Crown's Newsletter

VOLUME TEN CROWN’S DECEMBER 2019 NEWSLETTER 2019 CanLIIDocs 3798

THE UNREPRESENTED ACCUSED: Craig A. Brannagan 3

UNDERSTANDING EXPLOITATION: Veronica Puls & Paul A. Renwick 15

THE NEW STATUTORY READBACK: Davin M. Garg 22

A HANDFUL OF BULLETS: Vincent Paris 26

SECONDARY SOURCE REVIEW: David Boulet 37

TRITE BITES

FIREARM BAIL HEARINGS: Simon Heeney & Tanya Kranjc 65

REVOKING SUSPENDED SENTENCES: Jennifer Ferguson 69

2019 CanLIIDocs 3798

Crown’s Newsletter Please direct all communications to the Editor-in-Chief at: Volume Ten December 2019 [email protected]

© 2019 Ontario Crown The editorial board invites submissions for Attorneys’ Association publication on any topic of legal interest in Any reproduction, posting, repub- the next edition of the Crown’s Newsletter. lication, or communication of this newsletter or any of its contents, in Submissions have no length restrictions

whole or in part, electronically or in 2019 CanLIIDocs 3798 print, is prohibited without express but must be sent in electronic form to the permission of the Editorial Board. Editor-in-Chief by March 31, 2020 to be considered for the next issue. For other submission requirements, contact the Editor- in-Chief. Cover Photo: © 2019 Crown Newsletter

Editor-in-Chief James Palangio

Editorial Board Ontario Crown Attorneys Association Jennifer Ferguson Suite 2100, Box #30 Lisa Joyal 180 Dundas Street West Rosemarie Juginovic Toronto, Ontario M5G 1Z8 Copy Editor Ph: (416) 977-4517 / Fax: (416) 977-1460 Matthew Shumka

Editorial Support Allison Urbshas

1 FROM THE EDITORIAL BOARD

James Palangio, editor-in-chief Jennifer Ferguson, Lisa Joyal & Rosemarie Juginovic

The Crown Newsletter would like to acknowledge the contribution to this publication of David Boulet, Crown Attorney, Lindsay, for his years of support and contributions in providing a comprehensive review of secondary source materials. Reading case law is not the only way to stay on top of legal developments. The legal

profession is blessed with many diverse and 2019 CanLIIDocs 3798 erudite scholars, both foreign and domestic. For many years, Dave’s secondary source review has helped to put that bounty in one readily-accessible place. This newsletter. For that, the Crown’s Newsletter and the Ontario Crown Attorneys’ Association are most grateful.

The Board would also like to welcome Matthew Shumka to the team as Copy Editor. Matt’s experience, knowledge, and suggestions for improvement have proven invaluable to the Board. Without his many contributions, publication of this newsletter would not be tpossible. I is as simple as that. Welcome Shumka!

Legal-Ethical Responsibilities of Crown Counsel and Their Heightened Role in the Criminal Prosecution of Unrepresented Accused

Craig A. Brannagan, Downtown Toronto Crown Attorney’s Office

Introduction with personal statements of fact or opinion about the guilt of an accused. But the role of the Crown The role of the “Boucher” Crown is well known as advocate and the legitimate boundaries of a fair to Canadian Prosecutors. The Supreme Court of prosecution are not always so clear. There is Canada’s oft-cited and well-worn decision in nuance and legal subtlety in ensuring the fair trial 1

R. v. Boucher considered the accused’s appeal rights of the accused, and no shortage of case law 2019 CanLIIDocs 3798 from a homicide conviction in which the Crown, to prove it. These challenges are amplified where in its closing address to the jury, had expressed the accused is unable to retain counsel or chooses their own personal opinion as to the guilt of the to represent themselves. In such cases, the care accused—as opposed to, or perhaps in addition that Crown Counsel must already take in to, the admissible evidence that the jury had heard remaining faithful to its role as a minister of at trial. In allowing the appeal and ordering a new justice is given a heightened sensitivity toward trial, the Court admonished the impropriety of the the fair trial rights of the unrepresented or self- Crown in making these inflammatory represented criminally accused. submissions.2 Prominently throughout the decision, the Court took the opportunity to This article discusses the legal-ethical duties of describe the professional and legal obligations Crown Prosecutors in their role as public officer expected of Crown Counsel with which we are all in the courtroom, primarily as those duties relate now familiar. To paraphrase: as ministers of to the prosecution of unrepresented accused justice, responsible to the fair and proper persons. The limits of Crown discretion and the administration of criminal law, the Crown boundaries of Crown advocacy in ensuring fair Prosecutor is duty-bound to present all credible trials to prevent miscarriages of justice are also evidence in support of what is alleged to be a explored. Finally, jurisprudence relating to the crime; that duty extends to seeing that all duties of trial judges vis-à-vis the unrepresented available legal proof of the facts is presented— person—and some of the relevant issues that firmly, and to its legitimate strength—but also Crown Prosecutors should be aware of to ensure fairly, and with integrity. The Crown neither that trial fairness is preserved—is discussed. It is wins nor loses; rather, it is expected to conduct its expected that the information herein will assist prosecution without feeling or animus, with the Crown Prosecutors in not only considering the single view of determining the truth in the legitimate professional and legal-ethical furtherance of justice.3 boundaries of their advocacy in the interests of trial fairness generally, but that it will also The legal-ethical obligations of Crown Counsel provide jurisprudentially-based practical as described in Boucher are but the foundational guidance for Crown Counsel in navigating the starting points when considering the full gamut of legal pitfalls associated with the criminal professional responsibilities that Canada’s prosecutions of the unrepresented accused Criminal Prosecutor commits to upholding in specifically.4 taking their oath of office. It seems rather obvious 65 years after Boucher that Crown Rise of the Self-Represented Accused Counsel should not employ invective, inflammatory or vindictive language, or seek to For anyone who frequents our country’s criminal augment admissible evidence (or the lack of it) courts, the swelling numbers of unrepresented or

self-represented criminally accused is obvious.5 matters. Questions, whether in This growing phenomena has been called a examination-in-chief or cross- “crisis” and is stated to be “one of the most examination, are not framed properly. significant changes and challenges to the justice Rambling, disjointed or convoluted system in 100 years”,6 with the case of Dellen questions are the norm. The opportunity to Millard representing himself in the Laura make submissions is viewed as an Babcock homicide prosecution being perhaps the opportunity to give evidence without most recent and notorious example. entering the witness box.9

The legal representation problem of Notwithstanding the frustrations that a self- unrepresented or self-represented persons in represented person presents to legally-trained criminal proceedings is itself a problem for the lawyers and judges, persons accused of having criminal justice system because, in part, committed criminal offences are nevertheless statutorily entitled to represent themselves.10 the typical criminal defendant would and This right to self-representation has been found 2019 CanLIIDocs 3798 does have difficulty understanding the by the Supreme Court of Canada to be a principle criminal process, let alone defending of fundamental justice—an entrenched him/herself. Criminal accused tend to be constitutional right.11 The Ontario Court of poorly educated, have low levels of Appeal has recently reaffirmed the nature of the literacy, and lead disordered lives. [There accused’s right to self-representation.12 This is are many] immigrants or others (such as not, however, a right without limits: Aboriginal defendants) who face language and cultural barriers [and] significant [The self-represented accused] is not numbers of mentally disordered accused.7 entitled to any special advantages by virtue of that status; the accused assumes the risk In short, “[t]he criminal justice system often does of self-representation… The right of an not work as it should” in the prosecution of accused to make full answer and defence unrepresented accused.8 Anyone who has entitles the accused to adduce relevant prosecuted a self-represented person will be evidence, to advance legal argument and to familiar with the challenges and complexities of address the Court. It carries with it no what might otherwise have been a licence to paralyse the trial process by straightforward matter. These challenges are subjecting an endless stream of witnesses to interminable examination on irrelevant adroitly captured by Madame Justice Fuerst: 13 matters. Whatever the reason for his or her status, In other words, the self-represented accused must the self-represented accused is usually ill- observe the same fundamental rules of the equipped to conduct a criminal trial. He or courtroom as does the legally-trained barrister. she comes to court with a rudimentary Even so, there remains a good deal of flexibility understanding of the trial process, often with respect to how these fundamental rules are influenced by misleading depictions from applied to unrepresented accused. There are also television shows and movies. His or her enhanced legal and ethical obligations on both the knowledge of substantive legal principles Crown and trial judges in ensuring the fair trial is limited to that derived from reading an rights of unrepresented persons. annotated Criminal Code. He or she is unaware of procedural and evidentiary Legal-Ethics of Crown Counsel as Advocate rules. Even once made aware of the rules, he or she is reluctant to comply with them, Before considering how the rules of our criminal or has difficulty doing so. The limitations courtrooms are adapted to protect the fair trial imposed by the concept of relevance are rights of the unrepresented accused, it is helpful not understood or are ignored, and the to first appreciate the legal-ethical responsibilities focus of the trial is often on tangential

that govern Crown Counsel practicing within the For its part, Rule 7.2-1 directs that lawyers “shall criminal justice system. be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the i. Professionally Regulated Ethics through Law course of their practice.”17 The related Societies Commentary highlights that the public interest demands that legal matters entrusted to lawyers As with all other lawyers in the regulated legal “be dealt with effectively and expeditiously”,18 profession, Crown Counsel are subject to the with the expectation that “each lawyer engaged in rules of their respective jurisdiction’s Law a matter will contribute materially to this end”.19 Society. In Ontario, the Law Society of Ontario’s It is striking that this concept has been stressed by (LSO) Rules of Professional Conduct14 (Rules) the Supreme Court of Canada in both the govern lawyers’ professional ethics, including in R. v. Jordan20 and R. v. Cody21 decisions in their dealings with unrepresented accused. Most relation to the “culture change” demanded of all relevant for the public prosecutor are Chapters 5 justice system participants—that is, away from a and 7: “Relationship to the Administration of culture of complacency, frivolity and delay, to 2019 CanLIIDocs 3798 Justice”; and “Relationship to the Law Society one that strives toward efficiency, meaningful and Others”, respectively. collaboration and substantive pragmatism. Rule 5.1 of the LSO’s Rules is concerned with the role of “Lawyer as Advocate”. The Rule speaks Rule 7.2-9 specifically addresses a lawyer’s specifically to the lawyer’s “Duty as Prosecutor”, relations with unrepresented persons. That Rule noting: directs that a lawyer “shall” ensure that the unrepresented person does not have the When acting as a prosecutor, a lawyer shall impression that the lawyer acts for them or in act for the public and the administration of their best interests.22 Relatedly, the lawyer is justice resolutely and honourably within expected to ensure that the unrepresented person the limits of the law while treating the understands that the lawyer’s comments may be tribunal with candour, fairness, courtesy partisan and favourable to their own client—in and respect.15 the case of Crown Counsel, representing the public interest and the proper administration of This Rule, and the role of Crown Prosecutor, is criminal justice. This Rule is especially developed more fulsomely in the Ministry of the important for Crown Prosecutors to follow in Attorney General’s Prosecution Directive on their dealings with unrepresented accused “Professionalism”.16 persons in the context of any resolution or trial- setting discussions and, to the extent possible, Rule 5.1-2 of the Rules establishes a list of 16 should be conducted on-the-record to avoid any practices that a lawyer “shall not” engage in while misunderstanding about the nature of any acting as an advocate, which include such discussions held. proscriptions as: knowingly mis-stating facts or evidence; making reckless or knowingly-false ii. The Role of the Crown Prosecutor and the suggestions to witnesses; improperly dissuading Nature of Prosecutorial Discretion a witness from giving evidence; needlessly abusing, hectoring or harassing a witness; As quasi-judicial local ministers of justice, needlessly inconveniencing a witness; Crown Prosecutors are expected to possess sound deliberately refraining from informing the court judgement and to exercise professional discretion of any binding authority that the lawyer considers in seeing that justice is done in individual cases. to be directly on point and that has not been They are dedicated to enhancing public safety and mentioned by an adversary; etcetera. The rule promoting confidence in the administration of applies to both Crown and Defence Counsel justice and the rule of law. The Prosecutor’s alike. responsibilities include ensuring that every prosecution is carried out in a manner consistent with the public interest, which includes an

overarching obligation of fairness to all parties upon respect for the separation of powers and the involved in the criminal justice system: the rule of law. Under the doctrine of the separation accused; victims of crime; and the greater public. of powers, criminal law is within the domain of In carrying out these functions, Crown the executive. As the Court stated in Krieger: Prosecutors are granted significant discretion to manage and conduct individual cases such that As discussed above, these powers emanate justice is done in a manner responsive to the from the office holder’s role as legal particular circumstances of each case. The advisor of and officer to the Crown. In our discretion that Crown Prosecutors possess, when theory of government, it is the sovereign exercised fairly and impartially, is essential to the who holds the power to prosecute his or her proper functioning of the Canadian criminal subjects. A decision of the Attorney justice system.23 The fair and impartial exercise General, or of his or her agents, within the of this discretion takes on an elevated importance authority delegated to him or her by the when the Prosecutor’s adversary is a self- sovereign is not subject to interference by represented accused. other arms of government. An exercise of 2019 CanLIIDocs 3798 prosecutorial discretion will, therefore, be Throughout the course of any prosecution the treated with deference by the courts and by Crown makes numerous decisions. Many of other members of the executive, as well as these decisions are an exercise of prosecutorial statutory bodies like provincial law discretion. Others involve trial tactics and/or societies.25 advocacy. Still other decisions involve choices of behaviour and how one conducts oneself before Prosecutorial discretion has traditionally and the courts. The exercise of this discretion is properly been afforded a broad scope. The only subject to some limits. The courts have defined basis for judicial review of an exercise of and delineated many of the legal-ethical prosecutorial discretion is abuse of process. As obligations of Crown Counsel in the trial forum, was held in Krieger, “within the core of including the legitimate boundaries of prosecutorial discretion, the courts cannot prosecutorial discretion. interfere except in such circumstances of flagrant impropriety or in actions for ‘malicious a. Prosecutorial Discretion in Krieger prosecution’”.26

The Supreme Court of Canada’s decision in b. Prosecutorial Discretion Revisited in Krieger v. Law Society of Alberta24 was the first Anderson major decision to address the nature of prosecutorial discretion. It stated that among the The Supreme Court in a subsequent decision, core elements of prosecutorial discretion are: (i) however, acknowledged that its use of the word the discretion whether to bring the prosecution of “core” in Krieger had left the law in a less-than- a charge laid by police; (ii) the discretion to enter clear state. Therefore, 12 years later, in a stay of proceedings in either a private or public R. v. Anderson,27 the Court reiterated that: “…the prosecution; (iii) the discretion to accept a guilty term ‘prosecutorial discretion’ is an expansive plea to a lesser charge; (iv) the discretion to term that covers all ‘decisions regarding the withdraw from criminal proceedings altogether; nature and extent of the prosecution and the and (v) the discretion to take control of a private Attorney General’s participation in it’.”28 While prosecution. What is common to these various the Court was careful to note the likely elements of prosecutorial discretion is that they impossibility of establishing a definitive list of all involve the ultimate decisions as to whether a those sorts of decisions that fall within prosecution should be brought, continued or prosecutorial discretion, it did provide some non- ceased, and what the prosecution ought to be for. exhaustive examples, in addition to those noted in It has long been held that as a matter of principle Krieger, in order to demonstrate that and policy, courts should not interfere with discretionary decisions pertain to the nature and prosecutorial discretion. This notion is founded extent of the prosecution. These further examples

included: (i) the decision to repudiate a plea system in a myriad of circumstances. Three agreement; (ii) the decision to pursue a dangerous common themes are examined below, and are offender application; (iii) the decision to prefer a applicable to both represented and unrepresented direct indictment; (iv) the decision to charge accused alike. multiple offences; (v) the decision to negotiate a plea; (vi) the decision to proceed by summary a. Counsel’s Request to be Removed from the proceedings or by indictment; and (vii) the Record decision to initiate an appeal.29 The Court also repeated from Krieger its caution against “routine One such instance relates to counsel’s requests to second-guessing” by courts, highlighting the be removed from the record. Depending upon the constitutional imperative of judicial non- stage of the proceeding, in particular during the interference.30 The deference afforded by courts very early stages of a case, Crown Counsel may to the prosecutor’s exercise of discretion remains, have no concern with counsel being removed of course, subject to judicial review for abuse of from the record—the earlier that counsel is process and a court’s authority to control its own removed, the more time an accused has to find 2019 CanLIIDocs 3798 processes.31 another lawyer. But the situation can become problematic in the post-Jordan era as boundary- ii. Crown Advocacy in the Trial Forum—Trial pressing trial dates approach, with the removal of Fairness & Miscarriages of Justice counsel meaning that an accused goes unrepresented. As part of the Crown Prosecutor’s overriding obligation to trial fairness in the exercise of their Such was the challenge in R. v. Short36, a first- discretion, they must vigilantly guard against degree murder case where counsel sought to be miscarriages of justice in whatever form. This is removed from the record some six weeks before particularly so when the accused does not have trial for reasons of non-payment of fees and a the benefit of counsel advocating on their behalf. breakdown in the solicitor-client relationship. In addition to the grounds of unreasonable verdict Despite counsel’s submissions that, in addition to and legal error, miscarriage of justice is its own non-payment, there were ethical concerns that discrete ground of appeal.32 The term itself is not prevented him from continuing to act for the easily defined but is most closely related to and accused, the trial Crown opposed counsel’s best understood in the context of procedural fair application. The trial judge dismissed the trial trial rights: counsel’s application and required counsel to continue to act for the accused at trial. The A person charged with the commission of accused was convicted. He appealed to the Court a crime is entitled to a fair trial according of Appeal. The Court found that the trial judge to law. Any error which occurs at trial that had erred in law in his ruling, and that his ruling deprives the accused of that entitlement is had created the appearance of unfairness a miscarriage of justice.33 regardless of whether it actually negatively impacted the conduct of his defence.37 The Proof of actual prejudice is not required to judge’s ruling rendered the trial unfair and establish a miscarriage of justice; the mere resulted in a miscarriage of justice, requiring a appearance of unfairness may suffice.34 Because new trial.38 And while the trial judge bore the the Crown Prosecutor’s duties are public in brunt of the Court of Appeal’s reproach, the Court nature, the appearance of fairness takes on an impliedly cast some aspersion toward the trial elevated import; accordingly, their “demeanour Crown’s position, describing it thusly: and actions should be fair, dispassionate and moderate; show no signs of bias; and be open to Crown counsel’s submissions can only be the possibility of the innocence of the accused read as suggesting that trial counsel’s person.”35 These ‘fair-play’ requirements have references to ethical concerns and loss of legal-ethical implications for the Prosecutor’s confidence were camouflage for the real role as advocate within the criminal justice

reason counsel wanted off the record—he relating to parties to an offence … to the had not been paid.39 facts as found by the [trier]. Culpability depends on the evidence and the legal Based on these comments, it seems that the Court principles applicable to that evidence. The of Appeal was cautioning the Crown from Crown is entitled to rely on any route to challenging counsel’s assertions that an ethical liability available on the evidence … There conflict existed within the privileged solicitor- is nothing per se unfair in the Crown client relationship. relying on different or alternate theories of liability, as long as each is rooted in the b. Theories of Liability evidence.41

Within the context of the prosecution itself, the The Court was careful to circumscribe this Crown’s legal-ethical duties extend to the general rule “by the overriding need to ensure permissible theories of liability advanced as part trial fairness and, specifically, the accused’s right of its prosecution. The Court of Appeal decision to make full answer and defence”.42 Where the 2019 CanLIIDocs 3798 in R. v. Kelly40 addressed this issue. Kelly was a Crown provides particulars, makes specific Crown appeal from a successful directed verdict representations or conducts its prosecution in in a manslaughter prosecution that arose from a such a manner that the accused’s potential botched attempted robbery of an illegal poker liability is limited to a specific factual or legal game at a banquet hall. The Crown’s primary theory causing the accused to conduct their theory was that Kelly was the getaway driver for defence accordingly, the defence may find the two robbers (one of whom had shot and killed success in arguing that “any departure from the one of the robbery victims), and thus culpable as specific basis of liability put forward, especially an aider, pursuant to s. 21(1)(b). Counsel after the evidence is complete, would unfairly submitted that the evidence of one of the Crown’s prejudice the accused’s ability to make full key witnesses undermined the Crown’s theory of answer and defence.”43 The result could be a Kelly’s legal liability, in that it could not support miscarriage of justice, but it is incumbent upon the inference that Kelly was, in fact, the getaway the defence to take steps to properly limit the driver. The Crown submitted that it was not Crown’s case and to demonstrate prejudice if the limited to the getaway driver theory, but could prosecution goes beyond any “clear and rely on all legal bases for liability available on the unqualified statement from the Crown that it is evidence. It argued that even if Kelly was not the relying exclusively on the factual basis advanced getaway driver, the jury could still convict him on in its theory of the case”.44 Absent any formal cell phone evidence that showed him to have particulars, or such unequivocal statements of acted as a conduit of information from yet another exclusive reliance on a particular theory, the involved party (the ‘inside man’ at the poker Crown is not limited to the particular theory it game) to the robbers—in other words, under the chooses to advance.45 common purpose provision of s. 21(2). The trial judge accepted counsel’s submission that the c. Crown Prosecutor’s Trial Conduct Crown was restricted to arguing that the respondent was the getaway driver, limiting The case of R. v. J.S.46 addressed an appeal from Kelly’s liability to s. 21(1)(b), and allowed the conviction in a sexual assault case before a jury, motion for directed verdict. in which the Crown had committed improprieties during her cross-examination and closing address Allowing the Crown’s appeal on the basis of legal with respect to the appellant’s right to silence and error, the Court held: the proper characterization of forensic evidence. The main issues at trial were whether the sexual The Crown is not bound to prove its case assault had occurred at all and, if so, the identity according to any factual or legal theory. of the perpetrator (the complainant could not Liability for an offence charged is identify the accused as her assailant). A sexual determined by an application of the law assault evidence kit disclosed no physical

evidence of sexual intercourse. Trace amounts of this “amounted to an impermissible invitation to male DNA, including saliva, were found on the the jury to use disbelief of [the accused’s] complainant’s underwear, but the Crown’s evidence as evidence of guilt.”52 Finally, the forensic expert could not conclude that the Court of Appeal found that the Crown had appellant was the source. “significantly mischaracterized the nature and utility of the forensic evidence.”53 The danger in The accused testified in his own defence. During mischaracterizing forensic evidence in front of a her cross-examination of the accused, the trial jury is that they may treat such evidence as Crown challenged the accused’s version of the infallible and, therefore, overemphasize its events by asking him why he did not tell the significance; Crown Counsel therefore has a police the entire story that he had told the jury. heightened responsibility to ensure that such The Court summarized the alleged improprieties evidence is carefully and accurately explained.54 as follows: Cumulatively, the above-described conduct by the trial Crown raised the spectre that the jury was Crown counsel returned to this theme misled, thereby resulting in an unfair trial. 2019 CanLIIDocs 3798 during her closing address to the jury, submitting that the appellant and his Heightened Responsibilities of Crown Counsel girlfriend had concocted their story to & Trial Judges with Unrepresented Accused explain the presence of his DNA in response to the results of the forensic The legal-ethical responsibilities, with their testing. The Crown also invited the jury to allowances and proscriptions, described above use “common sense” to conclude that the govern the conduct of Crown Counsel as saliva on the underwear came from the advocate and the exercise of its discretion in all appellant even though the forensic expert circumstances. These responsibilities take on an was unable to come to this specific especially heightened importance in ensuring that conclusion.47 fair trial rights are honoured in the prosecution of unrepresented accused. Trial judges, for their Calling the Crown’s statements “problematic and part, have legal duties of their own when inaccurate”, particularly in the absence of any unrepresented accused appear before them. correcting jury instructions, the Court found that Given the nature of its role as a quasi-judicial, the trial was unfair, resulting in a miscarriage of local minister of justice, it is not a stretch to justice.48 The Court chastised the Crown for what suggest that the Crown Prosecutor also has a it referred to as “the erosion of the appellant’s positive ethical duty to assist trial judges in right to silence and the mischaracterization of the discharging their duties to the unrepresented: to forensic evidence”.49 Given the evidentiary guarantee a fair trial in both substance and frailties of the case, the Court cautioned the appearance; to mitigate undue prejudice that Crown “to avoid impermissible lines of reasoning could befall an unrepresented accused, even and accurately present the evidence in addressing through their own actions; and ultimately to avoid the jury”.50 The Court also found that the trial miscarriages of justice. Practically speaking, the Crown’s repeated suggestions that the accused Crown should welcome this ethical duty in order was required to provide information to the police to curtail fertile grounds for appeal, in particular or otherwise be helpful to them violated his right in those cases where the accused is convicted and to silence. This, the Court held, could have left a successful appeal could lead to a re-trial. the jury with the impression that if the appellant were an innocent person, he would have i. The Crown’s Enhanced Disclosure Obligations volunteered certain information to the police and provided them with an explanation consistent Before examining the special legal obligations with his innocence at the first opportunity.51 that trial judges owe to unrepresented accused Moreover, in response to the Crown’s suggestion and considering ways that the Crown Prosecutor that the appellant had tailored his evidence after can help safeguard them, the Crown’s core legal having received disclosure, the Court found that obligation of providing full disclosure to self-

represented accused requires consideration. The unrepresented accused person who is in Crown’s disclosure obligations are well-known custody. The Crown must resolve these and need not be repeated here.55 However, when complications in order to fulfill its prosecuting an unrepresented person—in responsibility to ensure the relevant particular, an unrepresented accused in pre-trial materials make it into the hands of an in- custody—both the Crown and the trial judge have custody accused. This may involve enhanced obligations to ensure that the accused’s personal service of materials. It may right to full disclosure has been fulfilled. The involve further court appearances case of R. v. Tossounian,56 provides a recent including videoconferences, to ensure that example of this obligation. In Tossounian, the disclosure is complete and the case is ready accused, who was unrepresented throughout the for trial. It will depend on the proceedings, had spent more than six months in circumstances of each case. In this case, custody at the Vanier Institute before and during the problem might have been diminished her trial. She was ultimately convicted of arson had the set-date judge made further and possession of incendiary material for the inquiries on the state of Crown disclosure 2019 CanLIIDocs 3798 purpose of committing arson. The unrepresented and expected delivery dates. Similarly, a accused appealed on two bases: (1) that her right readiness hearing held reasonably in to a fair trial and the right to make full answer and advance of the trial could have served to defence was compromised by the Crown’s failure alleviate or eliminate the inadequate to provide disclosure; and (2) that the trial judge disclosure.60 failed to provide adequate assistance to her, particularly by failing to ensure she understood On this basis, the Court of Appeal found that her right to full disclosure.57 Ms. Tossounian’s right to a fair trial was violated. The Court allowed the appeal, set aside the The facts relating to disclosure are, briefly, as findings of guilt, and ordered a new trial as a follows: disclosure occurred in three stages: a remedy under s. 24(1) of the Charter. 144-page disclosure package was handed to the accused in court; an expert report of a CFS ii. The Trial Judge’s Legal Obligations to the chemist was personally served on the accused Unrepresented Accused some months later; and, finally, the Crown delivered an additional disclosure package of It is a long-standing requirement of Canadian law over 500 pages to the Vanier Institute, instructing that trial judges must provide meaningful the Institute to place the package in her property. assistance to unrepresented accused. Judges, as The problem that arose is that the Vanier Institute with other members of the criminal justice did not advise the accused of having received the system, share in the responsibility to ensure that last round of disclosure and, although it had been self-represented accused are provided with fair placed in the accused’s property, she did not access and equal treatment before the law. The become aware of it until after trial. Noting the case that is most frequently cited in support of this Crown’s attempt to make full disclosure of all enhanced legal obligation of judges is materials, the Court nevertheless concluded that R. v. McGibbon,61 in which the Court of Appeal the Crown “did not take adequate steps to ensure for Ontario held: that the appellant received them.”58 The Court held that, in determining whether there has been Consistent with the duty to ensure that the a breach of the right to disclosure, the standard of accused has a fair trial, the trial judge is due diligence imposed on an unrepresented required within reason to provide accused in custody “must necessarily be assistance to the unrepresented accused, to minimal.”59 The Court held as follows: aid him in the proper conduct of his defence, and to guide him throughout the I would conclude the Crown failed to make trial in such a way that his defence is full disclosure. I appreciate the brought out with its full force and effect. complications in making disclosure to an How far the trial judge should go in

assisting the accused in such matters as the As important as the right to counsel is, it is examination and cross-examination of not an unlimited right. It must be balanced witnesses must of necessity be a matter of against the timely disposition of cases. … discretion.62 There comes a point at which the court is entitled to refuse any further adjournments The McGibbon principle has been repeated by the for the purpose of retaining counsel.68 Ontario Court of Appeal in numerous cases, emphasising that while each case will be unique, In cases of late-in-the-day adjournment the Court must ensure that the self-represented applications by unrepresented accused, trial accused’s defence is brought out with its full Crowns should carefully consider the complete force and effect.63 The obligation to assist a self- history of the proceedings, and any indulgences represented accused to ensure the fairness of the that the accused has already been granted, in trial has been described as a “heavy onus”,64 evaluating what submissions they will make to though this duty is circumscribed by a standard of the court. reasonableness, which accommodates a ranges of 2019 CanLIIDocs 3798 options to ensure the requisite degree of b. Charter Inquiries assistance is met.65 Some of the various issues that arise in the trial forum – which affect both the The trial judge’s obligations to provide Court and the specific interests of the Crown – are meaningful assistance to the self-represented considered below. accused, in order to ensure that their defence is brought forward with full force and effect, can a. Adjournments include the obligation of the court to raise Charter issues on the judge’s own motion.69 The Ontario The urgency of Jordan timelines has thrust the Court of Appeal has stated that this specific s. 11(b) Charter right to be tried within a obligation should not trigger “on the mere scent reasonable time to the forefront of our criminal or intimation…”70 of a possible Charter justice system. All parties have an obligation to violation, but ensure that matters proceed expeditiously through the system. Occasionally, unrepresented persons … where there is admissible may seek adjournments of substantive hearings— uncontradicted evidence of a relevant including on the dates they are to be held—for a Charter breach, the trial judge has an variety of reasons, including for the purported obligation to raise the issue, invite reason that they wish to retain counsel pursuant submissions and enter upon an inquiry into to their s. 10(b) Charter right. In such cases, the the infringement and its consequences.71 Court of Appeal for Ontario has described that the trial judge must balance two rights: first, the The suggestion in this article that the Crown accused’s constitutional right to be represented Prosecutor has a positive ethical duty to assist by counsel including, when possible, counsel of trial judges in discharging their duties to the choice; and, second, the trial judge’s right to unrepresented finds some support in the Court of control the trial process, which right encompasses Appeal’s decision in R. v. Breton. In that case, a wide discretion to grant and refuse the Court stated that adjournments.66 The appellate courts will only interfere with the exercise of this discretion where … neither the trial Crown nor the trial the refusal of an adjournment request deprives an judge raised or otherwise alerted the accused of a fair trial or the appearance of a fair appellant to this [Charter] violation, or to trial.67 The Court of Appeal in R. v. Patel—a case the connection between it and the evidence in which the self-represented accused was refused located… and thus to the impact of the an adjournment of his trial to try and retain violation on the admissibility of that counsel—dismissed the accused’s appeal, stating: evidence.72

In allowing the appellant’s appeal and ordering a To put not too fine a point on the trial judge’s new trial, the Court found that the trial judge had obligations to assist the self-represented, the failed to provide adequate assistance to ensure following excerpt sums it up as best as it can be that the self-represented accused had received a said: fair trial. As a best practice, trial Crowns should There are no easy days in the trial of self- consider raising Charter issues on the record to represented litigants. It is all the more so foreclose this issue from becoming a fertile for self-represented litigants who appear to ground of appeal. be playing the system, bent on delaying the day of reckoning until the 12th of never by c. How Much Judicial Assistance is Adequate? various devices. Consistent with the mandate of R. v. Jordan and R. v. Cody, it There is no bright line formula for determining is essential that trial judges exercise their how much assistance a trial judge must provide to trial management powers to ensure that a self-represented accused. Every case will turn justice is not delayed. But in the case of on its own facts and will depend on the individual self-represented accused, they must not 2019 CanLIIDocs 3798 unrepresented party before the court: lose sight of their well-established obligation to assist, lest justice be denied.83 [The unrepresented accused’s] need for guidance varies depending on the crime, Conclusion the facts, the defences raised and the accused’s sophistication. The judge’s The evolution of expectations for the Crown advice must be interactive, tailored to the Prosecutor since the days of Boucher is apparent. circumstances of the offence and the As local ministers of justice, the Prosecutor is offender, with appropriate instruction at expected to exercise the great latitude of their each stage of the trial.73 discretion in a manner that is fair, honourable, instilled with integrity. It is to be exercised in the The following present a non-exhaustive list of interest of the public while responsibly advancing meaningful efforts made by trial judges in trials the proper administration of criminal law to see of self-represented accused that have satisfied the that justice is done, and that miscarriages of Court of Appeal that adequate assistance was justice are prevented. This discretion must be provided: exercised with the overarching obligation to fairness in mind, which itself extends not only to • Identifying relevant issues for the accused;74 victims of crime and to the greater public, but also • Assisting the accused in framing questions to to accused persons, and particularly to accused elicit evidence that would be admissible and persons defending themselves without the benefit relevant;75 of counsel. To that end, the Crown Prosecutor • Providing an overview of the trial process;76 must recognise their legal and ethical • Offering relevant materials on trial practice;77 responsibilities, firmly comprehend the nature • Explaining how to use transcripts;78 and limits of their role as a public officer and • Ensuring the accused had the opportunity to conduct their practice such that it encourages the meet and speak with witnesses;79 public’s confidence in the administration of criminal justice. Remaining faithful to these high • Exhibiting tolerance and using plain language principles will not only safeguard the fair trial with the self-represented accused;80 rights of both represented and unrepresented • Treating the accused with “genuine concern accused alike, but will enhance the quality and and respect”;81 and, character of the criminal justice system overall. • Treating the accused with respect and dignity.82

 The views or opinions expressed in this article are 11 R. v. Swain, [1991] 1 S.C.R. 933 at 972: “Given that those of the authors, and do not necessarily reflect the principles of fundamental justice contemplate an those of the Ontario Ministry of the Attorney General accusatorial and adversarial system of criminal justice or the Ontario Crown Attorneys Association. which is founded on respect for the autonomy and 1 [1955] S.C.R. 16; 1954 CanLII 3 [“Boucher”]. dignity of human beings, it seems clear to me that the 2 The Court, at that time, consisted of the following principles of fundamental justice must also require Jurists, several of which expressed their own iterations that an accused person have the right to control his of reasons: Kerwin C.J., and Taschereau, Rand, or her own defence… An accused person has Kellock, Estey, Locke, Cartwright, Fauteux, and control over the decision of whether to have Abbott JJ. counsel, whether to testify on his or her own behalf, 3 See Boucher, supra note 1 at 23-24, Rand J. and what witnesses to call. This is a reflection of our 4 Throughout this article, the author uses the terms society’s traditional respect for individual autonomy ‘unrepresented’ and ‘self-represented’ within an adversarial system” [emphasis added]. interchangeably, though in practice the true ‘self-rep’ 12 See R. v. Imona-Russel, 2019 ONCA 252 at may choose to represent themselves because they para. 67: “[A]n accused person has the right to self believe that they are best suited to conduct their own represent, and cannot be compelled to appoint counsel, 2019 CanLIIDocs 3798 defence, whereas the unrepresented accused may to pursue public funding through Legal Aid for simply be unrepresented because they cannot afford counsel, or to pursue a Rowbotham order appointing legal counsel and/or have been denied Legal Aid, but counsel”. See, also R. v. Chemama, 2016 ONCA 579 would prefer to have a lawyer representing them. at para. 58: “An accused has an unfettered right to ‘Under-representation’ is also a growing concern, in discharge his or her legal counsel at any time for any particular as it relates to recent budget cuts to Legal reason. A court cannot interfere with this decision and Aid Ontario, but is beyond the scope of this article. cannot force counsel upon an unwilling accused”. 5 Canadian Judicial Council, Statement of Principles 13 LeSage & Code Report, supra note 8 at 159-60. on Self-Represented Litigants and Accused Persons 14 Law Society of Ontario, Rules of Professional (Adopted by the CJC in September 2006) at 3. Conduct [Rules]. 6 Dr. Julie MacFarlane, “Millard’s self-representation 15 Ibid, r. 5.1-3. in murder trial an example of growing crisis”, The 16 See Ontario, Ministry of the Attorney General, Globe and Mail (1 November 2017). Crown Prosecution Manual, Prosecution Directive D. 7 Canada, Department of Justice, Court Site Study of 31—Professionalism (1 January 2018) [Crown Adult Unrepresented Accused in the Provincial Prosecution Manual]: “Prosecutors are local Ministers Criminal Courts Part 1: Overview Report, by Robert of Justice and as such have an obligation to discharge G. Hann et al. (Ottawa: Department of Justice, 2002) their responsibilities with honour and integrity. A at iv. Prosecutor must act fairly and dispassionately. 8 Ontario, Ministry of the Attorney General, Report of Prosecutors must make decisions in a manner that is the Review of Large and Complex Criminal Case objective and consistent with the highest standards of Procedures, by The Honourable P. LeSage & professionalism. A Prosecutor shall be courteous, Professor M. Code (Toronto: Queen’s Printer for civil, and act in good faith with all persons with whom Ontario, 2008) at 156 [LeSage & Code Report]. she has dealings in the course of her professional 9 Ibid at 155 citing The Honourable Madam Justice M. responsibilities. The conduct of the Prosecutor should Fuerst, “The Self Represented Accused: The Trial always reflect favourably on the administration of Judge’s Perspective” (2007) [unpublished] at 2. justice, and inspire the confidence, respect and trust of 10 See Criminal Code, R.S.C. 1985, c. C-46, s. 651(2), the community”. where: “Counsel for the accused or the accused, 17 Rules, supra note 14. where he is not defended by counsel, is entitled, if he 18 Ibid, r. 7.2-1 at Commentary 1. thinks fit, to open the case for the defence, and after 19 Ibid. the conclusion of that opening to examine such 20 R. v. Jordan, 2016 SCC 27 at para. 137. witnesses as he thinks fit, and when all the evidence is 21 R. v. Cody, 2017 SCC 31 at paras. 35-36. concluded to sum up the evidence” [emphasis added]. 22 Rules, supra note 14. Similarly, s. 651(3) (ibid): “Where no witnesses are 23 See generally Crown Prosecution Manual, supra examined for an accused, he or his counsel is entitled note 16, Preamble to the Prosecution Manual. to address the jury last, but otherwise counsel for the 24 2002 SCC 65 [Krieger]. prosecution is entitled to address the jury last” 25 Ibid at para. 45. [emphasis added]. 26 Ibid at para. 49. 27 2014 SCC 41 [Anderson].

51 Ibid at paras. 50-55. 28 Ibid at para. 44. 52 Ibid at paras. 60-63. 29 Ibid. 53 Ibid at para. 67. 30 Ibid at para. 46. 54 Ibid at para. 78. 31 See ibid at paras. 48, 57-59. Concerning “tactics or 55 See R. v. Stinchcombe, [1991] 3 S.C.R. 326; conduct before the court”, the Anderson Court quoted R. v. McNeil, 2009 SCC 3. Krieger that “such decisions are governed by the 56 2017 ONCA 618 [Tossounian]. inherent jurisdiction of the court to control its own 57 Ibid at para. 5. processes once the Attorney General has elected to 58 Ibid at para. 17. enter into that forum”. Supra note 24 at para. 59 Ibid at para. 19. 47. “Superior courts possess inherent jurisdiction to 60 Ibid at para. 22. ensure that the machinery of the court functions in an 61 (1998), 45 C.C.C. (3d) 334 (Ont. C.A.). orderly and effective manner. Similarly, in order to 62 Ibid at 347. function as courts of law, statutory courts have implicit 63 See especially R. v. Varcoe, 2007 ONCA 194 at powers that derive from the court's authority to control para. 26: “It is a fine line that trial judges are required its own process. This jurisdiction includes the power to walk in dealing with unrepresented and self- to penalize counsel for ignoring rulings or orders, or represented accused persons. Trial judges are to 2019 CanLIIDocs 3798 for inappropriate behaviour such as tardiness, avoid any conduct that may be seen to favour one incivility, abusive cross-examination, improper side over the other and to maintain their opening or closing addresses or inappropriate attire. independence as between the two. This obligation Sanctions may include orders to comply, must be balanced against the need to take steps to adjournments, extensions of time, warnings, cost ensure that no miscarriage of justice occurs as a result awards, dismissals, and contempt proceedings”. of an unrepresented accused”. See also R. v. Jayne, Anderson, supra note 27 at para. 58. 2008 ONCA 258; R. v. Richards, 2017 ONCA 424; 32 See Criminal Code, supra note 10, s. 686(1)(a)(iii). Tossounian, supra note 56; Sabir, 2018 ONCA 912; 33 R. v. Fanjoy, [1985] 2 S.C.R. 233 at para. 11. R. v. Meloche, 2019 ONCA 521. 34 See e.g. R. v. Rushlow, 2009 ONCA 461 (where an 64 Richards, supra note 63 at para. 112. See appeal was allowed and a new trial ordered after a R. v. Breton, 2018 ONCA 753 at para. 14; Sabir, trial judge dismissed the accused’s Rowbotham supra note 63 at para. 18. application. The Court of Appeal found a 65 See Richards, supra note 63 at para. 111. miscarriage of justice on the basis that the failure to 66 See R. v. Hazout (2005), 199 C.C.C. (3d) 474 at appoint counsel resulted in an appearance of para. 31 (Ont. C.A.). unfairness and possibly the ability to make full 67 See ibid; R. v. Patel, 2018 ONCA 541; answer and defence). R. v. Budimirovic, 2015 ONCA 142 at para. 5. 35 Crown Prosecution Manual, supra note 16, 68 Patel, supra note 67 at para. 3. Preamble to the Prosecution Manual. 69 See Breton, supra note 64 at para. 15; Richards, 36 2018 ONCA 1 [Short]. supra note 63 at para. 113. 37 Ibid at para. 4. 70 Ibid. 38 Ibid at para. 39. See also R. v. Chemama, 2016 71 Ibid. ONCA 579 at paras. 42-43, 58 (where the Court 72 Supra note 64 at para. 16 [emphasis added]. found that the trial judge erred in forcing trial counsel 73 Varcoe, supra note 63 at para. 27, citing to continue, despite being asked to be removed from R. v. Phillips, 2003 ABCA 4 at paras. 22-23, aff’d the record, and that the trial judge had effectively 2003 SCC 57. excluded the accused from the trial process, rendering 74 See R. v. Galna, 2007 ONCA 182 at para. 6. the trial unfair). 75 See ibid. 39 Short, supra note 36 at para. 28. 76 See ibid. 40 2017 ONCA 920. 77 See ibid. 41 Ibid at paras. 30-31. 78 See Jayne, supra note 63 at para. 6. 42 Ibid at para. 32. 79 See ibid. 43 Ibid. 80 See ibid at para. 7; R. v. Kassim, 2015 ONCA 863 44 Ibid at para. 35. at para. 5. 45 See ibid. 81 Ibid at para. 7. 46 2018 ONCA 39. 82 See R. v. Wills, 2011 ONCA 468 at para. 10. 47 Ibid at para. 6. 83 Breton, supra note 64 at para. 19 [references 48 Ibid at para. 10. omitted]. 49 Ibid at para. 35. 50 Ibid at para. 48. 14

Understanding Exploitation: Section 279.04 of the Criminal Code

Veronica Puls, Human Trafficking Prosecution Team & Paul A. Renwick, Brampton Crown Attorney’s Office

The Trafficking in Persons offences in ss. 279.01 she had sexual intercourse in exchange for and 279.011 of the Criminal Code, and their money. All of the money G.M.S. earned went associated definition of “exploitation” in straight to A.A. He would arrange for G.M.S.’s s. 279.04, are dense and complex statutory transportation to and from work, and would provisions that demand a multi-factored analysis. provide her with a place to stay, food to eat and We present the following cases as indicative of other necessities. As the relationship continued, the wealth of potential avenues of proof for A.A. began to repeatedly physically assault Crown counsel who prosecute human trafficking G.M.S. It was ultimately this assaultive offences. All cases of human trafficking feature behaviour that caused G.M.S. to seek the 2019 CanLIIDocs 3798 either real, threatened or apprehended violence, assistance of the police, who then arrested A.A. and they call for counsel and courts to take a more nuanced approach in their analysis of the At trial, A.A. was convicted of certain offences in evidence and the legal issues that arise. We respect of G.M.S. (two counts of assault with a suggest that because of the vital importance of weapon, one count of assault and one count of fail context in these cases, careful witness preparation to comply with an undertaking) and acquitted of and thorough examination-in-chief of the others (human trafficking offences under complainant can make the difference in the ss. 279.011 and 279.02, and a prostitution related Crown’s ability to prove the elements of human offence under s. 212(2), as it then was).2 The trafficking offences beyond any reasonable Crown appealed the acquittals and A.A. appealed doubt. the convictions.

R. v. A.A.1 In concluding that A.A.’s appeal should be dismissed, and that the Crown’s appeal should be We begin with the 2015 decision of the Ontario allowed, the Court of Appeal also found that the Court of Appeal in A.A., written by Justice Watt. trial judge erred in her interpretation and The case provides an in-depth analysis of the application of the definition of exploitation in statutory definition of “exploitation” in s. 279.04 s. 279.04. of the Code and sheds some light on its interplay with s. 279.01. The Definition of Exploitation in Section 279.04

The complainant, G.M.S., was a young girl who Section 279.04 of the Code defines the term had a troubled relationship with her parents, and “exploitation” in a very specific manner. Section who suffered from depression, anxiety and sleep 279.04 states: disorders. G.M.S. and A.A. met when they were 16-years-old, and almost immediately became (1) For the purposes of sections 279.01 to involved in a relationship. A.A. professed his 279.03, a person exploits another person if love to G.M.S., and she believed him. She they cause them to provide, or offer to believed that he wanted her, that he would protect provide, labour or a service by engaging in and take care of her, and that together they could conduct that, in all the circumstances, have the life they had always wanted. could reasonably be expected to cause the other person to believe that their safety or During their four-month long relationship, A.A. the safety of a person known to them would encouraged G.M.S. to dance at adult be threatened if they failed to provide, or entertainment clubs, and on at least one occasion offer to provide, the labour or service.

(2) In determining whether an accused According to the Court, the Crown must establish exploits another person under subsection the following three elements to prove a human (1), the Court may consider, among other trafficking offence under s. 279.01 or 279.011: factors, whether the accused 1. The conduct requirement—which is (a) used or threatened to use force or established in different ways as particularized another form of coercion; by the offence provisions, including situations (b) used deception; or where an accused exercises control, direction, (c) abused a position of trust, power or or influence over the movements of the victim; authority. 2. The prohibited group requirement—for instance, with respect to the offence of The Court of Appeal held in A.A. that, to establish trafficking an underage person under exploitation as defined by s. 279.04, the s. 279.011, the requirement is met where the accused’s conduct must give rise to a reasonable person subject to the conduct of the accused is under eighteen; and expectation of a particular state of mind in the 2019 CanLIIDocs 3798 victim.3 In essence, the Court found that the 3. The fault element—which has two following three conclusions emerge, on a components: “straight-up reading” of s. 279.04: a. The intent to do anything that satisfies the conduct requirement, and 1. the expectation of the specific belief created b. The purpose for which the conduct is done by the accused’s conduct must be reasonable, (ie. the Crown must prove that the accused thus introducing an objective element; acted with the “purpose” of exploiting or facilitating the exploitation of that 2. the determination of the expectation is to be 7 made based on all the circumstances; and person). 3. the victim’s safety need not actually be threatened.4 Pulling it all together, the Court found that s. 279.04 defines exploitation in the context of the The Court additionally held that the term human trafficking offence provisions under “safety”, as used in s. 279.04, is not limited to ss. 279.01 and 279.011, but that the actual fault physical harm but also extends to psychological element in these offence provisions focuses on harm.5 the accused’s purpose. To that end, no actual exploitation must occur or be facilitated for the 8 The overall assessment of exploitation in the Crown’s prosecution to be successful. context of s. 279.04 calls for an objective analysis, based on all the circumstances. While The Court’s application of these enunciated the subjective belief of a complainant is not principles to the factual circumstances in A.A. is entirely cast aside, it is also not to be considered significant as the case includes common themes to the exclusion of an objective assessment.6 that are repeated in many trafficking situations. The facts of A.A. illustrate that a human The Relationship of Sections 279.01 and 279.011 trafficking relationship often shares features of a with Section 279.04 traditional domestic relationship between a couple. However, relationships are complex In addition to clarifying the definition of webs of details, and are comprised of small parts. exploitation in s. 279.04, the Court of Appeal also In a human trafficking case a trial judge must provided some guidance on the relationship assess the relationship as a whole, rather than between this statutory definition and the offence segmenting it into its separate parts. provisions (ss. 279.01 and 279.011). In A.A., for instance, the trial judge found that the complainant did not subjectively connect the violence she endured at the hands of the accused with her continued work as a dancer and

prostitute—rather, the complainant simply up L.M. in the business. For instance, he took her viewed her relationship as abusive. However, by to purchase tools of the trade (condoms and relying solely on the subjective perspective of the lubricant), he directed her to various hotels, he complainant, the trial judge failed to properly convinced her to work with an agency, and took apply the objective test that is required by the her identification and personal belongings (which human trafficking offence provisions. he refused to return). Regrettably, the trial judge’s reliance on such a narrow approach in her assessment of the Even though L.M. worked for an agency that evidence resulted in an inaccurate and distorted arranged for her clients and transportation, the version of what actually occurred between A.A. court found that D.J. continued to exercise and G.M.S. significant control over L.M. For example, she was required to keep him up-to-date with where In human trafficking prosecutions, Crown she was, how many clients she was seeing and counsel should take time to elicit details of the how much she was earning. Eventually, D.J. relationship between the accused and the became physically abusive towards L.M. too. 2019 CanLIIDocs 3798 complainant. In submissions, Crown counsel should also be clear about the objective test that L.M. explained that she did not leave D.J. because is to be applied to the trier’s assessment of the they were both originally from Nova Scotia and alleged exploitative relationship. The Crown “she had no one else in the cities that she lived should remind the trier of fact that such an [in]”, within Ontario.10 She also indicated her analysis not only takes into consideration the fear that if she did not comply with D.J.’s subjective views of the complainant, but also the demands, he would harm her and her family. totality of the circumstances making up the relationship. By doing so, Crown counsel will In assessing the evidence before him, and in also assist the trier to consider all the factors convicting D.J. of human trafficking, Justice necessary to make a fair assessment of the Coroza properly acknowledged the subjective evidence before them. beliefs of L.M. In citing A.A., the trial judge also considered L.M.’s fears to be objectively An example of such an assessment is the 2018 reasonable in light of all the circumstances. decision of R. v. D.J. by Justice Coroza of the Furthermore, His Honour found that, apart from Ontario Superior Court of Justice. the obvious evidence of physical violence, the harm to L.M. “extended to psychological harm… R. v. D.J.9 [A]s the relationship continued, L.M. felt helpless”.11 D.J. is a notable decision for Crown counsel as it deals with the application of ss. 279.01 and R. v. Evans12 279.04 of the Code in the context of a long and complicated domestic relationship. The decision The Evans decision by Justice Boswell is shows that an objective assessment of a noteworthy in that it demonstrates some of the relationship and all its surrounding circumstances common issues present with complainants qua is necessary for the purpose of s. 279.04, so that witnesses in human trafficking cases, and human trafficking relationships are not recognizes that the offence provisions should be mistakenly characterized as “simply” abusive interpreted with these contextual issues in mind. “domestic relationships”. Evans was charged with two counts of human D.J. and L.M. were in a relationship for over five trafficking under s. 279.01 of the Criminal Code years. L.M. had a child from a previous in respect of two different complainants, K.J. and relationship and shared a second child, D., with A.B. In each case, the Crown alleged that Evans D.J. The court found that D.J. persuaded L.M. to had exercised control, direction or influence over start escorting with a view to building a life the complainants’ movements for the purpose of together. D.J. played a significant role in setting exploiting them. The main issue in the case was

whether Evans’s conduct was “for the purpose The Evans decision provides an insightful and of” exploitation. The judge held that if she were careful analysis of the dynamics at play in human to conclude that Evans had intentionally engaged trafficking relationships. Findings of exploitation in conduct that caused K.J. or A.B. to provide are always dependent on the context, but the task sexual services for money out of a reasonably of the trial judge is to take an aerial view of the held fear for their safety, then the offences were relationship and determine if a “culture of made out. control” exists, whether directly through physical violence and threats, or in a more pernicious way, With respect to K.J., the trial judge found that she through an attack on the complainant’s and Evans had been involved in a lengthy psychological integrity, aimed at reinforcing the relationship that included explicit threats, futility of resistance. violence and frequent control. The judge was satisfied that, during this relationship, the accused R. v. Mohylov14 had made overt threats to K.J., and that she continued to work for him and give him all of her Two accused, Mohylov and Pavlovsky, were 2019 CanLIIDocs 3798 money because she was intimidated by and alleged to be drug dealing pimps who used a fearful of him. Other noteworthy facts found by number of techniques, including the provision of the trial judge were K.J.’s knowledge that Evans drugs, to control and benefit from the had shot someone when he was younger, K.J.’s complainant’s involvement in the sex trade. observation of bullets in his safe, Evans’s allusion Following a preliminary inquiry, the accused to possessing a firearm and his threats to use it were committed to stand trial on a number of against her. In the end, the trial judge had no charges, including human trafficking. The difficulty finding that the elements of s. 279.01 accused then applied to the Superior Court of were made out. Justice for an order of certiorari, quashing their committal. With respect to A.B., the trial judge considered the situation to be less clear cut. A.B.’s evidence The Mohylov decision is interesting for two of her relationship with Evans did not include the reasons. First, the reviewing judge, Justice same kind of overt threats as those testified to by DiLuca, outlined the path to conviction on a K.J. In addition, A.B. had sought out Evans charge of trafficking under s. 279.01 of the because she knew him to be a pimp and had Criminal Code, where the offence is grounded in wanted to engage with him on that basis. a trust relationship that is based upon the Nonetheless, the trial judge found A.B. to be provision of drugs by an accused to a drug “young and vulnerable financially and addicted complainant. Second, Justice DiLuca emotionally”. A.B. testified that, as a result of took a detailed look at the interplay between Evans’s conduct toward her (which had included ss. 279.01 and 279.04. taking all of the money A.B. had earned, imposing rules on her, becoming angry when she The complainant was 18-years-old when she “broke” the rules by meeting with an ex- started as a sex trade worker. She met Mohylov boyfriend and assaulting her when she wanted to about half-a-year later. For the next two to three visit family instead of working), she lost the years she worked off and on for Mohylov in the ability over time to choose whether to engage in sex trade, returning from time to time to her sex work or not. She also recognized in retrospect family. Mohylov would post ads for the that her fear of him had led to this situation, even complainant’s sexual services from either his or though she was unable to articulate exactly why her phone. The rates were based on what had she was scared. She said it was just “the vibes” been charged for her in the past, and she placed present in the relationship. In the end, Justice her own restrictions on the types of services she Boswell found that through Evans’s conduct, he would perform. Mohylov had total control of had created a “culture of control…where it was who the clients were and would take the money clear that dissent would not be tolerated”.13 the complainant had received, sometimes while the client was still present.

During the last six months of the working by the defence, but ultimately dismissed them. relationship, the complainant worked in a His Honour highlighted the very contextual, fact- basement in Newmarket. Mohylov and driven analysis that was required of the Pavlovsky posted the complainant’s ads, committing justice. He concluded that a jury controlled her clients and told the complainant could easily find that the evidence of the two what her schedule would be. She felt pressured accused’s supply of drugs to the complainant for by both accused to work and to make more money her consumption had placed both accused in a in order to keep them happy. Mohylov would yell position of trust or power over the complainant. at the complainant until she saw a client, and the Justice Diluca further found that the “the totality complainant found him to be intimidating and of the circumstances” must be assessed to “scary”. Apart from a (non-specified) brief determine whether a relationship is one of trust physical altercation with Mohylov, the and power. In this case, the issue was not whether complainant was never physically hurt by either the accused created the drug dependency, but accused. However, she was always on call. Half whether they took advantage of that drug the money she earned would go to the accused dependency to achieve their desired end of 2019 CanLIIDocs 3798 persons, who also took rent from the complainant getting the complainant to perform sexual for the basement. The complainant also services. apprehended disapproval from both accused when she spoke with friends back home. She did Justice DiLuca found, citing A.A., that the not have Wi-Fi access or her own phone. In evidence from the preliminary inquiry supported addition, while the complainant believed she was an inference that the accused had controlled the in a romantic relationship with Mohylov, and he complainant through drugs, and that even if the would repeatedly tell her that he loved her, he complainant did not subjectively believe that she never spent any time with her. had been exploited, a jury could find that she had been. In upholding the committal of both accused A pervading feature of the relationship between on the charge of human trafficking, the judge the complainant and the two accused was the considered the complainant’s financial complainant’s growing addiction to drugs. While dependence on the accused, the knowledge of in the Newmarket home, she was heavily using both accused that the complainant was addicted drugs supplied by the accused. She paid for the to drugs and the common-sense inferences drugs from her share of her earnings, which often flowing from the “drug user—drug dealer” required her to turn over all her earnings or relationship that existed between the complainant receive “credit”. She could sometimes leave the and the accused. The accused supplied drugs to home to “take a break” with her family but was the complainant while she provided sexual spending increasing periods of time in the house services. The complainant used drugs in a due to her continuous drug use. Moreover, she quantity that resulted in her having little or no would not be able to leave without first paying off money left over after her sexual services were any drug debt that she had accrued, and therefore rendered. The accused then extended “credit” to often left the home with no money. In addition, the complainant for the drugs, which could be while Mohylov would drive her home or to a bus paid off through her performance of further sex station, he never cut off contact with her while she work. According to the reviewing judge, these was away. He would lure her back by telling her findings would be reasonably available to the that he loved her and by promising to supply jury, and would support a finding that the accused drugs. The complainant would eventually return abused their position of trust or power over the to the Newmarket home because she needed more complainant through their “drug user—drug money and drugs. dealer” relationship. Moreover, Justice DiLuca found that the accused persons were an At the hearing of the certiorari application, the unshakeable presence in the complainant’s life as two accused argued that their committal on the drug dealers, pimps, landlords and in Mohylov’s charge of human trafficking ought to be quashed. case, as a love interest. Justice DiLuca considered the arguments raised

The reviewing judge next looked at the interplay • objective knowledge that the intended conduct between ss. 279.01 and 279.04. His Honour would cause the complainant to perform noted that the inquiry under s. 279.04 is objective: sexual services out of fear. could the accused’s conduct be “reasonably” expected to cause the fear for safety stipulated in Neither would require proof of the complainant’s s. 279.04(1)? The judge also noted that, on the actual fear. Ultimately, in this case, Justice evidence in this case, the “threats” referred to in Diluca determined that some evidence existed to s. 279.04 could be to: (a) the complainant’s satisfy each of these potential mens rea. psychological safety as a drug addict—the accused’s promise of drugs was conditional upon The Mohylov case supports the position that the her continuing to perform sex work; or (b) the focus at a human trafficking trial ought not to be complainant’s physical safety—drug dealers solely or even primarily on the complainant’s might be expected to become violent with those state of mind (although that can be an important who did not pay their drug debts. component). Rather, the key is to examine

whether the web of evidence establishes that the 2019 CanLIIDocs 3798 The more “complex” issue that Justice DiLuca entire relationship between the complainant and tackled, but did not ultimately decide, was the accused was exploitive in nature and was whether the knowledge requirement in s. 279.01 constructed in that way by the accused. In was an entirely subjective or hybrid inquiry. The circumstances such as those described in judge observed that this inquiry is made difficult Mohylov, where the evidence paints a compelling by the fact that while the accused must and detailed picture of the relationship, its subjectively intend the conduct in s. 279.01, the pervading features and the obvious vulnerability “purpose” requirement of the provision is based of the complainant, it is difficult to conceive of a on s. 279.04 (which requires an objective situation in which this objective/subjective assessment). His Honour also saw a conflict distinction would be of any significance, even on between s. 279.01 (which does not require the the standard of proof beyond a reasonable doubt. complainant to be “actually” exploited), and the definition in s. 279.04 (which defines a completed The Mohylov case also highlights for Crown act). counsel the importance of careful witness preparation. The complainants in sex-related Justice DiLuca suggested that it may be that human trafficking cases are always very s. 279.04 is simply to be read as a means of proof, vulnerable, often in the throes of addiction or given the difficulty of divining an accused’s withdrawal at the time of testifying, and subjective intention. Coupled with the common- undoubtedly will not appreciate the legal sense inference that an accused intends the significance of the defining features of the consequences of his act, the objective assessment relationship, much less “insignificant” details that in s. 279.04 may broaden the circumstances in may be the key to painting the complete picture which an offence under s. 279.01 can be proven, of the exploitation inherent within the particularly in those cases where the complainant relationship. Small details, such as those which does not subjectively feel that she was being were present in the Mohylov case, including the exploited. ongoing contact between the accused and the complainant even during periods of time when His Honour also observed that there were two she had returned to her family, are crucial to different and possible ways to interpret the mens establishing the factual narrative that a “chain” of rea of the offence under s. 279.01: control had existed in the relationship. The significance of such details can be independent of • subjective anticipation that the intended whether the complainant apprehends the control conduct would reasonably cause sexual or not, or whether it was defined by conventional services to be performed out of fear; or physical or proximal means, or in some other way.

Conclusion counsel and courts must understand the ‘whole’ of the relationship between the complainant and In conclusion, we end here where we began. The the accused, with due consideration of all the Trafficking in Persons offence provisions of circumstances. Careful witness preparation, and ss. 279.01 and 279.011 of the Criminal Code, and a thorough and detailed examination-in-chief of their associated definition of “exploitation” in the complainant, will provide the trier of fact with s. 279.04 all demand a multi-factored analysis. important assistance to properly assess the There is no one key phrase or set of ‘magic relationship between the accused and the words’ to be uttered by a complainant that would complainant, and the extent to which ss. 279.01, automatically necessitate a finding of exploitation 279.011 or 279.02 ought to apply. for the purpose of the offence provisions. Rather,

 The views or opinions expressed in this article are 5 Ibid at para. 71. those of the authors, and do not necessarily reflect 6 See ibid at para. 76. those of the Ontario Ministry of the Attorney General 7 Ibid at paras. 78-82. or the Ontario Crown Attorneys Association. 8 Ibid at paras. 84-86. See also R. v. Urizar, 2013 2019 CanLIIDocs 3798 1 2015 ONCA 558 [A.A.]. QCCA 46 at para. 69. 2 Following the decision in Canada (A.G.) v. Bedford, 9 2018 ONSC 1131. 2013 SCC 72, Parliament enacted legislative 10 Ibid at para. 127. amendments to the Criminal Code. Section 212 11 Ibid at para. 142. offences were primarily replaced with the offences 12 2017 ONSC 4028. listed in ss. 286.1 to 286.5. 13 Ibid at para. 183. 3 A.A., supra note 1 at para. 70. 14 2019 ONSC 1269. 4 Ibid.

Permutations of the New Statutory Readback Provision for ‘80 Plus’ Offences

Davin M. Garg, Crown Law Office—Criminal, Drugs and Driving Team

An Act to Amend the Criminal Code (offences alcohol concentration at the time when the relating to conveyances),1 (formerly Bill C-46) analyses were made if the results of the ushered in sweeping changes to Canada’s analyses are the same—or, if the results of impaired driving laws. These changes are the analyses are different, the lowest of the intended to streamline and simplify the Criminal results is conclusive proof of the person’s Code provisions dealing with impaired driving. blood alcohol concentration at the time when the analyses were made—if Bill C-46 brought significant changes to how alcohol per se offences are prosecuted under the (a) before each sample was taken, the qualified technician conducted a system

Criminal Code. For example, whereas the former 2019 CanLIIDocs 3798 ‘over 80’ offence in s. 253(1)(b) required the blank test the result of which is not more Crown to prove the motorist’s blood alcohol than 10 mg of alcohol in 100 mL of blood concentration (BAC) at the time of driving, and a system calibration check the result s. 320.14(1)(b) now makes it an offence to have a of which is within 10% of the target value prohibited BAC within two hours of ceasing to of an alcohol standard that is certified by operate a conveyance.2 Another important an analyst; difference is that the prohibited BAC is now 80 (b) there was an interval of at least 15 mg or more of alcohol in 100 mL of blood, rather minutes between the times when the than ‘over 80 mg’—hence the change in how this samples were taken; and offence is now colloquially known: ‘80 Plus’. These changes were necessary to ensure (c) the results of the analyses, rounded Parliament’s prohibited BAC level was precisely down to the nearest multiple of 10 mg, did not differ by more than 20 mg of enforced, to criminalize bolus drinking and to 4 curtail culpable post-driving drinking.3 alcohol in 100 mL of blood.

The Bill also provides for a ‘statutory readback’ Statutory Readback in s. 320.31(4). This readback provision obviates the need for expert evidence in cases where the For the purpose of paragraphs 320.14(1)(b) breath or blood samples are taken more than two and (d), if the first of the samples of breath hours after the driver has ceased to operate the was taken, or the sample of blood was conveyance. If both samples are taken beyond taken, more than two hours after the person the two-hour period, then the readback provision ceased to operate the conveyance and the operates together with the Bill’s new presumption person’s blood alcohol concentration was of accuracy. The presumption of accuracy and equal to or exceeded 20 mg of alcohol in readback provisions are reproduced here for 100 mL of blood, the person’s blood convenience. To keep matters simple, we will be alcohol concentration within those two discussing these provisions in the context of hours is conclusively presumed to be the breath samples only. concentration established in accordance with subsection (1) or (2), as the case may Presumption of Accuracy be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 If samples of a person’s breath have been minutes in excess of those two hours.5 received into an approved instrument operated by a qualified technician, the A few scenarios will illustrate how the readback results of the analyses of the samples are in s. 320.31(4) should work in practice. For the conclusive proof of the person’s blood purposes of this article, we will assume that the

motorist provided, in the opinion of a qualified that question, we look to the language of the technician, samples suitable for analysis by presumption and ask, when were the analyses means of an approved instrument, and that all of made? If the answer is “when the second sample the criteria for invoking the presumption of is taken”, that on its own would not prove the accuracy in s. 320.31(1) have been met. The motorist’s BAC within two hours of ceasing to times in these scenarios refer to the time elapsed drive. The readback provision is unavailable from when the motorist ceased to operate the because it requires the first sample to have been conveyance and when the breath samples were taken outside two hours. taken. Consistent with the practice of many toxicologists, we will use truncated readings The answer is that the second sample is, in effect, before applying the readback provision.6 imported to within the two-hour window because that is when the first sample was taken. This is Scenario 1: both samples within two hours due to how the presumption is worded. The first sample is part of when the “analyses”—plural— 1st Sample: 1 hour, 30 minutes—105 mg were made. This is precisely how this scenario played out prior to Bill C-46 pursuant to what was 2019 CanLIIDocs 3798 2nd Sample: 1 hour, 50 minutes—95 mg then s. 258(1)(c).9 The presumptions of identity and accuracy were engaged when the first sample In this scenario, the motorist provided both was taken within two hours but the second was samples within two hours. The truncated not. The lower of the analyses determined the readings are 100 mg and 90 mg respectively and motorist’s BAC, even if the lower reading was the are therefore ‘in good agreement’ as required by second sample taken outside of two hours. s. 320.31(1)(c).7 If the criteria of the presumption of accuracy are met, the lowest of these two The result in this scenario is that second sample readings is conclusively proven to be the is truncated to 80 mg and the motorist’s BAC is motorist’s BAC within two hours of having 80 mg within the two-hour window. The ‘80 ceased operation of the conveyance. The ‘80 Plus’ offence is made out. Plus’ offence is made out here on a BAC of 90 mg. Resort to the readback provision in Scenario 3: both samples outside two hours s. 320.31(4) is unnecessary. 1st Sample: 2 hours, 5 minutes—105 mg Scenario 2: first sample within two hours; nd second sample outside two hours 2 Sample: 2 hours, 25 minutes—85 mg

1st Sample: 1 hour, 45 minutes—105 mg When both samples are taken outside two hours, recourse is made to the presumption of accuracy 2nd Sample: 2 hours, 5 minutes—85 mg in s. 320.31(1) and the statutory readback in s. 320.31(4). These sections work together to The key difference in this scenario is that the determine the motorist’s BAC within the two- second sample has been taken outside of two hour window. hours. Nonetheless, the presumption of accuracy in s. 320.31(1) provides a complete solution In this scenario, the truncated readings are because the first sample was taken within two 100 mg and 80 mg respectively. The readback hours. provides that the results of the analyses are presumed to be the concentration established in This is how it works—The presumption states accordance with the presumption of accuracy, that the lowest reading proves the motorist’s BAC plus 5 mg for every 30-minute interval in excess “at the time when the analyses were made”.8 The of two hours. Here, the lowest of the analyses lowest reading here comes from the second after truncation is 80 mg. This sample was taken sample, which is 80 mg after truncation. The 25 minutes outside two hours, so there is no 30- question that remains is: for what point in time minute interval. Therefore, nothing is added. Put has the motorist’s BAC been proven? To answer differently, applying the presumption and

readback provisions together to determine the suitable for analysis and includes on their motorist’s BAC within the two-hour window certificate prepared under s. 320.32. If they used does not result in a higher BAC than the analyses the first two samples, the Crown could not rely on themselves. As this results in a BAC of 80 mg the presumption of accuracy because the within two hours, the ‘80 Plus’ offence is made truncated readings (120 mg and 70 mg) are out. greater than 20 mg apart and thus not ‘in good agreement’ as required by s. 320.31(1)(c). Scenario 4: both samples outside two hours; Moreover, the ‘80 Plus’ offence would not be lowest reading outside two hours and thirty made out absent expert evidence given that the minutes lowest of the analyses is 70 mg.

1st Sample: 2 hours, 15 minutes—85 mg It is more likely, however, that the qualified technician will deem the first and third samples to 2nd Sample: 2 hours, 35 minutes—75 mg be suitable for analysis.10 These are truncated to 120 mg and 110 mg. The lower reading would 2019 CanLIIDocs 3798 This scenario illustrates the importance of determine the motorist’s BAC within the two- truncating first. After truncation, the lowest hour window. Since the readback does not apply reading is 70 mg. That sample was taken 35 (the first sample was taken within two hours), minutes outside two hours. There is one full 30- nothing is added and the motorist’s BAC is 110 minute interval, which means that 5 mg is added mg. Effectively, despite the taking of three for a reading of 75 mg. This reading is not samples, this scenario is resolved in the same way truncated further. The ‘80 Plus’ offence is not as Scenario 2. made out absent expert evidence proving the motorist had a BAC of 80 mg or more at some Scenario 6: three samples; all outside two hours point within the two-hour window. Alternatively, depending on the facts, the Crown may pursue an 1st Sample: 2 hours, 15 minutes—125 mg impaired operation charge under s. 320.14(1)(a). 2nd Sample: 2 hours, 45 minutes—75 mg If the readback were done before truncating, the result would have been different. The 3rd Sample: 3 hours, 15 minutes—115 mg untruncated reading is 75 mg. Adding 5 mg for the single interval of 30 minutes would result in a As with the previous scenario, we will assume reading within two hours of 80 mg. Subsequent that the qualified technician has deemed the truncation would result in the same reading of 80 second sample unsuitable for proper analysis. mg. The ‘80 Plus’ offence would have been made The truncated readings of the first and third out. However, as s. 320.31(4) is intended to samples are 120 mg and 110 mg. The lower of codify the usual approach taken by expert these is the third reading, taken two 30-minute toxicologists in conducting a ‘readback’ intervals outside of two hours. Consequently, calculation, the lowest reading should first be 10 mg is added to the 110 mg reading (5 mg for truncated. each 30-minute interval). The BAC within two hours is therefore 120 mg. The ‘80 Plus’ offence Scenario 5: three samples; one within two hours is made out.

1st Sample: 1 hours, 45 minutes—125 mg Conclusion

2nd Sample: 2 hours, 5 minutes—75 mg Crown counsel should always ensure that their file contains a proper and complete certificate of 3rd Sample: 2 hours, 35 minutes—115 mg a qualified technician with the appropriate notice given to the motorist. The certificate addresses How this scenario is resolved depends on which the criteria in s. 320.31(1), thus permitting two samples the qualified technician deems reliance on the presumption of accuracy. These criteria must also be met to rely on the statutory

readback in s. 320.31(4). However, counsel The statutory readback provides for a simple should not expect to see the readback results arithmetic calculation for which no expert should reported on the qualified technician’s certificate. be required.11 Along with other measures The certificate should reflect the readings at time introduced in Bill C-46, it is intended to reduce of testing. The readback is the vehicle by which delay and improve efficiency in the prosecution the readings in the certificate are determined to be of impaired driving offences. The Supreme Court the motorist’s BAC within two hours. The time has emphasized the importance of using statutory when the motorist ceased to operate the provisions such as these to save limited court conveyance is determined on the evidence. The resources and reduce the burden on the criminal two-hour window commences from that point. justice system.12

 The views or opinions expressed in this article are drawn more than two hours after the motorist has those of the authors, and do not necessarily reflect ceased operating the conveyance. those of the Ontario Ministry of the Attorney General 6 While s. 320.31(1)(c) requires that truncated readings or the Ontario Crown Attorneys Association. differ by no more 20 mg of alcohol per 100 mL of 2019 CanLIIDocs 3798 1 S.C. 2018, c. 21, Bill C-46, 1st Sess., 42nd Parl. blood, there is no requirement that the readings in (assented to 21 June 2018). evidence be truncated. Subsection 320.31(1) does not 2 See Criminal Code, R.S.C. 1985, c. C-46, s. 320.11 govern admissibility of the readings. See R. v. Wu, (“operate” includes having the care or control of a [2019] O.J. No. 5000 at para. 9 (Sup. Ct. J.). conveyance and “conveyance” includes a motor 7 The results of the analyses, rounded down to the vehicle). nearest multiple of 10 mg, do not differ by more 3 Bolus drinking is the consumption of large quantities than 20 mg. of alcohol shortly before or while driving. 8 Supra note 2, s. 320.31(1). 4 Supra note 2, s. 320.31(1). 9 See R. v. Grizzle, 2012 ONSC 5328 at paras. 2-3, 6, 5 Ibid, s. 320.31(4). The offence in s. 320.14(1)(d) 23-24. consists of having an excessive BAC and blood drug 10 See e.g. R. v. Dobrowolski, [2004] O.J. No. 4275 at concentration (BDC) in combination. The levels of paras. 7-9, 11, 18, 20-22, 30, 32-34 (Sup. Ct. J.), aff’d. each are proscribed by s. 3 of the Blood Drug [2005] O.J. No. 2576 (C.A.). Concentration Regulations, SOR/2018-148. Those 11 See e.g. R. v. Kuruvilla, 2012 ONSC 5331 at levels are a BAC of 50 mg of alcohol in 100 mL of para. 23; R. v. Schell, 2016 ONCJ 315 at para. 49; blood and a BDC of 2.5 ng of tetrahydrocannabinol per R. v. Kisten, 2015 ONCJ 739 at paras. 13, 17-18. mL of blood. Subsection 320.31(4) applies to the 12 See R. v. Alex, 2017 SCC 37 at paras. 12, 36-38; alcohol portion of that offence if the blood samples are R. v. Cody, 2017 SCC 31 at paras. 37, 39.

A Handful of Bullets

Vincent Paris, Guns and Gangs Unit

Firearms law is straightforward. Firearms prohibited weapon, restricted weapon, technology is not. New guns with new prohibited device, ammunition, prohibited characteristics hit the market every day. The ammunition or explosive substance, or all Criminal Code1 struggles to keep up, as does the such things.4 Firearms Act.2 This, unfortunately, is where we (as Crowns) come in. This article covers some This goes well beyond s. 109 and s. 110 and emergent issues in the law of firearms. includes, amongst others, the following:

If you are undertaking a firearm prosecution, I • Bail releases;5 strongly recommend you look up the suite of • Section 111 orders;6 materials on e-Library including: • Probation Orders;7 2019 CanLIIDocs 3798 • Youth Criminal Justice Act orders;8 • Copy of the Firearm Presentation; • Conditional Sentence Orders;9 • Offence Charts—long and short versions; • Review Board orders;10 • Proper wording for Information/Indictments; • Federal Parole conditions; • Firearm Screening Checklist; and • National Defence Act (military court) orders;11 • Firearm Document Checklist. and • Statutory Peace Bonds.12 The Valuable but Often Neglected Section 117.01 Therefore, a prohibition order pursuant to s.84(1) of the Criminal Code encompasses many more Firearm prohibition breaches are perhaps the orders than commonly believed. most serious violations involving a court order in the Criminal Code. The average sentence in The Possession of Items and Breaching a Ontario for such a breach is in the range of 12 to Prohibition Order 18 months, served consecutively to other 3 offences. Notwithstanding this, the s. 117.01 When someone is subject to a firearm prohibition offence is not commonly charged in certain parts order, what exactly are they prohibited from of our province with officers and prosecutors possessing? We will start with the obvious: alike relying instead on more specific breach provisions (such as probation). I would like to • Prohibited Firearms (such as short barreled address two specific areas—the breadth of the handguns, sawed-off shotguns and rifles, definition of ‘prohibition order’ and the types of automatic firearms and a list of designated items whose possession would breach said order. firearms set by regulation)? Yes. • Restricted Firearms (such as non-prohibited What is a Prohibition Order? handguns, certain rifles, the AR-15 and a few other firearms)? Yes. Most of us think of a prohibition order as being • Non-Restricted Firearms (such as rifles, strictly a mandatory section 109 or a discretionary shotguns and all firearms that are not 110 order. But there is more to it than that. We otherwise prohibited or restricted)? Yes. should begin by examining the definition in the Code. But what about other items that meet the s. 2 Criminal Code definition of firearm? Section “prohibition order” means an order 84(3) lists a number of such items which, made under this Act or any other Act of notwithstanding that they meet the s. 2 definition Parliament prohibiting a person from of firearm (namely, a barrelled weapon with the possessing any firearm, cross-bow, ability to discharge a projectile that is capable of

causing serious bodily injury or death to a Why Does This Matter? person), are not firearms for certain very specific possession offences. Individuals may not be aware of the impact of a prohibition order on their livelihood (such as a For example: nail gun for work) or hobby (like a flare gun for a boat), or even objects that they may have in their • antique firearms; home could violate the order. It may be wise to 13 • nail guns; point this out to defence counsel so they can • starters pistols;14 instruct their clients appropriately. • flare guns;15 • rivet guns and similar items;16 and The legal classification of items, the possession • medium velocity pellet guns (essentially of which violates a prohibition order, is a legal firearms that fire under 500 feet per second) issue and therefore is subject to s. 19 of the Criminal Code: “Ignorance of the law by a person are not firearms for (and only for) the following who commits an offence is not an excuse for 2019 CanLIIDocs 3798 offences: committing that offence.” 17

• s. 91 possession without a licence; As a final point on this issue of prohibition orders, • s. 92 possession knowingly without a licence; I thought it might be interesting to note that a • s. 93 possession at an unauthorized place; s. 109 or s. 110 prohibition order survives a pardon.18 • s. 94 possession in a car; • s. 95 prohibited firearm or restricted Firearm Bill C-71 loaded or with readily accessible ammunition; • s. 99 trafficking; Bill C-71: An Act to amend certain Acts and • s. 100 possession for the purpose; Regulations in relation to firearms received • s. 101 transfer without authority; Royal Assent on June 21, 2019.19 Much in this • s. 103 importing or exporting; bill will not affect Crowns on a day to day basis, • s. 107 false statement regarding the loss, theft but a few things will. To understand many of the or destruction of a firearm; and changes made, context is needed. Please note that • s. 117.03 seizure upon failure to provide some of the provisions are already in effect, and licence or authorization. some will come into effect later through Order- in-Council (as many of these alterations will Section 117.01, the offence of breaching a require changes to regulations as well). prohibition order, is not listed here. Therefore, these items are firearms if possessed by a person Here are some of the highlights. subject to a prohibition order. Forfeiture: Prohibition Orders and Forfeiture In short, if you are bound by a prohibition order, Orders20 you cannot possess any firearm as defined by s. 2 of the Criminal Code including: In 2012, the Ontario Court of Appeal in R. v. Roggie21 found that s. 115 of the Criminal • all handguns, rifles and shotguns; Code (which relates to the automatic forfeiture of • antique firearms; firearms in the possession of an individual once a • nail guns; forfeiture order is granted) excluded firearms that • flare guns; and were already in the possession of the police. • the vast majority of pellet guns sold in this country. The section read: Unless a prohibition order against a person specifies otherwise, every thing the possession of which is prohibited by the

order that, on the commencement of the “firearm” means a barrelled weapon order, is in the possession of the person from which any shot, bullet or other is forfeited to Her Majesty.22 projectile can be discharged and that is capable of causing serious bodily This meant that only individuals deemed injury or death to a person, and sufficiently trustworthy to retain their firearms includes any frame or receiver of such a following an arrest were subject to automatic barrelled weapon and anything that can forfeiture. However, those who were not and be adapted for use as a firearm.25 whose firearms were seized and kept in police custody until the resolution of their charges, were However, a few years ago the definition was put exempt. The additional challenge was that many to paper, with an addition. firearms were left in limbo where the individual was prohibited from possessing them, and the “non-restricted firearm” means courts had not ruled on forfeiture. This left the (a) A firearm that is neither a prohibited police literally holding the guns.

firearm nor a restricted firearm, or 2019 CanLIIDocs 3798 This proved to be challenging to officers-in- (b) A firearm that is prescribed to be a charge, prosecutors and property bureaus across non-restricted firearm.26 the province with requests coming for the transfer of guns, guns that were previously subject to The second part of this definition did something automatic forfeiture and destruction, to family never before permitted (certainly since the members and friends of the prohibited person. enactment of the Firearms Act) in the Criminal Code. Parliament could now designate firearms This issue has been addressed in C-71 with the which would otherwise be considered prohibited following change to s. 115(1): or restricted and downgrade them (from a regulatory point to view) to lower categories Unless a prohibition order against a person including non-restricted firearms. This would specifies otherwise, every thing the then permit an individual with the “lowest” (non- possession of which if prohibited by the restricted firearms) class of licence to own these order is forfeited to Her Majesty if, on the items.27 Furthermore, with the end of the long commencement of the order, the thing is gun registry, there was no longer any way to track in the person’s possession or has been the possession of these items.28 seized and detained by, or surrendered to, a peace officer.23 Now, Bill C-71 has shortened the s.84(1) definition of non-restricted firearm to the This should assist Crowns across the country but, following: as will be mentioned again later, it is important to remember that a firearm case (whether it leads to “non-restricted firearm” means a firearm conviction or not) only ends with a determination that is neither a prohibited firearm nor a as to the disposition of the firearm. That issue restricted firearm.29 should never be left hanging. Therefore, the federal government can no longer Change to the Definition of “Non-Restricted ‘downgrade’ the legal classification of a firearm Firearm”24 through regulation.

The original Criminal Code definition of non- Why does this matter? Because “non-restricted restricted firearm was… well… it did not exist. It firearm” is the definition for the vast majority of was basically a catchall for any firearm meeting firearms in Canada. the s. 2 definition of firearm, that was not a prohibited or restricted firearm, and was not exempt under s. 84(3) for certain possession offences:

Transfer Regulations30 (a) the transferee holds a licence authorizing the transferee to acquire and Until 2012, to lawfully possess a firearm in possess a non-restricted firearm; Canada a person had to possess a licence for the (b) the Registrar has, at the transferor’s class of firearm they possessed (prohibited, request, issued a reference number for the restricted or non-restricted) as well as having the transfer and provided it to the transferor; firearm registered. If either requirement was and lacking, their possession was not lawful. (c) the reference number is still valid. This changed in 2012. With the end of the long gun registry (it should really be called the less Information — transferee’s licence pithy ‘end of the non-restricted firearm registry’), the system remained the same for prohibited or (2) The transferee shall provide to the restricted firearms (you need both a licence and a transferor the prescribed information that registered firearm), but there was no longer a relates to the transferee’s licence, for the requirement to register non-restricted firearms. purpose of enabling the transferor to 2019 CanLIIDocs 3798 In addition, all prior records of registered request that the Registrar issue a reference firearms were ordered destroyed.31 number for the transfer.

One of the consequences of this legislative Reference number change was that transfers of firearms were no longer tracked. This caused great concern in law (3) The Registrar shall issue a reference enforcement circles due to the increase of ‘straw number if he or she is satisfied that the purchasing’ of firearms.32 The Authorized transferee holds and is still eligible to hold Transfer section for non-restricted firearms in a licence authorizing them to acquire and The Firearms Act stipulated that: possess a non-restricted firearm. Period of validity A person may transfer a non-restricted firearm if, at the time of the transfer, (4) A reference number is valid for the (a) the transferee holds a licence prescribed period. authorizing the transferee to acquire and Registrar not satisfied possess that kind of firearm; and (b) the transferor has no reason to believe (5) If the Registrar is not satisfied as set that the transferee is not authorized to out in subsection (3), he or she may so acquire and possess that kind of firearm.33 inform the transferor.34

In addition, under s. 23.1 a transferor concerned This means that a person who wishes to transfer a that the transferee did not have a valid licence firearm to another licenced individual must: could voluntarily request a check of the licence’s • Contact the Canadian Firearms Registry; validity. However, no record of that check • Provide prescribed information (such as the could be kept by the Registrar. transferee’s licence); and Now in 2019, with Bill C-71, s. 23 and s. 23.1 • Obtain a reference number for that check. have been repealed and replaced by a new s. 23. The reference number is provided only once it is (1) A person may transfer one or more confirmed that the transferee has a licence and is non-restricted firearms if, at the time of the eligible to obtain the non-restricted firearm. If the transfer, Registrar is not satisfied about the transferee, then the transferor is informed, and the transfer is not permitted.

As will be outlined later, businesses are also investigative value of these provisions—as well obligated to keep records on the sale and as their own enforcement. disposition of non-restricted firearms under the newly enacted s. 58.1 of the Firearms Act.35 Licencing Criteria36

The issue that remains is the access to the To obtain a firearm licence, a person must meet reference numbers, and prescribed information the public safety eligibility requirements set out associated to it, for firearm transfers. This can be in s. 5 of the Firearms Act. Until Bill C-71, these an issue in a number of scenarios: criteria (an act of violence for example) were limited to having been committed in the last five • A recovered non-restricted firearm at a crime years. This led to a stark bifurcation in the law in scene. The police need to figure out the last Canada where some provinces’ courts considered lawful owner. The best way to do this would the five-year limit as absolute, while others (like be to contact the Registrar to determine the Ontario) took the position that the court (or Chief last reference number associated to this Firearms Officer) had to consider any incident firearm. This would provide them with an within the five year span, and could consider 2019 CanLIIDocs 3798 investigative lead as to the last seller, and factors that fell outside the five years. purchaser, of the firearm; • A person being investigated as a straw This interpretation is now resolved. Bill C-71 has purchaser. A check of the Registry for any removed the five-year cap.37 Now the factors reference numbers associated to the person listed below, including the new provisions (in would assist in determining how many bold) have no temporal limit. firearms they should have in their possession. This would be helpful in trafficking and Under s. 5(2) the facts that are to be considered possession for the purpose of trafficking when issuing a licence, or participating in a investigations; reference hearing, are whether the applicant: • A break-in at a home where a number of • has ever been convicted or discharged of an firearms have been stolen. The circumstances offence in the commission of which violence of the occurrence cause the investigators against another person was used, threatened or concern. They want to know how many attempted;38 firearms were taken, or whether the break-in is a cover-up for a pattern of trafficked guns. • has ever been convicted or discharged of an The Registry would assist in determining the offence under this Act (Firearms Act) or Part size of the arsenal involved; or III of the Criminal Code (Part III being the “Firearms and Other Weapons” part of the • A firearm is located during a domestic Code);39 violence incident. The police want to make sure that it is lawfully in the possession of its • has ever been convicted or discharged of an offence under section 264 of the Criminal “owner”. The Registrar will have the 40 information concerning this transfer. If they Code (criminal harassment); do not – the possession would be unlawful. • has ever been convicted or discharged of an offence relating to the contravention of One thing remains unclear. The statute is silent subsection 5(1) or (2), 6(1) or (2) or 7(1) of the 41 on whether this information will be shared with Controlled Drugs and Substances Act; law enforcement upon request or whether • has ever been convicted or discharged of an production orders (what kind, and on what offence relating to the contravention of evidentiary threshold) will be required. As these subsection 9(1) or (2), 10(1) or (2), 11(1) or requests will be most important at the early stages (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of of an investigation, anything above reasonable the Cannabis Act;42 grounds to suspect may be fatal to most • has ever been treated for a mental illness, investigations and greatly diminish the whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or

not the person was confined to such a hospital, firearms to several areas for specific purposes, institute or clinic, that was associated with including: violence or threatened or attempted violence o Approved shooting clubs and ranges in the on the part of the person against any person;43 province; • has a history of behaviour that includes o Providing instruction as part of the violence or threatened or attempted Restricted Firearms Safety Course; violence or threatening conduct on the part o The registered owner changing residence; of the person against any person (including o The registered owner transporting the use of the Internet or digital threats pursuant firearm to a peace officer, firearms officer to section 5 (2.1) of the Firearms Act);44 or CFO for registration or disposal; • is or was previously prohibited by an order o The registered owner transporting the gun – made in the interests of the safety and for repair, storage, sale, export or security of any person – from appraisal; communicating with an identified person o Transporting the gun to a gun show; or o Transporting the firearm to a port of exit in or from being at a specified place or within 2019 CanLIIDocs 3798 a specified distance of that place, and order to take them outside Canada, and presently poses a threat or risk to the safety from a port of entry.48 and security of any person;45 • Businesses will soon have to retain records of • in respect of an offence in the commission sales, transactions, and disposition of of which was used, threatened or attempted firearms, under the newly enacted s. 58.1 of against the person’s intimate partner or the Firearms Act.49 This will permit police former intimate partner, was previously officers to obtain those records to trace the prohibited by a prohibition order from lawful possession of a firearm, and determine possessing any firearm, cross-bow, when that firearm entered the illicit market; prohibited weapon, restricted weapon, • The ability to “grandfather” certain firearms if prohibited device or prohibited they are reclassified as prohibited at a later ammunition;46 or date;50 and • for any other reason, poses a risk of harm • Some provisions concerning the removal of to any person.47 certain markings on the firearm. This is related to marking regulations that are coming This is important to know for those of us involved into force in 2020.51 in reference hearings under s. 74 of the Firearms Act. Reference hearings are typically held when The Changing Face of Firearm Trafficking: the Chief Firearms Officer refuses to issue (or 80% Receivers and the Pending End of the renew) a licence for an individual and the Regulatory Chokepoint applicant wishes to challenge the decision. The rules of evidence for these hearings are similar to Firearm trafficking and importation comes in a bail hearing, and the main factors to consider many shapes and sizes from small-time quantities are outlined above. The removal of the five-year at the border (known colloquially as the “ant limit broadens the evidentiary record. trade”) to larger bulk shipments (last year a shipment of 60 handguns was seized near Other Changes in Bill C-71 Cornwall). But it also includes the use of the mail, dark web, straw purchasing and a whole Other changes were made to the Firearms Act and slate of techniques and tricks to obtain either the the Criminal Code, including: entire firearm or its essential components. I wanted to flag one of these issues facing us today: • Restricting the Automatic “Authorization to so-called “80% receivers”. Transport” which previously permitted, by right (some upon renewal of the licence), the To understand the issue, we must first discuss a ability to transport prohibited or restricted key element of gun law: the frame or receiver. This is the skeleton of the firearm, the piece that

requires the serial number. Without this piece, any other piece of metal. Some controls have none of the other parts really matter since they been imposed to address the modification of these cannot be assembled together into a functioning 80% receivers.53 whole. This piece was traditionally difficult to manufacture so it made the perfect regulatory In Canada, there is no such creature. There is no chokepoint for firearms. If you control this legal standard—statute driven or piece, the rest is immaterial. This regulatory jurisprudential—that sets a percentage on the approach worked relatively well until now. completion of a frame or receiver. For that reason, the more accurate way to consider an 80% Now we have 3D printing of firearm parts receiver is to approach it as a broken or including the receiver. We have products like the incomplete firearm. ‘Ghost Gunner’ that can grind out the receiver of a firearm. Some pellet guns or Airsoft pistols can An “80% Receiver” Has No Meaning in be converted to accept parts of an actual firearm. Canadian Law Some flare guns can be converted to fire pistol 2019 CanLIIDocs 3798 ammunition. The examples continue to pile up Why would someone want an 80% receiver? almost daily. Well, in the United States it is not a firearm yet so it can be openly bought and sold. It can then be These are all examples of individuals attempting modified and completed (the last 20%) by the end to circumvent or overcome the regulatory user. In Canada, as these items are effectively chokepoint, to get their hands on, or create, a firearms, the advantage is less clear. Where the frame or receiver unknown to the regulator and value really lies is in the fact that an 80% receiver therefore untraceable. These examples challenge does not have a serial number. The guns are the assumption that this piece is hard to come by effectively ‘ghost guns’ with no antecedents and and even harder to manufacture. Indeed, more provide nothing from which the police can trace than simply challenging the assumption, they 52 the firearm back to its last lawful source—often prove emphatically that it is no longer true . their most effective investigative tool post The best example of this is the 80% receiver. firearm seizure. Those who police and prosecute firearm offences have seen a marked increase in these items in the Broken or Incomplete Firearms last few years (either the receiver in an The definition of firearm in section 2 of the unmodified state, or a complete firearm built Criminal Code confirms that an incomplete from an 80% receiver). firearm can still be a firearm:

What is an 80% Receiver? “firearm” means a barrelled weapon from which any shot, bullet or other projectile In the United States of America, an 80% receiver can be discharged and that is capable of is a blank casting of a frame or receiver (typically causing serious bodily injury or death to a lower receiver) that is not yet capable of holding person, and includes any frame or receiver the various other firing components necessary to of such a barrelled weapon and anything make a firearm. Typically, the part meant to that can be adapted for use as a contain the firing mechanism is solid and not firearm;54 machined. The important feature for these purposes is that these items are not considered In this context, “capable” is not restricted to firearms (according to a directive from The present or immediate capability, but includes Bureau of Alcohol, Tobacco, Firearms and future capability or operability. 55 It should also Explosives) for the purposes of the Gun Control be noted that “capable” is used in a number of Act of 1968 and therefore not subject to U.S. definitions in Part III of the Criminal Code.56 regulation. In short, 80% receivers are not guns in the United States. They can be sold openly like

The public policy underpinnings of this were could always have another person (such as outlined succinctly by the Ontario Court of a gunsmith) make the modifications for Appeal in Ferguson: them.59 2. The nature of the modification required. The expert evidence was that the firing • Use offences: The repairs would have to be mechanism was easily obtainable and quite simple as they would have to be made could be inserted in 30 seconds to 1 on site. minute. In view of that evidence we are • Possession offences: The repairs can be satisfied that the inoperable gun in this quite complex as there is no time limit to case could be adapted for use as a firearm making the modifications.60 from which bullets capable of causing 3. The availability of the parts on scene. serious bodily injury or death could be • Use offences: The parts would have to be discharged and that being a “firearm” it on scene, as the firearm must be rendered was a “prohibited weapon” as defined in functional during the commission of the s. 82(1)(d). If this were not so, anyone 61

offence. 2019 CanLIIDocs 3798 in possession of a firearm falling within • Possession offences: As outlined above, the prohibited category, could evade the parts need not be on scene. They could conviction under s. 88(1) by removing a be ordered.62 portion of the weapon thereby 4. The circumstances (and knowledge) of the rendering it inoperable, while retaining accused (for example, if the accused is a the ability to render it operable on short gunsmith or someone with the necessary skill notice. This would clearly be contrary to render the firearm operable). to the purpose of the legislation.57 • Use offences: Unless the modifications A broken or incomplete firearm in Canada can required are quite minor, this would often still be a firearm. There are four key factors that be fatal to an effective prosecution as it should be considered: would have to be proved that the accused was sufficiently skilled to modify the 1. The circumstances of the offence. This affects firearm on site. Expert evidence would the time required to fix the item. The need to be called to establish the required complexity of the work to be done. And the skill and knowledge, and then the Crown necessity for having parts on scene. would need to prove the accused’s firearm • Use offences: The broken/incomplete skill and knowledge met this threshold. firearm must be made whole (or capable of • Possession offences: The skills required to firing) during the commission of the fix/modify a firearm can be outsourced to 63 underlying criminal offence. This is rare another individual in possession cases. as the repairs required would have to be quick, simple and the accused would have Therefore, in a firearm possession context (which to have the parts on scene to make the includes trafficking and manufacturing under repair. Finally, in most cases the s. 99 of the Criminal Code), an incomplete individual would need to have the skill firearm is nonetheless a firearm even if the personally to make the necessary modifications required are complex, the parts modifications.58 need to be ordered and the accused is • Possession offences: This would apply to a insufficiently skilled to make the modifications person in pure possession or someone personally. involved in the sale/manufacture of these items. The time required to make the Intention of the Individual modifications is much longer. Therefore, The intention of the individual to actually convert the changes can be more complex. And the the 80% receiver into a functional firearm is not parts required need not be on scene as they may be ordered. Finally, the individual determinative. The objective of the legislation is

overall public safety and is not predicated on the o The price of the item. For example, an good intentions of a specific individual (the 80% receiver selling for $1000.00 would careless storage charges and regulations are a not logically be used in the creation of a clear indication of this). The Supreme Court of $500 starter’s pistol. Canada addressed this in the context of firearms • Reference to the item as an “80% receiver” that can potentially be converted to fully- indicates explicitly the intention of the seller automatic: or possessor. • Whether written or verbal plans or suggestions Nor can it be a valid defence that a for modification are provided with the item (or collector such as Mr. Hasselwander plans found in written or electronic form would never convert the weapon. found in possession, constructive or Collectors are attractive targets for thieves otherwise, of the accused person). who are seeking these weapons with every • Selling, ordering or ownership of matching intention of using them or selling them to ammunition with the frame/receiver in others who wish to make use of them. question. 2019 CanLIIDocs 3798 Members of the community are entitled to • Selling, ordering or ownership of matching protection from the use of automatic parts with the frame/receiver in question. weapons. This can be accomplished by • Comments made by the seller or possessor to giving the word capable given the definition other individuals, such as police, undercover 64 set out above. officers or witnesses. • Commercial literature in the case of a seller. However, the intention to convert the items into • Import documents or licencing firearms (or fully-automatic firearms in documentation, such as what is claimed to be Hasselwander) can nonetheless be strong imported. evidence against the accused. The best analogy might be motive in a homicide case—not Conclusion on 80% Receivers necessary in terms of any required element of the offence, but extremely relevant when it comes to So, what does this mean? issues like specific intent or identity. An individual in possession of an 80% receiver The 2002 Ontario Court of Appeal case of and who demonstrates an intention to convert the 65 Goswami is instructive on this issue. item themselves, or selling it knowing that it Mr. Goswami was selling starter pistols in serves no other purpose, must meet all the legal conjunction with ammunition, drill bits, and plans requirements for the legal possession (or sale) of on how to modify the item into a functional the class of firearm in question. firearm. The Ontario Court of Appeal agreed that Mr. Goswami was not selling starter’s pistols but An individual or company selling 80% receivers was really selling firearms. as receivers (and I am not aware of any other lawful purpose for the existence of such partially Some of the non-exhaustive factors an constructed items) is selling firearms. They must investigator may wish to consider when therefore comply with all the laws surrounding determining the intention of a person in the sale of a firearm. Otherwise, they are possession of an 80% receiver are the following: potentially subject to Criminal Code offences under: • Expert opinion on whether these items could

be used for any other legitimate purpose. • Section 99 (for the firearms sold); o The item is 80% of the way towards becoming a firearm receiver. Could they • Section 100 (for the firearms in stock); be making something other than a firearm • Section 101 (transfer without authority—a with this item? lesser alternative);

• Sections 103 and 104 (if there is a violation of Bill C-71 is just one more volley in the on-going importation regulations); and battle against illegal guns. • Other related Firearms Act offences. As I mentioned at the beginning, the law For Crowns, understanding the nuances of these surrounding firearms, whether under the provisions is essential. This is true whether we Criminal Code, the Firearms Act or related are providing advice to investigators or regulations, is a legislative struggle to come to regulators, assessing the viability of a prosecution grips with given the dynamic legal framework or ultimately prosecuting a gun offence. and the illicit market for guns and related items.

 The views or opinions expressed in this article are re-attended the Canadian Firearms Safety Course. He those of the authors, and do not necessarily reflect refused to do so claiming that a Conditional Sentence those of the Ontario Ministry of the Attorney General Order was not a prohibition order. He lost that or the Ontario Crown Attorneys Association. argument.

1 R.S.C. 1985, c. C-46. 10 Supra note 1, s. 672. 2019 CanLIIDocs 3798 2 S.C. 1995, c. 39. 11 R.S.C. 1985, c. N-5. 3 See e.g. R. v. Degraw, 2018 ONCA 51 at para 11; 12 See R. v. Karson, [2008] O.J. No. 999 (Sup. Ct. J.), R. v. Jones (2005), 198 C.C.C. (3d) 519, Jurianz J.A., aff’d 2009 ONCA 164. Justice Clark found that a dissenting (Ont. C.A.).; R. v. Houle, 2008 ONCA 287; s. 810 statutory peace bond constituted a prohibition R. v. McCue, 2012 ONCA 773; R. v. Brown, 2010 order pursuant to s.84(1) of the Criminal Code. See ONCA 745; R. v. Flowers, 2010 ONCA 129; also R. v. Drader, 2001 MBQB 321. But see R. v. Mann, 2010 ONCA 342; R. v. Maddigan, 2009 R. v. Bennell, 2005 BCSC 871. The Bennell obiter ONCA 269; R. v. Sookdeo (2006), 215 O.A.C. 94 dicta analysis was considered and rejected by Justice (C.A.); R. v. Haughton (2004), 187 O.A.C. 67 (C.A.); Clark in Karson. R. v. Manning, [2007] O.J. No. 1205 (Sup. Ct. J.). 13 As long as this item is being used for the exclusive 4 Supra note 1, s. 84(1) [emphasis added]. purpose for which it was designed. 5 Please note that for bail releases, the forfeiture 14 As long as this item is being used for the exclusive provisions (discussed later) do not apply. See purpose for which it was designed. s. 515(1.1). 15 As long as this item is being used for the exclusive 6 These are similar to 109 and 110 orders but do not purpose for which it was designed. require an offence. They are a free-standing 16 As long as this item is being used for the exclusive application to prohibit an individual from possessing purpose for which it was designed. firearms and other items. It should be noted that the 17 See generally R. v. Cordio Williams, 2009 ONCA individual retains those firearms through the course of 342. the application. If there is an immediate security 18 See Criminal Records Act, R.S.C. 1985, c. C-47, concern with the retention of the firearms, please s. 2.3(b). consider s. 117.04 (public safety warrant), which 19 1st Sess., 42nd Parl., S.C. 2019, c. 9. permits the seizure of the items pending a 20 This provision is now in force. determination of disposition and also permits a 21 Supra note 7. prohibition of up to five years. 22 Supra note 1 (current to 20 June 2019) [emphasis 7 The fact that a prohibition order is, in fact, a added]. prohibition order was explicitly addressed and 23 Ibid [emphasis added]. confirmed in R. v. Roggie, 2012 ONCA 808 at 24 Pending Order-in-Council. paras. 35-43. Obviously, if a probation order is a 25 Supra note 1, s. 2 [emphasis added]. “prohibition order” per s. 84(1) of the Criminal Code, 26 Ibid, s. 84(1). then so are all the others. Contra R. v. Bennell, 2004 27 Section 117.15 of the Criminal Code, which permits BCPC 559. the Governor in Council to issue regulations 8 S.C. 2002, c. 1, ss. 46 and 92. prescribing items to be prohibited or restricted, had 9 See R c. Tremblay, 2006 QCCQ 16738. An also been altered to limit the power of the Governor in individual was given a Conditional Sentence Order Council when it came to regulating items with a prohibiting his possession of weapons including sporting or hunting purpose. Bill C-71 has effectively firearms. At the end of his sentence, he applied for a removed this ‘override’ authority. new firearms licence. The Chief Firearms Officer for 28 Without getting into the tortured history of this Québec refused to grant a licence until Mr. Tremblay provision, two broad types of firearm were

55 See R. v. Covin, [1983] 1 S.C.R. 725; ‘downgraded’ to non-restricted firearm (the CZ858 R. v. Hasselwander, [1993] 2 S.C.R. 398 at paras. 31- and the SAN Swiss Arms). This has been partially 36, 45; R. v. Ferguson (1985), 20 C.C.C. (3d) 256 reversed in C-71 where the lawful possession of these (Ont. C.A.); R. v. Watkins (1987), 33 C.C.C. (3d) 465 items has been grandfathered (with additional rules (B.C. C.A.); R. v. Cancade, 2008 BCPC 336. and regulations on their use, etc.) Some of these 56 See e.g. supra note 1, s. 84(1) (definitions of provisions are in force, and some are awaiting an “automatic firearm”, “cross-bow” and “restricted Order-in-Council. firearm”). 29 Supra note 19, s. 16. 57 Ferguson, supra note 55 at 262-63 [emphasis 30 Pending Order-in-Council. added]. See also Hasselwander, supra note 55 at para. 31 There was a conflict with the province of Quebec 36, Lamer J: “What then, should ‘capable’ mean as it about the retention of these documents, as they wished is used in the s. 84(1) definition of prohibited weapon? to create a provincial registry, but that is another story. It should not mean that the simple removal of a part The provisions addressing this are now in force. which could be replaced in seconds would take the 32 A straw purchaser is a person with a generally weapon outside the definition. This surely could not unblemished record who obtains a licence and have been the intention of Parliament. If it were, the purchases firearms for a third party. The motives vary danger from automatic weapons would continue to 2019 CanLIIDocs 3798 wildly, including the repayment of outstanding drug or exist just as strongly as it did before the prohibition gambling debts and greed. That third party tends to be was enacted”. prohibited or otherwise ineligible to purchase guns. 58 See Covin, supra note 55; Ferguson, supra note 55. This is a common method for firearms leaving the 59 See Covin, supra note 55 at 729; Watkins, supra note lawful market and entering the illicit one. With the 55; R. v. Cook (1989), 48 C.C.C. (3d) 61 (Man. C.A.); absence of a ‘non-restricted firearm registry’, these R. v. Smith, 2008 ONCA 151; Ferguson, supra note 55 straw purchasers are notoriously difficult to catch as at 262: “Because of the nature of the continuing there exists no paper trail to their purchase or transfer. offence of possession of prohibited weapon under 33 Supra note 2, s. 23 [emphasis added]. s. 88(1) and having regards to the purpose of the 34 Supra note 19, s. 5. subsection, we are all satisfied that the acceptable 35 Ibid, s. 7. amount of adaptation and the time-span to render the 36 Pending Order-in-Council. gun operable is longer than that required for a s. 83 37 Supra note 19, s. 2(2). (now s.85) offence, where the adaptation has to be 38 Supra note 2, s. 5(2)(a)(i). made on the scene in order to support the charge of 39 Ibid, s. 5(2)(a)(ii). using a firearm during the commission or attempted 40 Ibid, s. 5(2)(a)(iii). commission of an indictable offence or during the 41 Ibid, s. 5(2)(a)(iv). flight thereafter” [reference added]. 42 Ibid, s. 5(2)(a)(v). 60 See R. v. Stacey, 2009 NLCA 68. The Court held 43 Ibid, s. 5(2)(b). that evidence is required regarding the availability of 44 Supra, note 19, s. 2(2). the missing parts, and expert evidence on complexity 45 Ibid. of the modification required. 46 Ibid. 61 See Smith, supra note 59. 47 Ibid. 62 See Stacey, supra note 60. 48 Ibid, s. 4 (pending Order-in-Council). 63 See R. v. Robbie, 1989 ABCA 182; R. v. Osiowy, 49 Ibid, s. 7 (pending Order-in-Council). 1997 ABCA 50; R. v. Stacey, 2009 NLCA 68; 50 Ibid, s. 3(2). R. v. Haines (1981), 45 N.S.R. (2d) 428 (S.C. (A.D.)); 51 This provision is now in force. R. v. St. Amour, [1974] O.J. No. 631 (C.A.). See 52 This raises other issues such as the possibility of especially Cook, supra note 59 at 64: “… [I]t can be licencing parts kits or other essential parts of a firearm. reasonably inferred that he had the capacity by himself 53 See U.S. Department of Justice, Bureau of Alcohol, or with the assistance of others and within a reasonable Tobacco, Firearms and Explosives, Ruling 2015-1: time to activate the gun for firing…”. Manufacturing and Gunsmithing (2 January 2015). 64 R. v. Hasselwander, supra note 55 at para. 40. 54 Supra note 1 [emphasis added]. 65 164 C.C.C. (3d) 378.

Secondary Source Review

David Boulet, Crown Attorney, Lindsay

There are a considerable number of law journals and reviews of criminal law that are currently available to the legal profession. The following is a compilation of those secondary source materials.

CRIMINAL LAW: Practice context. Otherwise, it’s just rules. Because I've Early Departure: Factors Associated with the always seen justice as the aspirational application Flight of Women from the Private Practice of of law to life, I see Associations like this as Criminal Law representing a constant search to align law, life, Natasha S. Madon (Griffith Criminology and justice, a search to see how to make sure the Institute, Griffith University, Australia) (2018) 65 arc of the moral universe bends always towards C.L.Q. 396 justice for the public. I’m guided in my choice of themes in this lecture 2019 CanLIIDocs 3798 Due to their systematic exclusion from the by the moral legacies I take from several profession late into the 20th century, women are anniversaries—the deaths fifty years ago of relatively new players in the legal labour market. Martin Luther King and Bobby Kennedy, the In Canada, women were only granted access to creation of the Universal Declaration of Human the legal profession in 1895, yet it was not until Rights and Genocide Convention seventy years 1942 that women across all provinces had the ago, and D-Day’s anniversary yesterday. They opportunity to become lawyers. This was the all form the backdrop to three areas in which I see culmination of extensive debate within law the arc bending out of shape: in the way we societies, provincial legislatures and within the deliver justice to the public; in the way some public domain. The number of women that have countries are playing fast and loose with judicial entered the bar since then has dramatically independence; and in the way the world is not increased. In 1971, women represented only only bending the wrong way, in too many places 5.2% of lawyers in Canada growing to 29.1% it's upending the moral universe, leaving justice twenty years later in 1991. More recent data in the dust. suggests that as of 2010, women represent The last two topics are in fact two facets of a approximately 37% of all lawyers in Canada. A bigger problem, namely, what's happening to growing body of literature surrounds the career democracy as we knew and know it. But let's start paths of women in the legal profession, with a first with something less metaphysical— smaller number of studies focussing on the delivering justice to the public. And from there, longevity of women within the profession. In line we’ll go global. with this common belief of a drop-off of women from private practice, a number of studies have APPEAL: Right to Counsel found that female lawyers are more likely to leave CRIMINAL CODE: Section 684(1) (Legal the practice than are their male counterparts. Assistance for Appellant) Is There a ‘Meaningful’ Right to Counsel for The Arc of the Moral Universe Is Long, but ... Wrongfully Convicted Indigent Accused or (Keynote Address to Canadian Law and Those Seeking to Appeal a Wrongful Society Association Annual Meeting, June 7, Conviction or Sentence in Canada? A Critical 2018) Analysis of the Ontario Court of Appeal Justice Rosalie Abella (Supreme Court of Decision in R. v. C.(P.) (Young Person) Canada) (2019) 34:1 Can. J.L. & Soc'y 1 Silvia Dimitrova (Staff Lawyer at Justice Niagara) (2018) 65 C.L.Q. 379 This is a group I've admired for decades. And what I've admired is the recognition, right in the The case of R. v. C.(P.) shows a difficult reality name Law and Society, that law only matters in for many indigent accused persons seeking to

appeal a wrongful conviction or sentence in This article analyzes the current evidentiary Canada, namely they do not have an automatic threshold for the reception of accused-authored right to counsel on appeal. Accused persons of rap lyric evidence. It argues that the current limited means can apply to a Court of Appeal to threshold jeopardizes trial fairness by allowing receive a lawyer if they are denied legal aid the Crown to adduce highly prejudicial rap lyric pursuant to s. 684(1) of the Criminal Code. The evidence at trial. It proceeds in three parts: Part 1 reality is that many indigent accused who have provides a contextualization of the issues. Part 2 been denied legal aid prepare for and argue the examines the Campbell decision. Part 3 evaluates s. 684 application for appointment of counsel how the Skeete decision differs from Campbell, unrepresented and while in custody. Incarcerated and provides a relatively low admissibility persons are often unable to access resources or to threshold for accused-authored rap lyric obtain legal advice in preparing their appeal. The evidence. This article concludes by advocating main legal issue in R. v. C.(P.) is, therefore, for the adoption of the Campbell approach with whether s. 684(1) of the Code violates the modifications. Canadian Charter of Rights and Freedoms. 2019 CanLIIDocs 3798 The analysis below demonstrates the four ways in EVIDENCE: Causation which R. v. C.(P.) is significant and Removing Fault from the Law of Causation subsequently points to the inability of indigent Jeremy Butt (Judicial Law Clerk, Supreme Court accused in Canada to exercise a meaningful right of Canada) (2017) 65 C.L.Q. 72 to counsel on appeal in certain circumstances. The law of causation suffers from unnecessary APPEAL: Sentence Appeal complexity that creates uncertainty. This article Proportionality in Sentence Appeals: Towards is divided into two parts. First, I will discuss how a Guiding Principle of Appellate Review morality and fault entered the causation analysis, James Foy (Of the Ontario Bar) (February 2018) and second, I will argue for a reformulated the test 23 Can. Crim. L. Rev. 77 for causation: one that avoids all notions of fault and morality. Causation ought to belong Appellate courts in Canada do not follow a uniquely within the actus reus of the offence. uniform approach to the review of sentencing The question of what is a significant contributing decisions. While courts have consistently cause should deal solely with the proximity of the articulated that appellate review of sentencing actor’s actions to the consequence. The moral decisions is restrained, they have not identified a blameworthiness of the actor is best left to principled basis for determining the boundaries of considerations of mens rea, to be determined this restraint. This article suggests that one based on the actor’s level of fault. principled basis for deciding when to intervene in sentence appeals is the principle of EVIDENCE: Confessions and Admissions proportionality. The principle of proportionality CHARTER: Section 7 (Fundamental Freedoms) can guide an appellate court in not only Assessing the Treatment of Confession determining when an appellate court should Evidence in Court: The Confessions Rule and intervene but also how it should intervene. This the Case of R. v. Oickle article argues that by understanding Laura Fallon (Ph.D Candidate, Department of proportionality as encompassing two discrete Psychology, Memorial University), Weyam aspects—individual and comparative Fahmy (MSc Candidate, Department of proportionality—a principled and uniform Psychology, Memorial University), Brent Snook approach to sentencing review can be achieved. (Department of Psychology, Memorial University) (October 2018) 23 Can. Crim. L. Rev. EVIDENCE: Admissibility 233 A ‘Bad Rap’: R. v. Skeete and the Admissibility of Rap Lyric Evidence In R. v. Oickle (2000), an arson conviction was Ngozi Okidegbe (LL.M. Candidate at Columbia upheld by the Supreme Court of Canada despite Law School) (2018) 66 C.L.Q. 294 the defendant's claim that his confession was

involuntary. As well, the common law relatively concise, and clearly states that anything confessions rule was formally restated in this that suspects say will be used against them in ruling. The confessions rule outlines the court. Right to silence cautions in Canada also conditions under which an admission of guilt vary by jurisdiction but in general, they are less should be admissible as evidence for triers of fact. clear than Miranda and they are not mandated by In part, the rule states that confessions should not law. be obtained through the use of threats, promises, oppression, or police trickery that shocks the EVIDENCE: Demeanour community. There are two psychological Assessing Truthfulness on the Witness Stand: assumptions within this ruling: (1) the Eradicating Deeply Rooted Pseudoscientific interrogation tactics used against the defendant Beliefs about Credibility Assessment by Triers would not have caused an involuntary confession, of Fact and (2) community attitudes, or perceptions of Brent Snook and John House (Department of those attitudes, are a sufficient benchmark for Psychology, Memorial University), Meagan I. assessing the acceptability of police interrogation McCardle and Weyam Fahmy (MSc Candidates, 2019 CanLIIDocs 3798 tactics. A review of the relevant empirical Department of Psychology, Memorial literature suggests that the first assumption is University) (September 2017) 22 Can. Crim. L. invalid, and that the shock the community Rev. 297 standard is untenable. The implications of these two unfounded assumptions for the truth-seeking The Supreme Court of Canada (SCC) ruled in function of the justice system are discussed. R. v. S.(N.) (2012) that a witness’s face provides useful cues to deceit that are important for trial When in Doubt, Be Compliant: The Social fairness, and that the need to view a witness’s face Dynamics of the Right to Silence while testifying “is too deeply rooted in the C. Lindsay Fitzsimmons (M.A. candidate, criminal justice system to be set aside absent Department of Psychology, York University), compelling evidence”. In this commentary, we Timothy E. Moore (Ph.D, candidate, Department present compelling empirical evidence that (a) of Psychology, York University) (2018) 66 the vast majority of cues to deception are too faint C.L.Q. 41 for reliable deception detection, (b) most facial expressions and other non-verbal cues are The criminal justice system in Canada attempts to unrelated to deception, (c) people, including achieve a balance between the power of the state professionals in legal disciplines (e.g., judges, and the vulnerability of suspects to possible lawyers), are unable to detect deception barely coercion when detained by the police. This beyond chance levels, and (d) it is not possible to balance is especially important to achieve improve deception detection with training because some police interrogators in Canada are programs that focus exclusively on non-verbal trained to exploit the vulnerabilities of detainees. cues. The fact that existing empirical data fails to By way of comparison, detainees in the United align with the venerated belief surrounding States are provided with greater protection than deception detection raises serious concerns about are detainees in Canada. In the landmark United the reliance on pseudoscientific beliefs in SCC States Supreme Court decision in Miranda v. decision-making. Arizona it was established that police must follow detailed warning and waiver guidelines before Detecting Deceit During Trials: Limits in the interrogating suspects in order to protect their Implementation of Lie Detection Research—A Fifth Amendment right against self- Comment on Snook, McCardle, Fahmy and incrimination. Although the content and structure House of Miranda warnings vary greatly, a typical Vincent Denault (Department of Communication, Miranda warning reads: “You have the right to Université de Montréal), Louise Marie Jupe remain silent; anything you say can and will be (Department of Psychology, University of used against you in a court of law”. The wording Portsmouth, United Kingdom) (February 2018) of the caution varies by jurisdiction, but it is 23 Can. Crim. L. Rev. 97

In their 2017 paper Assessing Truthfulness on the approach” to the admission of hearsay evidence. Witness Stand: Eradicating Deeply Rooted Originally conceived as a flexible supplement to Pseudoscientific Beliefs about Credibility statutory and traditional common law exceptions Assessment by Triers of Fact, Snook, McCardle, to the rule against hearsay, the principled Fahmy and House (“Snook et al.”) conclude that approach has over the years developed the Supreme Court of Canada's position regarding considerable structure of its own. Bradshaw, the the use of nonverbal communication for most recent case in the court’s hearsay canon, credibility assessment by trial judges is sharply and unexpectedly restricts the ways in unfounded. However, due to the fact that they did which a trial judge can assess reliability for the not consider distinctive characteristics of trials as purpose of admissibility. In the course of doing well as additional research into nonverbal so, the Court has, perhaps inadvertently, elevated communication and deception detection, we the test for reliability to the point where it is very argue that using Snook et al. to refute the position difficult indeed to satisfy. Fortunately, there are of Canada’s highest court on the importance of relatively straightforward ways, consistent with nonverbal communication during trials is the court's own case law, for the court to reverse 2019 CanLIIDocs 3798 unwarranted. Trial judges should not course and provide a workable standard of underestimate the importance of nonverbal reliability within the principled approach. communication in courtrooms based on Snook et al. EVIDENCE: Similar Fact Similar Fact Evidence & Crime Linkage EVIDENCE: Experts Analysis—In Search of an Empirical Drawing the Line between Lay and Expert Foundation to Support the Identity Inference Opinion Evidence Michelle S. Lawrence (Faculty of Law, Jason M. Chin (T.C. Beirne School of Law, University of Victoria) (July 2019) 24 Can. Crim. University of Queensland), Jan Tomiska L. Rev. 141 (University of Toronto), Chen Li (University of Toronto.) (September 2017) 63 McGill L.J. 89 In Canada, the Crown is generally prohibited from tendering evidence of the accused’s bad This article examines the vanishingly thin line character in its case in chief. A significant between lay and expert opinion evidence in exception is made for similar fact evidence. The Canada. In Parts I and II, we set the stakes—the Supreme Court of Canada in R. v. Handy, [2002] dangers involved in expanding the scope of 2 S.C.R. 908, listed seven factors for the court's admissible opinion evidence. Parts III and IV consideration in this assessment, including “any illustrate these problems as we examine three distinctive feature(s) unifying the incidents.” cases in which authoritative lay witnesses opined Strikingly, to date, trial courts have proceeded in on topics requiring specialized training and their application of the Handy factors without the expertise. In Part V, we seek to fill this void by benefit of empirical evidence on crime series proposing a new analytic approach—Lay patterns. This article will explore the potential Opinion 2.0—which draws on both the practical use that might be made of crime linkage analysis, and epistemological distinction between lay and particularly in cases of serial sex crimes where expert opinion to provide an efficient and fair test identity is in issue. It will describe ways in which for the admission of lay opinion evidence. criminal litigators might usefully engage this research either in support of the admission of EVIDENCE: Hearsay similar fact evidence, or as a check against its The Future of the Principled Approach to misuse and any consequent wrongful conviction. Hearsay—Case Comment Hamish Stewart (Faculty of Law, University of Toronto): (June 2018) 23 Can. Crim. L. Rev. 183

Since 1990, the Supreme Court of Canada has developed what is referred to as a “principled

PROSECUTOR: Discretion Preface instructs us that the most recent edition Seeking Justice by Plea: The Prosecutor's conserves the main features of the three prior Ethical Obligations During Plea Bargaining editions, notably lengthy passages illustrating the Palma Paciocco (Assistant Professor, Osgoode style and substance of the greatest barristers, Hall Law School, York University) (September starting with Seddon’s case and including many 2017) 63 McGill L.J. 45 other excerpts from leading trials. In addition, this edition also focuses on practical techniques Canadian Crown prosecutors enjoy tremendous for successful cross-examination in the modern discretionary power. They can leverage this trial context. Of note, as we read at page v, “This power during plea bargaining by structuring the latest edition also covers developments in terms of plea deals and by engaging in aggressive jurisprudence and addresses many recent trends negotiation tactics, thereby exerting a and challenges about which counsel should be disproportionate influence on plea bargaining aware.”, for example, the transformational impact processes and outcomes. This article considers of social media, digital forensics and computer- how Crowns should wield their power to shape based evidence, the staples of modern trials. 2019 CanLIIDocs 3798 plea bargains in light of their ethical obligation to seek justice. In the process, the article addresses TRIAL: Burden of Proof / Onus / Reasonable a few especially thorny questions, including: Doubt whether Crowns should ever strategically Doubt about Doubt: Coping with R. v. W.(D.) overcharge defendants to facilitate plea and Credibility Assessment negotiations; how Crowns ought to balance the David M. Paciocco (Justice, Ontario Court of accuracy of criminal charges against the fairness Appeal) (February 2017) 22 Can. Crim. L. Rev. of criminal sentences when the two are in tension; 31 and how Crowns can strike an appropriate balance between plea bargaining fairness and The decision of the Supreme Court of Canada in efficient case management. The article offers R. v. W.(D.) to give guidance in applying the several concrete policy recommendations aimed reasonable doubt concept in credibility cases was at helping Crowns satisfy their ethical obligation sage. Experience had shown that, in the “he to seek justice in the context of plea bargaining. said/she said” context, there is ample opportunity for error in determining reasonable doubt. As TRIAL: Advocacy (Cross Examination) many jurists have since acknowledged, however, Cross-Examination: The Art of the Advocate the “W.(D.) framework,” was stated imperfectly. (4th Edition) The Hon. Roger E. Salhany, M.D. Its meaning can best be gleaned, not by reading Edelson and Hon. W.V. Clifford (LexisNexis, the W.(D.) framework as if it had been a statute, Toronto, 2016): Book Review but by identifying and respecting its underlying Gilles Renaud (Juge, Cour de justice de l'Ontario) principles. This article is intended to assist in (June 2017) 22 Can. Crim. L. Rev. 235 applying the W.(D.) framework by highlighting the reasoning errors that inspired its adoption, and In 1992, I had the pleasure of discovering a slim by identifying those underlying principles. Those and yet superb study of the methods and underlying principles are then reduced into techniques of impeachment, Cross-Examination: proposition form. The propositions were crafted The Art of the Advocate (Revised Edition), by in an effort to remove the ambiguities from the Roger E. Salhany, then a member of the Superior W.(D.) framework, and to include instruction that Court of Ontario. The Bench and Bar now enjoy can assist in avoiding the pitfalls left open by the a revised and up-to-date analysis of this topic, the W.(D.) framework. The author does not intend quality of which has been enhanced by the signal for these propositions be used in lieu of the contributions of two very experienced and able articulated W.(D.) framework. The propositions criminal defence counsel, Michael D. Edelson are made available to consult, along with the and W. Vince Clifford, who were partners in framework, so that the W.(D.) framework better Ottawa until the latter’s appointment to the achieves its purpose. Ontario Court of Justice in February 2017. The

TRIAL: Crimes Against Humanity/War TRIAL: Defences: Common Law (Provocation) Crimes CRIMINAL CODE: Section 232 (Murder CRIMINAL CODE: Section 469(c.1) Reduced to Manslaughter) Défendre un accusé pendant un procès pour Canada's Provocation Reform and the Need to génocide, crimes contre l'humanité et crimes Revisit Culpability in ‘Loss of Control’ Cases de guerre au Canada: Mission Impossible? Christopher Nowlin (Langara College BC, and of Fannie Lafontaine (Faculté de droit de the British Columbia Bar) (February 2018) 23 l'Université Laval), Fabrice Bousquet Doctorant Can. Crim. L. Rev. 43 à la Faculté de droit de l'Université Laval) (June 2017) 22 Can. Crim. L. Rev. 159 Canada reformed its provocation law in 2015 by requiring that the provocative act be an indictable The first part of this article concerns the offence. The trigger for a homicidal reaction can composition of a trial court and its lack of no longer be merely a ‘wrongful’ act or insult, so expertise: a superior court composed of a judge a person charged with murder can no longer be and jury or a judge alone. After having partially excused because of a psychological 2019 CanLIIDocs 3798 established that the choice of a jury was made, in blow. However, a full acquittal remains fact, for practical and legal reasons, options that theoretically possible in the case of an are unrealistic from the defence’s standpoint, the unconscious killing wrought by a psychological authors promote the creation of a specialized blow. Canadian common law distinguishes jurisdiction, or the specialization of a pool of between claims of physical involuntariness and judges, for crimes described in the Crimes moral involuntariness. The reason for the Against Humanity and War Crimes Act. The distinction is unclear, as an acquittal can follow second part sheds some light on the options from both types of claims despite great offered to and the restrictions imposed on the differences in offences and fact-patterns. To defence regarding the manner in which obtain a more legally and ethically consistent testimonies are collected at trial and its pros and result across all automatism, duress, necessity cons. This brings us to a third part in which the and provocation claims, Canadian criminal law authors explain how Canadian judges made should apply principles of legal causation and efforts, in trials like these, to assess very complex foreseeability to all such claims and use a wider evidence. The uncertainty that results from the scope on its causal lens than it currently uses. credibility and the reliability of evidence does not play in favour of the accused while the witnesses Constitutionalizing a Flawed Defence are at the heart of the trial. Finally, the analysis Isabel Grant (Peter A. Allard School of Law, concludes with a look at the paradox resulting University of B.C.), Debra Parkes (Peter A. from the present use of the Program on Crimes Allard School of Law, University of B.C.) (2019) Against Humanity and War Crime, under which 55 C.R. 137 the refugee or immigration status of an accused who has been acquitted may be questioned on the In R. v. Simard, B.C. Supreme Court Justice basis of the same facts. That “additional charge” Thompson held that the Canadian Charter of [translation] or “punitive proceeding” Rights and Freedoms constitutionalizes the [translation] makes it difficult for defence defence of provocation in the context of serious counsel to ensure that the accused is no longer verbal insults involving no threat of harm. In prosecuted once a “not guilty” verdict is returned. other words, a person (usually a man) has a constitutional right to mitigation when he intentionally kills in response to offensive words that involve no threat of physical harm, but offend his dignity. Justice Thompson did this under the s. 7 principles of overbreadth and arbitrariness. The reasoning with respect to overbreadth was that the 2015 amendments to provocation, which limited the defence to cases where the victim

committed an indictable offence punishable by at constitutional right to dignity vis-à-vis the notion least five years, were designed to protect of the mental state requirement in criminal law. vulnerable women and, because they make the defence unavailable in a much wider range of Objective Mens Rea Revisited circumstances unrelated to protecting vulnerable Terry Skolnik (Faculty of Law, University of women, they are overbroad. This result is Ottawa) (September 2017) 22 Can. Crim. L. Rev. unresponsive to the flaws that are identified under 307 the arbitrariness analysis and in fact makes the situation worse. In expanding the defence of Since the enactment of the Canadian Charter, the provocation in a way that makes it more available criminal law concept of mens rea has evolved to men who kill women, the judge has invoked significantly. The objective standard of fault or unrealistic hypotheticals involving abused objective mens rea has been the subject of much women and a hypothetical racialized accused that doctrinal and theoretical examination. Where bear no resemblance to the actual case law proof of objective mens rea is required, an dealing with provocation. accused can be convicted because their dangerous 2019 CanLIIDocs 3798 conduct constituted a marked departure from the TRIAL: Defences: Common Law norm and a reasonable person would have (Justification) and Mens Rea foreseen and avoided the risk. In this article, it is CHARTER: Section 7 (Fundamental Justice) argued that there are two groups of concerns Dignifying the Dadson Principle: Towards a related to the concept of objective mens rea in New Approach Canadian law. Khalid Ghanayim (Faculty of Law, University of On the one hand, there are culpability-related Haifa, Israel), Mohammed Saif-Alden Wattad concerns. Culpability for objective mens rea can (Faculty of Law, Zefat Academic College, Israel) be difficult to justify in a system of criminal law (September 2017) 22 Can. Crim. L. Rev. 239 premised on rationality, choice, and fair stigmatization. On the other hand, there are May a person harvest the fruits of a defence to constitutional concerns. Subjective awareness of criminal liability, without establishing—at the a risk of harm to others should be constitutionally time the conduct took place—a mental state required in certain contexts. This is most notably towards the objective circumstances of the the case where the accused can be stigmatized for defense? If no, then what kind of mental state having killed another person and is liable to life should it be? Furthermore, in such instances, imprisonment. Due to these two groups of would the actor be liable for a completed offence concerns, objective mens rea should be revisited or solely for criminal attempt? These three accordingly. questions have been the subject of an intensive amount of scholarly writing. Unlike the case for TRIAL: Defences: Common Law (Duress, justifications, we assert that in that an act Necessity) performed under excusing circumstances does CRIMINAL CODE: Section 17 (Compulsion by not correspond to what is right and proper to do Threats) under those circumstances, and therefore full Reform of the Defence of Duress (and awareness is though essential yet still insufficient, Necessity) i.e. intention to avert the danger is required as Steve Coughlan (Schulich School of Law, well. Additionally, we perceive the outcome of a Dalhousie University), Gerry Ferguson (Faculty case of unknowing justification as identical to the of Law, University of Victoria), Don Stuart outcome of the case of impossible attempt, i.e. it (Faculty of Law, Queens University), Benjamin is not a classic case of impossible attempt, but the Berger (Osgoode Hall Law School, York ramification is the same as the case of impossible University), Carissima Mathen (Faculty of Law, attempt. Finally, we assert, innovatively, that our University of Ottawa), Peter Sankoff (Faculty of analysis and conclusions are necessitated by the Law, University of Alberta) (2018) 66 C.L.Q. 230 constitutional understanding of the fundamental principles of criminal law, in particular the

This article is divided into two parts. In Part One functionally identical. As the Supreme Court of we consider the defence of duress. We consider Canada has rejected constitutional exemptions as three primary questions: whether there is a need a remedy, it should also reject de minimis as a for two separate versions of the defence, whether defence. The author also notes that judges are a statutory version of the defence should have a responsible for adjudicating innocence and guilt, list of excluded offences, and how the statutory not deciding whether the criminal justice system defence should be phrased. Based on that should be invoked—judges should not have the discussion we then recommend that a single power to override prosecutorial discretion by statutory version of duress, applying to parties invoking de minimis. and principals and not explicitly removing any offence from its scope should be enacted. We TRIAL: Defences: Common Law (Entrapment) also make particular recommendations about how Entrapment Minimalism: Shedding the “No such a new section should be drafted, though we Reasonable Suspicion or Bona Fide Inquiry” do not propose particular language. Having Test made those recommendations we then mention Steven Penney (Faculty of Law, University of 2019 CanLIIDocs 3798 other issues which could arise in connection with Alberta) (Spring 2019) 44 Queen's L.J. 356 the defence of duress, such as the possibility of treating it as a partial defence or the potential In Canada, the entrapment defence can be overlap with s. 34. The second part of this article established in one of two ways. In the first way, turns to the defence of necessity. Two central “Entrapment 1”, the defence must prove that themes are pursued there. The first looks at the police provided the accused with an opportunity defence of necessity in its own right, to consider to commit an offence without: (i) reasonably some ambiguities in the way it has been framed suspecting him or her of committing that offence; to date, and to suggest reforms in that regard. or (ii) engaging in a bona fide inquiry. The second looks at necessity as it relates to “Entrapment 2” arises when police go beyond duress, to which it is juristically very similar. In providing an opportunity and “induce” the fact there are some differences between the way commission of the offence. The author argues in which the two defences are constructed, and we that courts should cease recognizing Entrapment consider whether those differences are 1 as a discrete defence generating an automatic appropriate. stay of proceedings. Entrapment 1 coheres poorly with the defence's rationale (deterring TRIAL: Defences: Common Law (De minimis) police from manufacturing crime), has generated Why De Minimis Should Not Be a Defence a convoluted and inconsistent jurisprudence, and Steve Coughlan (Schulich School of Law, fails to draw a sensible line between abusive and Dalhousie University) (Spring 2019) 44 Queen's non-abusive police methods. Instead, L.J. 262 Entrapment 1 should be folded into the Charter’s general abuse of process doctrine, allowing courts De minimis non curat lex—the idea that the law to consider all relevant circumstances in deciding does not concern itself with trifles—is originally whether alleged state misconduct is grave enough a private law maxim whose applicability in to warrant a stay of proceedings. This would criminal law is uncertain. The author argues that leave Entrapment 2 as the only true entrapment de minimis should not exist as a criminal defence. defence automatically requiring a stay. This article distinguishes the use of de minimis as an (accepted) interpretative principle in criminal TRIAL: Guilty Plea (Withdrawal of Guilty law from its application as a defence. In doing Plea) so, the author critiques the potential rationales for Does R. v. Wong Apply to Applications to de minimis offered by Arbour J. in Canadian Withdraw a Guilty Plea Before a Trial Judge? Foundation for Children, Youth and the Law v. Judge Wayne Gorman (Judge, Provincial Court Canada (Attorney General). Instead, the author of Newfoundland and Labrador) (2018) 66 draws a parallel between de minimis and C.L.Q. 331 constitutional exemptions, arguing that they are

In R. v. Wong 2018 SCC 25, the Supreme Court TRIAL: Jury (Charge) of Canada considered an appeal in which the Mock-Jurors’ Self-Reported Understanding accused sought to appeal from conviction by of Canadian Judicial Instructions (is not very applying to withdraw his guilty plea. Thus, the good) application was commenced in an appeal court Michelle I. Bertrand (Criminal Justice, University (the British Columbia Court of Appeal) rather of Winnipeg), Richard Jochelson (Faculty of than before the trial judge and it occurred after Law, University of Manitoba) (2018) 66 C.L.Q. sentence was imposed. An application to 137 withdraw a guilty plea can be made before sentence is imposed or after sentence is imposed. Studies of the criminal jury within a Canadian For a trial judge, such an application arises in the context remain few and far between compared to former situation. Thus, is Wong of any assistance such research based in other jurisdictions to trial judges or is it limited to appeal court especially the United States. The study of jury judges? In this article I intend to review Wong work in Canada is significantly curtailed for from the perspective of whether it provides any structural reasons, which we outline below. This 2019 CanLIIDocs 3798 guidance to trial judges faced with an application makes the study of actual jurors who have served to withdraw a guilty plea. I will commence with almost impossible in Canada so researchers must a review of when a trial judge can allow an use alternative methods to study Canadian accused person to withdraw a guilty plea; juridical issues. The current study used a student consider the holding in Wong; then attempt to sample to investigate comprehension of Canadian determine if it can be applied by trial judges to Judicial Council (CJC) pattern instructions. This such applications heard by them. is the first study to interrogate CJC pattern instructions in relatively common and TRIAL: Guilty Plea (Fitness to Plead Guilty) uncomplicated crimes. In this article, we discuss CRIMINAL CODE: Part XX.1 the barriers to jury research in Canada, consider Fitness to Plead Guilty: The Limited Cognitive some challenges facing jurors in comprehending Capacity Test and Mentally Disordered legal concepts, and explore the development of Accused pattern instructions in Canada. We then describe Mark Luimes (JD candidate, University of the results of our study, which revealed that a Toronto) (Winter 2019) 77 U.T. Fac. L. Rev. 27 majority of participants self-reported a lack of comprehension in the pattern instructions The limited cognitive capacity test for pleading provided and demonstrated a lack of guilty does not require an accused be able to make understanding of foundational legal principles rational decisions in their own best interest. The based on responses to other questions. This lack Charter right to stand trial and make full answer of comprehension has implications for policy and defence that justified the low test for fitness development and for future studies in the area of to stand trial does not justify its application to juror comprehension. fitness to plead guilty. Given the risk of false guilty plea wrongful convictions experienced by TRIAL: Jury (View) mentally disordered accused, and in light of the CRIMINAL CODE: Section 652 (View) considerable pressures to plead guilty We Should Probably Take a Look at That: experienced by an accused during plea The Process of Taking a View in Criminal negotiations, the low limited cognitive capacity Proceedings test for pleading guilty should be replaced with a Peter Sankoff (Faculty of Law, University of higher analytic capacity test that requires the Alberta): (2017) 65 C.L.Q. 140 accused have the capacity to make rational choices in his or her own best interests. It is inherently difficult to imagine a criminal trial taking place anywhere other than in a courtroom. There is however one rarely used but important exception to this routine, and it involves the entire court leaving the confines of the courthouse and

going on a sort of field trip to experience TRIAL: Sentencing evidence relevant to the case first-hand. Though Sentencing Guidelines for Canada: A Re- it is by no means a common procedure, a court Evaluation possesses the discretion to allow all parties, as Samuel Mosonyi (Faculty of Law, University of well as the jury, to leave the courtroom in order Toronto) (September 2017) 22 Can. Crim. L. to view any place, thing or person. This article is Rev. 275 an attempt to bring together the diffuse jurisprudence on the subject and offer a few The current federal Liberal government should thoughts about the overall utility of the exercise. analyze the experience of England and Wales when exploring alternatives to mandatory TRIAL: Jury (Selection) minimum sentences. Sentencing guidelines of CHARTER: Section 11(f) (Trial by Jury) the variety used in England and Wales can Optional By-Products or Constitutionally- contribute to consistent sentencing practice while Protected Purposes? Societal Interests in still retaining significant judicial discretion. This Representativeness, the s. 11(f) Right to Trial study examines the factors that Canadian 2019 CanLIIDocs 3798 by Jury, and the Kokopenace Decision policymakers should consider in their Misha Boutilier (JD candidate, University of deliberations using interviews with sentencing Toronto) (2018) 65 C.L.Q. 458 guideline drafters, the judiciary, and other criminal justice experts in England and Wales. The Supreme Court of Canada’s decision in Kokopenace marks the first attempt by the court TRIAL: Sentencing Principles (Fetal Alcohol to define the meaning of the ss. 11(d) and 11(f) Spectrum Disorder) Charter right to trial by a representative jury in CRIMINAL CODE: Sections 718.1 the out-of-court jury selection process. The Proportionate Justice: An Examination of decision indicated that the court is deeply divided Fetal Alcohol Spectrum Disorders and the about the meaning of the representativeness right. Principles of Sentencing in Saskatchewan This article will argue that the tests proposed by Zoe Johansen-Hill (JD Candidate, University of Moldaver and Karakatsanis JJ. disconnect the Saskatchewan) (2019) 82 Sask. L. Rev. 75 s. 11(f) representativeness right from its underlying societal purposes out of an The principles of sentencing in the Canadian exaggerated concern about the negative effects of criminal justice system require courts to consider more robust protection of these purposes. In turn, the background of offenders as well as the this approach unnecessarily removed a key circumstances of the crime committed. This is in impetus for governments to remedy Indigenous part due to the fundamental principle of underrepresentation on juries. Instead of treating sentencing stated in s. 718.1 of the Criminal the societal purposes as optional by-products, the Code. In some situations, there are also mandates Court should have taken the view that s. 11(f) to consider particular aspects of an offender’s deputizes the accused to achieve the underlying background. For example, the Supreme Court of societal purposes by demonstrating violations of Canada emphasized in R. v. Gladue and representativeness. This essay will focus R. v. Ipeelee that courts are under an obligation to specifically on the important societal purposes pay “particular attention to the circumstances of underlying the s. 11(f) Charter right to trial by Aboriginal offenders”. This article will focus on jury. It will not consider s. 15 Charter issues, the impact of Fetal Alcohol Spectrum Disorders Aboriginal rights claims, or arguments related to on sentencing decisions and dangerous offender the distinct constitutional status of Aboriginal designations in Saskatchewan. Using examples peoples. This article will also consider the court from recent Saskatchewan case law, I argue that decisions in Ontario and Saskatchewan applying links made between symptoms of cognitive the Court of Appeal’s test that were released prior impairment and the necessity of lengthier to the Supreme Court of Canada’s decision, sentences result in disproportionate sentences which have not been analyzed by other authors to contrary to s. 718.1 as well as inappropriate date. dangerous offender designations.

TRIAL: Sentencing Principles (Gladue) ultimately inadequate to address Aboriginal over- CRIMINAL CODE: Section 718.2(e) incarceration. I nonetheless hold the view that The (Differential) Utilization of Conditional Gladue may, for the time being, be of some Sentences Among Aboriginal Offenders in utility. What I endeavour to explore in this article Canada is how to better strengthen Gladue’s potential by Andrew A. Reid (Criminology Department, adjusting its jurisprudential lens. The proposed Douglas College, PhD. candidate, School of adjustment is rooted in a body of theory known as Criminology, Simon Fraser University) (June Therapeutic Jurisprudence, which demands that 2017) 22 Can. Crim. L. Rev. 133 law maximize its potential for beneficial therapeutic outcomes for persons suffering from Canada’s community-based custody sanction— mental health problems. It shares parallels with the conditional sentence of imprisonment—came Post-Traumatic Stress Disorder, although its into effect in 1996 with major statutory reforms emphasis is on mental health effects stemming to the Criminal Code. While the new sanction from the social traumas besetting Aboriginal was found to reduce incarceration rates among peoples that are recognized in Gladue itself. It 2019 CanLIIDocs 3798 the general offender population, there has been no therefore offers a bridge between Gladue and evidence that it resulted in decreases of Therapeutic Jurisprudence. Part of the reason for incarceration among Aboriginal offenders. Now exploring this possibility is that cases involving 20 years following its introduction, this study sets the sentencing of accused suffering from Post- out to document recent trends in the use of Traumatic Stress Disorder both display a conditional sentences and for the first time, focus jurisprudential emphasis that resembles on trends of Aboriginal offenders. Using a new Therapeutic Jurisprudence, and seem to receive a metric, the Conditional Sentence Utilization generosity in sentencing outcomes relative even percent, the analyses reveal a shift in general to Gladue. The hope is that the Gladue regime utilization of the sanction. At the onset of the new can thereby be strengthened and revitalized. millennium, Aboriginal offenders received a greater proportion of community-based TRIAL: Sentencing Principles (Aggravating imprisonment sentences. This pattern reversed in Circumstances) 2008-09 and for the next five years non- CRIMINAL CODE: Sections 151-153 (Sexual Aboriginals received a greater proportion of Offences) and 718.2(a(ii.1)) community-based imprisonment sanctions. Sentencing for Sexual Offences Against Analyses conducted at the provincial/territorial- Children and Youth: Mandatory Minimums, level reveal widespread variation in the use of Proportionality and Unintended community custody among the two offending Consequences populations. In Quebec, Aboriginal offenders Janine Benedet (Allard School of Law, consistently received conditional sentences in far University of British Columbia) (Spring 2019) 4 greater proportion to non-Aboriginals. In Queen's L.J. 284 Manitoba, the opposite was found. The implications of these findings on criminal justice In the past fifteen years, mandatory minimum policy are discussed. sentences have become significantly more prominent in Canadian criminal law. Most Residential School Syndrome and the analyses of the constitutionality of mandatory Sentencing of Aboriginal Offenders in Canada minimums have focused on their application in David Milward (Faculty of Law, University of drug and gun crimes, as well as murder. In Victoria) (2018) 66 C.L.Q. 254 contrast, relatively little attention has been paid to mandatory minimums attached to sexual offences The crisis of Aboriginal over-incarceration in committed against children and youth. The Canada persists unabated. Statistical estimates as author argues that the introduction of mandatory of 2016 are that Aboriginals amount to 27% of minimums for sexual offences committed against provincial and territorial inmates, and 28% of children and youth does not address the power, federal inmates. I am of the view that Gladue is gender and race inequalities that characterize

sexual offending. The author overviews victims’ participatory rights, rather than as a sentencing decisions in this area and concludes source of information on which to base a criminal that the introduction of minimum sentences has sentence. short-circuited a deeper understanding of the harms of these crimes, and does nothing to TRIAL: Sentencing (Immigration prevent problematic judicial reasoning based on Consequences) myths and stereotypes about child sexual abuse. Collateral Immigration Consequences in These myths and stereotypes find their way into Sentencing: A Six-Year Review the sentencing process and lead to some Sasha Baglay (Legal Studies Program, Faculty of aggravating factors being ignored or downplayed, Social Science and Humanities, University of while other factors are improperly identified as Ontario Institute of Technology) (2019) 82 Sask. mitigating. The author suggests that the criminal L. Rev. 47 justice system needs a solution that roots out lingering stereotypes in order to properly In R. v. Pham, the Supreme Court of Canada held acknowledge and remedy the harms to child and that collateral immigration consequences may be 2019 CanLIIDocs 3798 youth victims, the group most vulnerable to a relevant factor in determining a fit sentence. sexual violence. These immigration consequences result from the Immigration and Refugee Protection Act, which TRIAL: Sentencing Principles (Aggravating allows for removal of permanent residents and Circumstances) foreign nationals convicted of certain types of CRIMINAL CODE: Sections 718.2(a(iii.1)) and offences. Although Pham provided important 722 (Victim Impact Statements) guidance on the role of immigration Victim Rights in Sentencing: An Examination consequences in sentencing, it also left several of Victim Impact Statements points unclear. This article seeks to examine how Teagan Markin (JD Candidate, Schulich School lower courts have interpreted Pham and, in of Law, Dalhousie University) (February 2017) particular, seeks to address unclear aspects of the 22 Can. Crim. L. Rev. 95 decision. Part II of this article provides an overview of the Pham case, pointing out The intended purpose of victim impact statements confusing aspects of the decision as well as has been the subject of debate since they were suggesting possible interpretations of the main first introduced to the sentencing process in 1989. proposition of the decision. Part III discusses the This article examines the proper role of victim inadmissibility regime and its relationship with impact statements as a function of victim rights to sentencing. Part IV presents the findings of a case demonstrate that while participatory rights for law review spanning a six-year period victims strongly support a model based on immediately following the release of Pham expression and communication, using these (March 13, 2013, to March 1, 2019). This article statements instrumentally as evidence for the concludes by offering some thoughts on the court undermines victim participation and desirable interpretation of Pham which may mischaracterizes the needs of victims in provide greater consistency in decision-making sentencing. This article also assesses recent and outlining the case's application to sentencing amendments to the victim impact statement of non-citizens. regime, which point towards an intended instrumental model premised on increased TRIAL: Sentencing (Multiple Murders) consideration of ancillary harm and retributive CRIMINAL CODE: Sections 745.21, 745.51 sentencing principles. These amendments are (Multiple Murders) inconsistent with a principled theory of victim Hope for Murderers? International Guidance rights and unresponsive to the needs of victims on Interpreting the Protecting Canadians by and the interests of all citizens in a criminal Ending Sentence Discounts for Multiple justice system based on just and appropriate Murders Act sentencing goals. Victim impact statements Derek Spencer (Criminal Justice, University of should be viewed as an implementation of Winnipeg) (2017) 22 Can. Crim. L. Rev. 207

Lifelong incarceration, that is, any prison How Multiple Murder Sentencing Provisions sentence that denies an offender a realistic hope May Violate the Charter of release from its very outset, has become a Derek Spencer (Criminal Justice, University of contentious issue internationally. At a time many Winnipeg) (2019) 55 C.R. 165 countries are moving away from imposing such sentences, Canada has taken a step towards On February 8, 2019, Alexandre Bissonnette was allowing lifelong incarceration through the sentenced to life in prison with no parole for 40 passing of multiple murders legislation in 2011. years. Just over two years prior, Bissonnette This article draws from the experiences in entered the Grand Mosque of the Islamic Cultural Germany, the United States and the United Center of Quebec, armed with guns and a hateful Kingdom all of whom have addressed the issue of ideology. Bissonnette launched an attack that left lifelong incarceration. This article examines six dead and many more injured, including five these three countries experiences with lifelong with severe injuries. Bissonnette was the third incarceration, bringing forward considerations case ruling on the constitutionality of s. 745.51, that should be made in Canada when considering and the first decision to find the section 2019 CanLIIDocs 3798 multiple murder and extradition cases. unconstitutional. Lifelong incarceration is a contentious issue and has been barred in many The Hope Principle? Exploring an Unwritten countries. While lifelong incarceration has been Principle of Sentencing Law a factor in some extradition cases, the Multiple Derek Spencer (Criminal Justice, University of Murders Act is the first piece of legislation that Winnipeg) (2018) 65 C.L.Q. 415 forces Canadian courts to consider the permissibility of lifelong incarceration under While s. 718 of the Canadian Criminal Code Canadian sentencing principles and the Canadian sets out the majority of principles, purposes and Charter of Rights and Freedoms. rules of sentencing law, others such as the transaction concept, the step or jump principle TRIAL: Wrongful Convictions and the gap principle are not codified but rather Innocence Compensation: The Obstacles of come from the common law. This article Fault and Crown Immunities to Financial explores the possibility of another common law Redress sentencing principle—hope, more specifically, Myles Frederick McLellan (Department of Law hope of prospective release from incarceration. and Politics, Algoma University; Director of the This article begins with a brief discussion of the Innocence Compensation Project) (October role hope has played historically in Canadian 2018) 23 Can. Crim. L. Rev. 291 sentencing law. Next, I discuss the Multiple Murders Act and the early cases interpreting this An innocent person who has proven to be legislation. I then explore how hope operates in wrongly accused of criminality has two avenues conjunction with three sentencing principles: of relief available to seek compensation in parity; rehabilitation; and totality. Hope and Canada. The first is the vanishingly remote rehabilitation have a symbiotic relationship, with application to the State for the exercise of grace hope of release acting as the motivating factor for as a function of the Royal prerogative of mercy. rehabilitation and rehabilitation the means to The far more common route is civil litigation for achieve the hoped for goal of release. Within the financial redress due to the harms caused by the totality principle, hope serves as a guidepost actions of crown attorneys and police officers. prescribing an absolute upper limit to a criminal Substantial hurdles stand in the way of any sentence. By recognizing hope as a component prospect for success in this regard at the outset, of sentencing law, the criminal justice system is most particularly by way of crown immunities able to ensure all individuals are treated justly and and fault thresholds. For crown counsel and humanely. attorneys general there is qualified immunity by virtue of legislation and decisions of the Supreme Court of Canada, but liability will flow if there has been a wrongful accusation attenuated by

malice. Provincial and territorial governments as In 2004, a new corporate criminal liability regime the ultimate employers of crown attorneys are was added to the Criminal Code. In essence, this immune to liability. For police officers and the important reform facilitates the imputation of services that employ them the only immunity criminal liability to organizations by replacing available is by way of legislation. A handful of the “identification doctrine” developed by the provinces shield police if they acted in good faith. courts, but without creating a true system of Otherwise there is recourse for negligent vicarious liability. This article examines the investigations. If the litigation is for scope and certain consequences associated with compensation for the violation of a Charter right, this legislative reform. The extent of its the landscape is unfortunately less than clear. application to various paradigms introduced by This article argues that these limitations on the the legislation is examined. The author also financial responsibility of the Crown and its discusses various significant concepts relating to servants and agents to those who have been the establishment of corporate criminal liability harmed by errors in the criminal justice process as well as certain concepts which have not been are unfair and lack principle. addressed by this legislation, more particularly 2019 CanLIIDocs 3798 the criminal liability of an organization's SENTENCING: Incarceration subsidiaries and that of its successors. The author The End Stage of Solitary Confinement also explores to what extent the courts might or Lisa Kerr (Faculty of Law, Queen's University) should complete the codified system with respect (2019) 55 C.R. 382 to these concepts.

This article argues that the legal system has CRIMINAL CODE: Part II.1 (Terrorism) reached the end stage of the disease of solitary An Empirical Study of Terrorism Charges and confinement, and analyzes a few of the salient Terrorism Trials in Canada Between features of this process. The shortcomings of the September 2001 and September 2018 federal provisions that, until now, authorized Michael Nesbitt (Faculty of Law, University of solitary, have been well documented. The Calgary) (2019) 67 C.L.Q. 96 negative health effects of solitary are well- established in medical literature, and have now In order to provide clarity with respect to been accepted by every Canadian judge who has terrorism prosecutions in Canada, this article seriously considered the issue. In response to a offers a broad, empirical overview of what has mountain of bad press and lawsuits, the taken place over the first 15 plus years of Correctional Service of Canada has drastically terrorism prosecutions in Canada. Specifically, it reduced the numbers of inmates who are consolidates for the first time all charges and officially held in segregation. These are just a criminal cases brought under Part II.1 of the few of the indicators that solitary has become Criminal Code from 2001 to September 2018, broadly unacceptable, and that key legal and and provides the names of the accused, verdicts penal actors are now willingly engaging in a including the number of guilty pleas versus stays process of reduction and reform. versus full trials, the conviction rates, and the charging trends and patterns. It also charts the CRIMINAL CODE: Sections 22.1-22.2 demographics (gender) of the accused, the type (Organizations) (ideologies) of terrorism on trial in Canada, and La codification de la responsabilité criminelle other factors. des organisations au Canada: étude de la Of course, in so doing this article is only able to portée et de certaines lacunes de l'intervention provide a broad lay of the land with respect to législative terrorist charging patterns and criminal Pierre-Christian Collins Hoffman (Avocat prosecutions in Canada. However, the hope is (LL.M.)) (2017) 47 Revue de Droit de that this study will set the foundation upon which l'Université de Sherbrooke 109 other empirical and qualitative analyses can draw, ensuring a foundational baseline—and a snapshot in time—upon which future research can build.

Moreover, by consolidating the terrorism cases CRIMINAL CODE: Section 162.1 (Publication of and breaking them down—including breaking Intimate Image) down their charging patterns and constitutional Nudes Are Forever: Judicial Interpretations of challenges—this study will be of value not only Digital Technology's Impact on “Revenge to academics but to prosecutors and particularly Porn” defence counsel who are faced, in the years to Alexa Dodge (Carleton University, Ottawa, come, with their first terrorism cases. Ontario) (2019) 34 No. 1 Can. J.L. & Soc'y 121

CRIMINAL CODE: Section 121 (Frauds on the In this article I explore judicial interpretations of Government) the relationship between digital technology and The Criminal Code’s Procurement Crimes: non-consensual intimate image distribution Underused Tools in Canada’s Anti- (NCIID) (i.e., “revenge porn”). Drawing on my Corruption Effort analysis of forty-nine Canadian cases of NCIID, Graham Seele (Rowe School of Business, I show that judicial interpretations of digital Dalhousie University) (2017) 65 C.L.Q. 187 technology have important influences on how 2019 CanLIIDocs 3798 NCIID is understood and responded to in the law. There are only two sections of the Criminal I find that the majority of judges perceive digital Code that deal explicitly with crimes relating to technology as making NCIID easier to commit— government contracts: s. 121(1)(f) and s. 121(2). with the simple “click of a mouse”—and as Although the procurement crimes have been increasing the amount of harm caused by this act, touched upon in a limited number of cases as digital nude/sexual photos are seen as lasting concerning the interpretation of other parts of “forever” and thus as resulting in ongoing and s. 121, there appears to be no reported case in immeasurable harm to victims. These which one of the procurement crimes is the basis perceptions have substantive impacts on legal for the charge. There are two possible rationales and sentencing decisions, with the explanations for the non-use of the procurement affordances of digital technology regularly being crimes: either there is no procurement corruption, treated as justifying harsher sentences to and so there is nothing to prosecute; or there is denounce and deter this act. procurement corruption, but there is something inherent in the procurement crimes that makes CRIMINAL CODE: Section 163.1 (Child them unusable as an anti-corruption tool. The Pornography) first explanation is easy to eliminate. That leaves From Obscenity to Child Pornography: An us with the second explanation: there must be Analysis of Canadian Court Cases something problematic with the procurement Jennifer Kusz (PhD candidate, School of crimes themselves. That is the subject of this Criminology, Simon Fraser University; article. This article examines one of the Criminology Instructor, Department of procurement crimes, namely s. 121(1)(f), in Criminology, Vancouver Island University), depth: its origin and evolution, its elements, and Simon Verdun-Jones (School of Criminology, its interpretation. There are two purposes for this Simon Fraser University): (June 2018) 23 Can. examination: first, to provide some guidance for Crim. L. Rev. 131 the courts, if and when the procurement crimes are actually used; and secondly, and more Historically, pornographic material, featuring importantly, to determine if there is any obvious either women or children, was criminalized under reason why s. 121(1)(f) has been so little used in the obscenity provisions, found in s. 163 of the its century-plus history. The article ends with Criminal Code. However, an analysis of legal suggestions for amendments that might give cases indicates there has been a shift from s. 121(1)(f) more bite. focusing on obscene material to focusing specifically on pornography that depicts children. The shift in priorities from obscenity to child pornography, with the enactment and enforcement of the child pornography provisions

of the Criminal Code in 1993, and the subsequent other exploitative interactions that can cause legal cases that followed, is analyzed from a serious psychological and developmental harm to moral-panic theoretical framework. This young victims even without actual in-person discussion includes a consideration of the impact sexual contact. If the communications are of the advent of the internet and social media, disclosed more broadly and provoke which, undoubtedly contributed to the cyberbullying, the trauma is compounded. More proliferation and increased availability of recent statistics indicate that internet luring is the pornographic material. Canadian legal cases that second most commonly reported sexual offence have interpreted and applied the obscenity against children and that the number of reported provisions, and the subsequent shift towards the incidents has continued to rise between 2009 to emphasis on child pornography in a post-Butler 2017. The Department of Justice reports that the era are examined through this theoretical lens. increase in sexual crimes against children in recent years is largely attributable to the increase CRIMINAL CODE: Section 172.1 (Luring a in internet luring. Child) 2019 CanLIIDocs 3798 Unreasonable Steps: Trying to Make Sense of CRIMINAL CODE: Part VI (Invasion of Privacy) R. v. Morrison CHARTER: Section 8 (Search or Seizure) Isabel Grant (Allard School of Law, University of Into the Black II: Ontario Court of Appeal British Columbia), and Janine Benedet (Allard Confirms the Application of the Sixth-Step of School of Law, University of British Columbia) Garofoli (2019) 67 C.L.Q. 14 (Notes and Comments) David Tice (Asst. Crown Attorney, Metro West Crown Attorneys’ Office) (2018) 66 C.L.Q. 77 Children and youth routinely have easy, unsupervised access to the internet through Since 2011, a significant amount of jurisprudence smartphones and tablets. This connectivity has developed around what has become known as increases the danger that adults will sexually “Step-Six” of Garofoli. Trial division courts exploit them. Adult chat rooms, which may have had to develop practices and procedures require nothing more than a child checking a box without guidance from the appellate courts. indicating that they are over the age of 18, are a However, in 2015, the Ontario Court of Appeal common site for such exploitation. In most cases, heard two cases directly reviewing “step-six” of this behaviour only comes to light when either a Garofoli: R. v. Crevier and R. v. Reid. In these parent becomes aware of the activity, or when an cases, the Court of Appeal upheld the lower in-person sexual offence against a child is courts’ reliance on this procedure and defined the detected and the online communications are balance of rights and interests that are at play in discovered in the course of the investigation. In the context of these proceedings. Further, the 2002, Canada introduced the crime of luring Court of Appeal determined that the procedure is children on the internet for the purposes of Charter compliant, not offending the accused’s committing a sexual offence or an abduction right to make full answer and defence. A third offence. The purpose of this provision, according case, R. v. Shivrattan, was decided in 2017. In to the Supreme Court in R. v. Levigne, is to catch this case, the Court of Appeal reviewed a decision “adults who, generally for illicit sexual purposes, to not appoint amicus on a relatively straight- troll the internet to attract and entice vulnerable forward step-six application. In so doing, the children and adolescents.” Court has significantly curtailed resort to amicus Internet luring is harmful to children in two on these applications. Each appellate decision distinct ways. First, if the child and the adult meet unanimously upheld the use of step-six and in-person and sexual abuse occurs, this obviously agreed on its efficacy. A review of these cases causes grave harm to the child. Second, the will help to determine the continued practice in online activity is itself harmful. Conversations reliance on this procedure. What remains is for amounting to luring may include requests for an appellate court to opine on the procedures that nude photos, discussion of sexual acts, have been used in drafting the judicial summary, encouragement to consume pornography, and

the critical tool in providing for a fair and rigorous indictment of Canadian legal balanced procedure. professionals for their collective failure to act lawfully and ethically towards complainants in CRIMINAL CODE: Section 233 (Infanticide) sexual assault cases. In Canada and beyond, Borowiec: Exploring Infanticide, ‘a public discourse on gendered sexual violence has particularly dark corner’ and Providing reached a polarized zenith. While some add their Another Reminder of the Need for Reforming voices to the flood of sexual harassment and Homicide Sentencing assault allegations against powerful men, or H. Archibald Kaiser (Schulich School of Law and express support for survivors, others worry about Department of Psychiatry, Dalhousie University) the consequences of vilifying accused individuals (2017) 65 C.L.Q. 242 without the benefit of due process. Of course, allegations made through the media must be This comment will provide a brief summary of distinguished from formal criminal charges and Borowiec and will then identify some of the the special protections they trigger. Perhaps the complex policy dilemmas surrounding first question to ask, then, is why have survivors 2019 CanLIIDocs 3798 infanticide which have an ongoing resonance and of sexual violence largely eschewed the criminal which should be confronted by civil society and process in favour of other responses (such as Parliament. It will examine the concept of the speaking out publicly)? It is here that Craig's “disturbed” mind, the essence of the offence and book begins. of Borowiec, observing that the accused’s dissociative state appears to be representative of Female Victims of Male Sexual Violence: How other mothers charged with infanticide, while Should We Listen and Respond to Them? cautioning that the partial medicalization of Sheila Ray (Justice of the Ontario Court of infanticide has always been contentious. It Justice) (2019) 67 C.L.Q. 141 probes the status of the child victim, who has traditionally not been the focus of the offence, The research question in this article is, how contending that the gradually enhanced status of should the criminal justice system hear and the child demands a rebalancing, while avoiding respond to the voices of female victims of male untempered retribution. It will ponder a range of sexual violence? What do they mean when they legislative alternatives that Parliament should say, “Listen to me?” Does the law take their consider, assuming it picks up this neglected law views into account? Should it? And if so, how? reform gauntlet. It is contended that, in the wake The thesis of this article is that female survivors of Borowiec, the time has come for legislators to of male sexual violence generally want the interrogate not only the anachronisms of perpetrators of these offences to be held infanticide and its asymmetry compared with accountable, but not necessarily through the route murder sentences, but to go back to first of criminal prosecutions. This article will principles and reassess the entire range of examine the historic evolution of the victim’s role penalties for these most serious offences. in the criminal justice system from victim driven civil trials to a system where the victim had CRIMINAL CODE: Section 271 (Sexual Assault) practically no say, and was also restricted from Putting Trials on Trial: Sexual Assault and the telling her full story by the rules of evidence. Failure of the Legal Profession Elaine Craig This article will review the reasons for (McGill-Queen's University Press, 2018) Book dissatisfaction over the failures of the criminal Review justice system to protect victims that ultimately Dana Phillips (PhD candidate Osgoode Hall Law led to the enactment of the Canadian Victims Bill School, York University) (2019) 34:1 Can. J.L. & of Rights. The method or approach used in this Soc'y 169 article will be historic, but it will not be what David Garland would describe as “archival.” It In Putting Trials on Trial: Sexual Assault and the will not be motivated “by a historical concern to Failure of the Legal Profession, Elaine Craig understand the past but by a critical concern to offers a compelling, timely, and empirically come to terms with the present. The point is not

to think historically about the past but rather to developments in the landscape of prosecutorial use that history to rethink the present.” The decision-making: R v Jordan, a 2015 Supreme article will conclude that female victims of male Court of Canada decision that mandates a sexual violence experience their suffering shortened trial timeline in accordance with differently from other victims, and women from Charter section 11(b); and the Globe & Mail's marginalized groups experience it differently investigative report “Unfounded”, focusing on from the mainstream. the high rates at which Canadian police jurisdictions tend to dismiss sexual assault Absence of Motive in Sexual Assault Cases allegations. The collective effect of Jordan and Janine Benedet (Allard School of Law, “Unfounded” is to place added pressure on University of B.C.) (2019) 55 C.R. 18 Ontario prosecutors to downcharge sexual assault claims during resolution discussions to non- At first glance, the decisions of the Supreme gender-based crimes, such as common assault, in Court of Canada in R. v. Barton and the Ontario the name of expediency and resource efficiency. Court of Appeal in R. v. Bartholomew might seem This article examines the ethical implications of a 2019 CanLIIDocs 3798 to have little in common. The victim in Barton potential shift in Crown charging practices was an Indigenous woman on whom the accused toward an increased reliance on charge inflicted grave internal injuries in the course of bargaining to resolve sexual assault allegations. sexual activity which he alleged took place in If downcharging sexual assault becomes a trend prostitution. The complainant in Bartholomew in Crown prosecution offices, it may weaken the alleged that the accused, a school support worker, ability of the criminal justice system to signal that briefly touched his genitals when he was 12 or 13 sexual violence is punishable by law, and years old, 15 years prior to the trial. The accused ultimately reduce the extent to which criminal denied that any touching had taken place. Both sanction can assist in creating a culture shift to cases, however, address the issue of motive, or eradicate violence against women. For these more precisely lack of motive, in the context of reasons, embracing downcharging in the name of sexual offences. This issue has received little prosecutorial efficiency may lose in long-term attention from appellate courts. When the issue efficacy what it gains in short-term benefits. In of motive does arise, courts appear content to examining the ethics of downcharging in the apply general principles without attention to the context of sexual assault, the author also explores ways that historic myths and stereotypes are a perennial feminist advocacy question: what engaged in the sexual offence context for both criminal justice response, if any, constitutes a adult and child complainants. It is worth asking, feminist response to sexual violence? in the context of sexual offences, whether there is any evidence that would be capable of CRIMINAL CODE: Sections 271 (Sexual Assault) establishing a lack of motive to commit the and 276 (Prior Sexual Activity) offence on the part of the accused, or a lack of Myth, Inference and Evidence in Sexual motive to fabricate an allegation on the part of a Assault Trials complainant. Lisa Dufraimont (Osgoode Hall Law School, York University) (Spring 2019) 44 Queen's L.J. CRIMINAL CODE: Section 271 (Sexual Assault) 316 PROSECUTOR: Discretion Waiver: A Feminist Analysis of Charge In sexual assault cases, the ability to distinguish Bargaining in Sexual Assault Prosecution in myths and stereotypes from legitimate lines of Ontario reasoning continues to be a challenge for Natasha Novac (JD candidate, Osgoode Hall Law Canadian courts. The author argues that this School) (Winter 2018) 76 U.T. Fac. L. Rev. 1 challenge could be overcome by clearly identifying problematic inferences in sexual This article offers a normative analysis of charge assault cases as prohibited lines of reasoning, bargaining in the context of sexual assault while allowing the defence to bring forward prosecution in Ontario. It responds to two recent evidence that is logically relevant to the material

issues so long as it does not raise these prohibited the mens rea defence of mistaken belief in inferences. This paper advances that judges consent. Barton also does important work should take a broad view of relevance as an identifying false and discriminatory lines of evidentiary approach in the adjudication of sexual reasoning to be avoided in sexual assault cases. assault cases. This approach allows for a The case thus advances the law on sexual assault consideration of circumstances surrounding the in several ways. At the same time, I will argue alleged assault, which may include an analysis of that the Court would have done well to offer more the nature of the interactions between the accused guidance on the evidence and inferences that are and the complainant leading up to the alleged permissible to assist the defence in sexual assault assault and in its aftermath. This approach is cases. necessary in order for the accused to make full answer and defence. However, common myths R. v. Goldfinch and the Problem of and stereotypes about sexual assault are Relationship Evidence prohibited grounds that the law has rightly Lisa Dufraimont (Osgoode Hall Law School, removed from legal consideration. The author York University) (2019) 55 C.R. 282 2019 CanLIIDocs 3798 discusses a number of these myths, with a special focus on the “twin myths”. Lastly, the author R. v. Goldfinch confronts a longstanding turns to the evidence of the perpetrator and the interpretive difficulty about the admissibility of complainant's relationship subsequent to the evidence of the complainant’s other sexual alleged assault—where provincial courts have activity in a sexual offence case. How should split in determining what is or is not a prohibited courts deal with the fact that the accused and the inference when examining this subsequent complainant had an ongoing sexual relationship relationship. This paper ultimately argues that at the time of the alleged offence? Despite recent, the current challenge facing Canadian courts is mainly procedural, amendments to s. 276 of the ensuring that judges and juries avoid these Criminal Code, the statutory admissibility prohibited lines of reasoning, while retaining standards governing this evidence have remained broad access to information about the substantially unchanged for over a quarter circumstances and the ability to draw reasonable, century. The split decision in Goldfinch context-specific inferences. Doing so would represents the Supreme Court of Canada's first bring clarity to this important area of evidence effort to tackle the issue in depth. Relationship law. evidence raises conflicting fundamental concerns. On the one hand, evidence of an R. v. Barton: Progress on Myths and ongoing sexual relationship between the accused Stereotypes in Sexual Assault and the complainant carries the potential to invite Lisa Dufraimont (Osgoode Hall Law School, prohibited reasoning. On the other hand, York University) (2019) 54 C.R. 317 excluding evidence of an ongoing relationship may impair the accused’s right to full answer and The Supreme Court's recent judgment in defence by causing triers of fact to misinterpret R. v. Barton represents the latest in a series of interactions between the accused and the cases that have recognized and grappled with complainant. Human interactions are shaped by myths and stereotypes in sexual assault. While the relationships in which they occur and the Court in Barton divided over the appropriate requiring triers of fact to adjudicate factual issues remedy, the judges were in broad agreement on without knowledge of the nature of those the substantive and evidentiary principles relationships may be both unworkable and unfair. governing sexual assault cases. Significantly, the judgment recognizes and attempts to combat the R v. Goldfinch: Narrative, Context and deeply-rooted social prejudices against Evidence of Other Sexual Activity with the Indigenous women and sex workers that can find Accused their way into Canadian courtrooms. It usefully Janine Benedet (Allard School of Law, summarizes the law on evidence of a sexual University of B.C.) (2019) 55 C.R. 288 assault complainant's other sexual activity and on

Evidence of a complainant’s sexual reputation, admit was recently much stronger than the real or imagined, has historically been the most Supreme Court appears to recognize. devastating method of destroying her credibility in the sexual assault trial. The traditional uses of CRIMINAL CODE: Sections 279.01 to 279.05 such evidence rest on a series of discriminatory (Human Trafficking) inferences. The common law of evidence proved Human Trafficking and Prostitution in inadequate to preventing this sexist reasoning. Canada—Intersections and Challenges The current version of the evidentiary rules, Helena Gluzman (Assistant Crown Attorney, which apply to evidence of sex with the accused Peel Crown Attorney’s Office) (2018) 66 C.L.Q. as well as third parties, has been in place for over 110 25 years. These provisions were declared constitutional almost 20 years ago and they are Canada’s Parliament has enacted two key pieces unlikely to be repealed. It is well past the time to of legislation to protect the vulnerable women question the existence of such provisions or to preyed upon by pimps. First, Canada ratified the treat them as something novel. There has never United Nations Protocol to Prevent, Suppress 2019 CanLIIDocs 3798 been a right to adduce irrelevant evidence. So- and Punish Trafficking in Persons, especially called rape shield laws provide a statutory Women and Children. These human trafficking framework for questioning discriminatory provisions are increasingly used to combat the assumptions about relevance. pernicious evil of pimps and recognize that coerced sex trade work is one of the The Supreme Court Adds Unjust Rigidity to contemporary forms of slavery. However, they Rape Shield Protection suffer from a lack of definition within the Don Stuart (Faculty of Law, Queen's University) Criminal Code of Canada—particularly the (2019) 55 C.R. 292 meaning of “exploitation”. Second, Bill C-36, the Protection of Communities and Exploited In respect of rape shield protections the result of Persons Act, S.C. 2014, c. 25 came into force on the Goldfinch decision, and the 2018 Bill C-51 November 6, 2014, as a direct response to the amendments is that Canada has adopted an even Supreme Court of Canada decision in more rigid categorical approach. This is ironic Bedford v. Canada (Attorney General), which since such an approach was rejected in struck down key Criminal Code provisions aimed R. v. Seaboyer. The Court does not fully consider directly at prostitution related offences. These the ruling in R. v. Darrach where Justice Gonthier new provisions are likewise vulnerable to specifically held that the twin myth prohibition constitutional attack. This article considers those under s. 276(1) does not constitute blanket vulnerabilities as well as the far-reaching effects exclusions given ss. 276(2) and (3) which allow of these enactments. Jointly, the human admission where the evidence is held to be trafficking and prostitution related provisions relevant to a specific issue in the trial. The Court aimed at stopping pimping capture conduct in Darrach at one point notes that this evidence beyond what many may envision when they turn would in rare cases be relevant to consent. In their minds to exploitation within the sex trade Goldfinch the separate majority judgments of industry. Justices Karakatsanis and Moldaver squarely reject the line of authority based on CRIMINAL CODE: Section 318 (Public R. v. Strickland that the twin myth prohibition Incitement of Hatred) can be avoided by admitting under s. 276(2) prior The Regulation of Hateful and Hurtful sexual conduct with the accused to show Speech: Liberalism’s Uncomfortable ‘context’ or as ‘part of the narrative’. Such Predicament reasoning is indeed a notorious device in the law Jocelyn Maclure (Professor of Philosophy at of evidence sometimes resorted to by judges to Université Laval) (September 2017) 63 McGill avoid exclusionary rules considered to be too L.J. 133 rigid. The growing trend to rely on Strickland to

The regulation of speech is a highly sensitive and these drivers is based on the officer’s subjective always evolving ethical, political and legal issue. assessment, using his or her own unaided senses. On the one hand, hateful and hurtful speech is on MAS would change only one aspect of the the rise, especially, but not exclusively, with existing law—namely, the basis for demanding a regard to the relationship between Islam and the roadside breath test. In contrast to the current West. On the other hand, demands for the system, all drivers stopped would be assessed suppression of certain forms of speech based on an objective, non-arbitrary screening proliferate. After reviewing the argument for test, rather than an officer's subjective judgment. freedom of expression, I argue that while the While MAS will be challenged under the notion of harm defended by Millian liberals is too Canadian Charter of Rights and Freedoms, it narrow, an “offence principle” is too broad. After must be put in the context of other accepted defending hate speech laws, I concede that such screening procedures. Given that the courts have laws need to target only the speech acts that upheld the constitutionality of airport, border and express the most severe forms of aversion and courthouse screening, there is no principled basis denigration toward the members of a specific for reaching the opposite conclusion regarding 2019 CanLIIDocs 3798 group. I then reflect on the status of ‘hurtful MAS. speech’, which I see as including the per- formative utterances that stop short of being Canada’s New Cannabis-Related Driving hateful but nonetheless erode, through their Legislation: The Elusive Quest for an Effective illocutionary force and perlocutionary effects, the Deterrent social standing and bases for self-respect of those R. Solomon (Faculty of Law, Western who are targeted. I conclude that the free speech University), E. Chamberlain (Faculty of Law, debate reveals a limit of liberal political morality Western University), M. Vandenberghe (JD and leaves liberal normative theorists with an 2019) (October 2018) 23 Can. Crim. L. Rev. 265 uncomfortable predicament, as they have to rely more on the complementary role of pro-social On June 21, 2018, Royal Assent was given to Bill personal dispositions and civic virtues than they C-45 (Cannabis Act) and Bill C-46 generally wish to. (Transportation Act), two major pieces of federal criminal legislation. This paper provides an CRIMINAL CODE: Part VIII.1 (Offences empirical and legal framework for assessing the Relating to Conveyances) cannabis-related driving provisions in Bill C-46. The Road to Traffic Safety: Mandatory We review the recent patterns of cannabis Breath Screening and Bill C-46 consumption and driving after cannabis use, and Robert Solomon (Faculty of Law, Western trace the evolution of the federal drug-impaired University), Erika Chamberlain (Faculty of Law, driving laws, before examining the new cannabis- Western University) (February 2018) 23 Can. impaired driving offences and enforcement Crim. L. Rev. 1 powers. Like the 2008 amendments, the new drug-impaired driving legislation will modestly Bill C-46 will, among other things, simplify the strengthen enforcement. However, it is doubtful federal impaired driving law, create new drug- that these provisions will halt the increasing impaired driving offences, authorize roadside incidence of driving after cannabis use. Unlike oral fluid testing and address evidentiary and the situation with alcohol, there is currently no technical concerns with the current law. inexpensive, quick, simple and accurate means of However, the most important measure in traffic screening large numbers of drivers for cannabis at safety terms is the mandatory alcohol screening roadside. Until there are major improvements in provision (MAS), which would authorize the the cannabis-screening technology, the police to demand a roadside breath test from any enforcement of the new cannabis-related driving driver whom they have lawfully stopped. legislation will remain costly, time-consuming Millions of drivers are stopped each year at and prone to legal challenges. These are issues sobriety checkpoints and during routine police that should have been more carefully considered patrol activities. Currently, the processing of

prior to the enactment of the broad cannabis almost exclusively obtained via fax transmission legalization measures in Bill C-45. through the Telewarrant Centre in Newmarket. Police forces across the province have access to CRIMINAL CODE: Section 487.014 (General the centre through a designated single fax Production Order) number. In 2008, the Ontario government passed CHARTER: Section 8 (Search or Seizure) legislation allowing telewarrants to be available The Constitutionality of Using Production for Provincial Offences Act (POA) matters. Orders to Obtain Stored Communications The amendments under the POA closely follow Content the language under the Criminal Code. Colton Fehr (Ph.D candidate, University of Alberta) (June 2018) 23 Can. Crim. L. Rev. 171 CRIMINAL CODE: Section 487.1(9) and 489.1(1) (Report to Justice) In R. v. Jones, the Supreme Court of Canada CHARTER: Section 8 (Search or Seizure) concluded that producing text messages stored Checking Your Constitutional Boxes: The during transmission is accessible via a s. 487.014 Constitutional Consequences of Non- 2019 CanLIIDocs 3798 production order. If the state were to apply to Compliance with the Reporting Requirements intercept the same message a short time earlier, it in Section 487.1(9) of the Criminal Code would have to meet the much more stringent Ashley Bowron (Judicial Law Clerk, Alberta prerequisites under Part VI of the Criminal Code. Court of Appeal) (July 2019) 24 Can. Crim. L. The difference in time of reception and content Rev. 163 received will often be negligible. Given the nearly identical privacy interests at issue, I This article considers whether non-compliance maintain that utilizing a production order to with s. 487.1(9) of the Criminal Code following produce stored messages will sometimes police seizure of property should constitute a constitute an unreasonable search contrary to s. 8 breach of s. 8 of the Charter. This question most of the Charter. To address this constitutional recently arose on the facts of R. v. Paterson, 2017 defect, I recommend that Parliament include a SCC 15, but the Supreme Court of Canada chose requirement like that found in the general warrant not to address the issue. This article argues that provision in s. 487.01(1)(b), which requires any in future cases, courts should acknowledge the issuance be “in the best interests of the mandatory nature of these provisions by holding administration of justice”. Inclusion of this that failure to comply constitutes a violation of phrase would prevent technical differences in s. 8. The reporting requirements form part of the storage practices from altering constitutional lawful basis on which both the search and seizure standards for acquiring private communications. rest. Without complying with these requirements, the lawful basis on which the CRIMINAL CODE: Section 487.1 (Telewarrants) search and seizure depend is lost. CHARTER: Section 8 (Search or Seizure) Facial Attacks on Telewarrants: When Police CRIMINAL CODE: Section 503 (Appearance of Fail to Define ‘Impracticable’ Accused before Justice) Hafeez Amarshi (Crown Counsel, Public Breaking Bail Prosecution Service of Canada) (2017) 65 C.L.Q. Jillian Williamson (of the Ontario Bar) (March 230 2019) 24 Can. Crim. L. Rev. 131

Under s. 487.1(1) of the Criminal Code a peace This article examines the proposed amendment to officer may obtain a search warrant via s. 503 in the Criminal Code in Bill C-75. telewarrant. A telewarrant is a warrant that is Creating and amending law is one of the most requested by telephone or other means of significant responsibilities of Parliament. This telecommunication to a designated Justice. This process takes a significant amount of time and circumvents the requirement that a peace officer effort. Fundamental principles that are a appear in person before a Justice of the Peace to cornerstone of our democratic society can be obtain the warrant. In Ontario telewarrants are infringed upon when Parliament does not

exercise its discretion and responsibility pathology. I argue that, as a matter of effectively. The law of bail or judicial interim constitutional law, courts should be slow to release is one of these fundamental principles. impose unrealistic conditions on mentally Embedded in the principle that people accused of disordered offenders. I conclude by offering a a criminal offence are presumed innocent until ‘rights-based’ approach to the imposition of proven guilty beyond a reasonable doubt, is that release conditions. This approach requires a innocent people should not be punished. A more careful balancing of the statutory objectives curtailment of liberty is a punishment. When the underlying pre-trial release and probation with principles of bail are not complied with then the the Charter-protected rights of the mentally ill or presumption of innocence is necessarily disabled. infringed. One of these principles is that an accused detained person be brought before a Will the Ghost of Chaulk Past Ever Stop justice within 24 hours of arrest or as soon as Haunting the NCRMD Present? possible, if the justice is not available. Bill C-75, Christopher Nowlin (Of the Bar of British if passed, will create a presumption that any delay Columbia) (2018) 65 C.L.Q. 298 2019 CanLIIDocs 3798 involved will be deemed as lawful and in the execution of the peace officer’s duty. This Part 1 of this article will discuss briefly the presumption is antithetical to the animating statutory terms of the Not Criminally Responsible principles and basic tenants of our legal system. by Mental Disorder (NCRMD) defence and verdict, which were created in response to CRIMINAL CODE: Part XX.1 (Mental Disorder) R. v. Swain. The statute law is clear that an Using Court Orders to Manage, Supervise and NCRMD defence applies to any situation in Control Mentally Disordered Offenders: A which an accused person was incapable at the Rights-Based Approach material time of behaving in a way that could Micah B. Rankin (Faculty of Law, Thompson attract criminal culpability, because of a mental Rivers University) (2018) 65 C.L.Q. 280 disorder. Accordingly, an Ontario Court of Appeal decision, R. v. David reasoned that While there is a large body of scholarship that mental incapacity should be determined before discusses the fraught relationship between mental resolving issues of actual intent simply because disorder and criminal liability, one topic that has no criminal intent could ever be formed without largely escaped scholarly attention is the the capacity for it to be formed. However, constitutionality of using court orders to manage, R. v. Chaulk, a Supreme Court of Canada control and supervise mentally ill offenders in the decision that pre-dated Swain, muddied the community. Such orders are often made when a waters by discussing two ways in which mental person is granted judicial interim release (i.e., incapacity could bear upon one’s criminal bail), but can also form part of the sentence culpability other than by preventing an accused imposed on an offender following a trial or guilty from forming the necessary mens rea for the plea (i.e., probation). Interim release and offence charge. This article contends that, while probation conditions (what I will collectively the three-fold typology of mental states discussed refer to as ‘release conditions’) can range from in Chaulk might be academically interesting, it house arrest to treatment orders, and may include has no relevance to a criminal trial process that no contact orders and other ‘area restrictions’. involves the post-Swain “mental disorder” and This article explores some of the thorny NCRMD amendments. Part 2 of this article will constitutional questions that arise from the use of examine Chaulk and argue that it provides no release conditions to monitor, manage and control support for the proposition that in some cases a “mentally disordered” persons charged or mens rea determination should precede an convicted of crimes. I argue that courts have NCRMD verdict. Part 3 of this article will exhibited a troubling willingness to impose discuss some of this common law, including a release conditions on mentally disordered recent British Columbia Provincial Court offenders in circumstances where the prohibited decision to the effect that Chaulk restricted behaviour is a symptom of an underlying mental David’s applicability to certain types of mental

disorders. This article contends that this decision subscriber information with a user’s Internet and others continually miss the mark about Protocol address, it is possible to significantly NCRMD procedures because of their mitigate the seriousness of any invasion of unwillingness to accept that the Criminal Code privacy. This in turn can be used to justify has rendered Chaulk largely obsolete. significantly lower requirements for police conducting investigations into at least some CHARTER: Section 8 (Search or Seizure) online crimes. La Saisie de Données Informatiques en Droit Criminel Canadien Smartphone Searches: A Legal Crossroads Laura Ellyson (Candidate au doctorat à Dalhousie Between Charter Rights and Law Enforcement University, et membre du Barreau du Québec) Liam M. Hayes (Recent graduate of Peter A. (March 2019) 24 Can. Crim. L. Rev. 79 Allard School of Law, University of British Columbia) (2018) 66 C.L.Q. 196 Section 8 of the Canadian Charter of Rights and Freedoms provides that “everyone has the right to Since the Charter was enacted, the courts have 2019 CanLIIDocs 3798 be secure against unreasonable search or seizure”. endeavoured to balance individual rights with the Although initially applied in files with no state’s interest in effective law enforcement. As technological aspect, the provision has since been the law currently stands, police have no express interpreted and applied to the seizure of electronic statutory or common law powers to compel an data. Since 1990, the Supreme Court of Canada individual to provide access to a locked or has repeatedly ruled on the constitutional encrypted device, whether the search is judicially protection applicable to the personal electronic authorized or executed pursuant to Fearon. An data of individuals that may be of interest to law individual in such circumstances is protected by enforcement. Whether that be data held by third- his or her right to silence and right against self- parties or located on personal devices, there are incrimination under s. 7 of the Charter. Further, several specific rules that may apply. In addition, as recent SCC decisions have held, individuals although the courts have now outlined the broad have a high expectation of privacy in their outlines, some problematic cases remain smartphone devices, demanding substantial untouched. In this article, we will draw a picture protection against unreasonable search and of the various applicable rules and raise some seizure under s. 8 of the Charter. In 2016, the thoughts on what probably lies ahead for the Canadian Association of Chiefs of Police adopted courts in the future. a resolution calling on Parliament to introduce legislation to compel individuals to provide A Proposal for Police Acquisition of ISP police with access to locked or encrypted devices Subscriber Information on Administrative to facilitate lawfully authorized searches. The Demand in Child Pornography Investigations goal of this article is to discuss whether this Colton Fehr (PhD candidate, College of Law, proposed law is necessary and capable of University of Alberta) (July 2019) 24 Can. Crim. surviving Charter scrutiny. I will begin by L. Rev. 235 outlining the Fearon decision and the law enforcement challenges posed by evolving The Supreme Court of Canada concluded in smartphone technology. I will then discuss the R. v. Spencer that police acquisition of subscriber jurisprudence surrounding ss. 7 and 8 of the information from an internet service provider Charter as applied to smartphone searches. engages a reasonable expectation of privacy. Finally, I will discuss the proposed law and Although this conclusion is principled, it has also potential ways it may be balanced and justified in resulted in significant obstacles for police accordance with the Charter, with consideration investigating child pornography offences. of Customs Act jurisprudence and lessons from Applying for a production order is not, however, the United States and United Kingdom. the only option that would pass constitutional muster. By focusing on the way in which information is revealed when combining internet

Privacy and Connected Objects to give police “exceptional access” to decrypted Nicolas Karsenti (Student-at-Law, Stikeman data, and empowering police to compel Elliott LLP, Québec) (May 2019) 17 Can. J. L. & individuals decrypt their own data. Tech. 34 This article evaluates each of these alternatives in the context of policy and constitutional law. We The paper explores the privacy concerns that conclude that exceptional access, though very emerge from connected objects. More likely constitutional, creates too great a risk of specifically, it examines how these objects fit data insecurity to justify its benefits to law within the framework of Quebec's privacy enforcement and public safety. Compelled legislation, as well as Canada's federal privacy decryption, in contrast, would provide at least a legislation. It also seeks to highlight the current partial solution without unduly compromising flaws in the application of this framework to data security. And while it would inevitably connected objects. attract constitutional scrutiny, it could be readily designed to comply with the Charter. By Big Brother Riding Shotgun: Internal requiring warrants to compel users to decrypt and 2019 CanLIIDocs 3798 Surveillance of Semi-Autonomous Vehicles giving evidentiary immunity to the act of and Its Effects on the Reasonable Expectation decryption, our proposal would prevent of Privacy inquisitorial fishing expeditions yet allow the Tunca Bolca (LL.M. candidate, University of decrypted information itself to be used for Ottawa) (May 2019) 17 Can. J. L. & Tech. 77 investigative and prosecutorial purposes.

The practice of internal surveillance of Protecting the Right to Privacy in Digital autonomous vehicles raises novel privacy Devices: Reasonable Search on Arrest and at concerns for the drivers and passengers of these the Border vehicles. In Canadian jurisprudence, it has been Robert Diab (Faculty of Law, Thompson Rivers accepted that individuals have a reasonable University) (2018) 69 U.N.B. L.J. 96 expectation of privacy in their vehicles and are protected from unreasonable searches of the state Canada’s courts in recent years have consistently under s. 8 of the Canadian Charter of Rights and recognized a high degree of privacy in the content Freedoms. This article examines the concept of of digital devices. Yet the law authorizing device internal surveillance and identifies how the searches on arrest and at the border has failed to individual’s reasonable expectation of privacy reflect this higher interest. In both contexts, will be affected by the introduction of semi- courts have assumed that the state has a autonomous vehicles that use internal compelling interest in immediate access to device surveillance methods. data to advance pressing law enforcement objectives—but the claim is not supported by Law Enforcement Access to Encrypted Data: evidence. This paper builds upon earlier critical Legislative Responses and the Charter views of device search law and policy by Steven Penney (Faculty of Law, University of demonstrating that searches are being carried out Alberta), Dylan Gibbs (JD candidate, University on arrest and at the border without clear limits, of Alberta) (December 2017) 63 McGill L.J. 201 resulting in significant intrusions into personal privacy and without effective avenues of In our digital age, encryption represents both a recourse. Part I critically examines the Supreme tremendous social benefit and a significant threat Court’s justification in Fearon for authorizing to public safety. While it provides the confidence device searches on arrest, including its dismissal and trust essential for digital communications and of the U.S. Supreme Court's approach in transactions, wrongdoers can also use it to shield Riley v. California (requiring a warrant). Part II incriminating evidence from law enforcement, examines the Canada Border Services Agency’s potentially in perpetuity. There are two main rationale and practice for groundless device legal reforms that have been proposed to address searches under the Customs Act. Finally, it argues this conundrum: requiring encryption providers that the guarantee against unreasonable search in

section 8 of the Charter requires a warrant for Lifting the Judicial Embargo on Race-Based device searches at the border, because the state’s Charter Litigation: A Comment on R. v. Le interest in searching devices there is less pressing Danardo S. Jones (Graduate student, Osgoode than the state’s interest in searching a person. Hall Law School) (2019) 67 C.L.Q. 14 (Notes and Comments) R. v. White: Privacy in Common Spaces Chris de Sa (Justice of the Ontario Superior Court Legal scholars have long discussed the Supreme of Justice) (2018) 65 C.L.Q. 370 Court of Canada’s (the Court) erasure of race in its Charter jurisprudence. The lack of Up until White, the general consensus was that recognition is particularly noticeable in the the common spaces in a condominium or Court’s jurisprudence on policing. It is well- apartment were not subject to a reasonable established that African-Canadians and expectation of privacy by the building occupants. Indigenous people are disproportionately Courts had routinely rendered decisions rejecting detained, arrested and charged by police, and reasonable expectation of privacy claims in thereby overrepresented in the criminal process. 2019 CanLIIDocs 3798 several cases involving the common areas of Criminologists and legal scholars largely agree multi-unit buildings. This article is an that biased policing is one of the primary conduits examination of the White decision from the through which Black, Indigenous and other Ontario Court of Appeal. racialized bodies are funnelled into the criminal justice system. Despite this fact, the Court has CHARTER: Section 9 (Detention or only ever marginally engaged in a race-based Imprisonment) analysis of the Charter rights that are engaged by The Hidden Harms of Arbitrary Detentions on police encounters. In R. v. Le, the Court may have the Psychology of the Detainee and the potentially lifted the judicial embargo on the Reputation of the Administration of Justice discussion of race and biased policing; and, in so Nick Kaschuk (Of the Ontario Bar) (2017) 65 doing made a significant, and much needed, C.L.Q. 164 contribution to critical race Charter litigation. The precedential impact of the decision is When the subject of arbitrary detention is brought challenging to predict, but there is reason to hope up, reactions seem to differ based upon personal that Le will provide a veritable roadmap for and or communal experience. That said, the lawyers who are seeking to mobilize race in the intention of this article is not to dwell upon the detention analysis under s. 9 of the Charter. various reactions that arbitrary detentions provoke; rather, it is to identify and examine CHARTER: Section 11(b) (Trial within a some of the more insidious effects arbitrary Reasonable Time) detentions may be having. Following this, Fighting the Culture of Complacency: A consideration will be given to the obstacles that Comparative Analysis of Pretrial Delay are currently preventing the courts and the police Remedies in Canada and the United States from fully responding to such dangers. Finally, Myles Anevich (of the Ontario Bar) (March three possible solutions will be suggested to help 2019) 24 Can. Crim. L. Rev. 39 avoid and ultimately eliminate unjust detentions from occurring in the first place. It is hoped that The right to a trial without delay is fundamental by shedding a light on some of the more insidious to protecting the interests of those accused of harms which can result from unjust detentions, criminal acts. This right has been codified for the justice system will once again, turn its almost 1000 years and is enshrined in both the compassionate and moral genius toward solving Canadian and American constitutions. However, this problem. notwithstanding the long-standing recognition of this right, according to the Supreme Court of Canada in their landmark R. v. Jordan decision, the Canadian criminal justice system is beset by a culture of complacency. The American system

on the other hand does not have this problem. CHARTER: Section 24(2) (Exclusion of This paper attempts to answer the question “why Evidence) do cases resolve at such a faster rate in the Federal Exclusion of Evidence Under Section 24(2) of system of the United states, and can the methods the Charter Post-Grant in the Years 2014- used in ameliorating pretrial delay in the United 2017: A Comprehensive Analysis of 600 Cases States be imported into Canadian law?” To Benjamin Johnson and Victoria Weir (Recent answer this question first we must understand graduates of the Robson Hall Law School, how the right to a trial without delay operates in University of Manitoba), Richard Jochelson Canada and the United States respectively, both (Robson Hall Law School, University of from a theoretical as well as practical perspective. Manitoba) (2019) 67 C.L.Q. 57 Once this is determined we can then turn to the issue of what legislative reforms, if any, could be In 2009, in the landmark decision of R. v. Grant, implemented to accelerate processing times in the Supreme Court of Canada reformulated the Canada. At this second stage of analysis the framework for the constitutional exclusion of author suggests that eliminating preliminary evidence under s. 24(2) of the Canadian Charter 2019 CanLIIDocs 3798 inquiries will not be an effective remedy to the of Rights and Freedoms, resulting from breaches problem, and instead suggests a ‘Canadianized’ of Charter-protected rights. In the wake of version of the Speedy Trial Act of 1974, as well Grant, studies were conducted that analyzed as an infusion of resources into the criminal exclusion rates and other variables which will justice system. have significant impact on this article. A study, conducted by Richard Jochelson, Debao Huang Sentence Indication Hearings: Time for a and Melanie J. Murchison, analyzed Grant cases Canadian Version up until August 1, 2014, and found a Canada- David P. Cole (Justice of the Ontario Court of wide exclusion rate of approximately 66 percent; Justice) (2018) 65 C.L.Q. 320 a more recent study of 100 randomly selected cases found a 67 percent exclusion rate in 2016. The June 2017 Canadian Senate Committee This article picks up where Jochelson et al. left Report on lengthy court delays contains a brief off on August 2, 2014, using the same discussion of promoting more efficient methodology, and undertakes an analysis of mechanisms to reduce “late” guilty pleas. One of Grant cases up until August 1, 2017. Over that the Committee’s recommendations on point is period, on the basis of the reported case law, there that the Criminal Code be amended “to add a has been a Canada-wide increase in rates of principle to s. 718.2 that when an accused person exclusion in the past three years at the trial court pleads guilty early in the proceedings, the court level. Trial decisions yielded an exclusion rate of should consider it to be a mitigating factor in 74.5 percent of at least one piece of evidence in a sentencing”. While helpful, this does little more case. Appellate cases yielded a much lower than confirm existing trial court practices exclusion rate of 21 percent exclusion; that is endorsed by appellate courts. The Committee’s appellate courts excluded new evidence in 21 attention does not seem to have been drawn to percent of cases when the Grant test was experience in several common law jurisdictions undertaken de novo or when it was repeated to in various parts of the world where ‘sentence correct errors. If we calculate the results to a indication hearing schemes’ have been Canada-wide exclusion rate, the global rate of functioning for at least two decades. The purpose exclusion of evidence is 62.4 percent which of this article is to describe the principles and suggests a significant decrease after the first five structures under which most of these schemes years of Grant. We also review other statistics of currently exist, and to recommend that pilot interest related to exclusion of evidence below. projects be expeditiously set up in several courts First, we undertake a truncated review of the to determine their utility in the Canadian context. development of the exclusionary test. Secondly, we share the methodology and results of our study. Last, we conclude by noting that though exclusion rates have shifted, the differences in

rates over time are not so dramatic that they We explore these findings within the legal cannot be explained by mundane hypotheses. context of the Youth Criminal Justice Act.

YOUTH CRIMINAL JUSTICE ACT: Sections 28-31 YOUTH CRIMINAL JUSTICE ACT: Sections 117- (Detention and Release) 129 (Access to Records) YCJA Bail Conditions: “Treating” Girls and Off the Record: A Critical Analysis of Youth Boys Differently Record Disclosure Practices Jane B. Sprott (Department of Criminology, Chantelle Van Wiltenburg (JD candidate, Ryerson University), Allan Manson (Faculty of University of Toronto) (Winter 2018) 76 U.T. Law, Queen's University) (February 2017) 2 Can. Fac. L. Rev. 29 Crim. L. Rev. 77 In an age of rapid technological advancement, Concerns have been raised about the volume and third party requests for police record checks have nature of bail release conditions imposed on proliferated. Police record disclosure practices youths. Using a representative sample of youth present unique legal issues when such records fall 2019 CanLIIDocs 3798 court cases from a large urban court, we explore under the jurisdiction of the Youth Criminal the number of conditions imposed and the Justice Act (YCJA). This article critically imposition specifically of a ‘treatment’ based evaluates the legitimacy of criminal record release condition. We find a large volume—on disclosure practices in the youth criminal justice average around seven—conditions imposed and a context, and traces the impact of such practices relatively broad use of ‘treatment’ conditions on two critical areas of a young person's life: with 49 percent of the sample receiving such a housing; and employment. This paper suggests condition. We also, however, find a gender that in such contexts, police services should not difference in the use of treatment conditions. facilitate third party youth record disclosure for Specifically, while the nature of the offence, several reasons: first, a young person’s consent is number of charges and previous charges all help arguably deficient; second, the uses to which to predict the likelihood of having a condition to these records will be put contravene the privacy attend a treatment program imposed for boys, provisions of the YCJA; and third, these practices those factors do not predict the likelihood for undermine the YCJA’s broader aims of privacy girls. Girls appear to be given that condition more protection and rehabilitation of young persons. often than boys, and factors other than the To conclude, this article highlights provincial offence, the number of charges and previous legislation’s pivotal role in implementing the charges appear to be driving the imposition of a overarching goals of the YCJA, and provides condition to attend a treatment program for girls. some suggestions for legislative reform.

TRITE BITES ______

Firearm Bail Hearings in the Post-Antic Landscape

Simon Heeney & Tanya Kranjc, Toronto Firearm Bail Team

Gun violence is on the rise. The proliferation of Reverse Onus and s. 515(6)(a)(viii) of the firearm offences—whether that be possession, Criminal Code trafficking or use offences—plague both our larger cities and smaller towns throughout Most of the time it is obvious when the various Ontario. Bail hearings are the Crown’s first reverse onus provisions under s. 515(6) apply to 2019 CanLIIDocs 3798 chance to speak on behalf of the community about a case, but subsection 515(6)(a)(viii) merits some the inherent dangers in these cases, both as those closer consideration. Under this subsection, it is dangers relate to the circumstances of the a reverse onus situation when an accused is Crown’s case and the particular threat an accused charged with offences that involve a firearm (or may pose to public safety. Here are some ammunition, prohibited device, etc.) while under practical tips that hopefully will help you in your a prohibition order within the meaning of s. 84(1) show cause submissions in firearm cases, of the Code. A prohibition order is defined as drawing on our experience on the Toronto any order made under the Code or any other Act Firearm Bail Team. of Parliament that prohibits someone from possessing any firearm, cross-bow, prohibited Antic, the Ladder Principle and Reverse Onus weapon, restricted weapon, prohibited device, Hearings ammunition, prohibited ammunition or explosive substance. This includes the obvious, such as Following the Supreme Court of Canada’s prohibition orders under s. 109 and s. 110 of the decision in R. v. Antic,1 there was some debate in Code or s. 51(1) and s. 51(3) of the Youth lower court judgments about whether the ladder Criminal Justice Act.6 However, it also includes principle outlined in s. 515(3) of the Criminal ‘no weapons’ conditions on bail orders, probation Code2 should apply in a reverse onus situation. In orders or section 810 to 810.2 recognizances. It the bail review decision of R. v. Ishmael,3 Justice is not unusual to see fail to comply or breach of Goldstein found it is an error in law for a justice recognizance charges laid in firearm cases when of the peace to apply the ladder principle in such an accused is on bail or probation. However, situations. In a fulsome analysis of this issue, he police officers are frequently unaware of the held: “[w]hen properly read Antic does not ability to also add a possession contrary to a overturn the notion that the ladder principle does prohibition order charge under s. 117.01 in these not apply in a reverse onus situation”.4 It is the situations, or of the reverse onus nature of such accused who must show cause in a reverse onus hearings. hearing under s. 515(6) and it does not fall to the Crown to justify more stringent conditions. Why Illegal Handguns are a “Social Evil” that is important is this: if an accused’s release plan is weak or otherwise insufficient, that can be The proliferation of handguns has been a basis for an argument for her or his detention repeatedly denounced by the Courts. Secondary because he or she will not have met their onus.5 and tertiary ground submissions should clearly include the recognition of the very real and specific dangers posed by illegal handguns, which are always either restricted or prohibited.

An poignant example can be found in the decision In a Strong Case, a Detention Order is the of R. v. Kawal, where Justice Harris stated: Expected Result

Handguns are a social evil… Gun-related The tertiary ground under s. 515(10)(c) specifies crime poses grave danger to Canadians… four factors that the Court must consider: (1) the The primary purpose of handguns is the apparent strength of the prosecution’s case; (2) maim and kill… They are a disease, a the gravity of the offence; (3) the circumstances plague on our communities. We have the surrounding its commission; and (4) the potential means at our disposal to eradicate or at for a lengthy term of imprisonment. It is least to drastically curtail them. It is important to highlight that the third and fourth difficult to understand why our society factors require the presiding jurist to consider would not do everything in its power to firearms specifically—that is whether or not a ensure that handguns are not available for firearm was used in the third factor, and if there criminal purposes.7 is any mandatory minimum sentence of three years or more for a firearm-related offence in the 2019 CanLIIDocs 3798 The Kawal decision includes a series of helpful fourth factor. You should argue that the tertiary comments by Justice Harris about the dangers ground necessitates the detention of an accused in that firearms pose, but the part that speaks firearm cases, in particular where the Crown has directly to the secondary and tertiary grounds is a strong case, given that in such situations the as follows: other three factors will usually be present. In the face of defence arguments to the contrary, it is A person does not stumble upon an illegal worth remembering that the “tertiary ground is a firearm. There is a process of purchasing constitutionally valid limit on the constitutional from a trafficker and secreting the handgun protection of the presumption of innocence”.10 In to avoid detection and prosecution. There a strong Crown case where the four tertiary is high degree of deliberation and ground factors have strong force, the “denial of contemplation involved. In order to release is the usual or expected result”.11 dissuade those who would possess and use firearms, there is a duty to ensure that there The Current Climate: It Matters is no mistake about the not-give-an inch opposition and contempt for all that Most bail hearings for possession or use of handguns represent.8 firearm offences obviously engage the tertiary grounds. Therefore, they also engage what is If a firearm is found in conjunction with any actually happening in real time, in the narcotics, it is important to highlight to the Court communities where that offence is alleged to have that it is being “used” under the third enumerated been committed. In Toronto, for example, “the factor in the tertiary ground as a tool of the drug proliferation of handguns in the Greater Toronto trade, even if not brandished or fired. Courts Area has been decried by the courts and the public have time and time again highlighted that this for many years. It is a pressing and urgent matter combination increases the seriousness of the of public safety”.12 In R. v. St. Cloud, the firearm possession. In R. v. Wong, the Court of Supreme Court told us that “‘[t]he media have a Appeal held: vitally important role to play in a democratic society’… such opinion evidence can therefore The courts have repeatedly emphasized be considered by the courts when it is admissible that the toxic combination of drugs and and relevant”.13 guns poses a pernicious and persisting threat to public safety and the welfare of How does that help? While newspaper articles the community. The social ills, including may offer some evidence of the community associated criminal conduct, fueled by this sentiment, police forces also release statistical combination is now well recognized.9 data about firearm offences. You can go straight to the source for information relevant to your

hearing. This data is updated frequently and Therefore, you should continue to ask these speaks directly to what is happening in our cities. questions of potential sureties in appropriate In Toronto, for example, as of September 22, circumstances. Come prepared with the case law 2019 there have been 325 shootings with 484 and your arguments as to why these questions are victims. This is an increase of nearly 250% from probative and relevant to a live issue at the bail 2014.14 Similar data is also available for the hearing. For example, the questions can elicit following urban centres: helpful evidence about the ongoing risk to the victim(s) or public, the relationship between the • Ottawa;15 accused and the surety and the strength of the • Windsor;16 Crown’s case. A word of caution though: “[I]f • London;17 and the prospective surety does not seek or receive • Thunder Bay.18 information about the allegation from the accused, that should not reflect adversely on the 22 These statistics provide tangible evidence of the acceptability of the surety”. real threat firearm offences are causing in these 2019 CanLIIDocs 3798 communities. They can be used in your Paper PALs: submissions on the tertiary ground, specifically as they relate to the circumstances of the offence and We would like to conclude with one final the public’s confidence—especially a public recommendation. Sometimes a person charged mired in gun violence—in the judicial system. with a firearm offence may have a valid Possession Acquisition Licence (PAL). For Cross-Examining a Surety on Discussions with example, think of a domestic violence case with the Accused about the Offence: an allegation that a firearm was used or even simply that the accused otherwise possesses such Often in a bail hearing, the Crown will ask a a licence. Although a bail order will include a ‘no proposed surety about their discussions with the weapons’ clause and a clause that the accused accused about the allegations. There are two must surrender his or her firearm to the police, the recent cases worth knowing on this issue. The accused may still have a paper copy of the PAL first is R. v. K.K.,19 which prohibits the Crown at home. In those circumstances, there is a risk from asking questions to elicit admissions made the accused will simply walk into a store with the by the accused to the proposed surety. In the PAL and obtain a new firearm. You should ask second, R. v. P.N.,20 Justice O’Marra rejected the Court to include a bail term that the accused Justice Harris’ broad prohibition on such surrender the PAL to the officer-in-charge or questions. Instead, Justice O’Marra ruled that designate within 24 hours of their release, questions about statements made by the accused pursuant to s. 515(4.11) of the Code. In addition, to the surety about the allegation(s): (1) do not ensure that the presiding Justice requests that a negatively impact the fair trial interests of the copy of the Recognizance of Bail be forwarded to accused; (2) can be limited by the bail jurist if the Chief Firearms Officer. There is a check box they become abusive or protract the proceedings; on the bottom of the standard bail recognizance and, most importantly, (3) “such questions may for the clerk’s or registrar’s assistance in this be relevant to the strength of the Crown’s case regard. and in some cases to the protection of the public”.21

 The views or opinions expressed in this article are 4 Ibid at para. 32. those of the authors, and do not necessarily reflect 5 See also R. v. Sakhiyar, 2018 ONSC 5767 at para. 7; those of the Ontario Ministry of the Attorney General R. v. Anderson, 2018 ONSC 5720 at para. 51. But or the Ontario Crown Attorneys Association. see R. v. Pascal, 2018 ONSC 2896 at para. 41. 1 2017 SCC 27. 6 S.C. 2002, c. 1. 2 R.S.C. 1985, c C-46. 7 2018 ONSC 7531 at para. 11 [Kawal]. 3 2019 ONSC 596. 8 Ibid at para. 16.

9 2012 ONCA 767 at para. 11. 10 Anderson, supra note 5 at para. 67. 11 Ibid at para. 72. 12 Kawal, supra note 7 at para. 13. 13 2015 SCC 27, citing Canadian Broadcasting Corporation v. New Brunswick (A.G.), [1991] 3 S.C.R. 459 at 475. 14 Toronto Police Service, TPS Crime Statistics— Shootings, online: . 15 Ottawa Police Service, Crime Stats, online: . 16 Windsor Police Service, Crime Statistics, online: . 2019 CanLIIDocs 3798 17 London Police Service, Crime Statistics, online: . 18 Thunder Bay Police Service, Crime Map, online: . 19 2019 ONSC 1578. 20 2019 ONSC 2858. 21 Ibid at para. 5. 22 Ibid at para. 8.

Revoking Suspended Sentences

Jennifer Ferguson, Kingston Crown Attorney’s Office

The Criminal Code provides for it. But how dismissed, or the offender has given written often is it done? This trite bite is to remind notice that they either elect not to appeal or have Crowns of the availability of s. 732.2(5) in our abandoned their appeal. The application must be tool kits. brought while the probation order is in force. Once the probation order has expired, the court It is trite that when the term ‘suspended has no jurisdiction to revoke it and impose sentence’ is used in Canadian criminal law, it is sentence, even where the act giving rise to the a short form of the expression ‘suspended Crown’s application occurred during the passing of sentence’. It derives its current currency of the order.2 However, where the existence from s. 731(1)(a) of the Criminal probation order is revoked prior to its expiration, 2019 CanLIIDocs 3798 Code, which provides that “Where a person is the adjournment of sentencing to a time beyond convicted of an offence, a court may, having the period when the probation order would have regard to the age and character of the offender, expired is not fatal.3 the nature of the offence and the circumstances surrounding its commission, if no minimum Notice must be given to the offender in writing.4 punishment is prescribed by law, suspend the In R. v. Tuckey, the Ontario Court of Appeal passing of sentence and direct that the offender held that, although the present Criminal Code be released on the conditions prescribed in a did not require the formalities of an information probation order”. and was silent as to procedure, the basic principles of natural justice must prevail. These Subsection 732.2(5)(d) of the Criminal Code include fair notice and full answer and defence. sets out that where an offender who is bound by The notice should clearly articulate the nature of a probation order is convicted of an offence, the proceedings, the grounds upon which the including breach of probation, the court that Crown intends to rely in support of its made the probation order may require the application, the nature of the order sought, and offender to appear before it and, after hearing the hearing date. the prosecutor and the offender, may: revoke the order and impose any sentence that could have The Court may issue a summons, warrant or been imposed if the passing of sentence had not production to the compel the offender’s been suspended; make such changes to the attendance.5 A hearing is held, and both the optional conditions as the court deems desirable; Crown and the offender make submissions. An or extend the period for which the order is to offender is entitled to be represented by counsel remain in force for up to one year. This is in and may be entitled to an adjournment for that addition to any other punishment for the new purpose.6 substantive offence or breach. When an offender violates their probation order, The application must be made by the prosecutor whether by breaching a specific condition of the to the court that made the original probation order or by virtue of having been convicted of order.1 In some cases, where an offender is another substantive office, an application under subsequently charged in the same jurisdiction, s. 732.2(5)(d) is appropriate. The court has a this may result in a blended sentencing and broad discretion as to the appropriate order to revocation hearing. In other cases, separate made. Where the probation order is revoked, the hearings before different courts may be held. trial judge may impose “any sentence that could An application may not be made until the appeal have been imposed if the passing of sentence period has expired, the appeal has been had not been suspended”. Proportionality does

remain paramount, although by virtue of their The principles applicable to suspended sentences conduct, the offender will have forfeited their also apply in the context of conditional right to leniency. The function of the trial judge discharges. Subsection 730(4) governs the becomes to substitute a sentence proportionate to consequences of an offender’s subsequent the offence which the offender had committed.7 conviction for any offence, including breach of This sentence is “in addition to any punishment probation. In addition to, or in lieu of, that may be imposed for [the subsequent] exercising its authority under s. 732.2(5), the offence”. However, the totality principle must court may revoke the discharge, convict the be respected.8 offender of the offence to which the discharge relates, and impose any sentence that could have One factor for Crown counsel to consider when been imposed if the offender had been convicted deciding whether to pursue an application under at the time of the discharge. s. 732.2(5)(d) is whether the offender is already facing a significant sentence for the breach or Where probation is imposed not as a result of a substantive offence charged. Where the court conditional discharge or the suspending of the 2019 CanLIIDocs 3798 revokes the probation order because of the passing of sentence, but as part of another commission of an offence while on probation, it sentence, then pursuant to s. 732.2(5)(e) the has no power to make the substitute sentence court may not revoke the probation order but consecutive to the sentence imposed for the may make such changes to the optional offence which brought about the revocation. conditions as it deems desirable, or extend the This is because at the time the passing of period of probation for up to one year. sentence was suspended and the accused was released on probation, he was not then serving  The views or opinions expressed in this article are any sentence to which the sentence could be those of the author, and do not necessarily reflect made consecutive.9 This leaves the Crown to those of the Ontario Ministry of the Attorney General either seek a longer appropriate concurrent or the Ontario Crown Attorneys Association. 1 sentence or to decide not to proceed with the This is the case unless the proper transfer procedure application in the circumstances. is observed. See R. v. Graham (1975), 27 C.C.C. (2d) 475 (Ont. C.A.).

2 See Re R. and Paquette (1980), 53 C.C.C. (2d) 281 Another factor is the procedural complexity of (Alta. Q.B.). probation breach enforcement compared to 3 See Re Montanaro and R. (1980), 55 C.C.C. (2d) breaches of conditional sentences. However, 143 (Que. C.A.). both the array and severity of potential penal 4 See R. v. Tuckey (1977), 34 C.C.C. (2d) 572 at 575 sanctions following proof of a breach of a (available on Q.L. at para. 10) (Ont. C.A.). probation order are much greater.10 In 5 Subsection 732.2(6) incorporates the provisions of R. v. Voong, the B.C. Court of Appeal explained: Part XVI and XVII with respect to compelling the appearance of an accused before a justice, with such Because a breach of the probation order modifications as the circumstances require. 6 See Tuckey, supra note 4 at 575 (available on Q.L. can result in a revocation and sentencing at para. 11). on the original offence, it has been 7 See ibid at 576 (available on Q.L. at para. 15). referred to as the “Sword of Damocles” 8 See R. v. MacArthur, 2018 PECA 10 (where the hanging over the offender’s head.11 accused had been sentenced the previous day for a separate crime committed against the same victim. For examples of significant punitive responses, The Prince Edward Island Court of Appeal held that see the cases of R. v. Moore12 and R. v. Patrick,13 it was an error in principle for the sentencing judge to in which suspended sentences were revoked and fail to consider the totality principle in relation to the other sentence). replaced with penitentiary-length terms of 9 imprisonment—five years and two years, See R. v. Oakes (1977), 37 C.C.C. (2d) 84 (Ont. C.A.); Re Risby (1975), 24 C.C.C. (2d) 211 (B.C. respectively. S.C.). A sentence to be imposed upon the revocation of a suspended sentence and probation where the accused is serving another sentence of imprisonment

is not able to be made consecutive to that other sentence where it was not yet imposed at the time the suspended sentence and probation was. The trial judge, upon revoking the probation order, only has jurisdiction to impose a sentence that could have been imposed had sentencing not been suspended, which does not include a consecutive sentence. See R. v. Clermont, [1988] 2 S.C.R. 171. 10 See R. v. McGill, 2016 ONCJ 138 at para. 48. 11 2015 BCCA 285 at para. 39. See also R. v. Carrillo, 2015 BCCA 192 at para. 35. 12 [1982] B.C.J. No. 416 (available on Q.L.) (C.A.). 13 2013 BCCA 321. 2019 CanLIIDocs 3798