Tomita [Court Appointed Expert]
[18] Dr. Tomita diagnosed Mr. Starblanket as having an antisocial personality disorder and alcohol and substance abuse problems. Dr. Tomita indicated that a personality disorder diagnosis is made “when a person has evidenced an enduring pattern of thinking, feeling and behaving that results in problems with functioning attributable to pathological personality traits”. He described Mr. Starblanket as having “an egocentric, callous lack of concern for others, accompanied by irresponsibility, impulsivity, irritability and aggressiveness, risk taking, and a lack of remorse”. He opined that Mr. Starblanket’s personality-based problems are not “primarily attributable to substance use problems” but that “his substance abuse appears to have aggravated problems related to his Antisocial Personality Traits”.
[19] Applying all three risk assessment methodologies, Mr. Starblanket was assessed to be at a high risk to reoffend. Of particular note is Dr. Tomita’s assessment that Mr. Starblanket’s “pool of potential victims is extremely broad and includes strangers, casual acquaintances, intimate partners, family members, correctional staff, and treatment providers”. Applying the Violence Risk Appraisal Guide-Revised test (VRAG-R), Mr. Starblanket “shares characteristics of a group of offenders who are at the highest risk of having future charges or convictions for violent offences”.
[21] As to the possibility of control of the risk that Mr. Starblanket presents, Dr. Tomita drew a distinction between provincial and federal control of risk within the community. He wrote: “There is little likelihood that Mr. Starblanket’s risk of violence can be contained in the community either on provincial probation or if he is off legal supervision” (at para 31, emphasis added). Dr. Tomita offered the opinion that, “on balance, the prospects are not overly optimistic but it is possible to foresee that his risk can be controlled in the community after a decade or longer within the institution and on federal parole” (emphasis added)....
2. Dr. Nicholaichuk [Defence Expert]
[22] Dr. Nicholaichuk was engaged by Mr. Starblanket’s counsel to prepare a psychological assessment of his client. His report, dated March 23, 2016, was prepared after the report of Dr. Tomita. Dr. Nicholaichuk was “qualified as a clinical psychologist, an expert in assessment and treatment of sexual and non-sexual violence”. Dr. Nicholaichuk’s report refers to Dr. Tomita’s and is largely consistent with it.
[23] Dr. Nicholaichuk wrote as follows:
Based upon his rating on the LSI-R, Mr. Starblanket’s risk for any type of new criminal behaviour, including offences such as breaches of conditions, was estimated to be greater than or equal to 61% within one year after release. The scale is not specific to violence but includes all criminal offences. This estimate is also based upon the assumption that there will be no appropriate intervention in his case. If a suitable intervention can be arranged, his risk for some sort of new criminal act can be expected to be somewhat lower. Overall, his score placed him in the upper portion of the distribution of risk scores given by this test. Incarceration at a medium level of security is acceptable. Halfway house placement is considered to be appropriate only if intensive supervision and treatment are provided. This formulation of risk appears to be consistent with that given by Dr. Tomita.
[24] Dr. Nicholaichuk indicated that Mr. Starblanket’s ability to govern his aggression seems to be improving:
Although he was repeatedly violent when younger, Mr. Starblanket’s ability to govern his aggression seems to be improving. Log entries from Provincial and Federal institutions indicate a steady rate of institutional charges beginning in 2001. Institutional reports show convictions for fighting, threatening other inmates, and swearing at staff. Over the two years that he has been on remand at the Saskatoon Correctional Centre for the index offence, he was charged with two instances of fighting and one charge of causing a disturbance. Staff who are familiar with him said he had a “short fuse” but that they see him trying to control it. He incurred his last charge … for fighting while working at his institutional job. He was working as a domestic and got into a fight over juice. Correctional staff on the unit where he is being housed reported that overall he was doing “OK” and that he caused no significant problems.
Sentencing Decision
[26] The sentencing judge held that the Crown had discharged its burden and had proven beyond a reasonable doubt that Mr. Starblanket should be designated as a dangerous offender, and that there was no sentencing alternative available other than an indeterminate sentence. I will present the sentencing judge’s reasons in more detail when considering Mr. Starblanket’s grounds of appeal.
The Effect of Boutilier - The Designation of a Dangerous Offender
[65] Before the Supreme Court’s decision in Boutilier, a number of courts in Canada had interpreted the Tackling Violent Crime Act, SC 2008, c 6 [2008 Amendments] as narrowing judicial discretion by adding the word “shall” to s. 753(1): “On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied …”. Before Boutilier, it was widely believed that, with the 2008 Amendments, Parliament had intended courts to find dangerousness upon proof of one of the criteria listed in s. 753(1)(a)(i)–(iii) without considering any aspect of the offender’s treatability. As part of this interpretation, it was also accepted that the Crown no longer had to prove intractable behaviour.
[66] Both of these propositions were laid to rest by the majority decision in Boutilier. The majority held that the 2008 Amendments did not change the law appreciably from the prior law; treatability is part of the assessment of dangerousness and the sentencing judge must be satisfied that the offender’s conduct is intractable.
[67] Importantly, the majority in Boutilier, under the pen of Côté J., made these declarations of principle:
(a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ after a prospective assessment of risk” which requires a “consideration of future treatment prospects” (at para 23, italics emphasis in original);
(b) following R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309 [Lyons], a sentencing judge must still be satisfied on the evidence that (Boutilier at paras 26–27):
(i) the offender poses a high likelihood of harmful recidivism;
(ii) his or her conduct is intractable, which is defined as “behaviour that the offender is unable to surmount” (at para 27);
(c) “[d]etermining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35);
(d) “the Crown must prove every dangerousness criterion beyond a reasonable doubt (R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229)”, but “what must be proven beyond a reasonable doubt with respect to these two prospective criteria is not their certainty, but their likelihood: Currie, at para. 42. This is so because ‘as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring’: Lyons, at p. 364” (at footnote 1; see also para 41);
(e) “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects” (at para 43);
(f) “[a]t the designation stage, treatability informs the decision on the threat posed by an offender” (at para 45); and
(g) “offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable” (at para 45).
See S.P.C., Piche, Parfitt, and R v Napope, 2019 SKCA 124 (CanLII).
Application - The Designation Decision
[71] First of all, she stated the issues in this manner (Sentencing Decision):
[6] Accordingly, the issues to be determined in this case are:
1. Did Mr. Starblanket commit a “serious personal injury offence” as defined in s. 752 of the Criminal Code?
2. Does the evidence establish a pattern of repetitive or persistent aggressive behaviour pursuant to ss. 753(1)(a)(i) or (ii) of the Criminal Code?
3. If Mr. Starblanket is designated as a dangerous offender, is there a reasonable expectation that a lesser measure will adequately protect the public against the commission of murder or a serious personal injury offence?
She did not address the intermediate issue, between the second and third issues, which is whether Mr. Starblanket should be declared a dangerous offender after considering the evidence of treatability.
[74] As I have indicated, the majority in Boutilier held that “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects” (at para 43, emphasis added). See also Piche at para 90 and Parfitt at para 65. Even if an offender meets the criteria for s. 753(1)(a)(i)–(iii), trial judges are obliged to consider whether the offender constitutes a future threat in order to meet the criteria set out in s. 753(1)(a), which requires a consideration of the offender’s treatability prospects. Failing to proceed in this manner constitutes a legal error pursuant to Boutilier. It follows that Mr. Starblanket’s treatment prospects were a mandatory consideration at the designation stage. I will consider the effect of this misinterpretation of s. 753(1) later in these reasons.
The Effect of Boutilier - The Length and Type of Sentence
[75] ....Again, the majority of the Supreme Court in Boutilier, in order to maintain the constitutionality of the dangerous offender regime, interpreted the 2008 Amendments differently. In effect, the majority held that R v Johnson, 2003 SCC 46 (CanLII), [2003] 2 SCR 357 [Johnson], still governed how judges should exercise their discretion in determining the appropriate penalty.
[77] In response to the argument that s. 753(4.1) imposes a burden or onus on an offender or otherwise changes the law as represented by Johnson, Côté J. indicated her disagreement in Boutilier:
[65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing. This Court in Johnson stated that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44. Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism.
…
[70] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe, No. 10-10013990, March 22, 2017. First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.
(Emphasis added)
[78] In his analysis of Boutilier, Ottenbreit J.A., writing for this Court in S.P.C., confirmed that determining the appropriate penalty for a dangerous offender requires an assessment of the management of the risk, not its complete elimination:
…
[44] It was therefore essential for the sentencing judge to consider what mechanisms could be used to manage the risks posed by S.P.C. Examination of whether the offender’s risk could be managed by some internal or external controls informs whether the risk is such that there is a reasonable expectation the public will be adequately protected by the lesser sentence.
Application - The Indeterminate Sentence
[79] The sentencing judge in this case framed the issue before her in terms of s. 753(4.1): If Mr. Starblanket is designated as a dangerous offender, is there a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission of murder or a serious personal injury offence? In light of Boutilier, the focus of s. 753(4.1) is the same as it was in Johnson, which is whether “an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level” (at para 44).
[80] The sentencing judge also referred to case law that held that “once an offender is designated a dangerous offender, an indeterminate sentence is presumed to be a fit sentence” (Sentencing Decision at para 35)....
[81] ....Thus, I conclude that the sentencing judge, without the benefit of Boutilier, applied an incorrect framework in arriving at her conclusion to impose an indeterminate sentence. Specifically, she asked the wrong question and presumed an indeterminate sentence to be a fit sentence once she had determined that Mr. Starblanket is a dangerous offender.
Curative Proviso?
[100] Significantly, the sentencing judge did not correlate Dr. Tomita’s evidence with Mr. Gonzo’s in order to answer the question of whether Mr. Starblanket’s risk could be adequately controlled in the community with a lesser sentence (to paraphrase Boutilier).
[101] In that regard, this case is like R v Lemaigre, 2004 SKCA 125 (CanLII), 189 CCC (3d) 492 [Lemaigre], where the Court set aside a dangerous offender designation and remitted the case for further consideration and sentencing. In doing so, Cameron J.A., on behalf of the Court, reviewed what is required by way of an assessment to determine whether risk can be reduced to an acceptable level:
[50] I want to emphasize that what was called for was this: an assessment of the prospects of eventually reducing the risk to an acceptable level – not altogether eliminating it, but thus reducing it – should Mr. Lemaigre be sentenced to several years in prison, be exposed to the treatment programs offered in prison, and then be released into the community under supervision and on a set of conditions aimed at reducing the risk to an acceptable level. In the circumstances of the case, it is this which was not adequately explored.
(Emphasis in original)
See also R v K.R.S., 2004 SKCA 127 (CanLII), [2005] 5 WWR 82; R v Daniels, 2011 SKCA 67 (CanLII) at paras 24–30 and 49–65, 271 CCC (3d) 339 (leave to appeal to the SCC refused, 2012 CanLII 16378); and R v Ewenin, 2013 SKCA 50 (CanLII), [2013] 11 WWR 245. These decisions, among others, found that it was an error of law not to consider whether risk could be adequately controlled by a lesser measure than an indeterminate sentence.
Conclusion
[109] ....Nonetheless, having regard for these cogent submissions, and the significant passage of time in this case, since Mr. Starblanket’s sentencing hearing, I have concluded that there should be a new hearing with respect to both the dangerous offender designation and the penalty.
R v WM (ONSC)
[Nov 13/19] – Sexual Assault Reverse Disclosure - Interpretation of "Record" in s.278.1 - Process - Judicial Summary of Evidence to the Crown – 2019 ONSC 6535 [Davies J.]
AUTHOR’S NOTE: The "Gomeshi" amendments to the Criminal Code continue to plague trial courts and bog down sexual assault litigation. Here, Justice Davies interprets whether a complainant can maintain a "reasonable expectation of privacy" over Facebook messages she has previously sent to the Accused. In short, the answer was no. Consequently, no application under s.278.92 was necessary - the complainant did not need counsel for representation in the hearing.
Procedurally, the decision was also useful for the Defence. The process employed by the Court ensured that the Complainant was not pre-exposed to the contents of the messages by a process akin to step six in Garafoli: Defence submitted the messages to the Court alone - the Court provided a judicial summary to the Crown to enable them to make submissions.
Overview
[1] W.M. is charged with several offences, including sexual assault with a weapon, sexual assault causing bodily harm and assault causing bodily harm. The charges arise out of an altercation that occurred on March 25, 2017 between Mr. M. and the complainant, Ms. M.-A.
[2] The defence has in its possession several Facebook messages between Ms. M.-A. and W.M. The Crown does not have a copy of the messages.
[3] Mr. M. brings a motion for directions on the question of whether he is required to bring an application under s. 278.92 of the Criminal Code for a ruling permitting him to use the Facebook messages during cross-examination of Ms. M.-A. at trial. Under the recent amendments to the Code, if the messages meet the definition of a “record” an application is necessary. If not, no application is required. The question of whether the messages are a “record” turns on whether Ms. M.-A. has a reasonable expectation of privacy over the content of the messages.
[7] The term “record” is defined in s. 278.1 as follows:
any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence (emphasis added).
[8] The definition of “record” does not make explicit reference to electronic communications. As a result, the Facebook messages that W.M. has in his possession are only “records” for the purpose of the new evidentiary regime if they contain “personal information for which there is a reasonable expectation of privacy.”
Procedure
[11] As a preliminary matter, counsel for W.M. asked to file a copy of the electronic messages as a sealed exhibit on the motion for directions, meaning that I would review them but the Crown would not be given a copy for the purposes of this motion. He also suggested that I hear submissions from the defence in the presence of the Crown after I read the messages. The Crown would then have an opportunity, having heard the defence argument, to make submissions about whether Ms. M.-A. has a reasonable expectation of privacy in the messages.
[13] I decided to review the messages and make them a sealed exhibit on the motion without permitting the Crown to review them. I provided the Crown with as much information as possible about the messages without disclosing the content of them. More particularly, I advised the Crown that the messages :
(a) are all between Ms. M.-A. and W.M. and there are no other parties to the communications;
(b) were exchanged through Facebook Messenger;
(c) were taken from W.M.’s Facebook account;
(d) were exchanged between December 14, 2016 and January 6, 2017; and
(e) do not contain any information that could constitute other “sexual activity” for the purpose of s. 276 of the Code;
[17] The Supreme Court created one such “special procedure” to be used when the defence is challenging the validity of a warrant that is based, in whole or in part, on information from a confidential informer that cannot be disclosed.[3] The Crown can edit the confidential information out of the warrant and the information to obtain (ITO). A judicial summary explaining the “general nature of the deletions” to the ITO is provided to the defence. If the warrant cannot be sustained based on the edited affidavit, the trial judge can look at and consider the whole, unredacted warrant, as long as the accused is in a position to challenge the warrant “in argument or by evidence” on the basis of the judicial summary and other information in its possession. This procedure contemplates that information provided by or about the confidential informer will not be disclosed to the accused but will be available to the judge in assessing the validity of the warrant.
[18] In R. v. Crevier, the Court of Appeal held that an accused’s inability to access the redacted details in the ITO of what the informer told police does not necessarily prevent the defence from meaningfully challenging a warrant.[4] In fact, the Court held that a well-crafted judicial summary along with the disclosure and the edited ITO will usually provide the defence with sufficient information to challenge the warrant even though it is redacted. The Court noted that the defence may have to make arguments in the alternative or on general principles, but that does not necessarily render the process unfair.[5]
[19] A similar process has also been used where the defence claims that information seized by the police during the execution of a warrant is privileged and should not be turned over to the Crown. For example, in R. v. Church of Scientology, the defence claimed that documents seized by the police were protected by solicitor-client privilege....
[20] I recognize that there is no suggestion that the electronic messages in the possession of the defence in this case are privileged. Nonetheless, I have been asked to rule on a dispute over whether the defence should be required to disclose the messages to the Crown on a pre-trial application because they fall within the definition of “record” in s. 278.1. Unless Ms. M.-A. has a reasonable expectation of privacy in the Facebook messages, W.M. is entitled to keep them confidential until he chooses to use them at trial.[7]While an accused does not have a right to trial by ambush, the defence is generally not required to disclose their strategy to the Crown and Ms. M.-A. in advance of trial.[8]
[21] Further, Mr. M. has the right to know the case he must meet before he is called upon to respond. This right against self-incrimination is one of the fundamental aspects of the protections afforded by s. 7 of the Charter.
[22] The consequences of requiring W.M. to bring an application and give the messages to the Crown and Ms. M.-A. before she testifies are potentially profound. It may violate his s. 7 right against self-incrimination as articulated in P.(M.B.). In addition, to the extent the Facebook messages have impeachment value in this case, that value would largely be lost if Ms. M.-A. is able to review the message in advance and tailor her evidence to respond to the content of the messages.[10] This is particularly significant in this case because the credibility and reliability of Ms. M.-A.’s evidence will be a central issue.
[27] Employing an approach similar to the one set out in Garofoli ensures that the defence is not required to disclose information it is otherwise entitled to keep confidential. The process established Garofoli protects the confidentiality of information about the informant and also gives the accused enough information to challenge the warrant. Adapting that process to this motion for directions similarly protects the confidentiality of the information in the possession of the defence while giving the Crown enough information to make submissions as to why the complainant has a reasonable expectation of privacy in the records.
Was There a Reasonable Expectation of Privacy in the Records?
[29] ....This case deals only with informational privacy, which is premised on the idea that people have a right to decide for themselves when, how and to what extent they share personal information with others.[12]
[30] Before assessing whether Ms. M.-A. has a reasonable expectation of privacy and what factors go into that determination, it is important to note that s. 278.1 defines a record as anything that contains information over which Ms. M.-A. has as reasonable expectation of privacy. The decision is not whether Ms. M.-A. has at some time in the past had a reasonable expectation of privacy, although that may well be a relevant consideration. The question is whether Ms. M.-A. has a reasonable expectation of privacy at the time the application is made.
[31] Whether Ms. M.-A. has a reasonable expectation of privacy in the conversation she had with W.M. through Facebook Messenger must be assessed in the “totality of the circumstances”.[13] Privacy is not an “all or nothing concept”.[14] The fact that W.M. is in possession of the messages does not necessarily extinguish Ms. M.-A.’s expectation of privacy over their content.[15] Again, that may be a relevant factor but it is not determinative.
[40] These cases all demonstrate that the determination of whether someone has a reasonable expectation of privacy is very fact specific. It is not based exclusively on a risk analysis. It is not based exclusively on who controls the information. It is a normative analysis that asks whether an independent, informed observer would think that Ms. M.-A. ought to have an expectation of privacy over the information, given the circumstances.
[41] There are four factors that are most relevant to my assessment in this case:
(a) the content of the messages;
(b) the manner in which the messages were sent and who has control over them;
(c) the nature of the relationship between W.M. and Ms. M.-A.; and
(d) the policy implications of finding she does have a reasonable expectation of privacy.
Taken together, these factors lead me to the conclusion that Ms. M.-A. does not have a reasonable expectation of privacy over the Facebook messages. Even if, subjectively, she wants them to remain private, or at least not used against her in cross-examination without prior notice, that expectation is not objectively reasonable in the circumstances of this case.
Content of the Messages
[43] The messages do contain personal information in the sense that they disclose information about Ms. M.-A.’s social interactions and daily activities. However, they do not contain information of a highly personal or intimate nature.
Manner in Which the Messages were Sent
[44] ....The issue is whether Ms. M.-A. has a reasonable expectation that W.M., as the intended recipient of the messages, will keep them private.
[45] The fact that W.M. was the intended recipient of Facebook messages is a significant factor in deciding whether Ms. M.-A. can reasonably expect that they will be kept private and will not be used by the intended recipient. To the extent that the messages contain personal information about Ms. M.-A., she chose to share that information with W.M. She also chose to do so in writing, knowing that she was creating an electronic record that W.M. could save and share with others.
[46] The fact that Ms. M.-A. chose to share information with W.M. distinguishes the Facebook messages from the categories of records enumerated in s. 278.1 of the Code, none of which are created with the intention that they will be received by the accused.... There is no suggestion that Ms. M.-A. sent the messages to W.M. for any limited or specific purpose. In addition, the messages do not contain any express or implied request by Ms. M.-A. to keep the content of the messages private and not use them or further disseminate them.
[47] I recognize that this factor imports a risk analysis into the decision of whether Ms. M.-A. has a reasonable expectation of privacy over information she shared with W.M. As the courts have repeatedly said, risk of further dissemination is not determinative. It is nonetheless relevant that Ms. M.-A. chose to give W.M. the information he now wishes to use and she did so in a manner that she knew would create a permanent record that he could save. The kind of risk at issue on the facts of this case is quite different from the risk at issue in Duarte or Marakah, namely that the state might intercept or make a permanent record of the communication.
Nature of the Relationship
[50] Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now. Ms. M.-A. has made very serious allegations against W.M. They are now in an adversarial relationship. Just as it would not be reasonable for W.M. to expect Ms. M.-A. to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for Ms. M.‑A. to expect that W.M. will continue to keep private, but not sexual electronic communications which might advance his defence. Again, the messages here do not constitute sexual activity and do not engage s. 276 of the Code. There is nothing about the content of the messages that would compromise Ms. M.-A.’s dignity or personal security if she were asked about them in cross-examination.
Policy Implications
[52] ....If an accused retains a reasonable expectation of privacy in electronic communications he sent to and received from the complainant, his s. 8 rights would be engaged when the Crown or police take possession of them. In other words, if the accused retains or might retain a reasonable expectation of privacy over messages he sent to the complainant, the police may well be required to get a warrant to take copies of them from the complainant.
[54] In addition, as set out above, interpreting the definition of “record” in an expansive manner to include any private communication between an accused and complainant may well infringe W.M.’s s. 7 rights. The Facebook messages are prior statements by the complainant that may well be inconsistent with her testimony at trial. Cross-examination witnesses on prior inconsistent statements is one of the most important means of testing their credibility and reliability. Requiring the defence to disclose prior statements which may be inconsistent with evidence given at trial before the witness testifies could seriously undermine the accused’s rights under s. 7 of the Charter.
[55] The potential Charter implications, therefore, support a more narrow interpretation of the phrase “reasonable expectation of privacy” in this context.
Conclusion
[56] I find that even if Ms. M-A has a subjective expectation that her Facebook messages with W.M. would remain private, that expectation is not reasonable in all the circumstances of this case, including the innocuous, non-sexual content of the messages, the manner in which they were sent and the nature of the current relationship between she and W.M. The unintended consequences of finding that Ms. M.-A. has a reasonable expectation of privacy over information she chose to share with W.M. in a manner she knew would create a permanent record simply bolsters my conclusion that Ms. M.-A. does not have a reasonable expectation of privacy over the Facebook messages and they are not “records” for the purpose of s. 278.1 of the Criminal Code.
[57] Having come to that conclusion, it follows that Mr. M. is not required to bring an application under s. 278.93 before using the records in question at trial.
