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! 2 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 3 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.