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Criminal Law News

By Geoffrey Read

February 2021

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 BREACH

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.

According 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 trial.

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, [2014] 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 the Constitution Act, 1982.

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 others.

 

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, [2020] 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?

           

            He 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.

 

 

NARRATIVE EVIDENCE

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.

 

OUR CHANGING PRACTICE

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 that:

            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 Criminal Law.

He can be reached at:

20 Hughson Street South, Suite 612

Hamilton, Ontario

L8N 2A1