This week’s top three summaries: R v JEV, 2019 ABCA 359, R v SK, 2019 ONCA 776, and R v King, 2019 ABPC 236.
R v JEV (ABCA)
[September 30/19] Charter s.11(b) - Delay Post-Appeal - 2019 ABCA 359 [Majority Reasons by Brian O'Ferrall J.A., with Patricia Rowbotham J.A. concurring, and Michelle Crighton J.A. dissenting]
AUTHOR’S NOTE: One of the issues left undecided in the wake of R v Jordan was the manner in which post-appellate delay should be treated. Does it count towards the original ceilings? Are there new ceilings? Herein, the ABCA attempts to answer the question. In general, they agree on the the way it should work, but the minority opinion would like more flexibility for Judges. The majority opinion is better for the justice system and gives it more predicability. In general, the clock resets to zero at the moment a re-trial is ordered and then the prior proceedings act as a benchmark. The new trial date should be expedited - and should take less time that the previous proceedings at the same level of court.
Pertinent Facts
[3] The charges were laid a decade later, in May 2011, and the accused was convicted of the offences in September 2013 but was subsequently ordered to be retried in February 2016 after the Crown consented to his appeal. His new trial was to be heard in late 2017 and was anticipated to be completed in December of 2017, but the proceedings were stayed when the accused successfully claimed, shortly before the hearing of the retrial, that his right to be tried within a reasonable time had been infringed.
[11] In accordance with the Supreme Court’s dictates, the trial judge performed the Jordan calculations to determine the net delay that should apply in this case. From the gross or total delay of 80.5 months, between the time the accused was initially charged and the projected start of his retrial, the trial judge deducted:
(i) 22 months for the appeal period (this deduction was agreed to by the Crown and the accused);
(ii) 3.5 months of defence delay attributable to the time spent searching for reasons for the February 2016 consent order of this Court allowing the appeal and ordering a retrial;
(iii) 8.5 months for the time it took to extradite the accused from Greece (a so-called “exceptional circumstance”); and
(iv) 2 months for the sentencing judge’s illness.
The trial judge concluded that the net delay was 44 months.
[12] In concluding that the net delay was 44 months the trial judge included (i.e. did not exclude) the time between conviction and sentencing (seven months less two months of delay in sentencing caused by the sentencing judge’s illness); and the time between the Court of Appeal’s ordering of a retrial and the anticipated completion of the trial (22 months).
[15] As for the timing of the retrial, the trial judge noted that Jordan did not specifically address this issue. He did, however, observe that Canadian courts, post-Jordan, have adopted a variety of approaches as to how to factor the time required to conduct a retrial into the Charter requirement that a person charged with an offence be tried within a reasonable period of time. The trial judge indicated that even if he had extended the 30-month presumptive ceiling for trials in superior courts by 12 months, as some cases have suggested, the increased presumptive limit would have been exceeded: 44 months versus 42.
[24] There is no need to attempt to reconcile the different approaches to assessing a trial judge’s global assessment of the reasonableness of delay. Suffice it to say that the standard of review in Alberta on this issue remains correctness, qualified by the caveat that trial judges are in the best position to know how quickly matters ought to proceed in their courts.
[25] Having said that, the key issue in this appeal (that is, the assessment of the reasonableness of delay in a retrial situation) is a matter for which there is currently much uncertainty in the case-law. In this unique and specific situation, I am inclined to conclude that deference is owed to the trial judge’s ultimate assessment as to the reasonableness of delay (see Rice at paras 31, 35; Jordan at para 174, Cromwell J, concurring).
The New Approach in Alberta for Post-Appeal Delay
[31] I am of the view that the presumptive ceiling established in Jordan does not contemplate time for a retrial. The presumptive ceiling in Jordan includes only the net time required to prepare for and complete the first trial. The issue of retrial time was not before the Court in Jordan. Moreover, a fair reading of Jordan suggests that the presumptive ceiling was intended to apply only to the time between charging an accused and the actual or anticipated end of a single trial (see the discussion in Jordan at paras 46-49; R v Manasseri, 2016 ONCA 703 (CanLII) at para 337, 344 CCC (3d) 281).
[32] If the ceilings established in Jordan were intended to include time for retrial, many retrials would be at risk of being constitutionally non-compliant. This cannot be the proper path forward (see R v Crowchild, 2018 ABQB 368 (CanLII) at para 21; R v Richard, 2017 MBQB 11 (CanLII) at para 32; R v Bowers, 2017 NSPC 21 (CanLII) at para 54; Masson c R, 2019 QCCS 2953 (CanLII) at para 66, [2019] JQ no 6093). As a result, to the extent the trial judge determined that retrial delay should be included under the Jordan ceiling (and it is by no means clear that he did), such a determination would be in error.
[37] I agree with the Court of Appeal in MacIsaac that the constitutional clock should start running the moment a new trial is ordered; and that it should start running from zero at that time (i.e. no credit for any unused time prior to the presumptive limit for a Charter-compliant trial). Doing so is logical in the absence of any suggestion that the time it took to complete the original trial was unreasonable (see R v Gakmakge, 2017 QCCS 3279 (CanLII) at para 41; R v Ferstl, 2017 ABPC 266 (CanLII) at para 48).
[38] I also agree with the Ontario Court of Appeal in MacIsaac that retrials should be prioritized and ordinarily be conducted in significantly less time than the applicable presumptive ceiling for the original trial. There is a duty on every actor in the justice system to prioritize retrials and to move them forward expeditiously (see MacIsaac at paras 25, 27; R v Simon, 2017 ABQB 585; R v Bowers, 2017 NSPC 21 (CanLII) at para 105; and R v Richard, 2017 MBQB 11 (CanLII) at para 32).
[39] Expediting retrials also aligns with a number of principles articulated in Jordan, such as minimizing the harmful effects of long delay on accused persons and the importance of maintaining public confidence in the administration of justice (Jordan at paras 20, 25). While the focus of Jordan was delay in the context of a first trial, the principles espoused in that decision are just as relevant in a retrial situation, where more time will inevitably be required to complete the entire proceedings. Suffice it to say that there was no suggestion that in this case the retrial was expedited in any way.
[40] All of the above said, I am not inclined to set a quantitative ceiling for how long it should take to prepare for and complete a retrial. Setting a presumptive ceiling for retrials could unduly narrow the focus of the application to the retrial period, thereby impeding a trial judge’s assessment of any delay which might already have occurred in the proceeding prior to the retrial being ordered. Such delay should be taken into consideration (for instance, Masson at paras 65-68). As stated by Paciocco, J in R v Fitts, 2015 ONCJ 746 (CanLII), 127 WCB (2d) 245 at paragraph 5:
Since an accused person facing a retrial will have experienced the adverse effects of the prosecution from the time the charge was initially laid, that entire period should, in my view, be taken into account. This is particularly so given that accused persons are not ordinarily responsible for the need for a second trial. A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter.
In the case before us, perceived judicial error was apparently the reason the appeal was conceded and the retrial ordered.
[43] In short, the assessment of delay in an s.11(b) application brought during the retrial period should be flexible and considered on a case-by-case basis, bearing in mind that:
(a) retrial delay should be assessed in the same way (pursuant to the Jordan principles) as it is on a stay application brought during an original trial;
(b) that the clock for assessing retrial delay should ordinarily start at zero from the moment the retrial is ordered;
(c) there is a presumptive expectation that retrials will be conducted on a reasonably expedited basis;
(d) that the amount of time required to complete a retrial should ordinarily be less than the presumptive Jordan ceiling applicable to the first trial; and
(e) that at least some consideration should be given to how long it took to prepare for and complete the first trial together with the amount of time it took to prepare for and complete the retrial (i.e. the time required for the proceeding as a whole), keeping in mind the various principles articulated in Jordan concerning the importance of the right to be tried within a reasonable time (see Jordan at paras 1-5, 19-28).
[44] This approach should provide a sufficiently flexible framework for trial judges to assess whether, in the context of a retrial, the person charged with an offence has been tried within a reasonable time.
Application to the Case Here
[45] Turning to the case at hand, as previously indicated, to the extent that the trial judge determined a stay was appropriate because the net time taken for the entirety of the proceeding was in excess of the 30-month presumptive Jordan ceiling, I believe he was in error. However, his ultimate conclusion that the accused’s right to be tried within a reasonable time was infringed was not materially affected by this error and was reasonable and accorded with the principles underpinning Jordan.
[47] The trial judge indicated that at least one third of the delay in this matter occurred post-Jordan. Of particular note to us is that the setting of retrial dates occurred in August 2016, which was about a month after the release of Jordan. The two-week retrial was scheduled to begin 15 months later, in November 2017. Whatever difficulties there were in securing prompt trial dates in Southern Alberta would be well-known to the trial judge. However, for the reasons already discussed, nearly two years would have passed between the time of the retrial order and the anticipated completion of that trial. The trial judge found that passage of time to be unreasonable. In the face of that finding, I am certainly not in a position to say that the accused would have been retried within a reasonable time, particularly when the first trial, in the same jurisdiction, was able to be held seven months after the preliminary inquiry.
[49] The trial judge concluded that the period of delay in this case was “undoubtedly unreasonable” and unconstitutional. And I am not prepared to disturb the trial judge’s findings. This was not a complex case and steps ought to have been taken to move the retrial forward more expeditiously, particularly in light of the prolonged history of the proceeding.
[50] To summarize, these reasons propose an approach to assess the reasonableness of retrial time post-Jordan for a s.11(b) Charter application. I propose that the assessment of the reasonableness of retrial time starts when a retrial is ordered, having some regard to what has gone before. I suggest no ceiling. Rather, the retrial, like the trial, must be held within a reasonable period of time from the ordering of the retrial. Retrial time is to be assessed on a case-by-case basis, with its reasonableness assessed in accordance with the principles in Jordan. However, I am of the view that there should be a presumptive expectation that the retrial will be conducted on a reasonably expedited basis and ordinarily sooner than the first trial, the starting point being the ordering of the retrial. The reasonableness of the time it takes to retry the accused will also be assessed having regard to the time which has elapsed since the charges were laid, the more time consumed prior to the ordering of the retrial, the sooner the retrial might have to be held in order to be reasonable.
[51] In short, I am not persuaded that the trial judge erred in granting the accused's application for a stay of proceedings.
R v SK (ONCA)
[October 1/19] Murder - Awareness of Likelihood of Death under s.229(c) - 2019 ONCA 776 [Janet Simmons J.A., M. Tulloch J.A., David Brown J.A. - all concurring - three sets of reasons - quotes from Reasons of Simmons J.A. expressly agreed with by others]
AUTHOR’S NOTE: The diminished maturity of the accused in this particular case had a significant impact on the appeal. The Court has outlined that in determining the subjective awareness of the likelihood of death from the dangerous act undertaken by the accused, a trier of fact must consider (and a jury must be instructed) in relation to factors affecting their knowledge. This specifically includes limitations due to their age and maturity.
Overview
[1] As he had done many times before, on June 28, 2011, 15-year-old S.K. (“the appellant”) took his father's Dodge Caravan minivan out at night without his parents’ consent and went joyriding with three friends.
[2] At around 4:45 a.m., Constable Garrett Styles of York Regional Police stopped the appellant for speeding. Following a brief trip to his cruiser, Constables Styles told the appellant that the van would be impounded and ordered him to get out of the vehicle. The appellant refused and pleaded with the officer to let him go.
[3] After some further verbal interaction with the appellant, Constable Styles opened the driver’s door of the van, reached over the appellant and attempted to undo the appellant's seat belt. The van then started moving onto Highway 48 and accelerated with Constable Styles caught between the appellant and the steering wheel and the lower part of his body hanging out the open driver’s door.
[4] Approximately 267 metres down the highway, Constable Styles jerked the steering wheel to the left. The van left the highway, went through a ditch and up an embankment, became airborne, and rolled 360 degrees. Constable Styles was ejected from the van, which ultimately came to rest on top of him. Although he was conscious when emergency personnel arrived, tragically, Constable Styles was pronounced dead shortly after reaching the hospital.
[5] The appellant sustained a spinal fracture in the crash that rendered him a quadriplegic. He was charged with first degree murder at 6:15 a.m. on the morning of June 28, 2011.
[6] On the evening of June 28, S.K. underwent spinal surgery, following which he was intubated and unable to speak for three weeks. During that period, he could only use an alphabet board to communicate. On July 24, 2011, S.K. made a statement to his father, N.K., to the effect that he did not intentionally set the van in motion.
[7] The appellant was tried and convicted of first degree murder contrary to s. 229(c)[1] and 231(4)(a)[2] of the Criminal Code, R.S.C. 1985, c. C-46.
[8] .... At trial, the Crown theorized that the appellant put the van in park when he was initially stopped but later, when Constable Styles attempted to remove him from the vehicle, intentionally shifted into drive and stepped on the accelerator.
[10] However, a paramedic who attended to the appellant at the scene of the crash testified that, when he was asked what happened, the appellant said he could not specifically recall the accident and that the appellant never provided any information about events leading up to the accident. Although the Crown did not cross-examine the appellant about this statement, in closing submissions, the Crown questioned why the appellant’s first response to the paramedic had not been to the effect that he was trying to stop the van.
[15] For the reasons that follow, I conclude that the trial judge erred in failing to instruct the jury that the appellant’s age and level of maturity were important factors for them to consider in assessing whether he knew his dangerous driving was likely to cause Constable Styles’s death. I would allow the appeal on that basis alone.
[16] ... Finally, I conclude that the trial judge erred in failing to instruct the jury specifically that they must disregard the Crown’ closing submission that led the defence to request a mistrial. I reject the appellant’s submission that the verdict of first degree murder was unreasonable and would not give effect to the fifth ground of appeal.
Pertinent Facts
[19] The appellant taught himself to drive in the parking lot of his parents’ restaurant. Beginning in November 2010, when he was 14 years old, he drove his father’s two vehicles around the parking lot without his parent’s knowledge while they were away from the restaurant. Later, he drove the vehicles around with his friends at night after his parents were asleep. Although in January 2011 he was caught by police and ticketed for driving without a licence, neither that experience nor his parents’ shock and disappointment over his conduct was sufficient to deter him for long. Within about six weeks of being caught, he had resumed his nocturnal joyriding. In all, he went out driving with friends about fifteen times between December 2010 and June 2011.
Appellant's Evidence
[43] The appellant testified that all four occupants of the van were freaking out when they realized they were being pulled over by the police. He said he pulled over and kept his right foot on the brake throughout the traffic stop. He explained it was his habit to leave a vehicle in drive if he was stopping without disembarking.
[45] The appellant testified he just started begging when Constable Styles told him the van would be impounded. He said the officer was getting angry and all of a sudden swung the van door open really quickly. “[I]t was unexpected. It startled [him].” The officer “just launched himself into the vehicle” and put his right arm across the appellant and shoved him toward the front seat passenger, F.D.
[46] The appellant recalled that the officer’s entry into the vehicle constituted “one continuous motion”. The officer reached for the appellant’s seatbelt with his left hand, appeared to lose his balance, and fell onto the appellant at the same time as the seatbelt came undone and the van started to move.
[47] The appellant denied that he intentionally set the van in motion. He said his foot was still pushing the brakes and he had no idea how the van started going. The officer’s body was in his lap, on his stomach and chest area. He said he could not breathe and could not see his foot. While he acknowledged that his foot must have been on the accelerator, he said he thought his foot was still on the brake and he could not figure out what was happening at that time.
[48] The appellant’s hands were in his lap when Constable Styles fell on him. He tried to use his right hand to control the steering wheel, but it was hard, because of the weight on his arm. He thought he freed his left arm and was using it instinctively to hold onto Constable Styles.
[49] The appellant claimed that, as the van moved down the highway, he was focused on stopping or steering the van. He did not know whether F.D. hit him and did not remember Constable Styles threatening to shoot him. He did remember the officer biting him, however. After the officer pulled the vehicle to the left, he closed his eyes. When the van stopped, he did not know that Constable Styles was under the van.
[51] In cross-examination, the appellant maintained that although Constable Styles asked him to get out of the van several times, it never crossed his mind that the officer would open the door to get him out. The appellant did not know why the officer fell on his lap and disagreed that it was because the van moved. He suggested the van may have started moving because the officer fell on his lap and pushed his foot onto the accelerator. The appellant testified that, during the course of the incident, it never crossed his mind that the officer might die; he was just focused on stopping the vehicle.
Crown's Closing Address
[59] At trial, both the trial judge and defence counsel took issue with the following aspect of the Crown’s closing address:
And as I had mentioned to you earlier today, when you look at this evidence and when you see that he was responsive and alert and able to carry on a conversation, don’t just consider what [the appellant] said, but also consider what he didn’t say. That’s important. This is less than ten minutes, presumably, after the crash, less than two minutes he is conscious, he is alert, he knows what’s going on, right? Don’t just look at what he said; look at what he doesn’t say. What doesn’t he say?What doesn’t he say? He doesn’t say, man, the brakes in this van don’t work. No, he doesn’t say that. He doesn’t say, I kept pushing on the brakes, but it wouldn’t stop. Doesn’t say that. He doesn’t say I was trying to stop this van, what happened? Isn’t that the very first thing he would say when somebody said to him what happened? [Emphasis added.]
Charge to the Jury and Knowledge Element under s.229(c)
[64] This ground of appeal relates to the fourth question articulated by the trial judge, which required the jury to determine whether the appellant knew that the dangerous manner in which he drove would likely cause Constable Styles’s death. Given that the jury reached this question, they had already concluded that the appellant intentionally committed an objectively dangerous act that caused the death of Constable Styles.
[65] The appellant submits that he was only 15 years old at the time of the accident and, on all the evidence, in a state of panic. He argues that the trial judge should have drawn these facts to the jury’s attention specifically in relation to this fourth question, and, in particular, concerning whether the common sense inference should be drawn.
[66] The appellant points out that, in the pre-charge conference, defence counsel requested a Shand instruction focusing the jury’s attention on whether the appellant was in a state of panic when he set the van in motion and whether that affected his ability to foresee the consequences of his actions.[8]
[70] In my view, the trial judge erred in failing to instruct the jury specifically that, before relying on the common sense inference to conclude that the appellant knew the manner of his driving was likely to cause Constable Styles’s death, they were required to consider his age and level of maturity. The trial judge also erred in failing to review the evidence relevant to that issue. While it would have [been] preferable for the trial judge to have provided a similar caution in relation to the issue of panic, I am satisfied that the trial judge adequately directed the jury’s attention to the question of panic through his review of the evidence concerning the appellant’s position on the knowledge element. I reach my conclusion concerning this error for several reasons.
[71] First, this court has counselled that, in the context of a case tried under s. 229(c), where a finding of knowledge of the likelihood of death is required, a trier of fact must be cautious before inferring actual knowledge based entirely or substantially on the common sense inference. At para. 137 of R. v. Roks, 2011 ONCA 526 (CanLII), 274 C.C.C. (3d) 1, Watt J.A. said the following:
Knowledge and foresight are states of mind. It seems reasonable to conclude that if intention can be inferred from the natural and probable consequences of conduct, by parity of reasoning, so should an inference of knowledge or foresight of those consequences be available. That said, in cases governed by s. 229(c), a trier of fact must be cautious about inferring actual knowledge based entirely or substantially on the common sense inference. To do so risks substituting a constitutionally impermissible mental or fault element for subjective foresight. Further, to do so may compromise the likelihood component in s. 229(c): Shand, at para. 209. [Emphasis added.]
[72] In the same case, at para. 132, Watt J.A. noted that “[a]n assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the dangerous act occurred” (italics in original, underlining added).
[75] For example, writing extra-judicially in his specimen instructions regarding unlawful object second degree murder under s. 229(c), Watt J.A. suggests the following wording for the common sense inference in relation to the knowledge element:
You may take into account, as a matter of common sense, that a person usually knows the predictable consequences of his/her actions (conduct). You may, but are not required to draw that inference (make that finding or, draw that conclusion) about (NOA). However, you must not do so if, on the whole of the evidence, including evidence of (specify, for example, intoxication, mental disorder or other knowledge impairing influence), you have a reasonable doubt whether (NOA) knew that (NOC) would likely (probably) [die] from his/her (NOA)’s dangerous act. It is for you to decide.
(Review and relate relevant evidence to issue)
Watt’s Manual of Criminal Jury Instructions, 2d ed. (Toronto: Carswell, 2015), at p. 682. [Underlining added, footnote omitted.]
[76] Second, in the context of a murder charge under s. 229(a)(ii) of the Criminal Code,[9] the British Columbia Court of Appeal has recognized that age and level of maturity are relevant considerations for a trier of fact in considering whether it is appropriate to draw the common sense inference with respect to subjective foresight of the consequences of one’s actions:
Just as it is common knowledge that intoxication can affect the ability of persons to foresee the consequences of their actions, it is common knowledge that lack of life experience affects the level of maturity and can affect the ability of youths to foresee the consequences of their actions. This is not to say, however, that youths by virtue of their age alone have diminished capacity. Rather, their age and level of maturity are relevant considerations for the trial judge in determining whether or not it is appropriate to draw the common sense inference that they actually intended the natural consequences of their actions in the circumstances of a given case. Whether or not the inference is ultimately drawn will depend on the evidence before the trial judge: R. v. F.M., 2008 BCCA 111 (CanLII), 231 C.C.C. (3d) 57, at para. 24. [Emphasis added.]
[77] In F.M., the British Columbia Court of Appeal upheld the trial judge’s decision to acquit a 15-year-old and a 13-year-old of second degree murder but convict them of manslaughter in a case where the two perpetrators had struck an elderly victim in the head with bats.
[78] In Shand, at para. 152, Rouleau J.A., held that panic could be a factor to consider when assessing whether a perpetrator knew a dangerous act was likely to cause death. It only makes sense that age and level of maturity could be a similar factor.
Application to the Facts
[79] It is true that on the facts of this case, the jury could not have overlooked the fact that the appellant was only 15 at the time of the incident. Nevertheless, there were factors that made it important and necessary that the trial judge caution the jury to consider the evidence relating to the appellant’s age and maturity level before relying on the common sense inference to conclude that he actually knew his dangerous driving was likely to cause Constable Styles’s death.
[80] As a starting point, this was a tragic case in which a police officer was killed as a result of the irresponsible acts of a headstrong 15-year-old. It was important that, once the jury concluded that the appellant’s actions were intentional, they be cautioned not to rely on the common sense inference to find that the appellant knew his actions were likely to cause the officer’s death without carefully considering all relevant evidence capable of pointing away from it.
[83] Finally, in reading the Crown’s summary of its position for the jury (the last instruction the jury heard before retiring), the trial judge linked the issue of the appellant’s knowledge to both Constable Styles knowledge and that which “anyone” would know....
[84] These comments came perilously close to inviting the jury to apply an objective standard to the mental element of the offence, the very danger Watt J.A. cautioned against in Roks. In these circumstances, it was necessary for the trial judge to caution the jury that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action.
[85] Finally, I would note that whereas the appellant was 15 when the accident occurred, he was 19 in May 2015 when he testified before the jury. It was important that the jury be reminded that in assessing whether the appellant knew his driving was likely to cause Constable Styles’s death, it was necessary that they assess the age and maturity level of the 15-year-old who caused the accident and not the 19-year-old that testified in front of them.
[87] Similarly, in this case, in addition to cautioning the jury to consider the age and maturity level of the appellant, it would have been important for the trial judge to review various statements and actions of the appellant before, during, and after the incident as evidence from which one might conclude that he lacked mature judgment:
• the appellant was not old enough to get a driver’s licence so he taught himself to drive in the parking lot of his parents’ restaurant without their knowledge;
• the appellant liked to take his father’s vehicles without his parent’s permission and go joy-riding in the middle of the night, and he continued to do so even after being caught by police;
• on the night in question, the appellant took his father’s vehicle at the encouragement of a friend;
• the appellant and his friends drove around relatively aimlessly for approximately three hours in the middle of the night before the incident occurred;
• the appellant repeatedly pleaded with Constable Styles to let him go because his parents were going to be really angry (conduct which the trial judge observed was not in keeping with that of an older, more mature person); and
• the appellant told the paramedic at the scene of the crash that his parents were going to kill him and be really mad at him.
[88] In sum, I am of the view that the trial judge erred in his charge by failing to identify factors personal to the appellant – specifically, his age and level of maturity – that were relevant to the issue of whether he knew that death was likely under s. 229(c) of the Criminal Code.
The Crown's Closing Address
[127] In my view, the trial judge’s jury instructions concerning the Crown’s closing address was inadequate. However, I reject the appellant’s submission that the trial judge erred in failing to declare a mistrial following the Crown’s comments in his closing address questioning the appellant’s failure to tell the paramedic who attended to him that he tried to stop the van. A mistrial is a discretionary remedy of last resort: R. v. A.G., 2015 ONCA 159 (CanLII), 124 O.R. (3d) 758, at paras. 50-52. Had the trial judge instructed the jury not to use the Crown’s closing submissions in assessing the appellant’s credibility on pedal misapplication as he originally proposed, in my view, that would have been adequate to remedy the prejudice flowing from the comments in the Crown’s closing address.
[129] I do not accept the Crown’s submission. Whether or not there was a violation of the rule in Browne v. Dunn, the real problem with the Crown’s closing address is that, at least implicitly, it invited the jury to infer that the appellant fabricated his evidence after the accident and in order tocorrespond with his expert’s evidence about pedal misapplication.
[130] Particularly given that he declined to admit the appellant’s statement to his father, the trial judge should not have left it to the jury to decide whether “to use [the appellant’s] nondisclosure of pedal misapplication and unintended acceleration to [the paramedic], in order to impeach [the appellant]’s credibility”. Rather, he should have instructed them in strong terms that it would be prejudicial and unfair to the appellant for them to do so.
[148] Based on the foregoing reasons, I would allow the appeal, set aside the appellant’s conviction and order a new trial. In light of this proposed disposition, it is unnecessary that I address the Crown’s arguments on its sentence appeal.
M. Tulloch J.A. (Concurring):
[149] I agree with my colleague’s careful reasons explaining why the trial judge erred in his charge by failing to identify factors personal to the appellant, such as his age and level of maturity, that were relevant to the issue of whether he knew that death was likely under s. 229(c) of the Criminal Code R.S.C. 1985, c. C-46. This error is sufficient to allow the appeal since, as my colleague explains, it directly impacts one of the elements of the offence. I also agree with my colleague’s holding that the trial judge should have given the corrective instruction that he originally said he would give in response to the Crown’s closing address....
Brown J.A. (Concurring):
[192] I agree with the disposition of the appeal proposed by my colleague Simmons J.A. I also agree with her analysis of the specific grounds raised on appeal, save for one: the trial judge’s decision to exclude the appellant’s account of the events to his father given 26 days after the accident.
R v King (ABPC)
[September 23/19] – Charter s.8: Consent of Spouse - Voluntariness of Statement: Ability to Contact Children – 2019 ABPC 236 [A.A. Fradsham Prov. J.]
AUTHOR’S NOTE: Herein, Judges Fradsham provides a good overview of a trial application of the SCC decision in R v Reeves. Spouses cannot consent to the search of their partner's digital devices by the police. Police still need to apply for a warrant in those circumstances. As well, implying that a person will have difficulty contacting their children if they are not forthcoming in an interview is an implied threat which can render the statement involuntary.
Pertinent Facts
[1] Mr. King is on trial in relation to charges that he:
Count 1: On or about the 4th day of April, 2018, at or near Calgary, Alberta, did possess child pornography, contrary to section 163.1(4) of the Criminal Code of Canada.
Count 2: On or about the 4th day of April, 2018, at or near Calgary, Alberta, did access child pornography, contrary to section 163.1(4.1) of the Criminal Code of Canada.
[2] This ruling arises from Mr. King’s application for a declaration that his section 8 Charter rights were infringed, and that statements he made to a Calgary Police Service constable should be ruled involuntary and excluded from the trial.
[7]....On March 18, 2018, she found Mr. King’s mobile telephone left unattended, and, without Mr. King’s knowledge or authority, used the memorized password to gain access to the contents of the telephone. Though she was looking for evidence of marital infidelity, she located what she thought was child pornography.
[8] Ms. Lui was also able to view the contents of Mr. King’s desktop computer and one of his electronic tablets when they were left open and unattended. She again found what she thought to be child pornography.
[9] Ms. Lui then used her own mobile telephone to take photographs of the files and thumbnail images displayed on the screens of Mr. King’s electronic devices. She transferred the photographs she took to a USB drive, and on March 26, 2018, she attended a Calgary Police Service district office. She told a police officer that she thought her husband was in possession of child pornography, and gave the USB drive to the officer.
[10] On March 27, 2018, the USB drive was reviewed by the police who formed the view that some of its contents constituted child pornography.
[13] The execution of the two search warrants resulted in the seizure of 34 electronic devices. Video and images constituting child pornography were found on seven of the devices. It is not necessary for this application to set out the details of the videos and images.
[15] In the course of that interview, Mr. King made inculpatory admissions. In the course of that interview:
1. Constable Miller told Mr. King that the brief examination conducted so far by the police of the seized devices had uncovered thousands of images of child pornography, and that the volume of inculpatory evidence found by the forensic team was overwhelming and undeniable. Constable Miller referred to specific items found on the devices, and referred to the gender and age of the young people depicted in the specific images and videos.
2. Constable Miller questioned whether what was on the seized computers should cause him (the officer) to worry about the safety of Mr. King’s infant son.
3. Constable Miller inquired how the charges about to be laid would affect Mr. King’s employment.
4. Constable Miller asked how Mr. King thought his family (his father, his sister) would react “when this comes out”.
Charter s.8 - Search of the USB
[16] Section 8 of the Canadian Charter of Rights and Freedoms states that “[e]veryone has the right to be secure against unreasonable search or seizure”. In R. v. Reeves2018 SCC 56 (CanLII), the Supreme Court of Canada gave a useful summary of the law which has developed in the section 8 jurisprudence:
[11] Under s. 8 of the Charter, “[e]veryone has the right to be secure against unreasonable search or seizure.” The purpose of this provision is “to protect individuals from unjustified state intrusions upon their privacy” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160). The s. 8analysis is geared towards determining “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” (pp. 159-60).
[12] Section 8 of the Charter is only engaged if the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state (R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has a reasonable expectation of privacy, courts examine “the totality of the circumstances” (R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45(5)).
[13] 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 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 431 (emphasis added)). In contrast, valid consent acts as a waiver of the claimant’s s. 8 rights. In such cases, there is no search or seizure within the meaning of the Charter, even though the claimant would ordinarily enjoy a reasonable expectation of privacy in the thing the police have taken or inspected (R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at pp. 160-62; R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 12 C.R. (4th) 58 (Ont. C.A.), at p. 81).
[17] Section 8 is engaged only when the conduct in question is attributable to a state action. In R. v. Buhay 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631, the Supreme Court of Canada, when considering a search of a locker by a privately employed security guard, gave this explanation of the applicability of section 8:
25 Section 32 of the Charter provides that its provisions apply to the Parliament and government of Canada, and to the legislature and government of the provinces. Accordingly, the initial search of the appellant’s locker by the security guards can only come under s. 8 scrutiny if the guards can be categorized either as “part of government” or as performing a specific government function (Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624), or if they can be considered state agents (R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595; M. (M.R.)[1], supra). …
[18] In the case at bar, there is no suggestion that Ms. Liu was acting as a state agent when she searched Mr. King’s electronic devices, took photographs of the screens of those devices, transferred those photos to a USB drive, or transferred possession of that USB drive to the Calgary Police Service. Accordingly, I need not further delve into the law of state agents.
(1) What was the subject matter of the search of the USB drive?
[21] In R. v. Marakah 2017 SCC 59 (CanLII), [2017] 2 S.C.R 608, Chief Justice McLachlin emphasized the importance of clearly identifying what constituted the subject matter of the search. She said:...
[15] The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. As Doherty J.A. stated in R. v. Ward, 2012 ONCA 660 (CanLII), 112 O.R. (3d) 321, at para. 65, a court identifying the subject matter of a search must not do so “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”. In Spencer,at para. 26, Cromwell J. endorsed these words and added that courts should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” and should look at “not only the nature of the precise information sought, but also at the nature of the information that it reveals”. The court’s task, as Doherty J.A. put it in Ward, is to determine “what the police were really after” (para. 67).
[23] In the case at bar, when the police examined the USB drive brought to them by Ms. Liu, the thing being searched was the USB drive which contained the photographs of the screen displays from Mr. King’s electronic devices, but the subject matter of the search (“what the police were really after”) was the collection of images on the USB drive as taken from the screens of Mr. King’s electronic devices, and what it told them about Mr. King.
[24] The images on Mr. King’s electronic devices, and provided to the police through the medium of the photographs placed on the USB drive, provided to the police material and private information about Mr. King’s sexual interests, and how he organized his desktop computer, including the backdrop or “wallpaper”, the placement and titles of folders, the titles of images and videos, and the presence of other non-illicit information.
[25] What the police were really after was information about Mr. King and whether he possessed child pornography. The subject matter of the search was personal information about Mr. King.
(2) Did Mr. King have a direct interest in the subject matter of the search?
[26] Clearly, Mr. King had a direct interest in the subject matter of the search since it revealed how he was using his electronic devices, and his particular sexual interests.
(3) Did Mr. King have a subjective expectation of privacy?
[27] “The threshold for establishing a subjective expectation of privacy is low”: R. v. Reeves, supra, paragraph 32. As in that case, Mr. King’s electronic devices were password protected, and that is sufficient to prove Mr. King’s subjective expectation of privacy.
(4) Was the subjective expectation of privacy objectively reasonable?
Place of Search
[28] In R. v. Marakah, supra, Chief Justice McLachlin said: ...
[30] The place of the search is simply one of several factors that must be weighed to determine whether the accused had a reasonable expectation of privacy for the purposes of s. 8 of the Charter. Whether one views the place of an electronic conversation as a metaphorical chat room or a real physical place, it is clear that the place of the text message conversation does not exclude an expectation of privacy. At the end of the day, s. 8 “protects people, not places”: Hunter, at p. 159. The question always comes back to what the individual, in all of the circumstances, should reasonably have expected.
[29] In the case at bar, the place of the search was the USB drive, a place of which Mr. King was unaware. In the circumstances of this case, the place of the search does not assist in determining whether Mr. King’s subjective expectation of privacy was reasonable.
Private Subject Matter of Search
the Chief Justice said in R. v. Marakah, supra:
[31] The purpose of s. 8 is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. It follows that the potential for revealing private information is a factor to consider in determining whether an electronic conversation attracts a reasonable expectation of privacy and is protected by s. 8 of the Charter.
[32] In considering this factor, the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information. For the purposes of s. 8 of the Charter, the conversation is an “opaque and sealed ‘bag of information’”: Patrick, at para. 32; see also Wong[3], at p. 50. What matters is whether, in the circumstances, a search of an electronic conversation may betray “information which tends to reveal intimate details of the lifestyle and personal choices of the individual” (Plant, at p. 293), such that the conversation’s participants have a reasonable expectation of privacy in its contents, whatever they may be: see Cole, at para. 47; Tessling, at paras. 25 and 27.
[30] The subject matter of the search (what the police were really after) was information about the nature of the photographs stored on Mr. King’s electronic devices. The information sought by the police about Mr. King fits squarely into the type of private information referred to by Justice Fish in R. v. Morelli (2010), 2010 SCC 8 (CanLII), 252 C.C.C. (3d) 273 (S.C.C.), at paragraph 105:
[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. (emphasis added)
[31] As stated in R. v. Cole, supra:
[48] This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.
[32] In R. v. Patrick 2009 SCC 17 (CanLII), [2009] 1 S.C.R. 579, the Supreme Court of Canada specifically commented on how evidence of illegal activity would naturally fall within those things which a person would reasonably wish to keep private. Justice Binnie, speaking for the majority, said at paragraph 32:
....The issue is not whether the appellant had a legitimate privacy interest in the concealment of drug paraphernalia, but whether people generally have a privacy interest in the concealed contents of an opaque and sealed “bag of information”. I believe that they do. The focus is on “the person, place or thing searched and the purpose for which the search is undertaken” (A.M., at para. 72). A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime.
[33] If Mr. King was engaged in criminal activity, that was personal information about Mr. King’s lifestyle: R. v. Marakah, supra, at paragraph 54.
(c) As to control over the subject matter of the search, the Chief Justice said in R. v. Marakah, supra:
[38]...,Control is one element to be considered in the totality of the circumstances in determining the objective reasonableness of a subjective expectation of privacy.
[39] Control must be analyzed in relation to the subject matter of the search….
[35] That loss of control is not fatal to Mr. King’s claim that his subjective expectation of privacy was reasonable: R. v. Reeves, supra, at paragraph 37. Justice Moldaver was in dissent in R. v. Marakah, supra, but not on the issue of control about which he said:
[130] That said, control is not the exclusive consideration that informs the existence of a reasonable expectation of personal privacy. And there are exceptional cases where control is not necessary. Where 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: see Stillman[6], at paras. 61-62 (privacy may persist in a tissue discarded while in police custody); R. v. Law, 2002 SCC 10 (CanLII), [2002] 1 S.C.R. 227, at para. 28 (privacy may persist in a safe stolen by a third party)...
[36] Having considered all of the above, I am satisfied that Mr. King’s subjective expectation of privacy in the subject matter of the search was reasonable.
Was the Search Authorized by Law?
[38] Ms. Liu granted her consent to the police to view the contents of the USB drive. However, it has been the law for some time that “a third party cannot waive another party’s Charter rights”: R. v. Reeves, supra, at paragraph 62. Consequently, the police did not have consent to view the subject matter of the search from the person whose reasonable expectation of privacy would be infringed by the search (i.e., Mr. King).
[39] The search was not authorized by law.
[40] Consequently, the search of the USB drive was warrantless and was not authorized by law. It was therefore an unreasonable search, and constituted an infringement of Mr. King’s section 8 Charter right to be secure against unreasonable search and seizure.
[45-48] [The resulting excision from warrants rendered them incapable of being issued.]
Voluntariness - the Accused's Statements
[63] In my view the cascading factors of an interview occurring only because of an unlawful arrest, during which the clear implication of the officer’s comments was that a failure on the part of Mr. King to answers the officer’s inquiries about what Mr. King had been viewing, where and how he obtained it, and his motivation for doing so, would adversely affect Mr. King’s ability to have contact with his son, when coupled with the use of the inadmissible evidence of the searches as the basis for ominous implication, and the interview itself, made Mr. King’s statements to the officer involuntary.
[64] I find that Mr. King’s inculpatory statements in the April 4, 2018 interview must be excluded from the trial.
