Criminal Law News
By Geoffrey Read
UNCONSTITUTIONALITY OF YCJA S. 42(5)(A)
The Youth Criminal Justice Act s.42(5)(a)
makes deferred custody unavailable for offences of serious bodily harm. Ontario
Court of Justice Judge S. Hunter ruled in Her Majesty the Queen and E.R.B.
and C.W. that it is unconstitutional, violating both s. 7 and s. 12 of the Charter
and is not saved by s. 1, so that it is of no force and effect pursuant to s.
52(1) of the Constitution Act. The reasons for judgement were released
January 19, 2021 but the writer does not at the date of this writing have a
citation, however the court file numbers are Y180169 for E.R.B. and Y180073 for
C.W., both of whom were Young Persons. Justice Hunter observed (at para. 33) “that
a deferred custody or conditional sentence provides the ‘missing middle’ that
permits the court to achieve youthful accountability above the realm of a
suspended sentence with probation”. He held
(at paras. 46 and 47) that the section violated Charter
s. 7 because it eliminated the availability of accountability that is
proportionate to the conduct that should be captured;
(at paras. 54-56) that a custodial sentence that is
no deferred in this case would be “abhorrent and intolerable” to an informed
objective observer and a cruel and unusual punishment in the circumstances of
these cases so that violated s. 12 of the Charter; and
(at para. 61) that the s. 1 justification fails at
the minimal impairment stage of the analysis.
BAIL DELAYS = CHARTER
It is said the “justice delayed is justice
denied”. In R v Riley, 2020 SCC 27 the court endorsed the lower court decision R v Riley, 2018 ABPC 85, in its
entirety, holding that it is an automatic charter breach to either fail to
bring the accused to court within twenty-four hours or to adjourn a bail hearing
for more than three days from the arrest.
to the court summary, the accused was arrested on April 4,
2017 at 11:50 a.m. but was not brought before a justice for his bail hearing
until April 5, 2017 at 10:59 p.m. The Crown conceded that he had been held for
longer than twenty-four hours before he was taken before a justice, contrary to
s. 503(1)(a) of the Criminal Code,
and that this was a breach of his ss. 7, 9 and 11(e) Charter rights. The provincial court judge issued a stay of proceedings,
but the Court of Appeal set aside the stay and ordered the applicant to stand
Brown J. in the Supreme Court of Canada said “In these circumstances, which include the
trial judge’s finding at para. 63 of her reasons (2018 ABPC 85,
411 C.R.R. (2d) 10) that the breach of s. 503
of the Criminal Code, R.S.C. 1985, c. C-46,
was an instance of a systemic and ongoing problem that was not being
satisfactorily addressed, we are all of the view that there was no basis for
the Court of Appeal to interfere with the trial judge’s exercise of
discretion: see R. v. Babos, 2014 SCC 16,
 1 S.C.R. 309, at para. 41.”
Provincial judge R.R. Cochard said, at para. 63,
that “The evidence before me reflects a systemic and ongoing problem. Since the
start of the Crown Bail Project the number of persons accused of offences but
not convicted who are held more than 24 hours in breach of section
503(1)(a) of the Criminal Code has increased exponentially....”. This case, then, might be
distinguishable as one predicated on systemic infringements of C.C. s. 503(1), but it would be an
adventuresome judge or justice of the peace who would ignore it where the
police have failed to comply with the temporal mandates of s. 503(1).
It is said that hard cases make bad law, but perhaps this is the
exception the proves the rule since the result is clearly good. To give the
final word here to Judge Cochard (at para. 68):
...Domestic assault is and continues to be a serious
problem, in our community, but society’s
interest in ensuring that rights set out in the Charter are respected and are not flagrantly disregarded tip the balance in favour of the
stay. A reduction in sentence if Mr. Reilly
were to be convicted in my view would not be sufficient...
GHOMESHI AMENDMENTS UNCONSTITUTIONAL
Criminal Code s. 278.92 recently
introduced what have become known as the Ghomeshi amendments that
statutorily undo the effective ability to impeach a witness through previous
inconsistent statements by requiring leave of the court to use them, with the
incidental effect that the witness is tipped-off and able to prepare in advance
to explain them. The case law is evolving with the predictable challenges to
this legislation that is yet another step on the road to reverse disclosure.
Akhtar J. recently
delivered some relief – to the Defence Bar at least, but, no doubt,
disappointing to the Crown – in R. v.
Reddick, 2020 ONSC 7156 where he ruled (at para. 130) that ss. 278.92,
278.94(2) and 278.94(3) violate ss. 7 and 11(d)
of the Charter. He
accepted (at para. 131) the Crown’s concession that they could not be saved by
s. 1 of the Charter and so (at para.
132) held that they are unconstitutional and of no force and effect pursuant to s. 52 of
Now, it must be admitted that His Honour
specifically said (at para. 51) that “this case is not about defence reciprocal
duty of disclosure to the Crown” (although that’s not how it seems to counsel
in the trenches), but (at para. 56) that “...ss. 278.92(1) and 278.94(2) and
(3) mandate that disclosure be made to the complainant. The risks to the
fairness of the trial are obvious”.
In any event, the case has, and continues, to
stir the judicial pot, starting with the case of R. v. Bickford, 2020
ONSC 7510, a decision of Quigley J. As he explained (in paras. 4 and 5):
There is presently a s. 278.1 motion
for directions scheduled for Dec 18. It pertains to emails exchanged between V.S. and the defendant and
provided to the Defence as part of disclosure.
Both complainants now have counsel.
The pre-trial convened before me
this morning arose suddenly out of the decision last week of Akhtar J. in R. v. Reddick, 2020 ONSC 7156 (“Reddick”).
This decision relates to the constitutionality
of s. 278.92 of the Code, amongst
He noted (at para. 8) that the substantive
issue has already divided the courts:
There are other recent decisions of
this Court that go the other way, upholding the Bill C- 51 provisions: see R. v. A.C., 2019 ONSC 4270, per Sutherland J. and R. v. C.C., 2019 ONSC 6449,
per R. Raikes J. There is also
one decision from British Columbia in R.
v. J.J., 2020 BCSC 349, for which
direct expedited leave to the Supreme Court has been granted under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26. Finally, Mr. Butt advised
yesterday morning that he also has
now been retained and will seek to bring a direct appeal under s. 40 in the Reddick
case itself, in the hope that new appeal may be joined with the appeal in J.J, and heard together.
and (at para. 9) that there is a question
of whether Reddick is binding:
Against this background, the parties before
me sought guidance about the operation of stare decisis and impact of Reddick on Mr. Bickford’s case.
In particular I was referred to the recent decision
of Paccioco J.A. in R. v. Chan, 2020 ONCA 333,  O.J. No. 2452 (C.A.) (“Chan”)(sub. nom, R. v. Sullivan), at
paras. 31-41, where stare decisis and s. 52 declarations are discussed, and the brief decision of the Court
of Appeal in R. v. McCann, 2015 ONCA 451 (“McCann”), relative to constitutional
challenges. The question raised before me for direction
of counsel was whether the decision of unconstitutionality
in Reddick will bind the applications
judge in this case, or whether it is persuasive only, and if so, whether the defence
must give and file notice of a constitutional question (NCQ) and challenge constitutionality
to rely on Reddick?
decided (at paras. 12 and 13) that:
Noting that the s. 278 application
in this matter is scheduled to be heard in only 15 days, on December 18, Defence Counsel
expressed her view, a view that she advised was also shared by others in the defence bar, that to invoke
the application of Akhtar J.’s determination
of unconstitutionality in Reddick, they need simply seek
directions of the Court that the applications
judge will consider him or herself to be bound by the Reddick decision.
After hearing from each of Crown Counsel,
Defence Counsel, and counsel for each of the complainants,
I disagree. I have directed that in order to seek to apply the ruling in Reddick
on the unconstitutionality of the s. 278.92 and associated provisions to Mr. Bickford’s
case, Defence Counsel would first need
to bring a NCQ with the required 15 days notice to the Federal Crown, and other interested parties.
So, watch this closely because there’s
bound to be more to come on this vital issue.
The Crown routinely proffers evidence of dubious admissibility on the
grounds that it is “narrative”. Objections taken on grounds of hearsay and
relevance are routinely dismissed with the extra adjective that it is “just”
narrative, as if that mystically neutralizes its prejudicial effect. Well,
relief may have arrived: consider this comment, by Nordheimer J.A., at para. 48 of R. v. Borel, 2021 ONCA 16:
My conclusion that this evidence,
especially the nodding of the complainant’s head, was inadmissible hearsay is
not altered by attempting to have it admitted as part of the narrative. The simple
fact is that there was no need for this evidence to be admitted for that
purpose. No part of outlining the narrative or chain of events for the jury
required its admission. The only part of the narrative that was involved at
this stage was the transportation of the complainant to the hospital. That part
of the narrative could have been adequately conveyed without any reference to
this evidence. On this point, “narrative” is too often used by counsel,
supported by trial judges, as a vehicle for the admission of evidence that is
otherwise inadmissible and prejudicial. The practice of using this route to
admit prejudicial evidence must stop because this error will often lead to the requirement
for a new trial, with the resulting hardships and expense that inevitably flow.
Trial judges must be alert to the potential for such misuse and be on guard to
bar this door. (emphasis added)
So, the next time the Crown (when is it ever the Defence) proffers
so-called “narrative evidence”, ask whether it is relevant
and, even if it is, whether its prejudicial effect outweighs its probative
value, and cite Nordheimer J.A.’s salutary warning.
Last September Marco
Sciarra wrote an articulate opinion piece in Canadian Lawyer about our Covid-altered courtroom world. It’s worth
a quick read - here’s the Internet link: https://www.canadianlawyermag.com/news/opinion/courthouse-business-as-unusual/333401
The hurley-burley of the courthouse had an
invigorating energy that’s missing from our antiseptic new “virtual”
environment. Whether random social interactions or the chance to pick someone’s
brain on an issue, it fed our collegiality and fostered a positive professional
esprit de corps. Amongst his many astute observations, Mr. Sciarra remarked
The criminal bar has come to depend
on this courthouse network to gain insight into the practice of criminal law. It has helped build
working relationships among defence counsel, as well as with the opposing side, making the adversarial
nature of the system more tolerable. Through the human interaction in the courthouse, referrals are made, issues are
resolved, trials are streamlined and
tactical decisions are fleshed out. These elements of the practice of criminal
law will disappear if lawyers are
only drawn to court to deal with contested trial matters for which the stress levels are elevated and there is
little downtime to interact with other players.
There’s no doubt that there are some overdue
improvements through the new use of technology to improve efficiency, but, to
borrow some words of Joni Mitchell, “something’s lost, but something’s gained”.
As to the former, apart from lamenting the loss of that pre-Covid
"jobsite" environment we enjoyed at the courthouse, it is yet another
hurdle for junior lawyers for whom the informal mentoring through contact with
more experienced lawyers has already been eroding. We need to compensate for
that through alternatives that can provide the informal mentoring that enriches
our experience and enhances our professionalism.
Geoffrey Read is a sole practitioner in
Hamilton. He is certified by the Law Society of Ontario as a Specialist in
He can be reached at:
20 Hughson Street South, Suite 612