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CBA National Criminal Justice Section Newsletter

December 2004

Table of Contents

Co-editors:

Diana Cameron, Manitoba Department of Justice, and Margaret Gallagher


Contributors:

Diana Cameron, Josh Hawkes, Anthony J. Kavanaugh, Heather Perkins-McVey, Averill Baker.

R. v. Mann: Common law pat-downs by curious cops at midnight

By Anthony J. Kavanagh

Articulable Cause & Reasonable Grounds
Starring: Iacobucci J (as he then was), Twaddle J.A. & Connor Prov. Ct. J.
Summary and Comments by Anthony J. Kavanagh, MBA Criminal Justice Section

This case deals with the “usual” pat-down by police who are ostensibly exercising their common law ability to detain and investigate, as opposed to the power of arrest. It is the first time the Supreme Court analyses the issue. This is yet another case where section 24(2) is used to bounce evidence that is not conscriptive.

Simplified facts: Police receive a call about a break & enter and are provided a description of a male suspect. They race to the area and spot Mr. Mann walking alone who matched the suspect’s description “to a T.” It is just after midnight when police stop and frisk him. They find no weapons from the pat down, but the officer feels something soft in the inner pocket, proceeds to reach inside, and discovers a small plastic bag containing marijuana. Then in another pocket he finds several smaller bags of drugs. Mann is charged with drug trafficking.

At trial

Mann is acquitted because the trial judge determined that the admission of the drugs would affect the fairness of the trial under s. 24(2) because the search of the pocket offended s. 8 of the Charter. While the police had the right to search for security or safety grounds at the time of the initial stop, the extended search was not reasonable, the trial judge says.

At appeal

Mann’s acquittal is overturned, and a new trial ordered, on the grounds that the detention and pat-down were authorized under the common law and reasonable because the police acted in good faith. The two-pronged test from the English case of Waterfield is applied. The Supreme Court restores the acquittal, and approves of the spirit of the provincial court decision, but suggests the methodology used was wrong. The majority set out the appropriate test to be used.

There are too many issues in this case that could be analysed here, but space is limited. The issues and decision were widely reported in the national and local press: the issue was even debated on some television and talk radio shows amongst “the ordinary folk.” Even Lawyer’s Weekly carried a front-page story (Vol. 24, No. 13 – Aug. 13, 2004) with several pages inside.

Linguistic issues: Iacobucci J writes for the majority (Major, Binnie, LeBel and Fish JJ). It is interesting to note that this case was one of Justice Iacobucci’s last decisions before his retirement. His opening paragraph states as follows:

“This appeal presents fundamental issues on the right of individuals to walk the streets free from state interference, but in recognition of the necessary role of the police in criminal investigation.”

Of course, Supreme Court decisions often resonate widely in our society and involve much more than an individual’s specific case-facts. It should not be lost on us that the majority decision comes in the post-Sept. 11 era and must have implicitly contemplated the knee-jerk reaction that we observed from our neighbours, and even in our own Parliament, in terms of sweeping legislative changes.

In that context, this decision, in a general sense, seems to affirm personal freedoms above that of community rights, echoing at least the spirit of the Charter. The majority recognized that their analysis involved a delicate balance. This was encapsulated in paragraph 15: “The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state actions intersects with, and threatens to impinge upon, individual liberties.”

Interestingly, the debate comes down (in part) to the use of terminology. There are two tests: first, the articulable cause test, which has as its genesis the American doctrine that has developed over time and become known as the “stop-and-frisk” concept. Secondly, the “reasonable grounds to detain” terminology, which is the Canadian term most often used in analyzing constitutional search or arrest cases. It is the latter the majority approves of, and the former that the minority approves of. Both have been applied within Canadian jurisdictions.

The minority (Bastarache and Deschamps JJ) notes that the terminology may create difficulty in the application of the common law power to detain. If the reasonable grounds test is used, the implication is that the bar is raised, which “would undermine the very purpose of the common law power to detain…” [para. 64] bringing it akin to the power of arrest.

Consider: these questions: was the pat-down, followed by the finding of the baggies, so egregious as to bring the administration of justice into disrepute if the evidence (and non-conscriptive evidence at that) were to be admitted at trial? Should Parliament pass a law to deal with this common law issue (as the majority found suggested it is free to do)? Finally, should the police apply a reasonable grounds test or an articulable cause test to be able to detain somebody pre-arrest? How you answer these questions will more than likely tell you more about your view of the power of the state than help you determine legal certainty. For anyone interested in how the court balances these troubling issues of conflict between personal liberty and privacy on the one hand, and the ability of the police and state to secure, investigate, and protect “us” from criminal (or terrorist) behaviour on the other, this is an interesting case. I cannot hope to properly canvass in this space the case, but it is one that you should take the time to read, even if you don’t practice criminal law.

Tony works in the Special Prosecutions Unit, Manitoba Justice, and sits on the Manitoba Bar Association Council. The opinions are his and not necessarily those of his employer.

Criminal decisions: R. v. Tessling

By Diana Cameron

R. v. Tessling

McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.

October 28, 2004 S.C.C.

(* Iacobucci and Arbour J.J. took no part in the judgement.)

Supreme Court of Canada says infrared “peeking” okay without warrant

In a unanimous decision, the Supreme Court of Canada ruled that the use of forward-looking infrared (FLIR) cameras by investigative authorities without prior judicial authorization does not breach s.8 of the Charter. Writing on behalf of the Court, Binnie J. provides a comprehensive review of the various forms of privacy encompassed by s.8.

Facts

The RCMP received information from an untested informant that the accused and his associate were producing and trafficking in marijuana. A second reliable informant also implicated the associate as selling large amounts of marijuana in the area where the accused lived. From the outside, the accused’s property appeared normal. The police obtained the accused’s hydro records in an attempt to confirm the information. Nothing unusual was disclosed.

Police then used an airplane equipped with a FLIR camera to overfly the property of the accused. The FLIR photos revealed substantial areas of heat loss in buildings on the accused’s property. Police used this information to obtain a warrant. When police entered the home they found large amounts of marijuana, drug paraphernalia, and guns.

The accused argued that the FLIR overflight without a search warrant violated his s.8 right to be free from unreasonable search. He argued that since the information obtained by the FLIR was unlawfully obtained, it should not have been considered at the time the warrant to search his property was issued. Without the FLIR information, there would not have been sufficient information to obtain the warrant to search his property. The accused argued that the evidence therefore should be excluded under s.24(2).

The decision

The judgement begins with a brief historical overview of the right to privacy, which underlies the right to be free from unreasonable search and seizure. Binnie J. notes that much of the law in this area has its roots in the law of trespass, the concept of private property and the fact that the King and his agents were not allowed uninvited into the homes of the general populace. Over time, technology developed enabling the state to investigate inside private residences from a distance. In response to this potential erosion of citizen’s rights, the courts recognized that the right to privacy was “to some extent a proxy for the privacy that ownership of property originally conferred.” Indeed, it is now recognized that the right to privacy is a personal right that “protects people and not places.”

There also exists, however, a competing societal interest in “safety, security and the suppression of crime.” The government must be able to conduct examinations in order to protect society. A balance must be struck between the two. For this reason s.8 only protects against unreasonable search and seizure based on a reasonable expectation of privacy.

Different categories of privacy attract various levels of constitutional protection. Privacy of the person attracts the most protection as it involves bodily integrity. Territorial privacy includes homes, and to a lesser extent, workplaces, cars etc. Informational privacy is the right of persons or institutions to determine “when, how and to what extent information about them is communicated to others.” On the facts of this case, Binnie J. characterized the privacy interest as mostly informational because it concerned the activities of the accused. He did, however, acknowledge that territorial privacy was engaged to a lesser degree in that “although the police did not enter his house that is where the activities of interest to them took place.”

In determining the reasonableness of any expectation of privacy in the circumstances, Binnie J. evaluated the current state of FLIR technology. Consideration was given to the fact that this technology cannot penetrate buildings nor determine what activities might be occurring therein. It can only measure heat on the outside of a building. It is the equivalent of external surveillance. The information obtained may or may not give rise to an inference about the activities occurring inside. FLIR can only record information available on the external surfaces of the building, an area already exposed to the public. It cannot expose any intimate details of an accused’s lifestyle or core biographical data. Therefore, FLIR has a minimal impact on his or her reasonable privacy interest.

Binnie J. proceeds to apply the “totality of circumstances” test as outlined in R. v. Edwards, [1996] 1 S.C.R. 128, finding that the accused did not have a reasonable expectation of privacy in the information currently available through FLIR technology. He finds that the disclosure of the information barely affected the “dignity, integrity and autonomy” of the accused. Therefore, police did not require a warrant to conduct this type of investigation.

The door, however, is not closed on this issue. The judgement underscores that further advances in this or similar technology will continue to attract constitutional scrutiny as they develop.

R. v. Hall - A year later

By Diana Cameron
Senior Crown Attorney, Manitoba Department of Justice

On Oct. 10, 2002 the Supreme Court of Canada released R. v. Hall, [2002] S.C.J. No. 65 (S.C.C.) The case held that, as read down, s.515(10)(c) of the Criminal Code of Canada was a constitutionally valid basis upon which a person could be denied judicial interim release. Assuming a proper analysis of the four listed factors in the section -- the apparent strength of the Crown’s case, the gravity of the nature of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment -- bail could properly be denied in order to maintain "confidence in the administration of justice."

Reaction in the legal community was less than enthusiastic. Canadian Law and News satirically reported:

The Lazy Crown prosecutors across Canada breathed a sigh of relief recently when the Supreme Court upheld the Criminal Code Provision that permits a court to detain accused persons for no particular reason.

In a case comment, Kapoor's Criminal Appeals Review (Issue 21, Jan. 12, 2003) expressed the concern that notwithstanding the majority view of the court in Hall that it would be the rare case where a person would be detained on this basis, the decision would be broadly interpreted by bail courts around the country, thereby attributing to themselves a wide discretion to detain. In support of this contention, the author of the review refers to one of the few cases decided since Hall, stating:

Early indications are not promising. In R. v.Gill, [2002] N.J.310, Gorman Prov. Ct. J. relied upon s.515 (10) (c) to detain Mr. Gill in the absence of any evidence of public concern about his case. Further, there was no analysis of the four factors set out by the Supreme Court in Hall. Gorman J. simply made what appears to be an arbitrary conclusion. Gorman J. concluded that Mr. Gill's detention was necessary on the secondary ground. However Gorman J. went further to find that his detention was also justified on the tertiary ground. He reasoned that the provision provides him with a wide discretion to detain to ensure public confidence. (Ibid. at 3 para. 24)

The author further contended that the court in Gill did not analyze the four criteria specified in the section, concluding:

With respect, this is not the manner in which the tertiary ground should be interpreted and applied. This is no different than the kind of discredited reasoning that was routinely made in determining the old public interest ground. Gorman J. committed the error feared most by defence counsel in concluding that this provision provides him with a wide discretion to detain, something not sanctioned by the Supreme Court. (Ibid. at 3 para. 24)

Rather, the author suggested that in order to maintain a narrow application of the tertiary ground, courts should insist the Crown call evidence regarding public reaction and carefully consider the four criteria in light of this evidence. The Manitoba Court of Queen's Bench however, has considered and rejected this approach. (See for example R. v. Dopwell, unreported, Oct. 16, 2003, per Associate Chief Justice Oliphant.)

A review of cases decided since Hall indicate that often when courts deny judicial interim release on both the secondary and tertiary grounds, as was done in Gill, the reasons for denial on the tertiary ground are somewhat brief, as in R. v. Terezakis [2003] B.C.J. No. 2177 and R. v. Tabor [2003] S.J. No.421. This may, however, be due to the fact that in reviewing the circumstances justifying denial on the secondary ground, the four criteria have already been considered; in any event, the accused is being detained regardless.

The more pressing question is whether courts have determined that they have a wide discretion to deny judicial interim release on the tertiary ground alone, as opposed to the narrow discretion envisioned by the majority in Hall.

Sixteen months after Hall, a review of the jurisprudence suggests that contrary to the concern of the Kapoor's reviewer, courts have exercised their tertiary ground discretion very sparingly. To date, there are few cases wherein judicial interim release has been denied on the basis of s.515(10)(c) alone.

In R. v. Robinson, [2003] ABQB 860, a young accused was denied bail on a charge of murder. The Alberta Court of Queen's Bench considered each of the four Hall factors in detail. It found the facts of the case very serious, going so far as to indicate they could be described as "savage." Notwithstanding the age of the accused, these facts and the circumstances surrounding the offence mandated a lengthy term of imprisonment if a conviction was entered. Furthermore, the Crown's case was very strong including forensic and undercover agent evidence. Based on the strength of the Crown's case, the court denied bail on the tertiary ground. The court indicated that the deciding factor was the strength of the Crown's case and urged the parties to return should the case at any point grow weaker.

In R. v. Masniuk, [2003] MBQB 139, the accused was charged with kidnapping and raping a young woman at gunpoint over a perceived drug debt. In overturning the Provincial Court decision to release the accused, the Manitoba Court of Queen's Bench relied on the tertiary ground, noting the circumstances of the offence and the horrendous nature of the crime, including the allegation that the offence also involved threats from a member of the Hells Angels. It also observed that the Crown's case was "substantially corroborated," and that, if convicted, the accused faced a lengthy term of imprisonment. (The Crown later consented to the release of the accused when although the victim had not recanted her statement, her reliability as a witness became an issue).

In R. v. A.D., [2003] O.J. No. 4934, a 19-year-old female was denied bail on the tertiary ground by a justice of the peace on the basis that police found firearms, ammunition and cocaine at a house where she and her boyfriend resided with other gang members. On review, the Ontario Superior Court released the accused, in part because the justice of the peace did not give reasons to support detention on the tertiary ground but rather appeared to have based the decision to detain on impermissible opinion evidence and unsubstantiated speculation about human conduct and behavior.

In each of these cases, detention on the tertiary ground was only ordered, or in the case of A.D., upheld, after a close examination of the four Hall factors. Courts have been particularly careful when relying on the strength of the Crown's case, and have encouraged the accused -- or indeed the Crown -- to revisit the issue of judicial interim release should that strength change. Rather than creating less work for prosecutors, therefore, the case law since Hall only appears to underscore the Crown's ongoing obligation to vigilantly review the strength of its case on an ongoing basis and ensure that justice be done.

The author gratefully acknowledges the assistance of Ami Kotler and Elizabeth Patts.

Disclosure in child pornography prosecutions

By Josh Hawkes

The disclosure of evidence in child pornography prosecutions requires careful balancing between the constitutional right to information required to make full answer and defence, the privacy rights of the individuals depicted, and the overriding public interest in preventing the dissemination or other improper use of this material.

This paper reviews some of the factors to be considered in arriving at that balance as articulated in the case law. A particularly critical factor is the ability of appropriately crafted trust conditions, or other technical means to offset the privacy and public interest concerns relating to the disclosure of this material.

For the full text of this article in PDF format, click here.

The new preliminary inquiry rules

By Heather Perkins-McVey

This paper is an examination of the amendments to the Criminal Code which significantly impact preliminary inquiries. Pursuant to the amendments, automatic preliminary inquiries have been eliminated.

Included is an overview (including flowcharts) of the new rules governing preliminary inquires examining a) requesting a hearing; b) elections; c) statement of issues and witnesses; d) new evidentiary rules; and e) new powers of the court.

It is imperative for all counsel practicing criminal law to familiarize himself or herself with the legislation, as procedurally it constitutes a substantial change to previous provisions governing preliminary inquiries.

For the full text of this article in PDF format, click here.

For an easy-to-read PDF flowchart of how the new rules operate, click here.

The "pot Bill," "joint" problems, and "drug driving"

By Averill Baker

The Newfoundland and Labrador Criminal Section of the CBA considered the following question (herein summarized by the Chair) during its preparation of a response to the provincial government concerning their new “random stop” legislation:

ISSUE: Should the evidence obtained under proposed changes to the Criminal Code be inadmissible as a violation of the Charter, or are the changes demonstrably justified in a free and democratic society?

The relevant facts:

Bill C-16

  • Bill C-16 will remove the following words and phrases from sections 254 to 258 of the Criminal Code: “forthwith,” “then,” “as soon as practicable,” “then or as soon thereafter as practicable,” “as soon as practicable thereafter,” “as soon as practicable after.”

  • In 13 places in ss.254-258 of the Criminal Code, the phrase “as soon as is reasonable in the circumstances” will be inserted, replacing the aforementioned words and phrases mentioned in paragraph 1.

  • Physical co-ordination tests at roadside, including hopping on one foot around the vehicle, standing on one foot and touching toes without losing balance, will be codified to detect impaired “drug driving,” including the presence of prescription, over-the-counter, and illegal drugs.

  • A failure to properly perform physical co-ordination tests at roadside will provide reasonable grounds to demand bodily fluids and to accompany the police officer to provide samples of urine or blood.

Bill C-17

  • Bill C-17, commonly known as the “pot Bill,” will decriminalize possession of small or medium amounts of marijuana and hashish, up to a maximum of 15 to 30 “joints,” and the growing of small amounts of marijuana.

  • Possession of those amounts will be removed from the Criminal Code and designated as contraventions under the Contraventions Act.

  • Tickets will be issued for the offences in six provinces, as only British Columbia, Alberta, Saskatchewan, and Newfoundland and Labrador have refused to sign administration agreements. In those four provinces, prosecution will continue in the courts.

The law

  • The Canadian Charter of Rights and Freedoms:
    S.9: Everyone has the right not to be arbitrarily detained…

    S.10(b): Everyone has the right on arrest or detention to retain and instruct counsel without delay…

Subjective analysis

“Joint” problems and “drug driving”

Bill C-16:

  • The question becomes: how many sober and drug-free Canadians can hop on one leg around a vehicle at roadside, and stand on one foot, bend over and touch their toes without losing their balance?

  • Under the new law, if an individual is stopped by the police and is unable to perform these and other physical co-ordination tests on the side of the road, then they will be asked to give a sample of their bodily fluids.

  • If a driver refuses to do the tests or to provide a urine sample, they will be charged with an offence equivalent to impaired operating of a vehicle.

  • In provinces that allow for random stops of vehicles, the new law will have obvious Charter implications, in that police officers will be required by law to randomly stop vehicles from time to time. If the driver’s speech is slow or slurred, or if they fumble trying to get out their drivers licence, or if they are nervous, the officer must take the next step and ask them to step outside the vehicle and perform the physical co-ordination tests that will be identified in the regulations under Bill C-16.

  • The new law is a clear departure from the present law relating to alcohol. A roadside test is done inside the police vehicle. If failed, a demand will be made for a trip to the police station to take a breathalyser test. Everything is done in private – in the police vehicle and in the station.

  • Under these new amendments, tests would be performed in full public view.

  • Prescription drugs will now come under fire. The big question will become the reason physical co-ordination tests are used at roadside as the determining factor concerning the requirement to provide a urine sample.

  • Many people in their 60s and 70s and up cannot perform any of those physical tests if they are overweight, or have knee or other joint problems.

  • Physical co-ordination tests are not new. In some provinces and in some states in the U.S., various forms of roadside physical co-ordination tests are administered on a voluntary basis. In Canada, it is not unusual to see a police officer ask a driver to walk a straight line or touch the nose. However, it will be enshrined in law for the first time. The tests will be prescribed by law. The police officers will have no choice – they will ask you to perform them if certain indicia are present.

  • Weight loss and joint replacement may be the only answer for some people who want to be able to pass the physical tests.

Objective analysis

Bill C-17

  • First you will need to know how much marijuana makes up a joint. From the information from Justice, a typical joint contains between 0.5 and 1 g of marijuana. Fifteen grams, the maximum possession limit decriminalized, would be equivalent to approx. 15 to 30 joints.

  • The proposed law says that for possession of marijuana in an amount not exceeding 15 g, the maximum penalty will be $150, or, in the case of a young person, $100.

  • For possession of hashish in an amount that does not exceed 1 g, the maximum penalty will be $300 or in the case of a young person $200.

  • The offences will be removed from the Criminal Code and designated as contraventions under the Contraventions Act. The Contraventions Act was amended in 1996 to allow the use of existing provincial ticketing schemes to process the federal offences.

  • According to the federal Department of Justice, “an agreement regarding the administration of the Contraventions Act” has not been signed with B.C., Alberta, Saskatchewan, and Newfoundland and Labrador. Of those provinces, the Justice Department says, “prosecution will continue through the court system.”

  • An offence in Toronto will involve the issuing of a ticket that can be paid by mail and involve no criminal record. However, for the same offence in Vancouver an individual would be detained and issued a summons to appear in court. The penalties will be the same, but in four provinces judges will make the decision in open court. No provision has been made to handle the expected overflow of cases in the provincial courts of those four provinces.

Conclusion

  • These changes to the Criminal Code are not just a case of government hiding in the weeds (or reeds) in ambush. This cannot be compared to a good old-fashioned collateral attack. This is an outright invasion. The embedding of ss.254 to 258 of the Criminal Code with the words “as soon as was reasonable in the circumstances” 13 times, and the provision of physical coordination tests to provide reasonable grounds to demand bodily fluids, will provide immediate fodder for constitutional challenge.

  • Under these provisions, the arbitrary detention will be prescribed by law, but will not be saved under s.1 of the Charter as demonstrably justified in a free and democratic society.

Criminal defence lawyers for China project

The CBA’s International Development Committee is currently seeking experienced criminal defence lawyers who would be interested in serving as trainers for a professional skills training session in China in February or March 2005.

The training session is part of the CBA-ACLA China Criminal Justice Reform & Advocacy Project (CJRAP). For more information on CJRAP and the CBA's China Program, please click on http://www.cba.org/CBA/IDP/China/default.aspx

Qualifications desired for potential trainers include:

  • CBA membership and active participation in CBA activities;

  • extensive experience in the practice of criminal law in Canada;

  • training experience related to professional skills and/or trial advocacy;

  • excellent communications skills;

  • ability to work with a team in a cross-cultural environment;

  • previous work with other non-profit organizations or non-governmental organizations also an asset but not necessary;

  • international development experience and/or Mandarin language skills would be an asset but are not necessary.

If interested, please send your resume via e-mail to Andrea Redway at aredway@cba.org by Tuesday, Dec. 21, 2004.

CBA PracticeLink: How to Avoid the Top 10 Law Firm Marketing Mistakes

If your firm isn’t getting the tangible results from marketing that you expected, chances are you’re committing one (or several) of the many mistakes that are all too common in legal marketing today. Visit CBA PracticeLink to learn 10 tips that will steer you clear of these common missteps. Here’s what else is new on CBA PracticeLink:

For all this and much more, visit: www.cba.org/practicelink.
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