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Criminal Law News

By Geoffrey Read

December 2020

BORDER SEARCHES OF CELL PHONES UNCONSTITUTIONAL

The Alberta Court of Appeal advanced protection of privacy in R. v. Canfield, 2020 ABCA 383 which deals with warrantless searches of electronic devices at the border. The court said that

[1]  The appellants, Mr. Canfield and Mr. Townsend, were each convicted of possession of child pornography. The evidence against them included photographs and videos retrieved when their personal electronic devices (a cell phone and laptop computer, respectively) were searched by Canadian Border Services Agency (CBSA) at the Edmonton International Airport. Both appellants are Canadian citizens, and both were referred for secondary inspection upon re-entering Canada. Their electronic devices were searched pursuant to s 99(1)(a) of the Customs Act, RSC 1985, c 1.

[2]  The only issues at their trials, which were heard together, were whether the searches of their devices offended the Charter of Rights and Freedoms, whether the evidence of child pornography found on the devices was obtained in breach of ss 7, 8, 10(a) and 10(b) of the Charter, and, if so, whether the evidence should be excluded pursuant to s 24(2) of the Charter.

[3]  The leading authority on searches conducted at the border is R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, 55 DLR (4th) 673...

[4]  Section 99(1)(a) of the Customs Act permits the routine examination of any “goods”...

[7]  For the reasons that follow, we are satisfied that the trial judge erred by failing to recognize that Simmons should be revisited to consider whether personal electronic devices can be routinely searched at the border, without engaging the Charter rights of those being searched. We have also concluded that s 99(1)(a) of the Customs Act is unconstitutional to the extent that it imposes no limits on the searches of such devices at the border, and is not saved by s 1 of the Charter. We accordingly declare that the definition of “goods” in s 2 of the Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purpose of s 99(1)(a). We suspend the declaration of invalidity for one year to provide Parliament the opportunity to amend the legislation to determine how to address searches of personal electronic devices at the border.

[8]  Following this declaration of invalidity, we find the appellants’ rights under s 8 of the Charter were infringed in the circumstances of this case. We also find the appellants were detained and their rights under s 10 were violated, and that statements made by them after detention are subject to protection under s 7 of the Charter. However, like the trial judge, we conclude the evidence should not be excluded pursuant to s 24(2) of the Charter.

An important enhancement of legal protection of privacy from indiscriminate governmental intrusion, even if it failed to result in acquittals for these accused (once again illustrating the truth of the late Eddie Greenspan’s quip that s. 24(2) gives the Crown the last laugh...).

 

SCC RULES PEREMPTORY JURY CHALLENGES ARE RETROSPECTIVELY ABOLISHED

            The Supreme Court of Canada ruled in R. v. Chouhan on whether Bill C-75’s elimination of peremptory challenges in jury trials was unconstitutional and whether the law applied only prospectively such that cases where an accused person previously elected trial by judge and jury before September 19, 2019 were entitled to select a jury using the old regime which permitted peremptory challenges.

            The Ontario Court of Appeal decided in R. v. Chouhan, 2020 ONCA 40, a 219-paragraph decision written by Watt J.A., that

1. For 150 years, even before Parliament created our first Criminal Code, jury selection in a criminal trial followed an established pattern. The parties could challenge a fixed number of jurors peremptorily. When permitted, they could also challenge prospective jurors for cause. And for the most part, lay triers determined the truth of the challenge for cause.

2. Things changed on September 19, 2019. No more peremptory challenges. No more trials of challenges for cause by lay triers. Instead, only challenges for cause determined by the trial judge.

3. In this case, I am required to decide whether one, both, or neither of these amendments to the jury selection procedure can withstand Charter scrutiny. If both pass constitutional muster, I then have to determine whether they operate prospectively or retrospectively.

4. I decide that neither the abolition of peremptory challenges nor the substitution of the trial judge for lay triers to determine the truth of the challenge for cause is constitutionally flawed.

5. With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. But I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested.

            Chief Justice Wagner summarily dispatched the appeal with this oral bench ruling on October 13, 2020 that the current law was constitutional and purely procedural in nature:

A majority of the Court is  of the view that the statutory change is constitutional and purely procedural and therefore has retrospective application. Accordingly, the appeal is allowed, the cross-appeal is dismissed and the conviction is restored. Reasons to follow.

This means that effective immediately, all jury case s must follow the current law which has eliminated peremptory challenges. Will the procedure now be to get the jury panel list early, research the open source information on everyone, and then launch individual challenge for cause applications if a person is about to be selected?

One senior U.S. criminal lawyer asks whether there’s any Charter principle that the pool from which the jurors are selected, or the panel itself, must
be “representative” of the “community”. He observed that the American  experience (with the absence of adequate voir dire and challenges in the US, mostly in federal courts) creates a greater rate of hung juries since ideological and social outliers, that otherwise might be excluded, sneak onto juries.

Can stand asides ameliorate this? Some of the early cases that upheld the abolition seized on the provision for enhanced stand asides in the new legislation as sufficient compensation, still allowing the accused to participate in his jury selection, but how does this work in practice? It’s vague and the cases apparently don’t explain its practical application.

However, we already have some guidance from Justice Goodman right here in Hamilton in R. v. Josipovic, 2020 ONSC 6300, a case in which our Sandee Smordin is one of the counsel. He outlined the procedure and approach to be implemented for the jury selection in this case and followed his previous ruling rendered on October 2, 2020 in R. v. Josipovic 2020 ONSC 5917. At para. 29, he adopted Boswell J.’s point-form summary at para. 35 of his reasons in R. v. Campbell, 2019 ONSC 6285:

(a) The use of stand-asides is not an appropriate means of enhancing impartiality on a jury;

(b) The use of stand-asides will not generally make the jury selection process more fair;

(c) With the elimination of peremptory challenges, the selection process is transparent. The use of stand-asides will not enhance that transparency; 

(d) The use of stand-asides to enhance representativeness is largely unworkable; but,

(e) The use of stand-asides may be appropriate when issues of juror competence arise.

He specifically proceeded to interpret the word “competence in point “(E)” this way:

[32] I am satisfied that the use of the term “competence” is not going down the road of a pseudo-peremptory challenge. The discretion remains with the trial judge on some objective rationale and avoids the stereotypical thinking and reasoning that was criticized in the peremptory challenge.

[33] Moreover, in my opinion, with the elimination of the peremptory challenge, the insertion or application of a “competence” concept does serve to balance the interests of all stakeholders. This gives effect to the accused’s right to participate in the selection of the jury on an objectively identifiable basis and in a transparent fashion. Indeed, not only does this enhance the fair trial rights of the accused but provides for the maintenance of public trust and confidence in the selection of the petit jury for a particular case.

            In applying his ruling to the case at bar, he observed:

[42] Indeed, with the changes in the overall jury selection process, it remains to be seen whether defence counsel will seek to expand the breadth of the questions to be posed for the challenge for cause. I hazard to guess that a more robust challenge for cause framework may be on the horizon. (emphasis added) ...

[45] I am persuaded to permit a limited expansion of the challenge questions, in order to provide a more fulsome inquiry of each potential juror. ...

[47] With respect, I cannot agree with the Crown that the revised stand-by (or stand-aside) provision as found in s. 633 is but a mere amendment and remains relatively intact from its previous incarnation; or that it does not effectively alter the process or the trial judge’ discretion. ...

[54] I agree with the defence that the amended provision expands the trial judge’s authority. With these new amendments, the trial judge’s discretion has been enhanced to allow for a juror to stand-by for the broad purpose of “maintaining public confidence in the administration of justice”. It is clear that this is an important and crucial consideration which, in order to achieve its purpose, must be given meaningful application. (emphasis added)...

[61] In this specific case, I agree with the defence that a further question ought to be posed to each juror after the challenge for cause. The question - as drafted by counsel - is as follows: Is there any other reason you can think of that would make it difficult for you to serve as an impartial juror and determine this case on the evidence alone and the instructions of the trial judge?

[62] Upon receipt of the answer, I will turn to counsel to determine if they wish to make submissions as to whether or not I should stand-aside the juror. If counsel do not wish to make submissions, he or she will be sworn as a juror.

In concluding, he said (at para. 65) that s. 633, is not a means to ensure that a certain group, gender, occupation or race form the petit jury. Nor is it a means to exclude other identifiable groups or individuals, or for any other improper use, and (at para. 67) that:

The trial judge has a role to ensure whether a certain juror is “competent” to act as a juror in a specific case by ensuring that the public trust and confidence in the administration of justice is maintained. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside. In order to achieve that objective, the parties ought to be able to request a limited right to make further inquiries, propose defined questions and make submissions, where appropriate; albeit on the basis of some objectively reasonable justification.

COVID HELD TO BE A MATERIAL CHANGE FOR BAIL

            It seems COVID-19 will be with us for a while yet, so the case of R.v. J.A., 2020 ONCA 660, in which the accused was charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder, can help inform bail decisions. This was an appeal from the order of Justice Andrew J Goodman of the Superior Court of Justice, dated April 16, 2020, granting the respondent’s s. 522 application for bail pending trial, with reasons reported at 2020 ONSC 2312. Thorburn J.A., speaking for herself and Miller J.A., addressed this issue at paras. 51 through 65, stating that

[63]   The jurisprudence to date is clear that the pandemic is a factor to be considered when assessing the tertiary ground: public confidence in the justice system: R. v. Morris, 2020 ONSC 3526, at para. 22; R. v. Kazman, 2020 ONCA 251, leave to appeal to S.C.C. requested, 39077; R. v. S.M., 2020 ONCA 427; and R. v. Abdullahi, 2020 ONCA 350, at para. 49.

[64]    I accept that, depending on the circumstances, the COVID-19 pandemic may also be a factor to be considered when considering the primary ground: that is, whether detention is necessary to ensure this accused’s attendance in court. The pandemic may give rise to new considerations respecting an accused’s health and safety and his flight risk and thereby constitute a material change in circumstances in respect of the primary ground: see e.g., R. v. Grant, 2020 ONSC 2957; R. v. Hastings, 2020 ONSC 2083; R. v. Morris, 2020 ONSC 3526; and R. v. Cahill, 2020 ONSC 2171.

[65]  I also accept that, depending on the circumstances, the COVID-19 pandemic may be a factor to consider on the secondary ground, that is, whether the accused’s detention is necessary for the protection and safety of the public, including any substantial likelihood that if released, the accused will commit a criminal offence or interfere with the administration of justice: See, e.g., Cahill, at paras. 27-30; Elliott, at para. 19.

            Unfortunately for the accused, she decided that

[84] The new evidence in respect of COVID-19 and its effect on this respondent, when viewed in the context of all of the other evidence respecting the primary and secondary grounds, does not constitute a material change in the respondent’s circumstances that could reasonably be expected to affect the decision to detain the respondent.       

            Nevertheless, she concluded that

            [85] I do not agree that the existence of the COVID-19 pandemic necessarily constitutes a material change in circumstance for every bail decision rendered before the pandemic struck Ontario. I accept however, that in a proper case, circumstances arising from the COVID-19 pandemic may amount to a material change in circumstance in respect of any of the grounds for detention such that a new hearing should be conducted. For that to be the case, however, the pandemic must reasonably be expected to have affected the result, bearing in mind the reasons given by the first bail judge for denying bail. (emphasis added)

            Thus, she granted the application and detained the respondent pending trial.

            Nordheimer J.A. dissented, and would have dismissed the Crown’s application, stating that:

[120]  In the end result, I cannot find any error in the second bail judge’s conclusion that there were two material changes in circumstances in this case: a change to the strength of the Crown’s case and COVID-19.

Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.

He can be reached at:

20 Hughson Street South, Suite 612

Hamilton, Ontario

L8N 2A1