CROWN'S NEWSLETTER - CanLII

CROWN’S

NEWSLETTER

VOLUME TEN

DECEMBER 2019

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

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CCrroowwnn’’ss NNeewwsslleetttteerr

Volume Ten

December 2019

© 2019 Ontario Crown

Attorneys’ Association

Any reproduction, posting, repub-

lication, or communication of this newsletter or any of its contents, in

whole or in part, electronically or in print, is prohibited without express

permission of the Editorial Board.

Please direct all communications to the Editor-in-Chief at:

[email protected]

The editorial board invites submissions for

publication on any topic of legal interest in

the next edition of the Crown’s Newsletter.

Submissions have no length restrictions

but must be sent in electronic form to the

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

Jennifer Ferguson

Lisa Joyal

Rosemarie Juginovic

Copy Editor

Matthew Shumka

Editorial Support

Allison Urbshas

Ontario Crown Attorneys Association

Suite 2100, Box #30

180 Dundas Street West

Toronto, Ontario

M5G 1Z8

Ph: (416) 977-4517 / Fax: (416) 977-1460

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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

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 possible. It is as simple

as that. Welcome Shumka!

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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

The role of the “Boucher” Crown is well known

to Canadian Prosecutors. The Supreme Court of

Canada’s oft-cited and well-worn decision in

R. v. Boucher1 considered the accused’s appeal

from a homicide conviction in which the Crown,

in its closing address to the jury, had expressed

their own personal opinion as to the guilt of the

accused—as opposed to, or perhaps in addition

to, the admissible evidence that the jury had heard

at trial. In allowing the appeal and ordering a new

trial, the Court admonished the impropriety of the

Crown in making these inflammatory

submissions.2 Prominently throughout the

decision, the Court took the opportunity to

describe the professional and legal obligations

expected of Crown Counsel with which we are all

now familiar. To paraphrase: as ministers of

justice, responsible to the fair and proper

administration of criminal law, the Crown

Prosecutor is duty-bound to present all credible

evidence in support of what is alleged to be a

crime; that duty extends to seeing that all

available legal proof of the facts is presented—

firmly, and to its legitimate strength—but also

fairly, and with integrity. The Crown neither

wins nor loses; rather, it is expected to conduct its

prosecution without feeling or animus, with the

single view of determining the truth in the

furtherance of justice.3

The legal-ethical obligations of Crown Counsel

as described in Boucher are but the foundational

starting points when considering the full gamut of

professional responsibilities that Canada’s

Criminal Prosecutor commits to upholding in

taking their oath of office. It seems rather

obvious 65 years after Boucher that Crown

Counsel should not employ invective,

inflammatory or vindictive language, or seek to

augment admissible evidence (or the lack of it)

with personal statements of fact or opinion about

the guilt of an accused. But the role of the Crown

as advocate and the legitimate boundaries of a fair

prosecution are not always so clear. There is

nuance and legal subtlety in ensuring the fair trial

rights of the accused, and no shortage of case law

to prove it. These challenges are amplified where

the accused is unable to retain counsel or chooses

to represent themselves. In such cases, the care

that Crown Counsel must already take in

remaining faithful to its role as a minister of

justice is given a heightened sensitivity toward

the fair trial rights of the unrepresented or self-

represented criminally accused.

This article discusses the legal-ethical duties of

Crown Prosecutors in their role as public officer

in the courtroom, primarily as those duties relate

to the prosecution of unrepresented accused

persons. The limits of Crown discretion and the

boundaries of Crown advocacy in ensuring fair

trials to prevent miscarriages of justice are also

explored. Finally, jurisprudence relating to the

duties of trial judges vis-à-vis the unrepresented

person—and some of the relevant issues that

Crown Prosecutors should be aware of to ensure

that trial fairness is preserved—is discussed. It is

expected that the information herein will assist

Crown Prosecutors in not only considering the

legitimate professional and legal-ethical

boundaries of their advocacy in the interests of

trial fairness generally, but that it will also

provide jurisprudentially-based practical

guidance for Crown Counsel in navigating the

legal pitfalls associated with the criminal

prosecutions of the unrepresented accused

specifically.4

Rise of the Self-Represented Accused

For anyone who frequents our country’s criminal

courts, the swelling numbers of unrepresented or

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self-represented criminally accused is obvious.5

This growing phenomena has been called a

“crisis” and is stated to be “one of the most

significant changes and challenges to the justice

system in 100 years”,6 with the case of Dellen

Millard representing himself in the Laura

Babcock homicide prosecution being perhaps the

most recent and notorious example.

The legal representation problem of

unrepresented or self-represented persons in

criminal proceedings is itself a problem for the

criminal justice system because, in part,

the typical criminal defendant would and

does have difficulty understanding the

criminal process, let alone defending

him/herself. Criminal accused tend to be

poorly educated, have low levels of

literacy, and lead disordered lives. [There

are many] immigrants or others (such as

Aboriginal defendants) who face language

and cultural barriers [and] significant

numbers of mentally disordered accused.7

In short, “[t]he criminal justice system often does

not work as it should” in the prosecution of

unrepresented accused.8 Anyone who has

prosecuted a self-represented person will be

familiar with the challenges and complexities of

what might otherwise have been a

straightforward matter. These challenges are

adroitly captured by Madame Justice Fuerst:

Whatever the reason for his or her status,

the self-represented accused is usually ill-

equipped to conduct a criminal trial. He or

she comes to court with a rudimentary

understanding of the trial process, often

influenced by misleading depictions from

television shows and movies. His or her

knowledge of substantive legal principles

is limited to that derived from reading an

annotated Criminal Code. He or she is

unaware of procedural and evidentiary

rules. Even once made aware of the rules,

he or she is reluctant to comply with them,

or has difficulty doing so. The limitations

imposed by the concept of relevance are

not understood or are ignored, and the

focus of the trial is often on tangential

matters. Questions, whether in

examination-in-chief or cross-

examination, are not framed properly.

Rambling, disjointed or convoluted

questions are the norm. The opportunity to

make submissions is viewed as an

opportunity to give evidence without

entering the witness box.9

Notwithstanding the frustrations that a self-

represented person presents to legally-trained

lawyers and judges, persons accused of having

committed criminal offences are nevertheless

statutorily entitled to represent themselves.10

This right to self-representation has been found

by the Supreme Court of Canada to be a principle

of fundamental justice—an entrenched

constitutional right.11 The Ontario Court of

Appeal has recently reaffirmed the nature of the

accused’s right to self-representation.12 This is

not, however, a right without limits:

[The self-represented accused] is not

entitled to any special advantages by virtue

of that status; the accused assumes the risk

of self-representation… The right of an

accused to make full answer and defence

entitles the accused to adduce relevant

evidence, to advance legal argument and to

address the Court. It carries with it no

licence to paralyse the trial process by

subjecting an endless stream of witnesses

to interminable examination on irrelevant

matters.13

In other words, the self-represented accused must

observe the same fundamental rules of the

courtroom as does the legally-trained barrister.

Even so, there remains a good deal of flexibility

with respect to how these fundamental rules are

applied to unrepresented accused. There are also

enhanced legal and ethical obligations on both the

Crown and trial judges in ensuring the fair trial

rights of unrepresented persons.

Legal-Ethics of Crown Counsel as Advocate

Before considering how the rules of our criminal

courtrooms are adapted to protect the fair trial

rights of the unrepresented accused, it is helpful

to first appreciate the legal-ethical responsibilities

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that govern Crown Counsel practicing within the

criminal justice system.

i. Professionally Regulated Ethics through Law

Societies

As with all other lawyers in the regulated legal

profession, Crown Counsel are subject to the

rules of their respective jurisdiction’s Law

Society. In Ontario, the Law Society of Ontario’s

(LSO) Rules of Professional Conduct14 (Rules)

govern lawyers’ professional ethics, including in

their dealings with unrepresented accused. Most

relevant for the public prosecutor are Chapters 5

and 7: “Relationship to the Administration of

Justice”; and “Relationship to the Law Society

and Others”, respectively.

Rule 5.1 of the LSO’s Rules is concerned with the

role of “Lawyer as Advocate”. The Rule speaks

specifically to the lawyer’s “Duty as Prosecutor”,

noting:

When acting as a prosecutor, a lawyer shall

act for the public and the administration of

justice resolutely and honourably within

the limits of the law while treating the

tribunal with candour, fairness, courtesy

and respect.15

This Rule, and the role of Crown Prosecutor, is

developed more fulsomely in the Ministry of the

Attorney General’s Prosecution Directive on

“Professionalism”.16

Rule 5.1-2 of the Rules establishes a list of 16

practices that a lawyer “shall not” engage in while

acting as an advocate, which include such

proscriptions as: knowingly mis-stating facts or

evidence; making reckless or knowingly-false

suggestions to witnesses; improperly dissuading

a witness from giving evidence; needlessly

abusing, hectoring or harassing a witness;

needlessly inconveniencing a witness;

deliberately refraining from informing the court

of any binding authority that the lawyer considers

to be directly on point and that has not been

mentioned by an adversary; etcetera. The rule

applies to both Crown and Defence Counsel

alike.

For its part, Rule 7.2-1 directs that lawyers “shall

be courteous, civil, and act in good faith with all

persons with whom the lawyer has dealings in the

course of their practice.”17 The related

Commentary highlights that the public interest

demands that legal matters entrusted to lawyers

“be dealt with effectively and expeditiously”,18

with the expectation that “each lawyer engaged in

a matter will contribute materially to this end”.19

It is striking that this concept has been stressed by

the Supreme Court of Canada in both the

R. v. Jordan20 and R. v. Cody21 decisions in

relation to the “culture change” demanded of all

justice system participants—that is, away from a

culture of complacency, frivolity and delay, to

one that strives toward efficiency, meaningful

collaboration and substantive pragmatism.

Rule 7.2-9 specifically addresses a lawyer’s

relations with unrepresented persons. That Rule

directs that a lawyer “shall” ensure that the

unrepresented person does not have the

impression that the lawyer acts for them or in

their best interests.22 Relatedly, the lawyer is

expected to ensure that the unrepresented person

understands that the lawyer’s comments may be

partisan and favourable to their own client—in

the case of Crown Counsel, representing the

public interest and the proper administration of

criminal justice. This Rule is especially

important for Crown Prosecutors to follow in

their dealings with unrepresented accused

persons in the context of any resolution or trial-

setting discussions and, to the extent possible,

should be conducted on-the-record to avoid any

misunderstanding about the nature of any

discussions held.

ii. The Role of the Crown Prosecutor and the

Nature of Prosecutorial Discretion

As quasi-judicial local ministers of justice,

Crown Prosecutors are expected to possess sound

judgement and to exercise professional discretion

in seeing that justice is done in individual cases.

They are dedicated to enhancing public safety and

promoting confidence in the administration of

justice and the rule of law. The Prosecutor’s

responsibilities include ensuring that every

prosecution is carried out in a manner consistent

with the public interest, which includes an

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overarching obligation of fairness to all parties

involved in the criminal justice system: the

accused; victims of crime; and the greater public.

In carrying out these functions, Crown

Prosecutors are granted significant discretion to

manage and conduct individual cases such that

justice is done in a manner responsive to the

particular circumstances of each case. The

discretion that Crown Prosecutors possess, when

exercised fairly and impartially, is essential to the

proper functioning of the Canadian criminal

justice system.23 The fair and impartial exercise

of this discretion takes on an elevated importance

when the Prosecutor’s adversary is a self-

represented accused.

Throughout the course of any prosecution the

Crown makes numerous decisions. Many of

these decisions are an exercise of prosecutorial

discretion. Others involve trial tactics and/or

advocacy. Still other decisions involve choices of

behaviour and how one conducts oneself before

the courts. The exercise of this discretion is

subject to some limits. The courts have defined

and delineated many of the legal-ethical

obligations of Crown Counsel in the trial forum,

including the legitimate boundaries of

prosecutorial discretion.

a. Prosecutorial Discretion in Krieger

The Supreme Court of Canada’s decision in

Krieger v. Law Society of Alberta24 was the first

major decision to address the nature of

prosecutorial discretion. It stated that among the

core elements of prosecutorial discretion are: (i)

the discretion whether to bring the prosecution of

a charge laid by police; (ii) the discretion to enter

a stay of proceedings in either a private or public

prosecution; (iii) the discretion to accept a guilty

plea to a lesser charge; (iv) the discretion to

withdraw from criminal proceedings altogether;

and (v) the discretion to take control of a private

prosecution. What is common to these various

elements of prosecutorial discretion is that they

all involve the ultimate decisions as to whether a

prosecution should be brought, continued or

ceased, and what the prosecution ought to be for.

It has long been held that as a matter of principle

and policy, courts should not interfere with

prosecutorial discretion. This notion is founded

upon respect for the separation of powers and the

rule of law. Under the doctrine of the separation

of powers, criminal law is within the domain of

the executive. As the Court stated in Krieger:

As discussed above, these powers emanate

from the office holder’s role as legal

advisor of and officer to the Crown. In our

theory of government, it is the sovereign

who holds the power to prosecute his or her

subjects. A decision of the Attorney

General, or of his or her agents, within the

authority delegated to him or her by the

sovereign is not subject to interference by

other arms of government. An exercise of

prosecutorial discretion will, therefore, be

treated with deference by the courts and by

other members of the executive, as well as

statutory bodies like provincial law

societies.25

Prosecutorial discretion has traditionally and

properly been afforded a broad scope. The only

basis for judicial review of an exercise of

prosecutorial discretion is abuse of process. As

was held in Krieger, “within the core of

prosecutorial discretion, the courts cannot

interfere except in such circumstances of flagrant

impropriety or in actions for ‘malicious

prosecution’”.26

b. Prosecutorial Discretion Revisited in

Anderson

The Supreme Court in a subsequent decision,

however, acknowledged that its use of the word

“core” in Krieger had left the law in a less-than-

clear state. Therefore, 12 years later, in

R. v. Anderson,27 the Court reiterated that: “…the

term ‘prosecutorial discretion’ is an expansive

term that covers all ‘decisions regarding the

nature and extent of the prosecution and the

Attorney General’s participation in it’.”28 While

the Court was careful to note the likely

impossibility of establishing a definitive list of

those sorts of decisions that fall within

prosecutorial discretion, it did provide some non-

exhaustive examples, in addition to those noted in

Krieger, in order to demonstrate that

discretionary decisions pertain to the nature and

extent of the prosecution. These further examples

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included: (i) the decision to repudiate a plea

agreement; (ii) the decision to pursue a dangerous

offender application; (iii) the decision to prefer a

direct indictment; (iv) the decision to charge

multiple offences; (v) the decision to negotiate a

plea; (vi) the decision to proceed by summary

proceedings or by indictment; and (vii) the

decision to initiate an appeal.29 The Court also

repeated from Krieger its caution against “routine

second-guessing” by courts, highlighting the

constitutional imperative of judicial non-

interference.30 The deference afforded by courts

to the prosecutor’s exercise of discretion remains,

of course, subject to judicial review for abuse of

process and a court’s authority to control its own

processes.31

ii. Crown Advocacy in the Trial Forum—Trial

Fairness & Miscarriages of Justice

As part of the Crown Prosecutor’s overriding

obligation to trial fairness in the exercise of their

discretion, they must vigilantly guard against

miscarriages of justice in whatever form. This is

particularly so when the accused does not have

the benefit of counsel advocating on their behalf.

In addition to the grounds of unreasonable verdict

and legal error, miscarriage of justice is its own

discrete ground of appeal.32 The term itself is not

easily defined but is most closely related to and

best understood in the context of procedural fair

trial rights:

A person charged with the commission of

a crime is entitled to a fair trial according

to law. Any error which occurs at trial that

deprives the accused of that entitlement is

a miscarriage of justice.33

Proof of actual prejudice is not required to

establish a miscarriage of justice; the mere

appearance of unfairness may suffice.34 Because

the Crown Prosecutor’s duties are public in

nature, the appearance of fairness takes on an

elevated import; accordingly, their “demeanour

and actions should be fair, dispassionate and

moderate; show no signs of bias; and be open to

the possibility of the innocence of the accused

person.”35 These ‘fair-play’ requirements have

legal-ethical implications for the Prosecutor’s

role as advocate within the criminal justice

system in a myriad of circumstances. Three

common themes are examined below, and are

applicable to both represented and unrepresented

accused alike.

a. Counsel’s Request to be Removed from the

Record

One such instance relates to counsel’s requests to

be removed from the record. Depending upon the

stage of the proceeding, in particular during the

very early stages of a case, Crown Counsel may

have no concern with counsel being removed

from the record—the earlier that counsel is

removed, the more time an accused has to find

another lawyer. But the situation can become

problematic in the post-Jordan era as boundary-

pressing trial dates approach, with the removal of

counsel meaning that an accused goes

unrepresented.

Such was the challenge in R. v. Short36, a first-

degree murder case where counsel sought to be

removed from the record some six weeks before

trial for reasons of non-payment of fees and a

breakdown in the solicitor-client relationship.

Despite counsel’s submissions that, in addition to

non-payment, there were ethical concerns that

prevented him from continuing to act for the

accused, the trial Crown opposed counsel’s

application. The trial judge dismissed the trial

counsel’s application and required counsel to

continue to act for the accused at trial. The

accused was convicted. He appealed to the Court

of Appeal. The Court found that the trial judge

had erred in law in his ruling, and that his ruling

had created the appearance of unfairness

regardless of whether it actually negatively

impacted the conduct of his defence.37 The

judge’s ruling rendered the trial unfair and

resulted in a miscarriage of justice, requiring a

new trial.38 And while the trial judge bore the

brunt of the Court of Appeal’s reproach, the Court

impliedly cast some aspersion toward the trial

Crown’s position, describing it thusly:

Crown counsel’s submissions can only be

read as suggesting that trial counsel’s

references to ethical concerns and loss of

confidence were camouflage for the real

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reason counsel wanted off the record—he

had not been paid.39

Based on these comments, it seems that the Court

of Appeal was cautioning the Crown from

challenging counsel’s assertions that an ethical

conflict existed within the privileged solicitor-

client relationship.

b. Theories of Liability

Within the context of the prosecution itself, the

Crown’s legal-ethical duties extend to the

permissible theories of liability advanced as part

of its prosecution. The Court of Appeal decision

in R. v. Kelly40 addressed this issue. Kelly was a

Crown appeal from a successful directed verdict

in a manslaughter prosecution that arose from a

botched attempted robbery of an illegal poker

game at a banquet hall. The Crown’s primary

theory was that Kelly was the getaway driver for

the two robbers (one of whom had shot and killed

one of the robbery victims), and thus culpable as

an aider, pursuant to s. 21(1)(b). Counsel

submitted that the evidence of one of the Crown’s

key witnesses undermined the Crown’s theory of

Kelly’s legal liability, in that it could not support

the inference that Kelly was, in fact, the getaway

driver. The Crown submitted that it was not

limited to the getaway driver theory, but could

rely on all legal bases for liability available on the

evidence. It argued that even if Kelly was not the

getaway driver, the jury could still convict him on

cell phone evidence that showed him to have

acted as a conduit of information from yet another

involved party (the ‘inside man’ at the poker

game) to the robbers—in other words, under the

common purpose provision of s. 21(2). The trial

judge accepted counsel’s submission that the

Crown was restricted to arguing that the

respondent was the getaway driver, limiting

Kelly’s liability to s. 21(1)(b), and allowed the

motion for directed verdict.

Allowing the Crown’s appeal on the basis of legal

error, the Court held:

The Crown is not bound to prove its case

according to any factual or legal theory.

Liability for an offence charged is

determined by an application of the law

relating to parties to an offence … to the

facts as found by the [trier]. Culpability

depends on the evidence and the legal

principles applicable to that evidence. The

Crown is entitled to rely on any route to

liability available on the evidence … There

is nothing per se unfair in the Crown

relying on different or alternate theories of

liability, as long as each is rooted in the

evidence.41

The Court was careful to circumscribe this

general rule “by the overriding need to ensure

trial fairness and, specifically, the accused’s right

to make full answer and defence”.42 Where the

Crown provides particulars, makes specific

representations or conducts its prosecution in

such a manner that the accused’s potential

liability is limited to a specific factual or legal

theory causing the accused to conduct their

defence accordingly, the defence may find

success in arguing that “any departure from the

specific basis of liability put forward, especially

after the evidence is complete, would unfairly

prejudice the accused’s ability to make full

answer and defence.”43 The result could be a

miscarriage of justice, but it is incumbent upon

the defence to take steps to properly limit the

Crown’s case and to demonstrate prejudice if the

prosecution goes beyond any “clear and

unqualified statement from the Crown that it is

relying exclusively on the factual basis advanced

in its theory of the case”.44 Absent any formal

particulars, or such unequivocal statements of

exclusive reliance on a particular theory, the

Crown is not limited to the particular theory it

chooses to advance.45

c. Crown Prosecutor’s Trial Conduct

The case of R. v. J.S.46 addressed an appeal from

conviction in a sexual assault case before a jury,

in which the Crown had committed improprieties

during her cross-examination and closing address

with respect to the appellant’s right to silence and

the proper characterization of forensic evidence.

The main issues at trial were whether the sexual

assault had occurred at all and, if so, the identity

of the perpetrator (the complainant could not

identify the accused as her assailant). A sexual

assault evidence kit disclosed no physical

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evidence of sexual intercourse. Trace amounts of

male DNA, including saliva, were found on the

complainant’s underwear, but the Crown’s

forensic expert could not conclude that the

appellant was the source.

The accused testified in his own defence. During

her cross-examination of the accused, the trial

Crown challenged the accused’s version of the

events by asking him why he did not tell the

police the entire story that he had told the jury.

The Court summarized the alleged improprieties

as follows:

Crown counsel returned to this theme

during her closing address to the jury,

submitting that the appellant and his

girlfriend had concocted their story to

explain the presence of his DNA in

response to the results of the forensic

testing. The Crown also invited the jury to

use “common sense” to conclude that the

saliva on the underwear came from the

appellant even though the forensic expert

was unable to come to this specific

conclusion.47

Calling the Crown’s statements “problematic and

inaccurate”, particularly in the absence of any

correcting jury instructions, the Court found that

the trial was unfair, resulting in a miscarriage of

justice.48 The Court chastised the Crown for what

it referred to as “the erosion of the appellant’s

right to silence and the mischaracterization of the

forensic evidence”.49 Given the evidentiary

frailties of the case, the Court cautioned the

Crown “to avoid impermissible lines of reasoning

and accurately present the evidence in addressing

the jury”.50 The Court also found that the trial

Crown’s repeated suggestions that the accused

was required to provide information to the police

or otherwise be helpful to them violated his right

to silence. This, the Court held, could have left

the jury with the impression that if the appellant

were an innocent person, he would have

volunteered certain information to the police and

provided them with an explanation consistent

with his innocence at the first opportunity.51

Moreover, in response to the Crown’s suggestion

that the appellant had tailored his evidence after

having received disclosure, the Court found that

this “amounted to an impermissible invitation to

the jury to use disbelief of [the accused’s]

evidence as evidence of guilt.”52 Finally, the

Court of Appeal found that the Crown had

“significantly mischaracterized the nature and

utility of the forensic evidence.”53 The danger in

mischaracterizing forensic evidence in front of a

jury is that they may treat such evidence as

infallible and, therefore, overemphasize its

significance; Crown Counsel therefore has a

heightened responsibility to ensure that such

evidence is carefully and accurately explained.54

Cumulatively, the above-described conduct by

the trial Crown raised the spectre that the jury was

misled, thereby resulting in an unfair trial.

Heightened Responsibilities of Crown Counsel

& Trial Judges with Unrepresented Accused

The legal-ethical responsibilities, with their

allowances and proscriptions, described above

govern the conduct of Crown Counsel as

advocate and the exercise of its discretion in all

circumstances. These responsibilities take on an

especially heightened importance in ensuring that

fair trial rights are honoured in the prosecution of

unrepresented accused. Trial judges, for their

part, have legal duties of their own when

unrepresented accused appear before them.

Given the nature of its role as a quasi-judicial,

local minister of justice, it is not a stretch to

suggest that the Crown Prosecutor also has a

positive ethical duty to assist trial judges in

discharging their duties to the unrepresented: to

guarantee a fair trial in both substance and

appearance; to mitigate undue prejudice that

could befall an unrepresented accused, even

through their own actions; and ultimately to avoid

miscarriages of justice. Practically speaking, the

Crown should welcome this ethical duty in order

to curtail fertile grounds for appeal, in particular

in those cases where the accused is convicted and

a successful appeal could lead to a re-trial.

i. The Crown’s Enhanced Disclosure Obligations

Before examining the special legal obligations

that trial judges owe to unrepresented accused

and considering ways that the Crown Prosecutor

can help safeguard them, the Crown’s core legal

obligation of providing full disclosure to self-

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represented accused requires consideration. The

Crown’s disclosure obligations are well-known

and need not be repeated here.55 However, when

prosecuting an unrepresented person—in

particular, an unrepresented accused in pre-trial

custody—both the Crown and the trial judge have

enhanced obligations to ensure that the accused’s

right to full disclosure has been fulfilled. The

case of R. v. Tossounian,56 provides a recent

example of this obligation. In Tossounian, the

accused, who was unrepresented throughout the

proceedings, had spent more than six months in

custody at the Vanier Institute before and during

her trial. She was ultimately convicted of arson

and possession of incendiary material for the

purpose of committing arson. The unrepresented

accused appealed on two bases: (1) that her right

to a fair trial and the right to make full answer and

defence was compromised by the Crown’s failure

to provide disclosure; and (2) that the trial judge

failed to provide adequate assistance to her,

particularly by failing to ensure she understood

her right to full disclosure.57

The facts relating to disclosure are, briefly, as

follows: disclosure occurred in three stages: a

144-page disclosure package was handed to the

accused in court; an expert report of a CFS

chemist was personally served on the accused

some months later; and, finally, the Crown

delivered an additional disclosure package of

over 500 pages to the Vanier Institute, instructing

the Institute to place the package in her property.

The problem that arose is that the Vanier Institute

did not advise the accused of having received the

last round of disclosure and, although it had been

placed in the accused’s property, she did not

become aware of it until after trial. Noting the

Crown’s attempt to make full disclosure of all

materials, the Court nevertheless concluded that

the Crown “did not take adequate steps to ensure

that the appellant received them.”58 The Court

held that, in determining whether there has been

a breach of the right to disclosure, the standard of

due diligence imposed on an unrepresented

accused in custody “must necessarily be

minimal.”59 The Court held as follows:

I would conclude the Crown failed to make

full disclosure. I appreciate the

complications in making disclosure to an

unrepresented accused person who is in

custody. The Crown must resolve these

complications in order to fulfill its

responsibility to ensure the relevant

materials make it into the hands of an in-

custody accused. This may involve

personal service of materials. It may

involve further court appearances

including videoconferences, to ensure that

disclosure is complete and the case is ready

for trial. It will depend on the

circumstances of each case. In this case,

the problem might have been diminished

had the set-date judge made further

inquiries on the state of Crown disclosure

and expected delivery dates. Similarly, a

readiness hearing held reasonably in

advance of the trial could have served to

alleviate or eliminate the inadequate

disclosure.60

On this basis, the Court of Appeal found that

Ms. Tossounian’s right to a fair trial was violated.

The Court allowed the appeal, set aside the

findings of guilt, and ordered a new trial as a

remedy under s. 24(1) of the Charter.

ii. The Trial Judge’s Legal Obligations to the

Unrepresented Accused

It is a long-standing requirement of Canadian law

that trial judges must provide meaningful

assistance to unrepresented accused. Judges, as

with other members of the criminal justice

system, share in the responsibility to ensure that

self-represented accused are provided with fair

access and equal treatment before the law. The

case that is most frequently cited in support of this

enhanced legal obligation of judges is

R. v. McGibbon,61 in which the Court of Appeal

for Ontario held:

Consistent with the duty to ensure that the

accused has a fair trial, the trial judge is

required within reason to provide

assistance to the unrepresented accused, to

aid him in the proper conduct of his

defence, and to guide him throughout the

trial in such a way that his defence is

brought out with its full force and effect.

How far the trial judge should go in

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assisting the accused in such matters as the

examination and cross-examination of

witnesses must of necessity be a matter of

discretion.62

The McGibbon principle has been repeated by the

Ontario Court of Appeal in numerous cases,

emphasising that while each case will be unique,

the Court must ensure that the self-represented

accused’s defence is brought out with its full

force and effect.63 The obligation to assist a self-

represented accused to ensure the fairness of the

trial has been described as a “heavy onus”,64

though this duty is circumscribed by a standard of

reasonableness, which accommodates a ranges of

options to ensure the requisite degree of

assistance is met.65 Some of the various issues

that arise in the trial forum – which affect both the

Court and the specific interests of the Crown – are

considered below.

a. Adjournments

The urgency of Jordan timelines has thrust the

s. 11(b) Charter right to be tried within a

reasonable time to the forefront of our criminal

justice system. All parties have an obligation to

ensure that matters proceed expeditiously through

the system. Occasionally, unrepresented persons

may seek adjournments of substantive hearings—

including on the dates they are to be held—for a

variety of reasons, including for the purported

reason that they wish to retain counsel pursuant

to their s. 10(b) Charter right. In such cases, the

Court of Appeal for Ontario has described that the

trial judge must balance two rights: first, the

accused’s constitutional right to be represented

by counsel including, when possible, counsel of

choice; and, second, the trial judge’s right to

control the trial process, which right encompasses

a wide discretion to grant and refuse

adjournments.66 The appellate courts will only

interfere with the exercise of this discretion where

the refusal of an adjournment request deprives an

accused of a fair trial or the appearance of a fair

trial.67 The Court of Appeal in R. v. Patel—a case

in which the self-represented accused was refused

an adjournment of his trial to try and retain

counsel—dismissed the accused’s appeal, stating:

As important as the right to counsel is, it is

not an unlimited right. It must be balanced

against the timely disposition of cases. …

There comes a point at which the court is

entitled to refuse any further adjournments

for the purpose of retaining counsel.68

In cases of late-in-the-day adjournment

applications by unrepresented accused, trial

Crowns should carefully consider the complete

history of the proceedings, and any indulgences

that the accused has already been granted, in

evaluating what submissions they will make to

the court.

b. Charter Inquiries

The trial judge’s obligations to provide

meaningful assistance to the self-represented

accused, in order to ensure that their defence is

brought forward with full force and effect, can

include the obligation of the court to raise Charter

issues on the judge’s own motion.69 The Ontario

Court of Appeal has stated that this specific

obligation should not trigger “on the mere scent

or intimation…”70 of a possible Charter

violation, but

… where there is admissible

uncontradicted evidence of a relevant

Charter breach, the trial judge has an

obligation to raise the issue, invite

submissions and enter upon an inquiry into

the infringement and its consequences.71

The suggestion in this article that the Crown

Prosecutor has a positive ethical duty to assist

trial judges in discharging their duties to the

unrepresented finds some support in the Court of

Appeal’s decision in R. v. Breton. In that case,

the Court stated that

… neither the trial Crown nor the trial

judge raised or otherwise alerted the

appellant to this [Charter] violation, or to

the connection between it and the evidence

located… and thus to the impact of the

violation on the admissibility of that

evidence.72

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In allowing the appellant’s appeal and ordering a

new trial, the Court found that the trial judge had

failed to provide adequate assistance to ensure

that the self-represented accused had received a

fair trial. As a best practice, trial Crowns should

consider raising Charter issues on the record to

foreclose this issue from becoming a fertile

ground of appeal.

c. How Much Judicial Assistance is Adequate?

There is no bright line formula for determining

how much assistance a trial judge must provide to

a self-represented accused. Every case will turn

on its own facts and will depend on the individual

unrepresented party before the court:

[The unrepresented accused’s] need for

guidance varies depending on the crime,

the facts, the defences raised and the

accused’s sophistication. The judge’s

advice must be interactive, tailored to the

circumstances of the offence and the

offender, with appropriate instruction at

each stage of the trial.73

The following present a non-exhaustive list of

meaningful efforts made by trial judges in trials

of self-represented accused that have satisfied the

Court of Appeal that adequate assistance was

provided:

• Identifying relevant issues for the accused;74

• Assisting the accused in framing questions to

elicit evidence that would be admissible and

relevant;75

• Providing an overview of the trial process;76

• Offering relevant materials on trial practice;77

• Explaining how to use transcripts;78

• Ensuring the accused had the opportunity to

meet and speak with witnesses;79

• Exhibiting tolerance and using plain language

with the self-represented accused;80

• Treating the accused with “genuine concern

and respect”;81 and,

• Treating the accused with respect and

dignity.82

To put not too fine a point on the trial judge’s

obligations to assist the self-represented, the

following excerpt sums it up as best as it can be

said:

There are no easy days in the trial of self-

represented litigants. It is all the more so

for self-represented litigants who appear to

be playing the system, bent on delaying the

day of reckoning until the 12th of never by

various devices. Consistent with the

mandate of R. v. Jordan and R. v. Cody, it

is essential that trial judges exercise their

trial management powers to ensure that

justice is not delayed. But in the case of

self-represented accused, they must not

lose sight of their well-established

obligation to assist, lest justice be denied.83

Conclusion

The evolution of expectations for the Crown

Prosecutor since the days of Boucher is apparent.

As local ministers of justice, the Prosecutor is

expected to exercise the great latitude of their

discretion in a manner that is fair, honourable,

instilled with integrity. It is to be exercised in the

interest of the public while responsibly advancing

the proper administration of criminal law to see

that justice is done, and that miscarriages of

justice are prevented. This discretion must be

exercised with the overarching obligation to

fairness in mind, which itself extends not only to

victims of crime and to the greater public, but also

to accused persons, and particularly to accused

persons defending themselves without the benefit

of counsel. To that end, the Crown Prosecutor

must recognise their legal and ethical

responsibilities, firmly comprehend the nature

and limits of their role as a public officer and

conduct their practice such that it encourages the

public’s confidence in the administration of

criminal justice. Remaining faithful to these high

principles will not only safeguard the fair trial

rights of both represented and unrepresented

accused alike, but will enhance the quality and

character of the criminal justice system overall.

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The views or opinions expressed in this article are

those of the authors, and do not necessarily reflect

those of the Ontario Ministry of the Attorney General

or the Ontario Crown Attorneys Association. 1 [1955] S.C.R. 16; 1954 CanLII 3 [“Boucher”]. 2 The Court, at that time, consisted of the following

Jurists, several of which expressed their own iterations

of reasons: Kerwin C.J., and Taschereau, Rand,

Kellock, Estey, Locke, Cartwright, Fauteux, and

Abbott JJ. 3 See Boucher, supra note 1 at 23-24, Rand J. 4 Throughout this article, the author uses the terms

‘unrepresented’ and ‘self-represented’

interchangeably, though in practice the true ‘self-rep’

may choose to represent themselves because they

believe that they are best suited to conduct their own

defence, whereas the unrepresented accused may

simply be unrepresented because they cannot afford

legal counsel and/or have been denied Legal Aid, but

would prefer to have a lawyer representing them.

‘Under-representation’ is also a growing concern, in

particular as it relates to recent budget cuts to Legal

Aid Ontario, but is beyond the scope of this article. 5 Canadian Judicial Council, Statement of Principles

on Self-Represented Litigants and Accused Persons

(Adopted by the CJC in September 2006) at 3. 6 Dr. Julie MacFarlane, “Millard’s self-representation

in murder trial an example of growing crisis”, The

Globe and Mail (1 November 2017). 7 Canada, Department of Justice, Court Site Study of

Adult Unrepresented Accused in the Provincial

Criminal Courts Part 1: Overview Report, by Robert

G. Hann et al. (Ottawa: Department of Justice, 2002)

at iv. 8 Ontario, Ministry of the Attorney General, Report of

the Review of Large and Complex Criminal Case

Procedures, by The Honourable P. LeSage &

Professor M. Code (Toronto: Queen’s Printer for

Ontario, 2008) at 156 [LeSage & Code Report]. 9 Ibid at 155 citing The Honourable Madam Justice M.

Fuerst, “The Self Represented Accused: The Trial

Judge’s Perspective” (2007) [unpublished] at 2. 10 See Criminal Code, R.S.C. 1985, c. C-46, s. 651(2),

where: “Counsel for the accused or the accused,

where he is not defended by counsel, is entitled, if he

thinks fit, to open the case for the defence, and after

the conclusion of that opening to examine such

witnesses as he thinks fit, and when all the evidence is

concluded to sum up the evidence” [emphasis added].

Similarly, s. 651(3) (ibid): “Where no witnesses are

examined for an accused, he or his counsel is entitled

to address the jury last, but otherwise counsel for the

prosecution is entitled to address the jury last”

[emphasis added].

11 R. v. Swain, [1991] 1 S.C.R. 933 at 972: “Given that

the principles of fundamental justice contemplate an

accusatorial and adversarial system of criminal justice

which is founded on respect for the autonomy and

dignity of human beings, it seems clear to me that the

principles of fundamental justice must also require

that an accused person have the right to control his

or her own defence… An accused person has

control over the decision of whether to have

counsel, whether to testify on his or her own behalf,

and what witnesses to call. This is a reflection of our

society’s traditional respect for individual autonomy

within an adversarial system” [emphasis added]. 12 See R. v. Imona-Russel, 2019 ONCA 252 at

para. 67: “[A]n accused person has the right to self

represent, and cannot be compelled to appoint counsel,

to pursue public funding through Legal Aid for

counsel, or to pursue a Rowbotham order appointing

counsel”. See, also R. v. Chemama, 2016 ONCA 579

at para. 58: “An accused has an unfettered right to

discharge his or her legal counsel at any time for any

reason. A court cannot interfere with this decision and

cannot force counsel upon an unwilling accused”. 13 LeSage & Code Report, supra note 8 at 159-60. 14 Law Society of Ontario, Rules of Professional

Conduct [Rules]. 15 Ibid, r. 5.1-3. 16 See Ontario, Ministry of the Attorney General,

Crown Prosecution Manual, Prosecution Directive D.

31—Professionalism (1 January 2018) [Crown

Prosecution Manual]: “Prosecutors are local Ministers

of Justice and as such have an obligation to discharge

their responsibilities with honour and integrity. A

Prosecutor must act fairly and dispassionately.

Prosecutors must make decisions in a manner that is

objective and consistent with the highest standards of

professionalism. A Prosecutor shall be courteous,

civil, and act in good faith with all persons with whom

she has dealings in the course of her professional

responsibilities. The conduct of the Prosecutor should

always reflect favourably on the administration of

justice, and inspire the confidence, respect and trust of

the community”. 17 Rules, supra note 14. 18 Ibid, r. 7.2-1 at Commentary 1. 19 Ibid. 20 R. v. Jordan, 2016 SCC 27 at para. 137. 21 R. v. Cody, 2017 SCC 31 at paras. 35-36. 22 Rules, supra note 14. 23 See generally Crown Prosecution Manual, supra

note 16, Preamble to the Prosecution Manual. 24 2002 SCC 65 [Krieger]. 25 Ibid at para. 45. 26 Ibid at para. 49. 27 2014 SCC 41 [Anderson].

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28 Ibid at para. 44. 29 Ibid. 30 Ibid at para. 46. 31 See ibid at paras. 48, 57-59. Concerning “tactics or

conduct before the court”, the Anderson Court quoted

Krieger that “such decisions are governed by the

inherent jurisdiction of the court to control its own

processes once the Attorney General has elected to

enter into that forum”. Supra note 24 at para.

47. “Superior courts possess inherent jurisdiction to

ensure that the machinery of the court functions in an

orderly and effective manner. Similarly, in order to

function as courts of law, statutory courts have implicit

powers that derive from the court's authority to control

its own process. This jurisdiction includes the power

to penalize counsel for ignoring rulings or orders, or

for inappropriate behaviour such as tardiness,

incivility, abusive cross-examination, improper

opening or closing addresses or inappropriate attire.

Sanctions may include orders to comply,

adjournments, extensions of time, warnings, cost

awards, dismissals, and contempt proceedings”.

Anderson, supra note 27 at para. 58. 32 See Criminal Code, supra note 10, s. 686(1)(a)(iii). 33 R. v. Fanjoy, [1985] 2 S.C.R. 233 at para. 11. 34 See e.g. R. v. Rushlow, 2009 ONCA 461 (where an

appeal was allowed and a new trial ordered after a

trial judge dismissed the accused’s Rowbotham

application. The Court of Appeal found a

miscarriage of justice on the basis that the failure to

appoint counsel resulted in an appearance of

unfairness and possibly the ability to make full

answer and defence). 35 Crown Prosecution Manual, supra note 16,

Preamble to the Prosecution Manual. 36 2018 ONCA 1 [Short]. 37 Ibid at para. 4. 38 Ibid at para. 39. See also R. v. Chemama, 2016

ONCA 579 at paras. 42-43, 58 (where the Court

found that the trial judge erred in forcing trial counsel

to continue, despite being asked to be removed from

the record, and that the trial judge had effectively

excluded the accused from the trial process, rendering

the trial unfair). 39 Short, supra note 36 at para. 28. 40 2017 ONCA 920. 41 Ibid at paras. 30-31. 42 Ibid at para. 32. 43 Ibid. 44 Ibid at para. 35. 45 See ibid. 46 2018 ONCA 39. 47 Ibid at para. 6. 48 Ibid at para. 10. 49 Ibid at para. 35. 50 Ibid at para. 48.

51 Ibid at paras. 50-55. 52 Ibid at paras. 60-63. 53 Ibid at para. 67. 54 Ibid at para. 78. 55 See R. v. Stinchcombe, [1991] 3 S.C.R. 326;

R. v. McNeil, 2009 SCC 3. 56 2017 ONCA 618 [Tossounian]. 57 Ibid at para. 5. 58 Ibid at para. 17. 59 Ibid at para. 19. 60 Ibid at para. 22. 61 (1998), 45 C.C.C. (3d) 334 (Ont. C.A.). 62 Ibid at 347. 63 See especially R. v. Varcoe, 2007 ONCA 194 at

para. 26: “It is a fine line that trial judges are required

to walk in dealing with unrepresented and self-

represented accused persons. Trial judges are to

avoid any conduct that may be seen to favour one

side over the other and to maintain their

independence as between the two. This obligation

must be balanced against the need to take steps to

ensure that no miscarriage of justice occurs as a result

of an unrepresented accused”. See also R. v. Jayne,

2008 ONCA 258; R. v. Richards, 2017 ONCA 424;

Tossounian, supra note 56; Sabir, 2018 ONCA 912;

R. v. Meloche, 2019 ONCA 521. 64 Richards, supra note 63 at para. 112. See

R. v. Breton, 2018 ONCA 753 at para. 14; Sabir,

supra note 63 at para. 18. 65 See Richards, supra note 63 at para. 111. 66 See R. v. Hazout (2005), 199 C.C.C. (3d) 474 at

para. 31 (Ont. C.A.). 67 See ibid; R. v. Patel, 2018 ONCA 541;

R. v. Budimirovic, 2015 ONCA 142 at para. 5. 68 Patel, supra note 67 at para. 3. 69 See Breton, supra note 64 at para. 15; Richards,

supra note 63 at para. 113. 70 Ibid. 71 Ibid. 72 Supra note 64 at para. 16 [emphasis added]. 73 Varcoe, supra note 63 at para. 27, citing

R. v. Phillips, 2003 ABCA 4 at paras. 22-23, aff’d

2003 SCC 57. 74 See R. v. Galna, 2007 ONCA 182 at para. 6. 75 See ibid. 76 See ibid. 77 See ibid. 78 See Jayne, supra note 63 at para. 6. 79 See ibid. 80 See ibid at para. 7; R. v. Kassim, 2015 ONCA 863

at para. 5. 81 Ibid at para. 7. 82 See R. v. Wills, 2011 ONCA 468 at para. 10. 83 Breton, supra note 64 at para. 19 [references

omitted].

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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

and 279.011 of the Criminal Code, and their

associated definition of “exploitation” in

s. 279.04, are dense and complex statutory

provisions that demand a multi-factored analysis.

We present the following cases as indicative of

the wealth of potential avenues of proof for

Crown counsel who prosecute human trafficking

offences. All cases of human trafficking feature

either real, threatened or apprehended violence,

and they call for counsel and courts to take a more

nuanced approach in their analysis of the

evidence and the legal issues that arise. We

suggest that because of the vital importance of

context in these cases, careful witness preparation

and thorough examination-in-chief of the

complainant can make the difference in the

Crown’s ability to prove the elements of human

trafficking offences beyond any reasonable

doubt.

R. v. A.A.1

We begin with the 2015 decision of the Ontario

Court of Appeal in A.A., written by Justice Watt.

The case provides an in-depth analysis of the

statutory definition of “exploitation” in s. 279.04

of the Code and sheds some light on its interplay

with s. 279.01.

The complainant, G.M.S., was a young girl who

had a troubled relationship with her parents, and

who suffered from depression, anxiety and sleep

disorders. G.M.S. and A.A. met when they were

16-years-old, and almost immediately became

involved in a relationship. A.A. professed his

love to G.M.S., and she believed him. She

believed that he wanted her, that he would protect

and take care of her, and that together they could

have the life they had always wanted.

During their four-month long relationship, A.A.

encouraged G.M.S. to dance at adult

entertainment clubs, and on at least one occasion

she had sexual intercourse in exchange for

money. All of the money G.M.S. earned went

straight to A.A. He would arrange for G.M.S.’s

transportation to and from work, and would

provide her with a place to stay, food to eat and

other necessities. As the relationship continued,

A.A. began to repeatedly physically assault

G.M.S. It was ultimately this assaultive

behaviour that caused G.M.S. to seek the

assistance of the police, who then arrested A.A.

At trial, A.A. was convicted of certain offences in

respect of G.M.S. (two counts of assault with a

weapon, one count of assault and one count of fail

to comply with an undertaking) and acquitted of

others (human trafficking offences under

ss. 279.011 and 279.02, and a prostitution related

offence under s. 212(2), as it then was).2 The

Crown appealed the acquittals and A.A. appealed

the convictions.

In concluding that A.A.’s appeal should be

dismissed, and that the Crown’s appeal should be

allowed, the Court of Appeal also found that the

trial judge erred in her interpretation and

application of the definition of exploitation in

s. 279.04.

The Definition of Exploitation in Section 279.04

Section 279.04 of the Code defines the term

“exploitation” in a very specific manner. Section

279.04 states:

(1) For the purposes of sections 279.01 to

279.03, a person exploits another person if

they cause them to provide, or offer to

provide, labour or a service by engaging in

conduct that, in all the circumstances,

could reasonably be expected to cause the

other person to believe that their safety or

the safety of a person known to them would

be threatened if they failed to provide, or

offer to provide, the labour or service.

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(2) In determining whether an accused

exploits another person under subsection

(1), the Court may consider, among other

factors, whether the accused

(a) used or threatened to use force or

another form of coercion;

(b) used deception; or

(c) abused a position of trust, power or

authority.

The Court of Appeal held in A.A. that, to establish

exploitation as defined by s. 279.04, the

accused’s conduct must give rise to a reasonable

expectation of a particular state of mind in the

victim.3 In essence, the Court found that the

following three conclusions emerge, on a

“straight-up reading” of s. 279.04:

1. the expectation of the specific belief created

by the accused’s conduct must be reasonable,

thus introducing an objective element;

2. the determination of the expectation is to be

made based on all the circumstances; and

3. the victim’s safety need not actually be

threatened.4

The Court additionally held that the term

“safety”, as used in s. 279.04, is not limited to

physical harm but also extends to psychological

harm.5

The overall assessment of exploitation in the

context of s. 279.04 calls for an objective

analysis, based on all the circumstances. While

the subjective belief of a complainant is not

entirely cast aside, it is also not to be considered

to the exclusion of an objective assessment.6

The Relationship of Sections 279.01 and 279.011

with Section 279.04

In addition to clarifying the definition of

exploitation in s. 279.04, the Court of Appeal also

provided some guidance on the relationship

between this statutory definition and the offence

provisions (ss. 279.01 and 279.011).

According to the Court, the Crown must establish

the following three elements to prove a human

trafficking offence under s. 279.01 or 279.011:

1. The conduct requirement—which is

established in different ways as particularized

by the offence provisions, including situations

where an accused exercises control, direction,

or influence over the movements of the victim;

2. The prohibited group requirement—for

instance, with respect to the offence of

trafficking an underage person under

s. 279.011, the requirement is met where the

person subject to the conduct of the accused is

under eighteen; and

3. The fault element—which has two

components:

a. The intent to do anything that satisfies the

conduct requirement, and

b. The purpose for which the conduct is done

(ie. the Crown must prove that the accused

acted with the “purpose” of exploiting or

facilitating the exploitation of that

person).7

Pulling it all together, the Court found that

s. 279.04 defines exploitation in the context of the

human trafficking offence provisions under

ss. 279.01 and 279.011, but that the actual fault

element in these offence provisions focuses on

the accused’s purpose. To that end, no actual

exploitation must occur or be facilitated for the

Crown’s prosecution to be successful.8

The Court’s application of these enunciated

principles to the factual circumstances in A.A. is

significant as the case includes common themes

that are repeated in many trafficking situations.

The facts of A.A. illustrate that a human

trafficking relationship often shares features of a

traditional domestic relationship between a

couple. However, relationships are complex

webs of details, and are comprised of small parts.

In a human trafficking case a trial judge must

assess the relationship as a whole, rather than

segmenting it into its separate parts.

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

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prostitute—rather, the complainant simply

viewed her relationship as abusive. However, by

relying solely on the subjective perspective of the

complainant, the trial judge failed to properly

apply the objective test that is required by the

human trafficking offence provisions.

Regrettably, the trial judge’s reliance on such a

narrow approach in her assessment of the

evidence resulted in an inaccurate and distorted

version of what actually occurred between A.A.

and G.M.S.

In human trafficking prosecutions, Crown

counsel should take time to elicit details of the

relationship between the accused and the

complainant. In submissions, Crown counsel

should also be clear about the objective test that

is to be applied to the trier’s assessment of the

alleged exploitative relationship. The Crown

should remind the trier of fact that such an

analysis not only takes into consideration the

subjective views of the complainant, but also the

totality of the circumstances making up the

relationship. By doing so, Crown counsel will

also assist the trier to consider all the factors

necessary to make a fair assessment of the

evidence before them.

An example of such an assessment is the 2018

decision of R. v. D.J. by Justice Coroza of the

Ontario Superior Court of Justice.

R. v. D.J.9

D.J. is a notable decision for Crown counsel as it

deals with the application of ss. 279.01 and

279.04 of the Code in the context of a long and

complicated domestic relationship. The decision

shows that an objective assessment of a

relationship and all its surrounding circumstances

is necessary for the purpose of s. 279.04, so that

human trafficking relationships are not

mistakenly characterized as “simply” abusive

“domestic relationships”.

D.J. and L.M. were in a relationship for over five

years. L.M. had a child from a previous

relationship and shared a second child, D., with

D.J. The court found that D.J. persuaded L.M. to

start escorting with a view to building a life

together. D.J. played a significant role in setting

up L.M. in the business. For instance, he took her

to purchase tools of the trade (condoms and

lubricant), he directed her to various hotels, he

convinced her to work with an agency, and took

her identification and personal belongings (which

he refused to return).

Even though L.M. worked for an agency that

arranged for her clients and transportation, the

court found that D.J. continued to exercise

significant control over L.M. For example, she

was required to keep him up-to-date with where

she was, how many clients she was seeing and

how much she was earning. Eventually, D.J.

became physically abusive towards L.M. too.

L.M. explained that she did not leave D.J. because

they were both originally from Nova Scotia and

“she had no one else in the cities that she lived

[in]”, within Ontario.10 She also indicated her

fear that if she did not comply with D.J.’s

demands, he would harm her and her family.

In assessing the evidence before him, and in

convicting D.J. of human trafficking, Justice

Coroza properly acknowledged the subjective

beliefs of L.M. In citing A.A., the trial judge also

considered L.M.’s fears to be objectively

reasonable in light of all the circumstances.

Furthermore, His Honour found that, apart from

the obvious evidence of physical violence, the

harm to L.M. “extended to psychological harm…

[A]s the relationship continued, L.M. felt

helpless”.11

R. v. Evans12

The Evans decision by Justice Boswell is

noteworthy in that it demonstrates some of the

common issues present with complainants qua

witnesses in human trafficking cases, and

recognizes that the offence provisions should be

interpreted with these contextual issues in mind.

Evans was charged with two counts of human

trafficking under s. 279.01 of the Criminal Code

in respect of two different complainants, K.J. and

A.B. In each case, the Crown alleged that Evans

had exercised control, direction or influence over

the complainants’ movements for the purpose of

exploiting them. The main issue in the case was

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whether Evans’s conduct was “for the purpose

of” exploitation. The judge held that if she were

to conclude that Evans had intentionally engaged

in conduct that caused K.J. or A.B. to provide

sexual services for money out of a reasonably

held fear for their safety, then the offences were

made out.

With respect to K.J., the trial judge found that she

and Evans had been involved in a lengthy

relationship that included explicit threats,

violence and frequent control. The judge was

satisfied that, during this relationship, the accused

had made overt threats to K.J., and that she

continued to work for him and give him all of her

money because she was intimidated by and

fearful of him. Other noteworthy facts found by

the trial judge were K.J.’s knowledge that Evans

had shot someone when he was younger, K.J.’s

observation of bullets in his safe, Evans’s allusion

to possessing a firearm and his threats to use it

against her. In the end, the trial judge had no

difficulty finding that the elements of s. 279.01

were made out.

With respect to A.B., the trial judge considered

the situation to be less clear cut. A.B.’s evidence

of her relationship with Evans did not include the

same kind of overt threats as those testified to by

K.J. In addition, A.B. had sought out Evans

because she knew him to be a pimp and had

wanted to engage with him on that basis.

Nonetheless, the trial judge found A.B. to be

“young and vulnerable financially and

emotionally”. A.B. testified that, as a result of

Evans’s conduct toward her (which had included

taking all of the money A.B. had earned,

imposing rules on her, becoming angry when she

“broke” the rules by meeting with an ex-

boyfriend and assaulting her when she wanted to

visit family instead of working), she lost the

ability over time to choose whether to engage in

sex work or not. She also recognized in retrospect

that her fear of him had led to this situation, even

though she was unable to articulate exactly why

she was scared. She said it was just “the vibes”

present in the relationship. In the end, Justice

Boswell found that through Evans’s conduct, he

had created a “culture of control…where it was

clear that dissent would not be tolerated”.13

The Evans decision provides an insightful and

careful analysis of the dynamics at play in human

trafficking relationships. Findings of exploitation

are always dependent on the context, but the task

of the trial judge is to take an aerial view of the

relationship and determine if a “culture of

control” exists, whether directly through physical

violence and threats, or in a more pernicious way,

through an attack on the complainant’s

psychological integrity, aimed at reinforcing the

futility of resistance.

R. v. Mohylov14

Two accused, Mohylov and Pavlovsky, were

alleged to be drug dealing pimps who used a

number of techniques, including the provision of

drugs, to control and benefit from the

complainant’s involvement in the sex trade.

Following a preliminary inquiry, the accused

were committed to stand trial on a number of

charges, including human trafficking. The

accused then applied to the Superior Court of

Justice for an order of certiorari, quashing their

committal.

The Mohylov decision is interesting for two

reasons. First, the reviewing judge, Justice

DiLuca, outlined the path to conviction on a

charge of trafficking under s. 279.01 of the

Criminal Code, where the offence is grounded in

a trust relationship that is based upon the

provision of drugs by an accused to a drug

addicted complainant. Second, Justice DiLuca

took a detailed look at the interplay between

ss. 279.01 and 279.04.

The complainant was 18-years-old when she

started as a sex trade worker. She met Mohylov

about half-a-year later. For the next two to three

years she worked off and on for Mohylov in the

sex trade, returning from time to time to her

family. Mohylov would post ads for the

complainant’s sexual services from either his or

her phone. The rates were based on what had

been charged for her in the past, and she placed

her own restrictions on the types of services she

would perform. Mohylov had total control of

who the clients were and would take the money

the complainant had received, sometimes while

the client was still present.

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During the last six months of the working

relationship, the complainant worked in a

basement in Newmarket. Mohylov and

Pavlovsky posted the complainant’s ads,

controlled her clients and told the complainant

what her schedule would be. She felt pressured

by both accused to work and to make more money

in order to keep them happy. Mohylov would yell

at the complainant until she saw a client, and the

complainant found him to be intimidating and

“scary”. Apart from a (non-specified) brief

physical altercation with Mohylov, the

complainant was never physically hurt by either

accused. However, she was always on call. Half

the money she earned would go to the accused

persons, who also took rent from the complainant

for the basement. The complainant also

apprehended disapproval from both accused

when she spoke with friends back home. She did

not have Wi-Fi access or her own phone. In

addition, while the complainant believed she was

in a romantic relationship with Mohylov, and he

would repeatedly tell her that he loved her, he

never spent any time with her.

A pervading feature of the relationship between

the complainant and the two accused was the

complainant’s growing addiction to drugs. While

in the Newmarket home, she was heavily using

drugs supplied by the accused. She paid for the

drugs from her share of her earnings, which often

required her to turn over all her earnings or

receive “credit”. She could sometimes leave the

home to “take a break” with her family but was

spending increasing periods of time in the house

due to her continuous drug use. Moreover, she

would not be able to leave without first paying off

any drug debt that she had accrued, and therefore

often left the home with no money. In addition,

while Mohylov would drive her home or to a bus

station, he never cut off contact with her while she

was away. He would lure her back by telling her

that he loved her and by promising to supply

drugs. The complainant would eventually return

to the Newmarket home because she needed more

money and drugs.

At the hearing of the certiorari application, the

two accused argued that their committal on the

charge of human trafficking ought to be quashed.

Justice DiLuca considered the arguments raised

by the defence, but ultimately dismissed them.

His Honour highlighted the very contextual, fact-

driven analysis that was required of the

committing justice. He concluded that a jury

could easily find that the evidence of the two

accused’s supply of drugs to the complainant for

her consumption had placed both accused in a

position of trust or power over the complainant.

Justice Diluca further found that the “the totality

of the circumstances” must be assessed to

determine whether a relationship is one of trust

and power. In this case, the issue was not whether

the accused created the drug dependency, but

whether they took advantage of that drug

dependency to achieve their desired end of

getting the complainant to perform sexual

services.

Justice DiLuca found, citing A.A., that the

evidence from the preliminary inquiry supported

an inference that the accused had controlled the

complainant through drugs, and that even if the

complainant did not subjectively believe that she

had been exploited, a jury could find that she had

been. In upholding the committal of both accused

on the charge of human trafficking, the judge

considered the complainant’s financial

dependence on the accused, the knowledge of

both accused that the complainant was addicted

to drugs and the common-sense inferences

flowing from the “drug user—drug dealer”

relationship that existed between the complainant

and the accused. The accused supplied drugs to

the complainant while she provided sexual

services. The complainant used drugs in a

quantity that resulted in her having little or no

money left over after her sexual services were

rendered. The accused then extended “credit” to

the complainant for the drugs, which could be

paid off through her performance of further sex

work. According to the reviewing judge, these

findings would be reasonably available to the

jury, and would support a finding that the accused

abused their position of trust or power over the

complainant through their “drug user—drug

dealer” relationship. Moreover, Justice DiLuca

found that the accused persons were an

unshakeable presence in the complainant’s life as

drug dealers, pimps, landlords and in Mohylov’s

case, as a love interest.

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The reviewing judge next looked at the interplay

between ss. 279.01 and 279.04. His Honour

noted that the inquiry under s. 279.04 is objective:

could the accused’s conduct be “reasonably”

expected to cause the fear for safety stipulated in

s. 279.04(1)? The judge also noted that, on the

evidence in this case, the “threats” referred to in

s. 279.04 could be to: (a) the complainant’s

psychological safety as a drug addict—the

accused’s promise of drugs was conditional upon

her continuing to perform sex work; or (b) the

complainant’s physical safety—drug dealers

might be expected to become violent with those

who did not pay their drug debts.

The more “complex” issue that Justice DiLuca

tackled, but did not ultimately decide, was

whether the knowledge requirement in s. 279.01

was an entirely subjective or hybrid inquiry. The

judge observed that this inquiry is made difficult

by the fact that while the accused must

subjectively intend the conduct in s. 279.01, the

“purpose” requirement of the provision is based

on s. 279.04 (which requires an objective

assessment). His Honour also saw a conflict

between s. 279.01 (which does not require the

complainant to be “actually” exploited), and the

definition in s. 279.04 (which defines a completed

act).

Justice DiLuca suggested that it may be that

s. 279.04 is simply to be read as a means of proof,

given the difficulty of divining an accused’s

subjective intention. Coupled with the common-

sense inference that an accused intends the

consequences of his act, the objective assessment

in s. 279.04 may broaden the circumstances in

which an offence under s. 279.01 can be proven,

particularly in those cases where the complainant

does not subjectively feel that she was being

exploited.

His Honour also observed that there were two

different and possible ways to interpret the mens

rea of the offence under s. 279.01:

• subjective anticipation that the intended

conduct would reasonably cause sexual

services to be performed out of fear; or

• objective knowledge that the intended conduct

would cause the complainant to perform

sexual services out of fear.

Neither would require proof of the complainant’s

actual fear. Ultimately, in this case, Justice

Diluca determined that some evidence existed to

satisfy each of these potential mens rea.

The Mohylov case supports the position that the

focus at a human trafficking trial ought not to be

solely or even primarily on the complainant’s

state of mind (although that can be an important

component). Rather, the key is to examine

whether the web of evidence establishes that the

entire relationship between the complainant and

the accused was exploitive in nature and was

constructed in that way by the accused. In

circumstances such as those described in

Mohylov, where the evidence paints a compelling

and detailed picture of the relationship, its

pervading features and the obvious vulnerability

of the complainant, it is difficult to conceive of a

situation in which this objective/subjective

distinction would be of any significance, even on

the standard of proof beyond a reasonable doubt.

The Mohylov case also highlights for Crown

counsel the importance of careful witness

preparation. The complainants in sex-related

human trafficking cases are always very

vulnerable, often in the throes of addiction or

withdrawal at the time of testifying, and

undoubtedly will not appreciate the legal

significance of the defining features of the

relationship, much less “insignificant” details that

may be the key to painting the complete picture

of the exploitation inherent within the

relationship. Small details, such as those which

were present in the Mohylov case, including the

ongoing contact between the accused and the

complainant even during periods of time when

she had returned to her family, are crucial to

establishing the factual narrative that a “chain” of

control had existed in the relationship. The

significance of such details can be independent of

whether the complainant apprehends the control

or not, or whether it was defined by conventional

physical or proximal means, or in some other

way.

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Conclusion

In conclusion, we end here where we began. The

Trafficking in Persons offence provisions of

ss. 279.01 and 279.011 of the Criminal Code, and

their associated definition of “exploitation” in

s. 279.04 all demand a multi-factored analysis.

There is no one key phrase or set of ‘magic

words’ to be uttered by a complainant that would

automatically necessitate a finding of exploitation

for the purpose of the offence provisions. Rather,

The views or opinions expressed in this article are

those of the authors, and do not necessarily reflect

those of the Ontario Ministry of the Attorney General

or the Ontario Crown Attorneys Association. 1 2015 ONCA 558 [A.A.]. 2 Following the decision in Canada (A.G.) v. Bedford,

2013 SCC 72, Parliament enacted legislative

amendments to the Criminal Code. Section 212

offences were primarily replaced with the offences

listed in ss. 286.1 to 286.5. 3 A.A., supra note 1 at para. 70. 4 Ibid.

counsel and courts must understand the ‘whole’

of the relationship between the complainant and

the accused, with due consideration of all the

circumstances. Careful witness preparation, and

a thorough and detailed examination-in-chief of

the complainant, will provide the trier of fact with

important assistance to properly assess the

relationship between the accused and the

complainant, and the extent to which ss. 279.01,

279.011 or 279.02 ought to apply.

5 Ibid at para. 71. 6 See ibid at para. 76. 7 Ibid at paras. 78-82. 8 Ibid at paras. 84-86. See also R. v. Urizar, 2013

QCCA 46 at para. 69. 9 2018 ONSC 1131. 10 Ibid at para. 127. 11 Ibid at para. 142. 12 2017 ONSC 4028. 13 Ibid at para. 183. 14 2019 ONSC 1269.

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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

relating to conveyances),1 (formerly Bill C-46)

ushered in sweeping changes to Canada’s

impaired driving laws. These changes are

intended to streamline and simplify the Criminal

Code provisions dealing with impaired driving.

Bill C-46 brought significant changes to how

alcohol per se offences are prosecuted under the

Criminal Code. For example, whereas the former

‘over 80’ offence in s. 253(1)(b) required the

Crown to prove the motorist’s blood alcohol

concentration (BAC) at the time of driving,

s. 320.14(1)(b) now makes it an offence to have a

prohibited BAC within two hours of ceasing to

operate a conveyance.2 Another important

difference is that the prohibited BAC is now 80

mg or more of alcohol in 100 mL of blood, rather

than ‘over 80 mg’—hence the change in how this

offence is now colloquially known: ‘80 Plus’.

These changes were necessary to ensure

Parliament’s prohibited BAC level was precisely

enforced, to criminalize bolus drinking and to

curtail culpable post-driving drinking.3

The Bill also provides for a ‘statutory readback’

in s. 320.31(4). This readback provision obviates

the need for expert evidence in cases where the

breath or blood samples are taken more than two

hours after the driver has ceased to operate the

conveyance. If both samples are taken beyond

the two-hour period, then the readback provision

operates together with the Bill’s new presumption

of accuracy. The presumption of accuracy and

readback provisions are reproduced here for

convenience. To keep matters simple, we will be

discussing these provisions in the context of

breath samples only.

Presumption of Accuracy

If samples of a person’s breath have been

received into an approved instrument

operated by a qualified technician, the

results of the analyses of the samples are

conclusive proof of the person’s blood

alcohol concentration at the time when the

analyses were made if the results of the

analyses are the same—or, if the results of

the analyses are different, the lowest of the

results is conclusive proof of the person’s

blood alcohol concentration at the time

when the analyses were made—if

(a) before each sample was taken, the

qualified technician conducted a system

blank test the result of which is not more

than 10 mg of alcohol in 100 mL of blood

and a system calibration check the result

of which is within 10% of the target value

of an alcohol standard that is certified by

an analyst;

(b) there was an interval of at least 15

minutes between the times when the

samples were taken; and

(c) the results of the analyses, rounded

down to the nearest multiple of 10 mg,

did not differ by more than 20 mg of

alcohol in 100 mL of blood.4

Statutory Readback

For the purpose of paragraphs 320.14(1)(b)

and (d), if the first of the samples of breath

was taken, or the sample of blood was

taken, more than two hours after the person

ceased to operate the conveyance and the

person’s blood alcohol concentration was

equal to or exceeded 20 mg of alcohol in

100 mL of blood, the person’s blood

alcohol concentration within those two

hours is conclusively presumed to be the

concentration established in accordance

with subsection (1) or (2), as the case may

be, plus an additional 5 mg of alcohol in

100 mL of blood for every interval of 30

minutes in excess of those two hours.5

A few scenarios will illustrate how the readback

in s. 320.31(4) should work in practice. For the

purposes of this article, we will assume that the

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motorist provided, in the opinion of a qualified

technician, samples suitable for analysis by

means of an approved instrument, and that all of

the criteria for invoking the presumption of

accuracy in s. 320.31(1) have been met. The

times in these scenarios refer to the time elapsed

from when the motorist ceased to operate the

conveyance and when the breath samples were

taken. Consistent with the practice of many

toxicologists, we will use truncated readings

before applying the readback provision.6

Scenario 1: both samples within two hours

1st Sample: 1 hour, 30 minutes—105 mg

2nd Sample: 1 hour, 50 minutes—95 mg

In this scenario, the motorist provided both

samples within two hours. The truncated

readings are 100 mg and 90 mg respectively and

are therefore ‘in good agreement’ as required by

s. 320.31(1)(c).7 If the criteria of the presumption

of accuracy are met, the lowest of these two

readings is conclusively proven to be the

motorist’s BAC within two hours of having

ceased operation of the conveyance. The ‘80

Plus’ offence is made out here on a BAC of 90

mg. Resort to the readback provision in

s. 320.31(4) is unnecessary.

Scenario 2: first sample within two hours;

second sample outside two hours

1st Sample: 1 hour, 45 minutes—105 mg

2nd Sample: 2 hours, 5 minutes—85 mg

The key difference in this scenario is that the

second sample has been taken outside of two

hours. Nonetheless, the presumption of accuracy

in s. 320.31(1) provides a complete solution

because the first sample was taken within two

hours.

This is how it works—The presumption states

that the lowest reading proves the motorist’s BAC

“at the time when the analyses were made”.8 The

lowest reading here comes from the second

sample, which is 80 mg after truncation. The

question that remains is: for what point in time

has the motorist’s BAC been proven? To answer

that question, we look to the language of the

presumption and ask, when were the analyses

made? If the answer is “when the second sample

is taken”, that on its own would not prove the

motorist’s BAC within two hours of ceasing to

drive. The readback provision is unavailable

because it requires the first sample to have been

taken outside two hours.

The answer is that the second sample is, in effect,

imported to within the two-hour window because

that is when the first sample was taken. This is

due to how the presumption is worded. The first

sample is part of when the “analyses”—plural—

were made. This is precisely how this scenario

played out prior to Bill C-46 pursuant to what was

then s. 258(1)(c).9 The presumptions of identity

and accuracy were engaged when the first sample

was taken within two hours but the second was

not. The lower of the analyses determined the

motorist’s BAC, even if the lower reading was the

second sample taken outside of two hours.

The result in this scenario is that second sample

is truncated to 80 mg and the motorist’s BAC is

80 mg within the two-hour window. The ‘80

Plus’ offence is made out.

Scenario 3: both samples outside two hours

1st Sample: 2 hours, 5 minutes—105 mg

2nd Sample: 2 hours, 25 minutes—85 mg

When both samples are taken outside two hours,

recourse is made to the presumption of accuracy

in s. 320.31(1) and the statutory readback in

s. 320.31(4). These sections work together to

determine the motorist’s BAC within the two-

hour window.

In this scenario, the truncated readings are

100 mg and 80 mg respectively. The readback

provides that the results of the analyses are

presumed to be the concentration established in

accordance with the presumption of accuracy,

plus 5 mg for every 30-minute interval in excess

of two hours. Here, the lowest of the analyses

after truncation is 80 mg. This sample was taken

25 minutes outside two hours, so there is no 30-

minute interval. Therefore, nothing is added. Put

differently, applying the presumption and

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readback provisions together to determine the

motorist’s BAC within the two-hour window

does not result in a higher BAC than the analyses

themselves. As this results in a BAC of 80 mg

within two hours, the ‘80 Plus’ offence is made

out.

Scenario 4: both samples outside two hours;

lowest reading outside two hours and thirty

minutes

1st Sample: 2 hours, 15 minutes—85 mg

2nd Sample: 2 hours, 35 minutes—75 mg

This scenario illustrates the importance of

truncating first. After truncation, the lowest

reading is 70 mg. That sample was taken 35

minutes outside two hours. There is one full 30-

minute interval, which means that 5 mg is added

for a reading of 75 mg. This reading is not

truncated further. The ‘80 Plus’ offence is not

made out absent expert evidence proving the

motorist had a BAC of 80 mg or more at some

point within the two-hour window. Alternatively,

depending on the facts, the Crown may pursue an

impaired operation charge under s. 320.14(1)(a).

If the readback were done before truncating, the

result would have been different. The

untruncated reading is 75 mg. Adding 5 mg for

the single interval of 30 minutes would result in a

reading within two hours of 80 mg. Subsequent

truncation would result in the same reading of 80

mg. The ‘80 Plus’ offence would have been made

out. However, as s. 320.31(4) is intended to

codify the usual approach taken by expert

toxicologists in conducting a ‘readback’

calculation, the lowest reading should first be

truncated.

Scenario 5: three samples; one within two hours

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

2nd Sample: 2 hours, 5 minutes—75 mg

3rd Sample: 2 hours, 35 minutes—115 mg

How this scenario is resolved depends on which

two samples the qualified technician deems

suitable for analysis and includes on their

certificate prepared under s. 320.32. If they used

the first two samples, the Crown could not rely on

the presumption of accuracy because the

truncated readings (120 mg and 70 mg) are

greater than 20 mg apart and thus not ‘in good

agreement’ as required by s. 320.31(1)(c).

Moreover, the ‘80 Plus’ offence would not be

made out absent expert evidence given that the

lowest of the analyses is 70 mg.

It is more likely, however, that the qualified

technician will deem the first and third samples to

be suitable for analysis.10 These are truncated to

120 mg and 110 mg. The lower reading would

determine the motorist’s BAC within the two-

hour window. Since the readback does not apply

(the first sample was taken within two hours),

nothing is added and the motorist’s BAC is 110

mg. Effectively, despite the taking of three

samples, this scenario is resolved in the same way

as Scenario 2.

Scenario 6: three samples; all outside two hours

1st Sample: 2 hours, 15 minutes—125 mg

2nd Sample: 2 hours, 45 minutes—75 mg

3rd Sample: 3 hours, 15 minutes—115 mg

As with the previous scenario, we will assume

that the qualified technician has deemed the

second sample unsuitable for proper analysis.

The truncated readings of the first and third

samples are 120 mg and 110 mg. The lower of

these is the third reading, taken two 30-minute

intervals outside of two hours. Consequently,

10 mg is added to the 110 mg reading (5 mg for

each 30-minute interval). The BAC within two

hours is therefore 120 mg. The ‘80 Plus’ offence

is made out.

Conclusion

Crown counsel should always ensure that their

file contains a proper and complete certificate of

a qualified technician with the appropriate notice

given to the motorist. The certificate addresses

the criteria in s. 320.31(1), thus permitting

reliance on the presumption of accuracy. These

criteria must also be met to rely on the statutory

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readback in s. 320.31(4). However, counsel

should not expect to see the readback results

reported on the qualified technician’s certificate.

The certificate should reflect the readings at time

of testing. The readback is the vehicle by which

the readings in the certificate are determined to be

the motorist’s BAC within two hours. The time

when the motorist ceased to operate the

conveyance is determined on the evidence. The

two-hour window commences from that point.

The views or opinions expressed in this article are

those of the authors, and do not necessarily reflect

those of the Ontario Ministry of the Attorney General

or the Ontario Crown Attorneys Association. 1 S.C. 2018, c. 21, Bill C-46, 1st Sess., 42nd Parl.

(assented to 21 June 2018). 2 See Criminal Code, R.S.C. 1985, c. C-46, s. 320.11

(“operate” includes having the care or control of a

conveyance and “conveyance” includes a motor

vehicle). 3 Bolus drinking is the consumption of large quantities

of alcohol shortly before or while driving. 4 Supra note 2, s. 320.31(1). 5 Ibid, s. 320.31(4). The offence in s. 320.14(1)(d)

consists of having an excessive BAC and blood drug

concentration (BDC) in combination. The levels of

each are proscribed by s. 3 of the Blood Drug

Concentration Regulations, SOR/2018-148. Those

levels are a BAC of 50 mg of alcohol in 100 mL of

blood and a BDC of 2.5 ng of tetrahydrocannabinol per

mL of blood. Subsection 320.31(4) applies to the

alcohol portion of that offence if the blood samples are

The statutory readback provides for a simple

arithmetic calculation for which no expert should

be required.11 Along with other measures

introduced in Bill C-46, it is intended to reduce

delay and improve efficiency in the prosecution

of impaired driving offences. The Supreme Court

has emphasized the importance of using statutory

provisions such as these to save limited court

resources and reduce the burden on the criminal

justice system.12

drawn more than two hours after the motorist has

ceased operating the conveyance. 6 While s. 320.31(1)(c) requires that truncated readings

differ by no more 20 mg of alcohol per 100 mL of

blood, there is no requirement that the readings in

evidence be truncated. Subsection 320.31(1) does not

govern admissibility of the readings. See R. v. Wu,

[2019] O.J. No. 5000 at para. 9 (Sup. Ct. J.). 7 The results of the analyses, rounded down to the

nearest multiple of 10 mg, do not differ by more

than 20 mg. 8 Supra note 2, s. 320.31(1). 9 See R. v. Grizzle, 2012 ONSC 5328 at paras. 2-3, 6,

23-24. 10 See e.g. R. v. Dobrowolski, [2004] O.J. No. 4275 at

paras. 7-9, 11, 18, 20-22, 30, 32-34 (Sup. Ct. J.), aff’d.

[2005] O.J. No. 2576 (C.A.). 11 See e.g. R. v. Kuruvilla, 2012 ONSC 5331 at

para. 23; R. v. Schell, 2016 ONCJ 315 at para. 49;

R. v. Kisten, 2015 ONCJ 739 at paras. 13, 17-18. 12 See R. v. Alex, 2017 SCC 37 at paras. 12, 36-38;

R. v. Cody, 2017 SCC 31 at paras. 37, 39.

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A Handful of Bullets

Vincent Paris, Guns and Gangs Unit

Firearms law is straightforward. Firearms

technology is not. New guns with new

characteristics hit the market every day. The

Criminal Code1 struggles to keep up, as does the

Firearms Act.2 This, unfortunately, is where we

(as Crowns) come in. This article covers some

emergent issues in the law of firearms.

If you are undertaking a firearm prosecution, I

strongly recommend you look up the suite of

materials on e-Library including:

• Copy of the Firearm Presentation;

• Offence Charts—long and short versions;

• Proper wording for Information/Indictments;

• Firearm Screening Checklist; and

• Firearm Document Checklist.

The Valuable but Often Neglected Section

117.01

Firearm prohibition breaches are perhaps the

most serious violations involving a court order in

the Criminal Code. The average sentence in

Ontario for such a breach is in the range of 12 to

18 months, served consecutively to other

offences.3 Notwithstanding this, the s. 117.01

offence is not commonly charged in certain parts

of our province with officers and prosecutors

alike relying instead on more specific breach

provisions (such as probation). I would like to

address two specific areas—the breadth of the

definition of ‘prohibition order’ and the types of

items whose possession would breach said order.

What is a Prohibition Order?

Most of us think of a prohibition order as being

strictly a mandatory section 109 or a discretionary

110 order. But there is more to it than that. We

should begin by examining the definition in the

Code.

“prohibition order” means an order

made under this Act or any other Act of

Parliament prohibiting a person from

possessing any firearm, cross-bow,

prohibited weapon, restricted weapon,

prohibited device, ammunition, prohibited

ammunition or explosive substance, or all

such things.4

This goes well beyond s. 109 and s. 110 and

includes, amongst others, the following:

• Bail releases;5

• Section 111 orders;6

• Probation Orders;7

• Youth Criminal Justice Act orders;8

• Conditional Sentence Orders;9

• Review Board orders;10

• Federal Parole conditions;

• National Defence Act (military court) orders;11

and

• Statutory Peace Bonds.12

Therefore, a prohibition order pursuant to s.84(1)

of the Criminal Code encompasses many more

orders than commonly believed.

The Possession of Items and Breaching a

Prohibition Order

When someone is subject to a firearm prohibition

order, what exactly are they prohibited from

possessing? We will start with the obvious:

• Prohibited Firearms (such as short barreled

handguns, sawed-off shotguns and rifles,

automatic firearms and a list of designated

firearms set by regulation)? Yes.

• Restricted Firearms (such as non-prohibited

handguns, certain rifles, the AR-15 and a few

other firearms)? Yes.

• Non-Restricted Firearms (such as rifles,

shotguns and all firearms that are not

otherwise prohibited or restricted)? Yes.

But what about other items that meet the s. 2

Criminal Code definition of firearm? Section

84(3) lists a number of such items which,

notwithstanding that they meet the s. 2 definition

of firearm (namely, a barrelled weapon with the

ability to discharge a projectile that is capable of

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causing serious bodily injury or death to a

person), are not firearms for certain very specific

possession offences.

For example:

• antique firearms;

• nail guns;13

• starters pistols;14

• flare guns;15

• rivet guns and similar items;16 and

• medium velocity pellet guns (essentially

firearms that fire under 500 feet per second)

are not firearms for (and only for) the following

offences:

• s. 91 possession without a licence;

• s. 92 possession knowingly without a licence;

• s. 93 possession at an unauthorized place;

• s. 94 possession in a car;

• s. 95 prohibited firearm or restricted Firearm

loaded or with readily accessible ammunition;

• s. 99 trafficking;

• s. 100 possession for the purpose;

• s. 101 transfer without authority;

• s. 103 importing or exporting;

• s. 107 false statement regarding the loss, theft

or destruction of a firearm; and

• s. 117.03 seizure upon failure to provide

licence or authorization.

Section 117.01, the offence of breaching a

prohibition order, is not listed here. Therefore,

these items are firearms if possessed by a person

subject to a prohibition order.

In short, if you are bound by a prohibition order,

you cannot possess any firearm as defined by

s. 2 of the Criminal Code including:

• all handguns, rifles and shotguns;

• antique firearms;

• nail guns;

• flare guns; and

• the vast majority of pellet guns sold in this

country.

Why Does This Matter?

Individuals may not be aware of the impact of a

prohibition order on their livelihood (such as a

nail gun for work) or hobby (like a flare gun for a

boat), or even objects that they may have in their

home could violate the order. It may be wise to

point this out to defence counsel so they can

instruct their clients appropriately.

The legal classification of items, the possession

of which violates a prohibition order, is a legal

issue and therefore is subject to s. 19 of the

Criminal Code: “Ignorance of the law by a person

who commits an offence is not an excuse for

committing that offence.” 17

As a final point on this issue of prohibition orders,

I thought it might be interesting to note that a

s. 109 or s. 110 prohibition order survives a

pardon.18

Bill C-71

Bill C-71: An Act to amend certain Acts and

Regulations in relation to firearms received

Royal Assent on June 21, 2019.19 Much in this

bill will not affect Crowns on a day to day basis,

but a few things will. To understand many of the

changes made, context is needed. Please note that

some of the provisions are already in effect, and

some will come into effect later through Order-

in-Council (as many of these alterations will

require changes to regulations as well).

Here are some of the highlights.

Forfeiture: Prohibition Orders and Forfeiture

Orders20

In 2012, the Ontario Court of Appeal in

R. v. Roggie21 found that s. 115 of the Criminal

Code (which relates to the automatic forfeiture of

firearms in the possession of an individual once a

forfeiture order is granted) excluded firearms that

were already in the possession of the police.

The section read:

Unless a prohibition order against a

person specifies otherwise, every thing the

possession of which is prohibited by the

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order that, on the commencement of the

order, is in the possession of the person

is forfeited to Her Majesty.22

This meant that only individuals deemed

sufficiently trustworthy to retain their firearms

following an arrest were subject to automatic

forfeiture. However, those who were not and

whose firearms were seized and kept in police

custody until the resolution of their charges, were

exempt. The additional challenge was that many

firearms were left in limbo where the individual

was prohibited from possessing them, and the

courts had not ruled on forfeiture. This left the

police literally holding the guns.

This proved to be challenging to officers-in-

charge, prosecutors and property bureaus across

the province with requests coming for the transfer

of guns, guns that were previously subject to

automatic forfeiture and destruction, to family

members and friends of the prohibited person.

This issue has been addressed in C-71 with the

following change to s. 115(1):

Unless a prohibition order against a person

specifies otherwise, every thing the

possession of which if prohibited by the

order is forfeited to Her Majesty if, on the

commencement of the order, the thing is

in the person’s possession or has been

seized and detained by, or surrendered

to, a peace officer.23

This should assist Crowns across the country but,

as will be mentioned again later, it is important to

remember that a firearm case (whether it leads to

conviction or not) only ends with a determination

as to the disposition of the firearm. That issue

should never be left hanging.

Change to the Definition of “Non-Restricted

Firearm”24

The original Criminal Code definition of non-

restricted firearm was… well… it did not exist. It

was basically a catchall for any firearm meeting

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:

“firearm” means a barrelled weapon

from which any shot, bullet or other

projectile can be discharged and that is

capable of causing serious bodily

injury or death to a person, and

includes any frame or receiver of such a

barrelled weapon and anything that can

be adapted for use as a firearm.25

However, a few years ago the definition was put

to paper, with an addition.

“non-restricted firearm” means

(a) A firearm that is neither a prohibited

firearm nor a restricted firearm, or

(b) A firearm that is prescribed to be a

non-restricted firearm.26

The second part of this definition did something

never before permitted (certainly since the

enactment of the Firearms Act) in the Criminal

Code. Parliament could now designate firearms

which would otherwise be considered prohibited

or restricted and downgrade them (from a

regulatory point to view) to lower categories

including non-restricted firearms. This would

then permit an individual with the “lowest” (non-

restricted firearms) class of licence to own these

items.27 Furthermore, with the end of the long

gun registry, there was no longer any way to track

the possession of these items.28

Now, Bill C-71 has shortened the s.84(1)

definition of non-restricted firearm to the

following:

“non-restricted firearm” means a firearm

that is neither a prohibited firearm nor a

restricted firearm.29

Therefore, the federal government can no longer

‘downgrade’ the legal classification of a firearm

through regulation.

Why does this matter? Because “non-restricted

firearm” is the definition for the vast majority of

firearms in Canada.

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Transfer Regulations30

Until 2012, to lawfully possess a firearm in

Canada a person had to possess a licence for the

class of firearm they possessed (prohibited,

restricted or non-restricted) as well as having the

firearm registered. If either requirement was

lacking, their possession was not lawful.

This changed in 2012. With the end of the long

gun registry (it should really be called the less

pithy ‘end of the non-restricted firearm registry’),

the system remained the same for prohibited or

restricted firearms (you need both a licence and a

registered firearm), but there was no longer a

requirement to register non-restricted firearms.

In addition, all prior records of registered

firearms were ordered destroyed.31

One of the consequences of this legislative

change was that transfers of firearms were no

longer tracked. This caused great concern in law

enforcement circles due to the increase of ‘straw

purchasing’ of firearms.32 The Authorized

Transfer section for non-restricted firearms in

The Firearms Act stipulated that:

A person may transfer a non-restricted

firearm if, at the time of the transfer,

(a) the transferee holds a licence

authorizing the transferee to acquire and

possess that kind of firearm; and

(b) the transferor has no reason to believe

that the transferee is not authorized to

acquire and possess that kind of firearm.33

In addition, under s. 23.1 a transferor concerned

that the transferee did not have a valid licence

could voluntarily request a check of the licence’s

validity. However, no record of that check

could be kept by the Registrar.

Now in 2019, with Bill C-71, s. 23 and s. 23.1

have been repealed and replaced by a new s. 23.

(1) A person may transfer one or more

non-restricted firearms if, at the time of the

transfer,

(a) the transferee holds a licence

authorizing the transferee to acquire and

possess a non-restricted firearm;

(b) the Registrar has, at the transferor’s

request, issued a reference number for the

transfer and provided it to the transferor;

and

(c) the reference number is still valid.

Information — transferee’s licence

(2) The transferee shall provide to the

transferor the prescribed information that

relates to the transferee’s licence, for the

purpose of enabling the transferor to

request that the Registrar issue a reference

number for the transfer.

Reference number

(3) The Registrar shall issue a reference

number if he or she is satisfied that the

transferee holds and is still eligible to hold

a licence authorizing them to acquire and

possess a non-restricted firearm.

Period of validity

(4) A reference number is valid for the

prescribed period.

Registrar not satisfied

(5) If the Registrar is not satisfied as set

out in subsection (3), he or she may so

inform the transferor.34

This means that a person who wishes to transfer a

firearm to another licenced individual must:

• Contact the Canadian Firearms Registry;

• Provide prescribed information (such as the

transferee’s licence); and

• Obtain a reference number for that check.

The reference number is provided only once it is

confirmed that the transferee has a licence and is

eligible to obtain the non-restricted firearm. If the

Registrar is not satisfied about the transferee, then

the transferor is informed, and the transfer is not

permitted.

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As will be outlined later, businesses are also

obligated to keep records on the sale and

disposition of non-restricted firearms under the

newly enacted s. 58.1 of the Firearms Act.35

The issue that remains is the access to the

reference numbers, and prescribed information

associated to it, for firearm transfers. This can be

an issue in a number of scenarios:

• A recovered non-restricted firearm at a crime

scene. The police need to figure out the last

lawful owner. The best way to do this would

be to contact the Registrar to determine the

last reference number associated to this

firearm. This would provide them with an

investigative lead as to the last seller, and

purchaser, of the firearm;

• A person being investigated as a straw

purchaser. A check of the Registry for any

reference numbers associated to the person

would assist in determining how many

firearms they should have in their possession.

This would be helpful in trafficking and

possession for the purpose of trafficking

investigations;

• A break-in at a home where a number of

firearms have been stolen. The circumstances

of the occurrence cause the investigators

concern. They want to know how many

firearms were taken, or whether the break-in

is a cover-up for a pattern of trafficked guns.

The Registry would assist in determining the

size of the arsenal involved; or

• A firearm is located during a domestic

violence incident. The police want to make

sure that it is lawfully in the possession of its

“owner”. The Registrar will have the

information concerning this transfer. If they

do not – the possession would be unlawful.

One thing remains unclear. The statute is silent

on whether this information will be shared with

law enforcement upon request or whether

production orders (what kind, and on what

evidentiary threshold) will be required. As these

requests will be most important at the early stages

of an investigation, anything above reasonable

grounds to suspect may be fatal to most

investigations and greatly diminish the

investigative value of these provisions—as well

as their own enforcement.

Licencing Criteria36

To obtain a firearm licence, a person must meet

the public safety eligibility requirements set out

in s. 5 of the Firearms Act. Until Bill C-71, these

criteria (an act of violence for example) were

limited to having been committed in the last five

years. This led to a stark bifurcation in the law in

Canada where some provinces’ courts considered

the five-year limit as absolute, while others (like

Ontario) took the position that the court (or Chief

Firearms Officer) had to consider any incident

within the five year span, and could consider

factors that fell outside the five years.

This interpretation is now resolved. Bill C-71 has

removed the five-year cap.37 Now the factors

listed below, including the new provisions (in

bold) have no temporal limit.

Under s. 5(2) the facts that are to be considered

when issuing a licence, or participating in a

reference hearing, are whether the applicant:

• has ever been convicted or discharged of an

offence in the commission of which violence

against another person was used, threatened or

attempted;38

• has ever been convicted or discharged of an

offence under this Act (Firearms Act) or Part

III of the Criminal Code (Part III being the

“Firearms and Other Weapons” part of the

Code);39

• has ever been convicted or discharged of an

offence under section 264 of the Criminal

Code (criminal harassment);40

• has ever been convicted or discharged of an

offence relating to the contravention of

subsection 5(1) or (2), 6(1) or (2) or 7(1) of the

Controlled Drugs and Substances Act;41

• has ever been convicted or discharged of an

offence relating to the contravention of

subsection 9(1) or (2), 10(1) or (2), 11(1) or

(2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of

the Cannabis Act;42

• has ever been treated for a mental illness,

whether in a hospital, mental institute,

psychiatric clinic or otherwise and whether or

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not the person was confined to such a hospital,

institute or clinic, that was associated with

violence or threatened or attempted violence

on the part of the person against any person;43

• has a history of behaviour that includes

violence or threatened or attempted

violence or threatening conduct on the part

of the person against any person (including

use of the Internet or digital threats pursuant

to section 5 (2.1) of the Firearms Act);44

• is or was previously prohibited by an order

– made in the interests of the safety and

security of any person – from

communicating with an identified person

or from being at a specified place or within

a specified distance of that place, and

presently poses a threat or risk to the safety

and security of any person;45

• in respect of an offence in the commission

of which was used, threatened or attempted

against the person’s intimate partner or

former intimate partner, was previously

prohibited by a prohibition order from

possessing any firearm, cross-bow,

prohibited weapon, restricted weapon,

prohibited device or prohibited

ammunition;46 or

• for any other reason, poses a risk of harm

to any person.47

This is important to know for those of us involved

in reference hearings under s. 74 of the Firearms

Act. Reference hearings are typically held when

the Chief Firearms Officer refuses to issue (or

renew) a licence for an individual and the

applicant wishes to challenge the decision. The

rules of evidence for these hearings are similar to

a bail hearing, and the main factors to consider

are outlined above. The removal of the five-year

limit broadens the evidentiary record.

Other Changes in Bill C-71

Other changes were made to the Firearms Act and

the Criminal Code, including:

• Restricting the Automatic “Authorization to

Transport” which previously permitted, by

right (some upon renewal of the licence), the

ability to transport prohibited or restricted

firearms to several areas for specific purposes,

including:

o Approved shooting clubs and ranges in the

province;

o Providing instruction as part of the

Restricted Firearms Safety Course;

o The registered owner changing residence;

o The registered owner transporting the

firearm to a peace officer, firearms officer

or CFO for registration or disposal;

o The registered owner transporting the gun

for repair, storage, sale, export or

appraisal;

o Transporting the gun to a gun show; or

o Transporting the firearm to a port of exit in

order to take them outside Canada, and

from a port of entry.48

• Businesses will soon have to retain records of

sales, transactions, and disposition of

firearms, under the newly enacted s. 58.1 of

the Firearms Act.49 This will permit police

officers to obtain those records to trace the

lawful possession of a firearm, and determine

when that firearm entered the illicit market;

• The ability to “grandfather” certain firearms if

they are reclassified as prohibited at a later

date;50 and

• Some provisions concerning the removal of

certain markings on the firearm. This is

related to marking regulations that are coming

into force in 2020.51

The Changing Face of Firearm Trafficking:

80% Receivers and the Pending End of the

Regulatory Chokepoint

Firearm trafficking and importation comes in

many shapes and sizes from small-time quantities

at the border (known colloquially as the “ant

trade”) to larger bulk shipments (last year a

shipment of 60 handguns was seized near

Cornwall). But it also includes the use of the

mail, dark web, straw purchasing and a whole

slate of techniques and tricks to obtain either the

entire firearm or its essential components. I

wanted to flag one of these issues facing us today:

so-called “80% receivers”.

To understand the issue, we must first discuss a

key element of gun law: the frame or receiver.

This is the skeleton of the firearm, the piece that

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requires the serial number. Without this piece,

none of the other parts really matter since they

cannot be assembled together into a functioning

whole. This piece was traditionally difficult to

manufacture so it made the perfect regulatory

chokepoint for firearms. If you control this

piece, the rest is immaterial. This regulatory

approach worked relatively well until now.

Now we have 3D printing of firearm parts

including the receiver. We have products like the

‘Ghost Gunner’ that can grind out the receiver of

a firearm. Some pellet guns or Airsoft pistols can

be converted to accept parts of an actual firearm.

Some flare guns can be converted to fire pistol

ammunition. The examples continue to pile up

almost daily.

These are all examples of individuals attempting

to circumvent or overcome the regulatory

chokepoint, to get their hands on, or create, a

frame or receiver unknown to the regulator and

therefore untraceable. These examples challenge

the assumption that this piece is hard to come by

and even harder to manufacture. Indeed, more

than simply challenging the assumption, they

prove emphatically that it is no longer true52.

The best example of this is the 80% receiver.

Those who police and prosecute firearm offences

have seen a marked increase in these items in the

last few years (either the receiver in an

unmodified state, or a complete firearm built

from an 80% receiver).

What is an 80% Receiver?

In the United States of America, an 80% receiver

is a blank casting of a frame or receiver (typically

lower receiver) that is not yet capable of holding

the various other firing components necessary to

make a firearm. Typically, the part meant to

contain the firing mechanism is solid and not

machined. The important feature for these

purposes is that these items are not considered

firearms (according to a directive from The

Bureau of Alcohol, Tobacco, Firearms and

Explosives) for the purposes of the Gun Control

Act of 1968 and therefore not subject to U.S.

regulation. In short, 80% receivers are not guns

in the United States. They can be sold openly like

any other piece of metal. Some controls have

been imposed to address the modification of these

80% receivers.53

In Canada, there is no such creature. There is no

legal standard—statute driven or

jurisprudential—that sets a percentage on the

completion of a frame or receiver. For that

reason, the more accurate way to consider an 80%

receiver is to approach it as a broken or

incomplete firearm.

An “80% Receiver” Has No Meaning in

Canadian Law

Why would someone want an 80% receiver?

Well, in the United States it is not a firearm yet so

it can be openly bought and sold. It can then be

modified and completed (the last 20%) by the end

user. In Canada, as these items are effectively

firearms, the advantage is less clear. Where the

value really lies is in the fact that an 80% receiver

does not have a serial number. The guns are

effectively ‘ghost guns’ with no antecedents and

provide nothing from which the police can trace

the firearm back to its last lawful source—often

their most effective investigative tool post

firearm seizure.

Broken or Incomplete Firearms

The definition of firearm in section 2 of the

Criminal Code confirms that an incomplete

firearm can still be a firearm:

“firearm” means a barrelled weapon from

which any shot, bullet or other projectile

can be discharged and that is capable of

causing serious bodily injury or death to a

person, and includes any frame or receiver

of such a barrelled weapon and anything

that can be adapted for use as a

firearm;54

In this context, “capable” is not restricted to

present or immediate capability, but includes

future capability or operability. 55 It should also

be noted that “capable” is used in a number of

definitions in Part III of the Criminal Code.56

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The public policy underpinnings of this were

outlined succinctly by the Ontario Court of

Appeal in Ferguson:

The expert evidence was that the firing

mechanism was easily obtainable and

could be inserted in 30 seconds to 1

minute. In view of that evidence we are

satisfied that the inoperable gun in this

case could be adapted for use as a firearm

from which bullets capable of causing

serious bodily injury or death could be

discharged and that being a “firearm” it

was a “prohibited weapon” as defined in

s. 82(1)(d). If this were not so, anyone

in possession of a firearm falling within

the prohibited category, could evade

conviction under s. 88(1) by removing a

portion of the weapon thereby

rendering it inoperable, while retaining

the ability to render it operable on short

notice. This would clearly be contrary

to the purpose of the legislation.57

A broken or incomplete firearm in Canada can

still be a firearm. There are four key factors that

should be considered:

1. The circumstances of the offence. This affects

the time required to fix the item. The

complexity of the work to be done. And the

necessity for having parts on scene.

• Use offences: The broken/incomplete

firearm must be made whole (or capable of

firing) during the commission of the

underlying criminal offence. This is rare

as the repairs required would have to be

quick, simple and the accused would have

to have the parts on scene to make the

repair. Finally, in most cases the

individual would need to have the skill

personally to make the necessary

modifications.58

• Possession offences: This would apply to a

person in pure possession or someone

involved in the sale/manufacture of these

items. The time required to make the

modifications is much longer. Therefore,

the changes can be more complex. And the

parts required need not be on scene as they

may be ordered. Finally, the individual

could always have another person (such as

a gunsmith) make the modifications for

them.59

2. The nature of the modification required.

• Use offences: The repairs would have to be

quite simple as they would have to be made

on site.

• Possession offences: The repairs can be

quite complex as there is no time limit to

making the modifications.60

3. The availability of the parts on scene.

• Use offences: The parts would have to be

on scene, as the firearm must be rendered

functional during the commission of the

offence.61

• Possession offences: As outlined above,

the parts need not be on scene. They could

be ordered.62

4. The circumstances (and knowledge) of the

accused (for example, if the accused is a

gunsmith or someone with the necessary skill

to render the firearm operable).

• Use offences: Unless the modifications

required are quite minor, this would often

be fatal to an effective prosecution as it

would have to be proved that the accused

was sufficiently skilled to modify the

firearm on site. Expert evidence would

need to be called to establish the required

skill and knowledge, and then the Crown

would need to prove the accused’s firearm

skill and knowledge met this threshold.

• Possession offences: The skills required to

fix/modify a firearm can be outsourced to

another individual in possession cases.63

Therefore, in a firearm possession context (which

includes trafficking and manufacturing under

s. 99 of the Criminal Code), an incomplete

firearm is nonetheless a firearm even if the

modifications required are complex, the parts

need to be ordered and the accused is

insufficiently skilled to make the modifications

personally.

Intention of the Individual

The intention of the individual to actually convert

the 80% receiver into a functional firearm is not

determinative. The objective of the legislation is

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overall public safety and is not predicated on the

good intentions of a specific individual (the

careless storage charges and regulations are a

clear indication of this). The Supreme Court of

Canada addressed this in the context of firearms

that can potentially be converted to fully-

automatic:

Nor can it be a valid defence that a

collector such as Mr. Hasselwander

would never convert the weapon.

Collectors are attractive targets for thieves

who are seeking these weapons with every

intention of using them or selling them to

others who wish to make use of them.

Members of the community are entitled to

protection from the use of automatic

weapons. This can be accomplished by

giving the word capable given the definition

set out above.64

However, the intention to convert the items into

firearms (or fully-automatic firearms in

Hasselwander) can nonetheless be strong

evidence against the accused. The best analogy

might be motive in a homicide case—not

necessary in terms of any required element of the

offence, but extremely relevant when it comes to

issues like specific intent or identity.

The 2002 Ontario Court of Appeal case of

Goswami65 is instructive on this issue.

Mr. Goswami was selling starter pistols in

conjunction with ammunition, drill bits, and plans

on how to modify the item into a functional

firearm. The Ontario Court of Appeal agreed that

Mr. Goswami was not selling starter’s pistols but

was really selling firearms.

Some of the non-exhaustive factors an

investigator may wish to consider when

determining the intention of a person in

possession of an 80% receiver are the following:

• Expert opinion on whether these items could

be used for any other legitimate purpose.

o The item is 80% of the way towards

becoming a firearm receiver. Could they

be making something other than a firearm

with this item?

o The price of the item. For example, an

80% receiver selling for $1000.00 would

not logically be used in the creation of a

$500 starter’s pistol.

• Reference to the item as an “80% receiver”

indicates explicitly the intention of the seller

or possessor.

• Whether written or verbal plans or suggestions

for modification are provided with the item (or

plans found in written or electronic form

found in possession, constructive or

otherwise, of the accused person).

• Selling, ordering or ownership of matching

ammunition with the frame/receiver in

question.

• Selling, ordering or ownership of matching

parts with the frame/receiver in question.

• Comments made by the seller or possessor to

other individuals, such as police, undercover

officers or witnesses.

• Commercial literature in the case of a seller.

• Import documents or licencing

documentation, such as what is claimed to be

imported.

Conclusion on 80% Receivers

So, what does this mean?

An individual in possession of an 80% receiver

and who demonstrates an intention to convert the

item themselves, or selling it knowing that it

serves no other purpose, must meet all the legal

requirements for the legal possession (or sale) of

the class of firearm in question.

An individual or company selling 80% receivers

as receivers (and I am not aware of any other

lawful purpose for the existence of such partially

constructed items) is selling firearms. They must

therefore comply with all the laws surrounding

the sale of a firearm. Otherwise, they are

potentially subject to Criminal Code offences

under:

• Section 99 (for the firearms sold);

• Section 100 (for the firearms in stock);

• Section 101 (transfer without authority—a

lesser alternative);

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• Sections 103 and 104 (if there is a violation of

importation regulations); and

• Other related Firearms Act offences.

As I mentioned at the beginning, the law

surrounding firearms, whether under the

Criminal Code, the Firearms Act or related

regulations, is a legislative struggle to come to

grips with given the dynamic legal framework

and the illicit market for guns and related items.

The views or opinions expressed in this article are

those of the authors, and do not necessarily reflect

those of the Ontario Ministry of the Attorney General

or the Ontario Crown Attorneys Association. 1 R.S.C. 1985, c. C-46. 2 S.C. 1995, c. 39. 3 See e.g. R. v. Degraw, 2018 ONCA 51 at para 11;

R. v. Jones (2005), 198 C.C.C. (3d) 519, Jurianz J.A.,

dissenting (Ont. C.A.).; R. v. Houle, 2008 ONCA 287;

R. v. McCue, 2012 ONCA 773; R. v. Brown, 2010

ONCA 745; R. v. Flowers, 2010 ONCA 129;

R. v. Mann, 2010 ONCA 342; R. v. Maddigan, 2009

ONCA 269; R. v. Sookdeo (2006), 215 O.A.C. 94

(C.A.); R. v. Haughton (2004), 187 O.A.C. 67 (C.A.);

R. v. Manning, [2007] O.J. No. 1205 (Sup. Ct. J.). 4 Supra note 1, s. 84(1) [emphasis added]. 5 Please note that for bail releases, the forfeiture

provisions (discussed later) do not apply. See

s. 515(1.1). 6 These are similar to 109 and 110 orders but do not

require an offence. They are a free-standing

application to prohibit an individual from possessing

firearms and other items. It should be noted that the

individual retains those firearms through the course of

the application. If there is an immediate security

concern with the retention of the firearms, please

consider s. 117.04 (public safety warrant), which

permits the seizure of the items pending a

determination of disposition and also permits a

prohibition of up to five years. 7 The fact that a prohibition order is, in fact, a

prohibition order was explicitly addressed and

confirmed in R. v. Roggie, 2012 ONCA 808 at

paras. 35-43. Obviously, if a probation order is a

“prohibition order” per s. 84(1) of the Criminal Code,

then so are all the others. Contra R. v. Bennell, 2004

BCPC 559. 8 S.C. 2002, c. 1, ss. 46 and 92. 9 See R c. Tremblay, 2006 QCCQ 16738. An

individual was given a Conditional Sentence Order

prohibiting his possession of weapons including

firearms. At the end of his sentence, he applied for a

new firearms licence. The Chief Firearms Officer for

Québec refused to grant a licence until Mr. Tremblay

Bill C-71 is just one more volley in the on-going

battle against illegal guns.

For Crowns, understanding the nuances of these

provisions is essential. This is true whether we

are providing advice to investigators or

regulators, assessing the viability of a prosecution

or ultimately prosecuting a gun offence.

re-attended the Canadian Firearms Safety Course. He

refused to do so claiming that a Conditional Sentence

Order was not a prohibition order. He lost that

argument. 10 Supra note 1, s. 672. 11 R.S.C. 1985, c. N-5. 12 See R. v. Karson, [2008] O.J. No. 999 (Sup. Ct. J.),

aff’d 2009 ONCA 164. Justice Clark found that a

s. 810 statutory peace bond constituted a prohibition

order pursuant to s.84(1) of the Criminal Code. See

also R. v. Drader, 2001 MBQB 321. But see

R. v. Bennell, 2005 BCSC 871. The Bennell obiter

dicta analysis was considered and rejected by Justice

Clark in Karson. 13 As long as this item is being used for the exclusive

purpose for which it was designed. 14 As long as this item is being used for the exclusive

purpose for which it was designed. 15 As long as this item is being used for the exclusive

purpose for which it was designed. 16 As long as this item is being used for the exclusive

purpose for which it was designed. 17 See generally R. v. Cordio Williams, 2009 ONCA

342. 18 See Criminal Records Act, R.S.C. 1985, c. C-47,

s. 2.3(b). 19 1st Sess., 42nd Parl., S.C. 2019, c. 9. 20 This provision is now in force. 21 Supra note 7. 22 Supra note 1 (current to 20 June 2019) [emphasis

added]. 23 Ibid [emphasis added]. 24 Pending Order-in-Council. 25 Supra note 1, s. 2 [emphasis added]. 26 Ibid, s. 84(1). 27 Section 117.15 of the Criminal Code, which permits

the Governor in Council to issue regulations

prescribing items to be prohibited or restricted, had

also been altered to limit the power of the Governor in

Council when it came to regulating items with a

sporting or hunting purpose. Bill C-71 has effectively

removed this ‘override’ authority. 28 Without getting into the tortured history of this

provision, two broad types of firearm were

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‘downgraded’ to non-restricted firearm (the CZ858

and the SAN Swiss Arms). This has been partially

reversed in C-71 where the lawful possession of these

items has been grandfathered (with additional rules

and regulations on their use, etc.) Some of these

provisions are in force, and some are awaiting an

Order-in-Council. 29 Supra note 19, s. 16. 30 Pending Order-in-Council. 31 There was a conflict with the province of Quebec

about the retention of these documents, as they wished

to create a provincial registry, but that is another story.

The provisions addressing this are now in force. 32 A straw purchaser is a person with a generally

unblemished record who obtains a licence and

purchases firearms for a third party. The motives vary

wildly, including the repayment of outstanding drug or

gambling debts and greed. That third party tends to be

prohibited or otherwise ineligible to purchase guns.

This is a common method for firearms leaving the

lawful market and entering the illicit one. With the

absence of a ‘non-restricted firearm registry’, these

straw purchasers are notoriously difficult to catch as

there exists no paper trail to their purchase or transfer. 33 Supra note 2, s. 23 [emphasis added]. 34 Supra note 19, s. 5. 35 Ibid, s. 7. 36 Pending Order-in-Council. 37 Supra note 19, s. 2(2). 38 Supra note 2, s. 5(2)(a)(i). 39 Ibid, s. 5(2)(a)(ii). 40 Ibid, s. 5(2)(a)(iii). 41 Ibid, s. 5(2)(a)(iv). 42 Ibid, s. 5(2)(a)(v). 43 Ibid, s. 5(2)(b). 44 Supra, note 19, s. 2(2). 45 Ibid. 46 Ibid. 47 Ibid. 48 Ibid, s. 4 (pending Order-in-Council). 49 Ibid, s. 7 (pending Order-in-Council). 50 Ibid, s. 3(2). 51 This provision is now in force. 52 This raises other issues such as the possibility of

licencing parts kits or other essential parts of a firearm. 53 See U.S. Department of Justice, Bureau of Alcohol,

Tobacco, Firearms and Explosives, Ruling 2015-1:

Manufacturing and Gunsmithing (2 January 2015). 54 Supra note 1 [emphasis added].

55 See R. v. Covin, [1983] 1 S.C.R. 725;

R. v. Hasselwander, [1993] 2 S.C.R. 398 at paras. 31-

36, 45; R. v. Ferguson (1985), 20 C.C.C. (3d) 256

(Ont. C.A.); R. v. Watkins (1987), 33 C.C.C. (3d) 465

(B.C. C.A.); R. v. Cancade, 2008 BCPC 336. 56 See e.g. supra note 1, s. 84(1) (definitions of

“automatic firearm”, “cross-bow” and “restricted

firearm”). 57 Ferguson, supra note 55 at 262-63 [emphasis

added]. See also Hasselwander, supra note 55 at para.

36, Lamer J: “What then, should ‘capable’ mean as it

is used in the s. 84(1) definition of prohibited weapon?

It should not mean that the simple removal of a part

which could be replaced in seconds would take the

weapon outside the definition. This surely could not

have been the intention of Parliament. If it were, the

danger from automatic weapons would continue to

exist just as strongly as it did before the prohibition

was enacted”. 58 See Covin, supra note 55; Ferguson, supra note 55. 59 See Covin, supra note 55 at 729; Watkins, supra note

55; R. v. Cook (1989), 48 C.C.C. (3d) 61 (Man. C.A.);

R. v. Smith, 2008 ONCA 151; Ferguson, supra note 55

at 262: “Because of the nature of the continuing

offence of possession of prohibited weapon under

s. 88(1) and having regards to the purpose of the

subsection, we are all satisfied that the acceptable

amount of adaptation and the time-span to render the

gun operable is longer than that required for a s. 83

(now s.85) offence, where the adaptation has to be

made on the scene in order to support the charge of

using a firearm during the commission or attempted

commission of an indictable offence or during the

flight thereafter” [reference added]. 60 See R. v. Stacey, 2009 NLCA 68. The Court held

that evidence is required regarding the availability of

the missing parts, and expert evidence on complexity

of the modification required. 61 See Smith, supra note 59. 62 See Stacey, supra note 60. 63 See R. v. Robbie, 1989 ABCA 182; R. v. Osiowy,

1997 ABCA 50; R. v. Stacey, 2009 NLCA 68;

R. v. Haines (1981), 45 N.S.R. (2d) 428 (S.C. (A.D.));

R. v. St. Amour, [1974] O.J. No. 631 (C.A.). See

especially Cook, supra note 59 at 64: “… [I]t can be

reasonably inferred that he had the capacity by himself

or with the assistance of others and within a reasonable

time to activate the gun for firing…”. 64 R. v. Hasselwander, supra note 55 at para. 40. 65 164 C.C.C. (3d) 378.

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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

Early Departure: Factors Associated with the

Flight of Women from the Private Practice of

Criminal Law

Natasha S. Madon (Griffith Criminology

Institute, Griffith University, Australia) (2018) 65

C.L.Q. 396

Due to their systematic exclusion from the

profession late into the 20th century, women are

relatively new players in the legal labour market.

In Canada, women were only granted access to

the legal profession in 1895, yet it was not until

1942 that women across all provinces had the

opportunity to become lawyers. This was the

culmination of extensive debate within law

societies, provincial legislatures and within the

public domain. The number of women that have

entered the bar since then has dramatically

increased. In 1971, women represented only

5.2% of lawyers in Canada growing to 29.1%

twenty years later in 1991. More recent data

suggests that as of 2010, women represent

approximately 37% of all lawyers in Canada. A

growing body of literature surrounds the career

paths of women in the legal profession, with a

smaller number of studies focussing on the

longevity of women within the profession. In line

with this common belief of a drop-off of women

from private practice, a number of studies have

found that female lawyers are more likely to leave

the practice than are their male counterparts.

The Arc of the Moral Universe Is Long, but ...

(Keynote Address to Canadian Law and

Society Association Annual Meeting, June 7,

2018)

Justice Rosalie Abella (Supreme Court of

Canada) (2019) 34:1 Can. J.L. & Soc'y 1

This is a group I've admired for decades. And

what I've admired is the recognition, right in the

name Law and Society, that law only matters in

context. Otherwise, it’s just rules. Because I've

always seen justice as the aspirational application

of law to life, I see Associations like this as

representing a constant search to align law, life,

and justice, a search to see how to make sure the

arc of the moral universe bends always towards

justice for the public.

I’m guided in my choice of themes in this lecture

by the moral legacies I take from several

anniversaries—the deaths fifty years ago of

Martin Luther King and Bobby Kennedy, the

creation of the Universal Declaration of Human

Rights and Genocide Convention seventy years

ago, and D-Day’s anniversary yesterday. They

all form the backdrop to three areas in which I see

the arc bending out of shape: in the way we

deliver justice to the public; in the way some

countries are playing fast and loose with judicial

independence; and in the way the world is not

only bending the wrong way, in too many places

it's upending the moral universe, leaving justice

in the dust.

The last two topics are in fact two facets of a

bigger problem, namely, what's happening to

democracy as we knew and know it. But let's start

first with something less metaphysical—

delivering justice to the public. And from there,

we’ll go global.

APPEAL: Right to Counsel

CRIMINAL CODE: Section 684(1) (Legal

Assistance for Appellant)

Is There a ‘Meaningful’ Right to Counsel for

Wrongfully Convicted Indigent Accused or

Those Seeking to Appeal a Wrongful

Conviction or Sentence in Canada? A Critical

Analysis of the Ontario Court of Appeal

Decision in R. v. C.(P.) (Young Person)

Silvia Dimitrova (Staff Lawyer at Justice

Niagara) (2018) 65 C.L.Q. 379

The case of R. v. C.(P.) shows a difficult reality

for many indigent accused persons seeking to

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appeal a wrongful conviction or sentence in

Canada, namely they do not have an automatic

right to counsel on appeal. Accused persons of

limited means can apply to a Court of Appeal to

receive a lawyer if they are denied legal aid

pursuant to s. 684(1) of the Criminal Code. The

reality is that many indigent accused who have

been denied legal aid prepare for and argue the

s. 684 application for appointment of counsel

unrepresented and while in custody. Incarcerated

persons are often unable to access resources or to

obtain legal advice in preparing their appeal. The

main legal issue in R. v. C.(P.) is, therefore,

whether s. 684(1) of the Code violates the

Canadian Charter of Rights and Freedoms .

The analysis below demonstrates the four ways in

which R. v. C.(P.) is significant and

subsequently points to the inability of indigent

accused in Canada to exercise a meaningful right

to counsel on appeal in certain circumstances.

APPEAL: Sentence Appeal

Proportionality in Sentence Appeals: Towards

a Guiding Principle of Appellate Review

James Foy (Of the Ontario Bar) (February 2018)

23 Can. Crim. L. Rev. 77

Appellate courts in Canada do not follow a

uniform approach to the review of sentencing

decisions. While courts have consistently

articulated that appellate review of sentencing

decisions is restrained, they have not identified a

principled basis for determining the boundaries of

this restraint. This article suggests that one

principled basis for deciding when to intervene in

sentence appeals is the principle of

proportionality. The principle of proportionality

can guide an appellate court in not only

determining when an appellate court should

intervene but also how it should intervene. This

article argues that by understanding

proportionality as encompassing two discrete

aspects—individual and comparative

proportionality—a principled and uniform

approach to sentencing review can be achieved.

EVIDENCE: Admissibility

A ‘Bad Rap’: R. v. Skeete and the

Admissibility of Rap Lyric Evidence

Ngozi Okidegbe (LL.M. Candidate at Columbia

Law School) (2018) 66 C.L.Q. 294

This article analyzes the current evidentiary

threshold for the reception of accused-authored

rap lyric evidence. It argues that the current

threshold jeopardizes trial fairness by allowing

the Crown to adduce highly prejudicial rap lyric

evidence at trial. It proceeds in three parts: Part 1

provides a contextualization of the issues. Part 2

examines the Campbell decision. Part 3 evaluates

how the Skeete decision differs from Campbell,

and provides a relatively low admissibility

threshold for accused-authored rap lyric

evidence. This article concludes by advocating

for the adoption of the Campbell approach with

modifications.

EVIDENCE: Causation

Removing Fault from the Law of Causation

Jeremy Butt (Judicial Law Clerk, Supreme Court

of Canada) (2017) 65 C.L.Q. 72

The law of causation suffers from unnecessary

complexity that creates uncertainty. This article

is divided into two parts. First, I will discuss how

morality and fault entered the causation analysis,

and second, I will argue for a reformulated the test

for causation: one that avoids all notions of fault

and morality. Causation ought to belong

uniquely within the actus reus of the offence.

The question of what is a significant contributing

cause should deal solely with the proximity of the

actor’s actions to the consequence. The moral

blameworthiness of the actor is best left to

considerations of mens rea, to be determined

based on the actor’s level of fault.

EVIDENCE: Confessions and Admissions

CHARTER: Section 7 (Fundamental Freedoms)

Assessing the Treatment of Confession

Evidence in Court: The Confessions Rule and

the Case of R. v. Oickle

Laura Fallon (Ph.D Candidate, Department of

Psychology, Memorial University), Weyam

Fahmy (MSc Candidate, Department of

Psychology, Memorial University), Brent Snook

(Department of Psychology, Memorial

University) (October 2018) 23 Can. Crim. L. Rev.

233

In R. v. Oickle (2000), an arson conviction was

upheld by the Supreme Court of Canada despite

the defendant's claim that his confession was

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involuntary. As well, the common law

confessions rule was formally restated in this

ruling. The confessions rule outlines the

conditions under which an admission of guilt

should be admissible as evidence for triers of fact.

In part, the rule states that confessions should not

be obtained through the use of threats, promises,

oppression, or police trickery that shocks the

community. There are two psychological

assumptions within this ruling: (1) the

interrogation tactics used against the defendant

would not have caused an involuntary confession,

and (2) community attitudes, or perceptions of

those attitudes, are a sufficient benchmark for

assessing the acceptability of police interrogation

tactics. A review of the relevant empirical

literature suggests that the first assumption is

invalid, and that the shock the community

standard is untenable. The implications of these

two unfounded assumptions for the truth-seeking

function of the justice system are discussed.

When in Doubt, Be Compliant: The Social

Dynamics of the Right to Silence

C. Lindsay Fitzsimmons (M.A. candidate,

Department of Psychology, York University),

Timothy E. Moore (Ph.D, candidate, Department

of Psychology, York University) (2018) 66

C.L.Q. 41

The criminal justice system in Canada attempts to

achieve a balance between the power of the state

and the vulnerability of suspects to possible

coercion when detained by the police. This

balance is especially important to achieve

because some police interrogators in Canada are

trained to exploit the vulnerabilities of detainees.

By way of comparison, detainees in the United

States are provided with greater protection than

are detainees in Canada. In the landmark United

States Supreme Court decision in Miranda v.

Arizona it was established that police must follow

detailed warning and waiver guidelines before

interrogating suspects in order to protect their

Fifth Amendment right against self-

incrimination. Although the content and structure

of Miranda warnings vary greatly, a typical

Miranda warning reads: “You have the right to

remain silent; anything you say can and will be

used against you in a court of law”. The wording

of the caution varies by jurisdiction, but it is

relatively concise, and clearly states that anything

that suspects say will be used against them in

court. Right to silence cautions in Canada also

vary by jurisdiction but in general, they are less

clear than Miranda and they are not mandated by

law.

EVIDENCE: Demeanour

Assessing Truthfulness on the Witness Stand:

Eradicating Deeply Rooted Pseudoscientific

Beliefs about Credibility Assessment by Triers

of Fact

Brent Snook and John House (Department of

Psychology, Memorial University), Meagan I.

McCardle and Weyam Fahmy (MSc Candidates,

Department of Psychology, Memorial

University) (September 2017) 22 Can. Crim. L.

Rev. 297

The Supreme Court of Canada (SCC) ruled in

R. v. S.(N.) (2012) that a witness’s face provides

useful cues to deceit that are important for trial

fairness, and that the need to view a witness’s face

while testifying “is too deeply rooted in the

criminal justice system to be set aside absent

compelling evidence”. In this commentary, we

present compelling empirical evidence that (a)

the vast majority of cues to deception are too faint

for reliable deception detection, (b) most facial

expressions and other non-verbal cues are

unrelated to deception, (c) people, including

professionals in legal disciplines (e.g., judges,

lawyers), are unable to detect deception barely

beyond chance levels, and (d) it is not possible to

improve deception detection with training

programs that focus exclusively on non-verbal

cues. The fact that existing empirical data fails to

align with the venerated belief surrounding

deception detection raises serious concerns about

the reliance on pseudoscientific beliefs in SCC

decision-making.

Detecting Deceit During Trials: Limits in the

Implementation of Lie Detection Research—A

Comment on Snook, McCardle, Fahmy and

House

Vincent Denault (Department of Communication,

Université de Montréal), Louise Marie Jupe

(Department of Psychology, University of

Portsmouth, United Kingdom) (February 2018)

23 Can. Crim. L. Rev. 97

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In their 2017 paper Assessing Truthfulness on the

Witness Stand: Eradicating Deeply Rooted

Pseudoscientific Beliefs about Credibility

Assessment by Triers of Fact, Snook, McCardle,

Fahmy and House (“Snook et al.”) conclude that

the Supreme Court of Canada's position regarding

the use of nonverbal communication for

credibility assessment by trial judges is

unfounded. However, due to the fact that they did

not consider distinctive characteristics of trials as

well as additional research into nonverbal

communication and deception detection, we

argue that using Snook et al. to refute the position

of Canada’s highest court on the importance of

nonverbal communication during trials is

unwarranted. Trial judges should not

underestimate the importance of nonverbal

communication in courtrooms based on Snook et

al.

EVIDENCE: Experts

Drawing the Line between Lay and Expert

Opinion Evidence

Jason M. Chin (T.C. Beirne School of Law,

University of Queensland), Jan Tomiska

(University of Toronto), Chen Li (University of

Toronto.) (September 2017) 63 McGill L.J. 89

This article examines the vanishingly thin line

between lay and expert opinion evidence in

Canada. In Parts I and II, we set the stakes—the

dangers involved in expanding the scope of

admissible opinion evidence. Parts III and IV

illustrate these problems as we examine three

cases in which authoritative lay witnesses opined

on topics requiring specialized training and

expertise. In Part V, we seek to fill this void by

proposing a new analytic approach—Lay

Opinion 2.0—which draws on both the practical

and epistemological distinction between lay and

expert opinion to provide an efficient and fair test

for the admission of lay opinion evidence.

EVIDENCE: Hearsay

The Future of the Principled Approach to

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

approach” to the admission of hearsay evidence.

Originally conceived as a flexible supplement to

statutory and traditional common law exceptions

to the rule against hearsay, the principled

approach has over the years developed

considerable structure of its own. Bradshaw, the

most recent case in the court’s hearsay canon,

sharply and unexpectedly restricts the ways in

which a trial judge can assess reliability for the

purpose of admissibility. In the course of doing

so, the Court has, perhaps inadvertently, elevated

the test for reliability to the point where it is very

difficult indeed to satisfy. Fortunately, there are

relatively straightforward ways, consistent with

the court's own case law, for the court to reverse

course and provide a workable standard of

reliability within the principled approach.

EVIDENCE: Similar Fact

Similar Fact Evidence & Crime Linkage

Analysis—In Search of an Empirical

Foundation to Support the Identity Inference

Michelle S. Lawrence (Faculty of Law,

University of Victoria) (July 2019) 24 Can. Crim.

L. Rev. 141

In Canada, the Crown is generally prohibited

from tendering evidence of the accused’s bad

character in its case in chief. A significant

exception is made for similar fact evidence. The

Supreme Court of Canada in R. v. Handy, [2002]

2 S.C.R. 908, listed seven factors for the court's

consideration in this assessment, including “any

distinctive feature(s) unifying the incidents.”

Strikingly, to date, trial courts have proceeded in

their application of the Handy factors without the

benefit of empirical evidence on crime series

patterns. This article will explore the potential

use that might be made of crime linkage analysis,

particularly in cases of serial sex crimes where

identity is in issue. It will describe ways in which

criminal litigators might usefully engage this

research either in support of the admission of

similar fact evidence, or as a check against its

misuse and any consequent wrongful conviction.

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PROSECUTOR: Discretion

Seeking Justice by Plea: The Prosecutor's

Ethical Obligations During Plea Bargaining

Palma Paciocco (Assistant Professor, Osgoode

Hall Law School, York University) (September

2017) 63 McGill L.J. 45

Canadian Crown prosecutors enjoy tremendous

discretionary power. They can leverage this

power during plea bargaining by structuring the

terms of plea deals and by engaging in aggressive

negotiation tactics, thereby exerting a

disproportionate influence on plea bargaining

processes and outcomes. This article considers

how Crowns should wield their power to shape

plea bargains in light of their ethical obligation to

seek justice. In the process, the article addresses

a few especially thorny questions, including:

whether Crowns should ever strategically

overcharge defendants to facilitate plea

negotiations; how Crowns ought to balance the

accuracy of criminal charges against the fairness

of criminal sentences when the two are in tension;

and how Crowns can strike an appropriate

balance between plea bargaining fairness and

efficient case management. The article offers

several concrete policy recommendations aimed

at helping Crowns satisfy their ethical obligation

to seek justice in the context of plea bargaining.

TRIAL: Advocacy (Cross Examination)

Cross-Examination: The Art of the Advocate

(4th Edition) The Hon. Roger E. Salhany, M.D.

Edelson and Hon. W.V. Clifford (LexisNexis,

Toronto, 2016): Book Review

Gilles Renaud (Juge, Cour de justice de l'Ontario)

(June 2017) 22 Can. Crim. L. Rev. 235

In 1992, I had the pleasure of discovering a slim

and yet superb study of the methods and

techniques of impeachment, Cross-Examination:

The Art of the Advocate (Revised Edition), by

Roger E. Salhany, then a member of the Superior

Court of Ontario. The Bench and Bar now enjoy

a revised and up-to-date analysis of this topic, the

quality of which has been enhanced by the signal

contributions of two very experienced and able

criminal defence counsel, Michael D. Edelson

and W. Vince Clifford, who were partners in

Ottawa until the latter’s appointment to the

Ontario Court of Justice in February 2017. The

Preface instructs us that the most recent edition

conserves the main features of the three prior

editions, notably lengthy passages illustrating the

style and substance of the greatest barristers,

starting with Seddon’s case and including many

other excerpts from leading trials. In addition,

this edition also focuses on practical techniques

for successful cross-examination in the modern

trial context. Of note, as we read at page v, “This

latest edition also covers developments in

jurisprudence and addresses many recent trends

and challenges about which counsel should be

aware.”, for example, the transformational impact

of social media, digital forensics and computer-

based evidence, the staples of modern trials.

TRIAL: Burden of Proof / Onus / Reasonable

Doubt

Doubt about Doubt: Coping with R. v. W.(D.)

and Credibility Assessment

David M. Paciocco (Justice, Ontario Court of

Appeal) (February 2017) 22 Can. Crim. L. Rev.

31

The decision of the Supreme Court of Canada in

R. v. W.(D.) to give guidance in applying the

reasonable doubt concept in credibility cases was

sage. Experience had shown that, in the “he

said/she said” context, there is ample opportunity

for error in determining reasonable doubt. As

many jurists have since acknowledged, however,

the “W.(D.) framework,” was stated imperfectly.

Its meaning can best be gleaned, not by reading

the W.(D.) framework as if it had been a statute,

but by identifying and respecting its underlying

principles. This article is intended to assist in

applying the W.(D.) framework by highlighting

the reasoning errors that inspired its adoption, and

by identifying those underlying principles. Those

underlying principles are then reduced into

proposition form. The propositions were crafted

in an effort to remove the ambiguities from the

W.(D.) framework, and to include instruction that

can assist in avoiding the pitfalls left open by the

W.(D.) framework. The author does not intend

for these propositions be used in lieu of the

articulated W.(D.) framework. The propositions

are made available to consult, along with the

framework, so that the W.(D.) framework better

achieves its purpose.

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TRIAL: Crimes Against Humanity/War

Crimes

CRIMINAL CODE: Section 469(c.1)

Défendre un accusé pendant un procès pour

génocide, crimes contre l'humanité et crimes

de guerre au Canada: Mission Impossible?

Fannie Lafontaine (Faculté de droit de

l'Université Laval), Fabrice Bousquet Doctorant

à la Faculté de droit de l'Université Laval) (June

2017) 22 Can. Crim. L. Rev. 159

The first part of this article concerns the

composition of a trial court and its lack of

expertise: a superior court composed of a judge

and jury or a judge alone. After having

established that the choice of a jury was made, in

fact, for practical and legal reasons, options that

are unrealistic from the defence’s standpoint, the

authors promote the creation of a specialized

jurisdiction, or the specialization of a pool of

judges, for crimes described in the Crimes

Against Humanity and War Crimes Act. The

second part sheds some light on the options

offered to and the restrictions imposed on the

defence regarding the manner in which

testimonies are collected at trial and its pros and

cons. This brings us to a third part in which the

authors explain how Canadian judges made

efforts, in trials like these, to assess very complex

evidence. The uncertainty that results from the

credibility and the reliability of evidence does not

play in favour of the accused while the witnesses

are at the heart of the trial. Finally, the analysis

concludes with a look at the paradox resulting

from the present use of the Program on Crimes

Against Humanity and War Crime, under which

the refugee or immigration status of an accused

who has been acquitted may be questioned on the

basis of the same facts. That “additional charge”

[translation] or “punitive proceeding”

[translation] makes it difficult for defence

counsel to ensure that the accused is no longer

prosecuted once a “not guilty” verdict is returned.

TRIAL: Defences: Common Law (Provocation)

CRIMINAL CODE: Section 232 (Murder

Reduced to Manslaughter)

Canada's Provocation Reform and the Need to

Revisit Culpability in ‘Loss of Control’ Cases

Christopher Nowlin (Langara College BC, and of

the British Columbia Bar) (February 2018) 23

Can. Crim. L. Rev. 43

Canada reformed its provocation law in 2015 by

requiring that the provocative act be an indictable

offence. The trigger for a homicidal reaction can

no longer be merely a ‘wrongful’ act or insult, so

a person charged with murder can no longer be

partially excused because of a psychological

blow. However, a full acquittal remains

theoretically possible in the case of an

unconscious killing wrought by a psychological

blow. Canadian common law distinguishes

between claims of physical involuntariness and

moral involuntariness. The reason for the

distinction is unclear, as an acquittal can follow

from both types of claims despite great

differences in offences and fact-patterns. To

obtain a more legally and ethically consistent

result across all automatism, duress, necessity

and provocation claims, Canadian criminal law

should apply principles of legal causation and

foreseeability to all such claims and use a wider

scope on its causal lens than it currently uses.

Constitutionalizing a Flawed Defence

Isabel Grant (Peter A. Allard School of Law,

University of B.C.), Debra Parkes (Peter A.

Allard School of Law, University of B.C.) (2019)

55 C.R. 137

In R. v. Simard, B.C. Supreme Court Justice

Thompson held that the Canadian Charter of

Rights and Freedoms constitutionalizes the

defence of provocation in the context of serious

verbal insults involving no threat of harm. In

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

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committed an indictable offence punishable by at

least five years, were designed to protect

vulnerable women and, because they make the

defence unavailable in a much wider range of

circumstances unrelated to protecting vulnerable

women, they are overbroad. This result is

unresponsive to the flaws that are identified under

the arbitrariness analysis and in fact makes the

situation worse. In expanding the defence of

provocation in a way that makes it more available

to men who kill women, the judge has invoked

unrealistic hypotheticals involving abused

women and a hypothetical racialized accused that

bear no resemblance to the actual case law

dealing with provocation.

TRIAL: Defences: Common Law

(Justification) and Mens Rea

CHARTER: Section 7 (Fundamental Justice)

Dignifying the Dadson Principle: Towards a

New Approach

Khalid Ghanayim (Faculty of Law, University of

Haifa, Israel), Mohammed Saif-Alden Wattad

(Faculty of Law, Zefat Academic College, Israel)

(September 2017) 22 Can. Crim. L. Rev. 239

May a person harvest the fruits of a defence to

criminal liability, without establishing—at the

time the conduct took place—a mental state

towards the objective circumstances of the

defense? If no, then what kind of mental state

should it be? Furthermore, in such instances,

would the actor be liable for a completed offence

or solely for criminal attempt? These three

questions have been the subject of an intensive

amount of scholarly writing. Unlike the case for

justifications, we assert that in that an act

performed under excusing circumstances does

not correspond to what is right and proper to do

under those circumstances, and therefore full

awareness is though essential yet still insufficient,

i.e. intention to avert the danger is required as

well. Additionally, we perceive the outcome of a

case of unknowing justification as identical to the

outcome of the case of impossible attempt, i.e. it

is not a classic case of impossible attempt, but the

ramification is the same as the case of impossible

attempt. Finally, we assert, innovatively, that our

analysis and conclusions are necessitated by the

constitutional understanding of the fundamental

principles of criminal law, in particular the

constitutional right to dignity vis-à-vis the notion

of the mental state requirement in criminal law.

Objective Mens Rea Revisited

Terry Skolnik (Faculty of Law, University of

Ottawa) (September 2017) 22 Can. Crim. L. Rev.

307

Since the enactment of the Canadian Charter, the

criminal law concept of mens rea has evolved

significantly. The objective standard of fault or

objective mens rea has been the subject of much

doctrinal and theoretical examination. Where

proof of objective mens rea is required, an

accused can be convicted because their dangerous

conduct constituted a marked departure from the

norm and a reasonable person would have

foreseen and avoided the risk. In this article, it is

argued that there are two groups of concerns

related to the concept of objective mens rea in

Canadian law.

On the one hand, there are culpability-related

concerns. Culpability for objective mens rea can

be difficult to justify in a system of criminal law

premised on rationality, choice, and fair

stigmatization. On the other hand, there are

constitutional concerns. Subjective awareness of

a risk of harm to others should be constitutionally

required in certain contexts. This is most notably

the case where the accused can be stigmatized for

having killed another person and is liable to life

imprisonment. Due to these two groups of

concerns, objective mens rea should be revisited

accordingly.

TRIAL: Defences: Common Law (Duress,

Necessity)

CRIMINAL CODE: Section 17 (Compulsion by

Threats)

Reform of the Defence of Duress (and

Necessity)

Steve Coughlan (Schulich School of Law,

Dalhousie University), Gerry Ferguson (Faculty

of Law, University of Victoria), Don Stuart

(Faculty of Law, Queens University), Benjamin

Berger (Osgoode Hall Law School, York

University), Carissima Mathen (Faculty of Law,

University of Ottawa), Peter Sankoff (Faculty of

Law, University of Alberta) (2018) 66 C.L.Q. 230

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This article is divided into two parts. In Part One

we consider the defence of duress. We consider

three primary questions: whether there is a need

for two separate versions of the defence, whether

a statutory version of the defence should have a

list of excluded offences, and how the statutory

defence should be phrased. Based on that

discussion we then recommend that a single

statutory version of duress, applying to parties

and principals and not explicitly removing any

offence from its scope should be enacted. We

also make particular recommendations about how

such a new section should be drafted, though we

do not propose particular language. Having

made those recommendations we then mention

other issues which could arise in connection with

the defence of duress, such as the possibility of

treating it as a partial defence or the potential

overlap with s. 34. The second part of this article

turns to the defence of necessity. Two central

themes are pursued there. The first looks at the

defence of necessity in its own right, to consider

some ambiguities in the way it has been framed

to date, and to suggest reforms in that regard.

The second looks at necessity as it relates to

duress, to which it is juristically very similar. In

fact there are some differences between the way

in which the two defences are constructed, and we

consider whether those differences are

appropriate.

TRIAL: Defences: Common Law (De minimis)

Why De Minimis Should Not Be a Defence

Steve Coughlan (Schulich School of Law,

Dalhousie University) (Spring 2019) 44 Queen's

L.J. 262

De minimis non curat lex—the idea that the law

does not concern itself with trifles—is originally

a private law maxim whose applicability in

criminal law is uncertain. The author argues that

de minimis should not exist as a criminal defence.

This article distinguishes the use of de minimis as

an (accepted) interpretative principle in criminal

law from its application as a defence. In doing

so, the author critiques the potential rationales for

de minimis offered by Arbour J. in Canadian

Foundation for Children, Youth and the Law v.

Canada (Attorney General). Instead, the author

draws a parallel between de minimis and

constitutional exemptions, arguing that they are

functionally identical. As the Supreme Court of

Canada has rejected constitutional exemptions as

a remedy, it should also reject de minimis as a

defence. The author also notes that judges are

responsible for adjudicating innocence and guilt,

not deciding whether the criminal justice system

should be invoked—judges should not have the

power to override prosecutorial discretion by

invoking de minimis.

TRIAL: Defences: Common Law (Entrapment)

Entrapment Minimalism: Shedding the “No

Reasonable Suspicion or Bona Fide Inquiry”

Test

Steven Penney (Faculty of Law, University of

Alberta) (Spring 2019) 44 Queen's L.J. 356

In Canada, the entrapment defence can be

established in one of two ways. In the first way,

“Entrapment 1”, the defence must prove that

police provided the accused with an opportunity

to commit an offence without: (i) reasonably

suspecting him or her of committing that offence;

or (ii) engaging in a bona fide inquiry.

“Entrapment 2” arises when police go beyond

providing an opportunity and “induce” the

commission of the offence. The author argues

that courts should cease recognizing Entrapment

1 as a discrete defence generating an automatic

stay of proceedings. Entrapment 1 coheres

poorly with the defence's rationale (deterring

police from manufacturing crime), has generated

a convoluted and inconsistent jurisprudence, and

fails to draw a sensible line between abusive and

non-abusive police methods. Instead,

Entrapment 1 should be folded into the Charter’s

general abuse of process doctrine, allowing courts

to consider all relevant circumstances in deciding

whether alleged state misconduct is grave enough

to warrant a stay of proceedings. This would

leave Entrapment 2 as the only true entrapment

defence automatically requiring a stay.

TRIAL: Guilty Plea (Withdrawal of Guilty

Plea)

Does R. v. Wong Apply to Applications to

Withdraw a Guilty Plea Before a Trial Judge?

Judge Wayne Gorman (Judge, Provincial Court

of Newfoundland and Labrador) (2018) 66

C.L.Q. 331

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In R. v. Wong 2018 SCC 25, the Supreme Court

of Canada considered an appeal in which the

accused sought to appeal from conviction by

applying to withdraw his guilty plea. Thus, the

application was commenced in an appeal court

(the British Columbia Court of Appeal) rather

than before the trial judge and it occurred after

sentence was imposed. An application to

withdraw a guilty plea can be made before

sentence is imposed or after sentence is imposed.

For a trial judge, such an application arises in the

former situation. Thus, is Wong of any assistance

to trial judges or is it limited to appeal court

judges? In this article I intend to review Wong

from the perspective of whether it provides any

guidance to trial judges faced with an application

to withdraw a guilty plea. I will commence with

a review of when a trial judge can allow an

accused person to withdraw a guilty plea;

consider the holding in Wong; then attempt to

determine if it can be applied by trial judges to

such applications heard by them.

TRIAL: Guilty Plea (Fitness to Plead Guilty)

CRIMINAL CODE: Part XX.1

Fitness to Plead Guilty: The Limited Cognitive

Capacity Test and Mentally Disordered

Accused

Mark Luimes (JD candidate, University of

Toronto) (Winter 2019) 77 U.T. Fac. L. Rev. 27

The limited cognitive capacity test for pleading

guilty does not require an accused be able to make

rational decisions in their own best interest. The

Charter right to stand trial and make full answer

and defence that justified the low test for fitness

to stand trial does not justify its application to

fitness to plead guilty. Given the risk of false

guilty plea wrongful convictions experienced by

mentally disordered accused, and in light of the

considerable pressures to plead guilty

experienced by an accused during plea

negotiations, the low limited cognitive capacity

test for pleading guilty should be replaced with a

higher analytic capacity test that requires the

accused have the capacity to make rational

choices in his or her own best interests.

TRIAL: Jury (Charge)

Mock-Jurors’ Self-Reported Understanding

of Canadian Judicial Instructions (is not very

good)

Michelle I. Bertrand (Criminal Justice, University

of Winnipeg), Richard Jochelson (Faculty of

Law, University of Manitoba) (2018) 66 C.L.Q.

137

Studies of the criminal jury within a Canadian

context remain few and far between compared to

such research based in other jurisdictions

especially the United States. The study of jury

work in Canada is significantly curtailed for

structural reasons, which we outline below. This

makes the study of actual jurors who have served

almost impossible in Canada so researchers must

use alternative methods to study Canadian

juridical issues. The current study used a student

sample to investigate comprehension of Canadian

Judicial Council (CJC) pattern instructions. This

is the first study to interrogate CJC pattern

instructions in relatively common and

uncomplicated crimes. In this article, we discuss

the barriers to jury research in Canada, consider

some challenges facing jurors in comprehending

legal concepts, and explore the development of

pattern instructions in Canada. We then describe

the results of our study, which revealed that a

majority of participants self-reported a lack of

comprehension in the pattern instructions

provided and demonstrated a lack of

understanding of foundational legal principles

based on responses to other questions. This lack

of comprehension has implications for policy

development and for future studies in the area of

juror comprehension.

TRIAL: Jury (View)

CRIMINAL CODE: Section 652 (View)

We Should Probably Take a Look at That:

The Process of Taking a View in Criminal

Proceedings

Peter Sankoff (Faculty of Law, University of

Alberta): (2017) 65 C.L.Q. 140

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

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going on a sort of field trip to experience

evidence relevant to the case first-hand. Though

it is by no means a common procedure, a court

possesses the discretion to allow all parties, as

well as the jury, to leave the courtroom in order

to view any place, thing or person. This article is

an attempt to bring together the diffuse

jurisprudence on the subject and offer a few

thoughts about the overall utility of the exercise.

TRIAL: Jury (Selection)

CHARTER: Section 11(f) (Trial by Jury)

Optional By-Products or Constitutionally-

Protected Purposes? Societal Interests in

Representativeness, the s. 11(f) Right to Trial

by Jury, and the Kokopenace Decision

Misha Boutilier (JD candidate, University of

Toronto) (2018) 65 C.L.Q. 458

The Supreme Court of Canada’s decision in

Kokopenace marks the first attempt by the court

to define the meaning of the ss. 11(d) and 11(f)

Charter right to trial by a representative jury in

the out-of-court jury selection process. The

decision indicated that the court is deeply divided

about the meaning of the representativeness right.

This article will argue that the tests proposed by

Moldaver and Karakatsanis JJ. disconnect the

s. 11(f) representativeness right from its

underlying societal purposes out of an

exaggerated concern about the negative effects of

more robust protection of these purposes. In turn,

this approach unnecessarily removed a key

impetus for governments to remedy Indigenous

underrepresentation on juries. Instead of treating

the societal purposes as optional by-products, the

Court should have taken the view that s. 11(f)

deputizes the accused to achieve the underlying

societal purposes by demonstrating violations of

representativeness. This essay will focus

specifically on the important societal purposes

underlying the s. 11(f) Charter right to trial by

jury. It will not consider s. 15 Charter issues,

Aboriginal rights claims, or arguments related to

the distinct constitutional status of Aboriginal

peoples. This article will also consider the court

decisions in Ontario and Saskatchewan applying

the Court of Appeal’s test that were released prior

to the Supreme Court of Canada’s decision,

which have not been analyzed by other authors to

date.

TRIAL: Sentencing

Sentencing Guidelines for Canada: A Re-

Evaluation

Samuel Mosonyi (Faculty of Law, University of

Toronto) (September 2017) 22 Can. Crim. L.

Rev. 275

The current federal Liberal government should

analyze the experience of England and Wales

when exploring alternatives to mandatory

minimum sentences. Sentencing guidelines of

the variety used in England and Wales can

contribute to consistent sentencing practice while

still retaining significant judicial discretion. This

study examines the factors that Canadian

policymakers should consider in their

deliberations using interviews with sentencing

guideline drafters, the judiciary, and other

criminal justice experts in England and Wales.

TRIAL: Sentencing Principles (Fetal Alcohol

Spectrum Disorder)

CRIMINAL CODE: Sections 718.1

Proportionate Justice: An Examination of

Fetal Alcohol Spectrum Disorders and the

Principles of Sentencing in Saskatchewan

Zoe Johansen-Hill (JD Candidate, University of

Saskatchewan) (2019) 82 Sask. L. Rev. 75

The principles of sentencing in the Canadian

criminal justice system require courts to consider

the background of offenders as well as the

circumstances of the crime committed. This is in

part due to the fundamental principle of

sentencing stated in s. 718.1 of the Criminal

Code. In some situations, there are also mandates

to consider particular aspects of an offender’s

background. For example, the Supreme Court of

Canada emphasized in R. v. Gladue and

R. v. Ipeelee that courts are under an obligation to

pay “particular attention to the circumstances of

Aboriginal offenders”. This article will focus on

the impact of Fetal Alcohol Spectrum Disorders

on sentencing decisions and dangerous offender

designations in Saskatchewan. Using examples

from recent Saskatchewan case law, I argue that

links made between symptoms of cognitive

impairment and the necessity of lengthier

sentences result in disproportionate sentences

contrary to s. 718.1 as well as inappropriate

dangerous offender designations.

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TRIAL: Sentencing Principles (Gladue)

CRIMINAL CODE: Section 718.2(e)

The (Differential) Utilization of Conditional

Sentences Among Aboriginal Offenders in

Canada

Andrew A. Reid (Criminology Department,

Douglas College, PhD. candidate, School of

Criminology, Simon Fraser University) (June

2017) 22 Can. Crim. L. Rev. 133

Canada’s community-based custody sanction—

the conditional sentence of imprisonment—came

into effect in 1996 with major statutory reforms

to the Criminal Code. While the new sanction

was found to reduce incarceration rates among

the general offender population, there has been no

evidence that it resulted in decreases of

incarceration among Aboriginal offenders. Now

20 years following its introduction, this study sets

out to document recent trends in the use of

conditional sentences and for the first time, focus

on trends of Aboriginal offenders. Using a new

metric, the Conditional Sentence Utilization

percent, the analyses reveal a shift in general

utilization of the sanction. At the onset of the new

millennium, Aboriginal offenders received a

greater proportion of community-based

imprisonment sentences. This pattern reversed in

2008-09 and for the next five years non-

Aboriginals received a greater proportion of

community-based imprisonment sanctions.

Analyses conducted at the provincial/territorial-

level reveal widespread variation in the use of

community custody among the two offending

populations. In Quebec, Aboriginal offenders

consistently received conditional sentences in far

greater proportion to non-Aboriginals. In

Manitoba, the opposite was found. The

implications of these findings on criminal justice

policy are discussed.

Residential School Syndrome and the

Sentencing of Aboriginal Offenders in Canada

David Milward (Faculty of Law, University of

Victoria) (2018) 66 C.L.Q. 254

The crisis of Aboriginal over-incarceration in

Canada persists unabated. Statistical estimates as

of 2016 are that Aboriginals amount to 27% of

provincial and territorial inmates, and 28% of

federal inmates. I am of the view that Gladue is

ultimately inadequate to address Aboriginal over-

incarceration. I nonetheless hold the view that

Gladue may, for the time being, be of some

utility. What I endeavour to explore in this article

is how to better strengthen Gladue’s potential by

adjusting its jurisprudential lens. The proposed

adjustment is rooted in a body of theory known as

Therapeutic Jurisprudence, which demands that

law maximize its potential for beneficial

therapeutic outcomes for persons suffering from

mental health problems. It shares parallels with

Post-Traumatic Stress Disorder, although its

emphasis is on mental health effects stemming

from the social traumas besetting Aboriginal

peoples that are recognized in Gladue itself. It

therefore offers a bridge between Gladue and

Therapeutic Jurisprudence. Part of the reason for

exploring this possibility is that cases involving

the sentencing of accused suffering from Post-

Traumatic Stress Disorder both display a

jurisprudential emphasis that resembles

Therapeutic Jurisprudence, and seem to receive a

generosity in sentencing outcomes relative even

to Gladue. The hope is that the Gladue regime

can thereby be strengthened and revitalized.

TRIAL: Sentencing Principles (Aggravating

Circumstances)

CRIMINAL CODE: Sections 151-153 (Sexual

Offences) and 718.2(a(ii.1))

Sentencing for Sexual Offences Against

Children and Youth: Mandatory Minimums,

Proportionality and Unintended

Consequences

Janine Benedet (Allard School of Law,

University of British Columbia) (Spring 2019) 4

Queen's L.J. 284

In the past fifteen years, mandatory minimum

sentences have become significantly more

prominent in Canadian criminal law. Most

analyses of the constitutionality of mandatory

minimums have focused on their application in

drug and gun crimes, as well as murder. In

contrast, relatively little attention has been paid to

mandatory minimums attached to sexual offences

committed against children and youth. The

author argues that the introduction of mandatory

minimums for sexual offences committed against

children and youth does not address the power,

gender and race inequalities that characterize

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sexual offending. The author overviews

sentencing decisions in this area and concludes

that the introduction of minimum sentences has

short-circuited a deeper understanding of the

harms of these crimes, and does nothing to

prevent problematic judicial reasoning based on

myths and stereotypes about child sexual abuse.

These myths and stereotypes find their way into

the sentencing process and lead to some

aggravating factors being ignored or downplayed,

while other factors are improperly identified as

mitigating. The author suggests that the criminal

justice system needs a solution that roots out

lingering stereotypes in order to properly

acknowledge and remedy the harms to child and

youth victims, the group most vulnerable to

sexual violence.

TRIAL: Sentencing Principles (Aggravating

Circumstances)

CRIMINAL CODE: Sections 718.2(a(iii.1)) and

722 (Victim Impact Statements)

Victim Rights in Sentencing: An Examination

of Victim Impact Statements

Teagan Markin (JD Candidate, Schulich School

of Law, Dalhousie University) (February 2017)

22 Can. Crim. L. Rev. 95

The intended purpose of victim impact statements

has been the subject of debate since they were

first introduced to the sentencing process in 1989.

This article examines the proper role of victim

impact statements as a function of victim rights to

demonstrate that while participatory rights for

victims strongly support a model based on

expression and communication, using these

statements instrumentally as evidence for the

court undermines victim participation and

mischaracterizes the needs of victims in

sentencing. This article also assesses recent

amendments to the victim impact statement

regime, which point towards an intended

instrumental model premised on increased

consideration of ancillary harm and retributive

sentencing principles. These amendments are

inconsistent with a principled theory of victim

rights and unresponsive to the needs of victims

and the interests of all citizens in a criminal

justice system based on just and appropriate

sentencing goals. Victim impact statements

should be viewed as an implementation of

victims’ participatory rights, rather than as a

source of information on which to base a criminal

sentence.

TRIAL: Sentencing (Immigration

Consequences)

Collateral Immigration Consequences in

Sentencing: A Six-Year Review

Sasha Baglay (Legal Studies Program, Faculty of

Social Science and Humanities, University of

Ontario Institute of Technology) (2019) 82 Sask.

L. Rev. 47

In R. v. Pham, the Supreme Court of Canada held

that collateral immigration consequences may be

a relevant factor in determining a fit sentence.

These immigration consequences result from the

Immigration and Refugee Protection Act, which

allows for removal of permanent residents and

foreign nationals convicted of certain types of

offences. Although Pham provided important

guidance on the role of immigration

consequences in sentencing, it also left several

points unclear. This article seeks to examine how

lower courts have interpreted Pham and, in

particular, seeks to address unclear aspects of the

decision. Part II of this article provides an

overview of the Pham case, pointing out

confusing aspects of the decision as well as

suggesting possible interpretations of the main

proposition of the decision. Part III discusses the

inadmissibility regime and its relationship with

sentencing. Part IV presents the findings of a case

law review spanning a six-year period

immediately following the release of Pham

(March 13, 2013, to March 1, 2019). This article

concludes by offering some thoughts on the

desirable interpretation of Pham which may

provide greater consistency in decision-making

and outlining the case's application to sentencing

of non-citizens.

TRIAL: Sentencing (Multiple Murders)

CRIMINAL CODE: Sections 745.21, 745.51

(Multiple Murders)

Hope for Murderers? International Guidance

on Interpreting the Protecting Canadians by

Ending Sentence Discounts for Multiple

Murders Act

Derek Spencer (Criminal Justice, University of

Winnipeg) (2017) 22 Can. Crim. L. Rev. 207

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Lifelong incarceration, that is, any prison

sentence that denies an offender a realistic hope

of release from its very outset, has become a

contentious issue internationally. At a time many

countries are moving away from imposing such

sentences, Canada has taken a step towards

allowing lifelong incarceration through the

passing of multiple murders legislation in 2011.

This article draws from the experiences in

Germany, the United States and the United

Kingdom all of whom have addressed the issue of

lifelong incarceration. This article examines

these three countries experiences with lifelong

incarceration, bringing forward considerations

that should be made in Canada when considering

multiple murder and extradition cases.

The Hope Principle? Exploring an Unwritten

Principle of Sentencing Law

Derek Spencer (Criminal Justice, University of

Winnipeg) (2018) 65 C.L.Q. 415

While s. 718 of the Canadian Criminal Code

sets out the majority of principles, purposes and

rules of sentencing law, others such as the

transaction concept, the step or jump principle

and the gap principle are not codified but rather

come from the common law. This article

explores the possibility of another common law

sentencing principle—hope, more specifically,

hope of prospective release from incarceration.

This article begins with a brief discussion of the

role hope has played historically in Canadian

sentencing law. Next, I discuss the Multiple

Murders Act and the early cases interpreting this

legislation. I then explore how hope operates in

conjunction with three sentencing principles:

parity; rehabilitation; and totality. Hope and

rehabilitation have a symbiotic relationship, with

hope of release acting as the motivating factor for

rehabilitation and rehabilitation the means to

achieve the hoped for goal of release. Within the

totality principle, hope serves as a guidepost

prescribing an absolute upper limit to a criminal

sentence. By recognizing hope as a component

of sentencing law, the criminal justice system is

able to ensure all individuals are treated justly and

humanely.

How Multiple Murder Sentencing Provisions

May Violate the Charter

Derek Spencer (Criminal Justice, University of

Winnipeg) (2019) 55 C.R. 165

On February 8, 2019, Alexandre Bissonnette was

sentenced to life in prison with no parole for 40

years. Just over two years prior, Bissonnette

entered the Grand Mosque of the Islamic Cultural

Center of Quebec, armed with guns and a hateful

ideology. Bissonnette launched an attack that left

six dead and many more injured, including five

with severe injuries. Bissonnette was the third

case ruling on the constitutionality of s. 745.51,

and the first decision to find the section

unconstitutional. Lifelong incarceration is a

contentious issue and has been barred in many

countries. While lifelong incarceration has been

a factor in some extradition cases, the Multiple

Murders Act is the first piece of legislation that

forces Canadian courts to consider the

permissibility of lifelong incarceration under

Canadian sentencing principles and the Canadian

Charter of Rights and Freedoms.

TRIAL: Wrongful Convictions

Innocence Compensation: The Obstacles of

Fault and Crown Immunities to Financial

Redress

Myles Frederick McLellan (Department of Law

and Politics, Algoma University; Director of the

Innocence Compensation Project) (October

2018) 23 Can. Crim. L. Rev. 291

An innocent person who has proven to be

wrongly accused of criminality has two avenues

of relief available to seek compensation in

Canada. The first is the vanishingly remote

application to the State for the exercise of grace

as a function of the Royal prerogative of mercy.

The far more common route is civil litigation for

financial redress due to the harms caused by the

actions of crown attorneys and police officers.

Substantial hurdles stand in the way of any

prospect for success in this regard at the outset,

most particularly by way of crown immunities

and fault thresholds. For crown counsel and

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

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malice. Provincial and territorial governments as

the ultimate employers of crown attorneys are

immune to liability. For police officers and the

services that employ them the only immunity

available is by way of legislation. A handful of

provinces shield police if they acted in good faith.

Otherwise there is recourse for negligent

investigations. If the litigation is for

compensation for the violation of a Charter right,

the landscape is unfortunately less than clear.

This article argues that these limitations on the

financial responsibility of the Crown and its

servants and agents to those who have been

harmed by errors in the criminal justice process

are unfair and lack principle.

SENTENCING: Incarceration

The End Stage of Solitary Confinement

Lisa Kerr (Faculty of Law, Queen's University)

(2019) 55 C.R. 382

This article argues that the legal system has

reached the end stage of the disease of solitary

confinement, and analyzes a few of the salient

features of this process. The shortcomings of the

federal provisions that, until now, authorized

solitary, have been well documented. The

negative health effects of solitary are well-

established in medical literature, and have now

been accepted by every Canadian judge who has

seriously considered the issue. In response to a

mountain of bad press and lawsuits, the

Correctional Service of Canada has drastically

reduced the numbers of inmates who are

officially held in segregation. These are just a

few of the indicators that solitary has become

broadly unacceptable, and that key legal and

penal actors are now willingly engaging in a

process of reduction and reform.

CRIMINAL CODE: Sections 22.1-22.2

(Organizations)

La codification de la responsabilité criminelle

des organisations au Canada: étude de la

portée et de certaines lacunes de l'intervention

législative

Pierre-Christian Collins Hoffman (Avocat

(LL.M.)) (2017) 47 Revue de Droit de

l'Université de Sherbrooke 109

In 2004, a new corporate criminal liability regime

was added to the Criminal Code. In essence, this

important reform facilitates the imputation of

criminal liability to organizations by replacing

the “identification doctrine” developed by the

courts, but without creating a true system of

vicarious liability. This article examines the

scope and certain consequences associated with

this legislative reform. The extent of its

application to various paradigms introduced by

the legislation is examined. The author also

discusses various significant concepts relating to

the establishment of corporate criminal liability

as well as certain concepts which have not been

addressed by this legislation, more particularly

the criminal liability of an organization's

subsidiaries and that of its successors. The author

also explores to what extent the courts might or

should complete the codified system with respect

to these concepts.

CRIMINAL CODE: Part II.1 (Terrorism)

An Empirical Study of Terrorism Charges and

Terrorism Trials in Canada Between

September 2001 and September 2018

Michael Nesbitt (Faculty of Law, University of

Calgary) (2019) 67 C.L.Q. 96

In order to provide clarity with respect to

terrorism prosecutions in Canada, this article

offers a broad, empirical overview of what has

taken place over the first 15 plus years of

terrorism prosecutions in Canada. Specifically, it

consolidates for the first time all charges and

criminal cases brought under Part II.1 of the

Criminal Code from 2001 to September 2018,

and provides the names of the accused, verdicts

including the number of guilty pleas versus stays

versus full trials, the conviction rates, and the

charging trends and patterns. It also charts the

demographics (gender) of the accused, the type

(ideologies) of terrorism on trial in Canada, and

other factors.

Of course, in so doing this article is only able to

provide a broad lay of the land with respect to

terrorist charging patterns and criminal

prosecutions in Canada. However, the hope is

that this study will set the foundation upon which

other empirical and qualitative analyses can draw,

ensuring a foundational baseline—and a snapshot

in time—upon which future research can build.

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Moreover, by consolidating the terrorism cases

and breaking them down—including breaking

down their charging patterns and constitutional

challenges—this study will be of value not only

to academics but to prosecutors and particularly

defence counsel who are faced, in the years to

come, with their first terrorism cases.

CRIMINAL CODE: Section 121 (Frauds on the

Government)

The Criminal Code’s Procurement Crimes:

Underused Tools in Canada’s Anti-

Corruption Effort

Graham Seele (Rowe School of Business,

Dalhousie University) (2017) 65 C.L.Q. 187

There are only two sections of the Criminal

Code that deal explicitly with crimes relating to

government contracts: s. 121(1)(f) and s. 121(2).

Although the procurement crimes have been

touched upon in a limited number of cases

concerning the interpretation of other parts of

s. 121, there appears to be no reported case in

which one of the procurement crimes is the basis

for the charge. There are two possible

explanations for the non-use of the procurement

crimes: either there is no procurement corruption,

and so there is nothing to prosecute; or there is

procurement corruption, but there is something

inherent in the procurement crimes that makes

them unusable as an anti-corruption tool. The

first explanation is easy to eliminate. That leaves

us with the second explanation: there must be

something problematic with the procurement

crimes themselves. That is the subject of this

article. This article examines one of the

procurement crimes, namely s. 121(1)(f), in

depth: its origin and evolution, its elements, and

its interpretation. There are two purposes for this

examination: first, to provide some guidance for

the courts, if and when the procurement crimes

are actually used; and secondly, and more

importantly, to determine if there is any obvious

reason why s. 121(1)(f) has been so little used in

its century-plus history. The article ends with

suggestions for amendments that might give

s. 121(1)(f) more bite.

CRIMINAL CODE: Section 162.1 (Publication of

Intimate Image)

Nudes Are Forever: Judicial Interpretations of

Digital Technology's Impact on “Revenge

Porn”

Alexa Dodge (Carleton University, Ottawa,

Ontario) (2019) 34 No. 1 Can. J.L. & Soc'y 121

In this article I explore judicial interpretations of

the relationship between digital technology and

non-consensual intimate image distribution

(NCIID) (i.e., “revenge porn”). Drawing on my

analysis of forty-nine Canadian cases of NCIID,

I show that judicial interpretations of digital

technology have important influences on how

NCIID is understood and responded to in the law.

I find that the majority of judges perceive digital

technology as making NCIID easier to commit—

with the simple “click of a mouse”—and as

increasing the amount of harm caused by this act,

as digital nude/sexual photos are seen as lasting

“forever” and thus as resulting in ongoing and

immeasurable harm to victims. These

perceptions have substantive impacts on legal

rationales and sentencing decisions, with the

affordances of digital technology regularly being

treated as justifying harsher sentences to

denounce and deter this act.

CRIMINAL CODE: Section 163.1 (Child

Pornography)

From Obscenity to Child Pornography: An

Analysis of Canadian Court Cases

Jennifer Kusz (PhD candidate, School of

Criminology, Simon Fraser University;

Criminology Instructor, Department of

Criminology, Vancouver Island University),

Simon Verdun-Jones (School of Criminology,

Simon Fraser University): (June 2018) 23 Can.

Crim. L. Rev. 131

Historically, pornographic material, featuring

either women or children, was criminalized under

the obscenity provisions, found in s. 163 of the

Criminal Code. However, an analysis of legal

cases indicates there has been a shift from

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

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of the Criminal Code in 1993, and the subsequent

legal cases that followed, is analyzed from a

moral-panic theoretical framework. This

discussion includes a consideration of the impact

of the advent of the internet and social media,

which, undoubtedly contributed to the

proliferation and increased availability of

pornographic material. Canadian legal cases that

have interpreted and applied the obscenity

provisions, and the subsequent shift towards the

emphasis on child pornography in a post-Butler

era are examined through this theoretical lens.

CRIMINAL CODE: Section 172.1 (Luring a

Child)

Unreasonable Steps: Trying to Make Sense of

R. v. Morrison

Isabel Grant (Allard School of Law, University of

British Columbia), and Janine Benedet (Allard

School of Law, University of British Columbia)

(2019) 67 C.L.Q. 14 (Notes and Comments)

Children and youth routinely have easy,

unsupervised access to the internet through

smartphones and tablets. This connectivity

increases the danger that adults will sexually

exploit them. Adult chat rooms, which may

require nothing more than a child checking a box

indicating that they are over the age of 18, are a

common site for such exploitation. In most cases,

this behaviour only comes to light when either a

parent becomes aware of the activity, or when an

in-person sexual offence against a child is

detected and the online communications are

discovered in the course of the investigation. In

2002, Canada introduced the crime of luring

children on the internet for the purposes of

committing a sexual offence or an abduction

offence. The purpose of this provision, according

to the Supreme Court in R. v. Levigne, is to catch

“adults who, generally for illicit sexual purposes,

troll the internet to attract and entice vulnerable

children and adolescents.”

Internet luring is harmful to children in two

distinct ways. First, if the child and the adult meet

in-person and sexual abuse occurs, this obviously

causes grave harm to the child. Second, the

online activity is itself harmful. Conversations

amounting to luring may include requests for

nude photos, discussion of sexual acts,

encouragement to consume pornography, and

other exploitative interactions that can cause

serious psychological and developmental harm to

young victims even without actual in-person

sexual contact. If the communications are

disclosed more broadly and provoke

cyberbullying, the trauma is compounded. More

recent statistics indicate that internet luring is the

second most commonly reported sexual offence

against children and that the number of reported

incidents has continued to rise between 2009 to

2017. The Department of Justice reports that the

increase in sexual crimes against children in

recent years is largely attributable to the increase

in internet luring.

CRIMINAL CODE: Part VI (Invasion of Privacy)

CHARTER: Section 8 (Search or Seizure)

Into the Black II: Ontario Court of Appeal

Confirms the Application of the Sixth-Step of

Garofoli

David Tice (Asst. Crown Attorney, Metro West

Crown Attorneys’ Office) (2018) 66 C.L.Q. 77

Since 2011, a significant amount of jurisprudence

has developed around what has become known as

“Step-Six” of Garofoli. Trial division courts

have had to develop practices and procedures

without guidance from the appellate courts.

However, in 2015, the Ontario Court of Appeal

heard two cases directly reviewing “step-six” of

Garofoli: R. v. Crevier and R. v. Reid. In these

cases, the Court of Appeal upheld the lower

courts’ reliance on this procedure and defined the

balance of rights and interests that are at play in

the context of these proceedings. Further, the

Court of Appeal determined that the procedure is

Charter compliant, not offending the accused’s

right to make full answer and defence. A third

case, R. v. Shivrattan, was decided in 2017. In

this case, the Court of Appeal reviewed a decision

to not appoint amicus on a relatively straight-

forward step-six application. In so doing, the

Court has significantly curtailed resort to amicus

on these applications. Each appellate decision

unanimously upheld the use of step-six and

agreed on its efficacy. A review of these cases

will help to determine the continued practice in

reliance on this procedure. What remains is for

an appellate court to opine on the procedures that

have been used in drafting the judicial summary,

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the critical tool in providing for a fair and

balanced procedure.

CRIMINAL CODE: Section 233 (Infanticide)

Borowiec: Exploring Infanticide, ‘a

particularly dark corner’ and Providing

Another Reminder of the Need for Reforming

Homicide Sentencing

H. Archibald Kaiser (Schulich School of Law and

Department of Psychiatry, Dalhousie University)

(2017) 65 C.L.Q. 242

This comment will provide a brief summary of

Borowiec and will then identify some of the

complex policy dilemmas surrounding

infanticide which have an ongoing resonance and

which should be confronted by civil society and

Parliament. It will examine the concept of the

“disturbed” mind, the essence of the offence and

of Borowiec, observing that the accused’s

dissociative state appears to be representative of

other mothers charged with infanticide, while

cautioning that the partial medicalization of

infanticide has always been contentious. It

probes the status of the child victim, who has

traditionally not been the focus of the offence,

contending that the gradually enhanced status of

the child demands a rebalancing, while avoiding

untempered retribution. It will ponder a range of

legislative alternatives that Parliament should

consider, assuming it picks up this neglected law

reform gauntlet. It is contended that, in the wake

of Borowiec, the time has come for legislators to

interrogate not only the anachronisms of

infanticide and its asymmetry compared with

murder sentences, but to go back to first

principles and reassess the entire range of

penalties for these most serious offences.

CRIMINAL CODE: Section 271 (Sexual Assault)

Putting Trials on Trial: Sexual Assault and the

Failure of the Legal Profession Elaine Craig

(McGill-Queen's University Press, 2018) Book

Review

Dana Phillips (PhD candidate Osgoode Hall Law

School, York University) (2019) 34:1 Can. J.L. &

Soc'y 169

In Putting Trials on Trial: Sexual Assault and the

Failure of the Legal Profession, Elaine Craig

offers a compelling, timely, and empirically

rigorous indictment of Canadian legal

professionals for their collective failure to act

lawfully and ethically towards complainants in

sexual assault cases. In Canada and beyond,

public discourse on gendered sexual violence has

reached a polarized zenith. While some add their

voices to the flood of sexual harassment and

assault allegations against powerful men, or

express support for survivors, others worry about

the consequences of vilifying accused individuals

without the benefit of due process. Of course,

allegations made through the media must be

distinguished from formal criminal charges and

the special protections they trigger. Perhaps the

first question to ask, then, is why have survivors

of sexual violence largely eschewed the criminal

process in favour of other responses (such as

speaking out publicly)? It is here that Craig's

book begins.

Female Victims of Male Sexual Violence: How

Should We Listen and Respond to Them?

Sheila Ray (Justice of the Ontario Court of

Justice) (2019) 67 C.L.Q. 141

The research question in this article is, how

should the criminal justice system hear and

respond to the voices of female victims of male

sexual violence? What do they mean when they

say, “Listen to me?” Does the law take their

views into account? Should it? And if so, how?

The thesis of this article is that female survivors

of male sexual violence generally want the

perpetrators of these offences to be held

accountable, but not necessarily through the route

of criminal prosecutions. This article will

examine the historic evolution of the victim’s role

in the criminal justice system from victim driven

civil trials to a system where the victim had

practically no say, and was also restricted from

telling her full story by the rules of evidence.

This article will review the reasons for

dissatisfaction over the failures of the criminal

justice system to protect victims that ultimately

led to the enactment of the Canadian Victims Bill

of Rights. The method or approach used in this

article will be historic, but it will not be what

David Garland would describe as “archival.” It

will not be motivated “by a historical concern to

understand the past but by a critical concern to

come to terms with the present. The point is not

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to think historically about the past but rather to

use that history to rethink the present.” The

article will conclude that female victims of male

sexual violence experience their suffering

differently from other victims, and women from

marginalized groups experience it differently

from the mainstream.

Absence of Motive in Sexual Assault Cases

Janine Benedet (Allard School of Law,

University of B.C.) (2019) 55 C.R. 18

At first glance, the decisions of the Supreme

Court of Canada in R. v. Barton and the Ontario

Court of Appeal in R. v. Bartholomew might seem

to have little in common. The victim in Barton

was an Indigenous woman on whom the accused

inflicted grave internal injuries in the course of

sexual activity which he alleged took place in

prostitution. The complainant in Bartholomew

alleged that the accused, a school support worker,

briefly touched his genitals when he was 12 or 13

years old, 15 years prior to the trial. The accused

denied that any touching had taken place. Both

cases, however, address the issue of motive, or

more precisely lack of motive, in the context of

sexual offences. This issue has received little

attention from appellate courts. When the issue

of motive does arise, courts appear content to

apply general principles without attention to the

ways that historic myths and stereotypes are

engaged in the sexual offence context for both

adult and child complainants. It is worth asking,

in the context of sexual offences, whether there is

any evidence that would be capable of

establishing a lack of motive to commit the

offence on the part of the accused, or a lack of

motive to fabricate an allegation on the part of a

complainant.

CRIMINAL CODE: Section 271 (Sexual Assault)

PROSECUTOR: Discretion

Waiver: A Feminist Analysis of Charge

Bargaining in Sexual Assault Prosecution in

Ontario

Natasha Novac (JD candidate, Osgoode Hall Law

School) (Winter 2018) 76 U.T. Fac. L. Rev. 1

This article offers a normative analysis of charge

bargaining in the context of sexual assault

prosecution in Ontario. It responds to two recent

developments in the landscape of prosecutorial

decision-making: R v Jordan, a 2015 Supreme

Court of Canada decision that mandates a

shortened trial timeline in accordance with

Charter section 11(b); and the Globe & Mail's

investigative report “Unfounded”, focusing on

the high rates at which Canadian police

jurisdictions tend to dismiss sexual assault

allegations. The collective effect of Jordan and

“Unfounded” is to place added pressure on

Ontario prosecutors to downcharge sexual assault

claims during resolution discussions to non-

gender-based crimes, such as common assault, in

the name of expediency and resource efficiency.

This article examines the ethical implications of a

potential shift in Crown charging practices

toward an increased reliance on charge

bargaining to resolve sexual assault allegations.

If downcharging sexual assault becomes a trend

in Crown prosecution offices, it may weaken the

ability of the criminal justice system to signal that

sexual violence is punishable by law, and

ultimately reduce the extent to which criminal

sanction can assist in creating a culture shift to

eradicate violence against women. For these

reasons, embracing downcharging in the name of

prosecutorial efficiency may lose in long-term

efficacy what it gains in short-term benefits. In

examining the ethics of downcharging in the

context of sexual assault, the author also explores

a perennial feminist advocacy question: what

criminal justice response, if any, constitutes a

feminist response to sexual violence?

CRIMINAL CODE: Sections 271 (Sexual Assault)

and 276 (Prior Sexual Activity)

Myth, Inference and Evidence in Sexual

Assault Trials

Lisa Dufraimont (Osgoode Hall Law School,

York University) (Spring 2019) 44 Queen's L.J.

316

In sexual assault cases, the ability to distinguish

myths and stereotypes from legitimate lines of

reasoning continues to be a challenge for

Canadian courts. The author argues that this

challenge could be overcome by clearly

identifying problematic inferences in sexual

assault cases as prohibited lines of reasoning,

while allowing the defence to bring forward

evidence that is logically relevant to the material

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issues so long as it does not raise these prohibited

inferences. This paper advances that judges

should take a broad view of relevance as an

evidentiary approach in the adjudication of sexual

assault cases. This approach allows for a

consideration of circumstances surrounding the

alleged assault, which may include an analysis of

the nature of the interactions between the accused

and the complainant leading up to the alleged

assault and in its aftermath. This approach is

necessary in order for the accused to make full

answer and defence. However, common myths

and stereotypes about sexual assault are

prohibited grounds that the law has rightly

removed from legal consideration. The author

discusses a number of these myths, with a special

focus on the “twin myths”. Lastly, the author

turns to the evidence of the perpetrator and the

complainant's relationship subsequent to the

alleged assault—where provincial courts have

split in determining what is or is not a prohibited

inference when examining this subsequent

relationship. This paper ultimately argues that

the current challenge facing Canadian courts is

ensuring that judges and juries avoid these

prohibited lines of reasoning, while retaining

broad access to information about the

circumstances and the ability to draw reasonable,

context-specific inferences. Doing so would

bring clarity to this important area of evidence

law.

R. v. Barton: Progress on Myths and

Stereotypes in Sexual Assault

Lisa Dufraimont (Osgoode Hall Law School,

York University) (2019) 54 C.R. 317

The Supreme Court's recent judgment in

R. v. Barton represents the latest in a series of

cases that have recognized and grappled with

myths and stereotypes in sexual assault. While

the Court in Barton divided over the appropriate

remedy, the judges were in broad agreement on

the substantive and evidentiary principles

governing sexual assault cases. Significantly, the

judgment recognizes and attempts to combat the

deeply-rooted social prejudices against

Indigenous women and sex workers that can find

their way into Canadian courtrooms. It usefully

summarizes the law on evidence of a sexual

assault complainant's other sexual activity and on

the mens rea defence of mistaken belief in

consent. Barton also does important work

identifying false and discriminatory lines of

reasoning to be avoided in sexual assault cases.

The case thus advances the law on sexual assault

in several ways. At the same time, I will argue

that the Court would have done well to offer more

guidance on the evidence and inferences that are

permissible to assist the defence in sexual assault

cases.

R. v. Goldfinch and the Problem of

Relationship Evidence

Lisa Dufraimont (Osgoode Hall Law School,

York University) (2019) 55 C.R. 282

R. v. Goldfinch confronts a longstanding

interpretive difficulty about the admissibility of

evidence of the complainant’s other sexual

activity in a sexual offence case. How should

courts deal with the fact that the accused and the

complainant had an ongoing sexual relationship

at the time of the alleged offence? Despite recent,

mainly procedural, amendments to s. 276 of the

Criminal Code, the statutory admissibility

standards governing this evidence have remained

substantially unchanged for over a quarter

century. The split decision in Goldfinch

represents the Supreme Court of Canada's first

effort to tackle the issue in depth. Relationship

evidence raises conflicting fundamental

concerns. On the one hand, evidence of an

ongoing sexual relationship between the accused

and the complainant carries the potential to invite

prohibited reasoning. On the other hand,

excluding evidence of an ongoing relationship

may impair the accused’s right to full answer and

defence by causing triers of fact to misinterpret

interactions between the accused and the

complainant. Human interactions are shaped by

the relationships in which they occur and

requiring triers of fact to adjudicate factual issues

without knowledge of the nature of those

relationships may be both unworkable and unfair.

R v. Goldfinch: Narrative, Context and

Evidence of Other Sexual Activity with the

Accused

Janine Benedet (Allard School of Law,

University of B.C.) (2019) 55 C.R. 288

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Evidence of a complainant’s sexual reputation,

real or imagined, has historically been the most

devastating method of destroying her credibility

in the sexual assault trial. The traditional uses of

such evidence rest on a series of discriminatory

inferences. The common law of evidence proved

inadequate to preventing this sexist reasoning.

The current version of the evidentiary rules,

which apply to evidence of sex with the accused

as well as third parties, has been in place for over

25 years. These provisions were declared

constitutional almost 20 years ago and they are

unlikely to be repealed. It is well past the time to

question the existence of such provisions or to

treat them as something novel. There has never

been a right to adduce irrelevant evidence. So-

called rape shield laws provide a statutory

framework for questioning discriminatory

assumptions about relevance.

The Supreme Court Adds Unjust Rigidity to

Rape Shield Protection

Don Stuart (Faculty of Law, Queen's University)

(2019) 55 C.R. 292

In respect of rape shield protections the result of

the Goldfinch decision, and the 2018 Bill C-51

amendments is that Canada has adopted an even

more rigid categorical approach. This is ironic

since such an approach was rejected in

R. v. Seaboyer. The Court does not fully consider

the ruling in R. v. Darrach where Justice Gonthier

specifically held that the twin myth prohibition

under s. 276(1) does not constitute blanket

exclusions given ss. 276(2) and (3) which allow

admission where the evidence is held to be

relevant to a specific issue in the trial. The Court

in Darrach at one point notes that this evidence

would in rare cases be relevant to consent. In

Goldfinch the separate majority judgments of

Justices Karakatsanis and Moldaver squarely

reject the line of authority based on

R. v. Strickland that the twin myth prohibition

can be avoided by admitting under s. 276(2) prior

sexual conduct with the accused to show

‘context’ or as ‘part of the narrative’. Such

reasoning is indeed a notorious device in the law

of evidence sometimes resorted to by judges to

avoid exclusionary rules considered to be too

rigid. The growing trend to rely on Strickland to

admit was recently much stronger than the

Supreme Court appears to recognize.

CRIMINAL CODE: Sections 279.01 to 279.05

(Human Trafficking)

Human Trafficking and Prostitution in

Canada—Intersections and Challenges

Helena Gluzman (Assistant Crown Attorney,

Peel Crown Attorney’s Office) (2018) 66 C.L.Q.

110

Canada’s Parliament has enacted two key pieces

of legislation to protect the vulnerable women

preyed upon by pimps. First, Canada ratified the

United Nations Protocol to Prevent, Suppress

and Punish Trafficking in Persons, especially

Women and Children. These human trafficking

provisions are increasingly used to combat the

pernicious evil of pimps and recognize that

coerced sex trade work is one of the

contemporary forms of slavery. However, they

suffer from a lack of definition within the

Criminal Code of Canada—particularly the

meaning of “exploitation”. Second, Bill C-36,

the Protection of Communities and Exploited

Persons Act, S.C. 2014, c. 25 came into force on

November 6, 2014, as a direct response to the

Supreme Court of Canada decision in

Bedford v. Canada (Attorney General), which

struck down key Criminal Code provisions aimed

directly at prostitution related offences. These

new provisions are likewise vulnerable to

constitutional attack. This article considers those

vulnerabilities as well as the far-reaching effects

of these enactments. Jointly, the human

trafficking and prostitution related provisions

aimed at stopping pimping capture conduct

beyond what many may envision when they turn

their minds to exploitation within the sex trade

industry.

CRIMINAL CODE: Section 318 (Public

Incitement of Hatred)

The Regulation of Hateful and Hurtful

Speech: Liberalism’s Uncomfortable

Predicament

Jocelyn Maclure (Professor of Philosophy at

Université Laval) (September 2017) 63 McGill

L.J. 133

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The regulation of speech is a highly sensitive and

always evolving ethical, political and legal issue.

On the one hand, hateful and hurtful speech is on

the rise, especially, but not exclusively, with

regard to the relationship between Islam and the

West. On the other hand, demands for the

suppression of certain forms of speech

proliferate. After reviewing the argument for

freedom of expression, I argue that while the

notion of harm defended by Millian liberals is too

narrow, an “offence principle” is too broad. After

defending hate speech laws, I concede that such

laws need to target only the speech acts that

express the most severe forms of aversion and

denigration toward the members of a specific

group. I then reflect on the status of ‘hurtful

speech’, which I see as including the per-

formative utterances that stop short of being

hateful but nonetheless erode, through their

illocutionary force and perlocutionary effects, the

social standing and bases for self-respect of those

who are targeted. I conclude that the free speech

debate reveals a limit of liberal political morality

and leaves liberal normative theorists with an

uncomfortable predicament, as they have to rely

more on the complementary role of pro-social

personal dispositions and civic virtues than they

generally wish to.

CRIMINAL CODE: Part VIII.1 (Offences

Relating to Conveyances)

The Road to Traffic Safety: Mandatory

Breath Screening and Bill C-46

Robert Solomon (Faculty of Law, Western

University), Erika Chamberlain (Faculty of Law,

Western University) (February 2018) 23 Can.

Crim. L. Rev. 1

Bill C-46 will, among other things, simplify the

federal impaired driving law, create new drug-

impaired driving offences, authorize roadside

oral fluid testing and address evidentiary and

technical concerns with the current law.

However, the most important measure in traffic

safety terms is the mandatory alcohol screening

provision (MAS), which would authorize the

police to demand a roadside breath test from any

driver whom they have lawfully stopped.

Millions of drivers are stopped each year at

sobriety checkpoints and during routine police

patrol activities. Currently, the processing of

these drivers is based on the officer’s subjective

assessment, using his or her own unaided senses.

MAS would change only one aspect of the

existing law—namely, the basis for demanding a

roadside breath test. In contrast to the current

system, all drivers stopped would be assessed

based on an objective, non-arbitrary screening

test, rather than an officer's subjective judgment.

While MAS will be challenged under the

Canadian Charter of Rights and Freedoms, it

must be put in the context of other accepted

screening procedures. Given that the courts have

upheld the constitutionality of airport, border and

courthouse screening, there is no principled basis

for reaching the opposite conclusion regarding

MAS.

Canada’s New Cannabis-Related Driving

Legislation: The Elusive Quest for an Effective

Deterrent

R. Solomon (Faculty of Law, Western

University), E. Chamberlain (Faculty of Law,

Western University), M. Vandenberghe (JD

2019) (October 2018) 23 Can. Crim. L. Rev. 265

On June 21, 2018, Royal Assent was given to Bill

C-45 (Cannabis Act) and Bill C-46

(Transportation Act), two major pieces of federal

criminal legislation. This paper provides an

empirical and legal framework for assessing the

cannabis-related driving provisions in Bill C-46.

We review the recent patterns of cannabis

consumption and driving after cannabis use, and

trace the evolution of the federal drug-impaired

driving laws, before examining the new cannabis-

impaired driving offences and enforcement

powers. Like the 2008 amendments, the new

drug-impaired driving legislation will modestly

strengthen enforcement. However, it is doubtful

that these provisions will halt the increasing

incidence of driving after cannabis use. Unlike

the situation with alcohol, there is currently no

inexpensive, quick, simple and accurate means of

screening large numbers of drivers for cannabis at

roadside. Until there are major improvements in

the cannabis-screening technology, the

enforcement of the new cannabis-related driving

legislation will remain costly, time-consuming

and prone to legal challenges. These are issues

that should have been more carefully considered

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prior to the enactment of the broad cannabis

legalization measures in Bill C-45.

CRIMINAL CODE: Section 487.014 (General

Production Order)

CHARTER: Section 8 (Search or Seizure)

The Constitutionality of Using Production

Orders to Obtain Stored Communications

Content

Colton Fehr (Ph.D candidate, University of

Alberta) (June 2018) 23 Can. Crim. L. Rev. 171

In R. v. Jones, the Supreme Court of Canada

concluded that producing text messages stored

during transmission is accessible via a s. 487.014

production order. If the state were to apply to

intercept the same message a short time earlier, it

would have to meet the much more stringent

prerequisites under Part VI of the Criminal Code.

The difference in time of reception and content

received will often be negligible. Given the

nearly identical privacy interests at issue, I

maintain that utilizing a production order to

produce stored messages will sometimes

constitute an unreasonable search contrary to s. 8

of the Charter. To address this constitutional

defect, I recommend that Parliament include a

requirement like that found in the general warrant

provision in s. 487.01(1)(b), which requires any

issuance be “in the best interests of the

administration of justice”. Inclusion of this

phrase would prevent technical differences in

storage practices from altering constitutional

standards for acquiring private communications.

CRIMINAL CODE: Section 487.1 (Telewarrants)

CHARTER: Section 8 (Search or Seizure)

Facial Attacks on Telewarrants: When Police

Fail to Define ‘Impracticable’

Hafeez Amarshi (Crown Counsel, Public

Prosecution Service of Canada) (2017) 65 C.L.Q.

230

Under s. 487.1(1) of the Criminal Code a peace

officer may obtain a search warrant via

telewarrant. A telewarrant is a warrant that is

requested by telephone or other means of

telecommunication to a designated Justice. This

circumvents the requirement that a peace officer

appear in person before a Justice of the Peace to

obtain the warrant. In Ontario telewarrants are

almost exclusively obtained via fax transmission

through the Telewarrant Centre in Newmarket.

Police forces across the province have access to

the centre through a designated single fax

number. In 2008, the Ontario government passed

legislation allowing telewarrants to be available

for Provincial Offences Act (POA) matters.

The amendments under the POA closely follow

the language under the Criminal Code.

CRIMINAL CODE: Section 487.1(9) and 489.1(1)

(Report to Justice)

CHARTER: Section 8 (Search or Seizure)

Checking Your Constitutional Boxes: The

Constitutional Consequences of Non-

Compliance with the Reporting Requirements

in Section 487.1(9) of the Criminal Code

Ashley Bowron (Judicial Law Clerk, Alberta

Court of Appeal) (July 2019) 24 Can. Crim. L.

Rev. 163

This article considers whether non-compliance

with s. 487.1(9) of the Criminal Code following

police seizure of property should constitute a

breach of s. 8 of the Charter. This question most

recently arose on the facts of R. v. Paterson, 2017

SCC 15, but the Supreme Court of Canada chose

not to address the issue. This article argues that

in future cases, courts should acknowledge the

mandatory nature of these provisions by holding

that failure to comply constitutes a violation of

s. 8. The reporting requirements form part of the

lawful basis on which both the search and seizure

rest. Without complying with these

requirements, the lawful basis on which the

search and seizure depend is lost.

CRIMINAL CODE: Section 503 (Appearance of

Accused before Justice)

Breaking Bail

Jillian Williamson (of the Ontario Bar) (March

2019) 24 Can. Crim. L. Rev. 131

This article examines the proposed amendment to

s. 503 in the Criminal Code in Bill C-75.

Creating and amending law is one of the most

significant responsibilities of Parliament. This

process takes a significant amount of time and

effort. Fundamental principles that are a

cornerstone of our democratic society can be

infringed upon when Parliament does not

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exercise its discretion and responsibility

effectively. The law of bail or judicial interim

release is one of these fundamental principles.

Embedded in the principle that people accused of

a criminal offence are presumed innocent until

proven guilty beyond a reasonable doubt, is that

innocent people should not be punished. A

curtailment of liberty is a punishment. When the

principles of bail are not complied with then the

presumption of innocence is necessarily

infringed. One of these principles is that an

accused detained person be brought before a

justice within 24 hours of arrest or as soon as

possible, if the justice is not available. Bill C-75,

if passed, will create a presumption that any delay

involved will be deemed as lawful and in the

execution of the peace officer’s duty. This

presumption is antithetical to the animating

principles and basic tenants of our legal system.

CRIMINAL CODE: Part XX.1 (Mental Disorder)

Using Court Orders to Manage, Supervise and

Control Mentally Disordered Offenders: A

Rights-Based Approach

Micah B. Rankin (Faculty of Law, Thompson

Rivers University) (2018) 65 C.L.Q. 280

While there is a large body of scholarship that

discusses the fraught relationship between mental

disorder and criminal liability, one topic that has

largely escaped scholarly attention is the

constitutionality of using court orders to manage,

control and supervise mentally ill offenders in the

community. Such orders are often made when a

person is granted judicial interim release (i.e.,

bail), but can also form part of the sentence

imposed on an offender following a trial or guilty

plea (i.e., probation). Interim release and

probation conditions (what I will collectively

refer to as ‘release conditions’) can range from

house arrest to treatment orders, and may include

no contact orders and other ‘area restrictions’.

This article explores some of the thorny

constitutional questions that arise from the use of

release conditions to monitor, manage and control

“mentally disordered” persons charged or

convicted of crimes. I argue that courts have

exhibited a troubling willingness to impose

release conditions on mentally disordered

offenders in circumstances where the prohibited

behaviour is a symptom of an underlying mental

pathology. I argue that, as a matter of

constitutional law, courts should be slow to

impose unrealistic conditions on mentally

disordered offenders. I conclude by offering a

‘rights-based’ approach to the imposition of

release conditions. This approach requires a

more careful balancing of the statutory objectives

underlying pre-trial release and probation with

the Charter-protected rights of the mentally ill or

disabled.

Will the Ghost of Chaulk Past Ever Stop

Haunting the NCRMD Present?

Christopher Nowlin (Of the Bar of British

Columbia) (2018) 65 C.L.Q. 298

Part 1 of this article will discuss briefly the

statutory terms of the Not Criminally Responsible

by Mental Disorder (NCRMD) defence and

verdict, which were created in response to

R. v. Swain. The statute law is clear that an

NCRMD defence applies to any situation in

which an accused person was incapable at the

material time of behaving in a way that could

attract criminal culpability, because of a mental

disorder. Accordingly, an Ontario Court of

Appeal decision, R. v. David reasoned that

mental incapacity should be determined before

resolving issues of actual intent simply because

no criminal intent could ever be formed without

the capacity for it to be formed. However,

R. v. Chaulk, a Supreme Court of Canada

decision that pre-dated Swain, muddied the

waters by discussing two ways in which mental

incapacity could bear upon one’s criminal

culpability other than by preventing an accused

from forming the necessary mens rea for the

offence charge. This article contends that, while

the three-fold typology of mental states discussed

in Chaulk might be academically interesting, it

has no relevance to a criminal trial process that

involves the post-Swain “mental disorder” and

NCRMD amendments. Part 2 of this article will

examine Chaulk and argue that it provides no

support for the proposition that in some cases a

mens rea determination should precede an

NCRMD verdict. Part 3 of this article will

discuss some of this common law, including a

recent British Columbia Provincial Court

decision to the effect that Chaulk restricted

David’s applicability to certain types of mental

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disorders. This article contends that this decision

and others continually miss the mark about

NCRMD procedures because of their

unwillingness to accept that the Criminal Code

has rendered Chaulk largely obsolete.

CHARTER: Section 8 (Search or Seizure)

La Saisie de Données Informatiques en Droit

Criminel Canadien

Laura Ellyson (Candidate au doctorat à Dalhousie

University, et membre du Barreau du Québec)

(March 2019) 24 Can. Crim. L. Rev. 79

Section 8 of the Canadian Charter of Rights and

Freedoms provides that “everyone has the right to

be secure against unreasonable search or seizure”.

Although initially applied in files with no

technological aspect, the provision has since been

interpreted and applied to the seizure of electronic

data. Since 1990, the Supreme Court of Canada

has repeatedly ruled on the constitutional

protection applicable to the personal electronic

data of individuals that may be of interest to law

enforcement. Whether that be data held by third-

parties or located on personal devices, there are

several specific rules that may apply. In addition,

although the courts have now outlined the broad

outlines, some problematic cases remain

untouched. In this article, we will draw a picture

of the various applicable rules and raise some

thoughts on what probably lies ahead for the

courts in the future.

A Proposal for Police Acquisition of ISP

Subscriber Information on Administrative

Demand in Child Pornography Investigations

Colton Fehr (PhD candidate, College of Law,

University of Alberta) (July 2019) 24 Can. Crim.

L. Rev. 235

The Supreme Court of Canada concluded in

R. v. Spencer that police acquisition of subscriber

information from an internet service provider

engages a reasonable expectation of privacy.

Although this conclusion is principled, it has also

resulted in significant obstacles for police

investigating child pornography offences.

Applying for a production order is not, however,

the only option that would pass constitutional

muster. By focusing on the way in which

information is revealed when combining internet

subscriber information with a user’s Internet

Protocol address, it is possible to significantly

mitigate the seriousness of any invasion of

privacy. This in turn can be used to justify

significantly lower requirements for police

conducting investigations into at least some

online crimes.

Smartphone Searches: A Legal Crossroads

Between Charter Rights and Law Enforcement

Liam M. Hayes (Recent graduate of Peter A.

Allard School of Law, University of British

Columbia) (2018) 66 C.L.Q. 196

Since the Charter was enacted, the courts have

endeavoured to balance individual rights with the

state’s interest in effective law enforcement. As

the law currently stands, police have no express

statutory or common law powers to compel an

individual to provide access to a locked or

encrypted device, whether the search is judicially

authorized or executed pursuant to Fearon. An

individual in such circumstances is protected by

his or her right to silence and right against self-

incrimination under s. 7 of the Charter. Further,

as recent SCC decisions have held, individuals

have a high expectation of privacy in their

smartphone devices, demanding substantial

protection against unreasonable search and

seizure under s. 8 of the Charter. In 2016, the

Canadian Association of Chiefs of Police adopted

a resolution calling on Parliament to introduce

legislation to compel individuals to provide

police with access to locked or encrypted devices

to facilitate lawfully authorized searches. The

goal of this article is to discuss whether this

proposed law is necessary and capable of

surviving Charter scrutiny. I will begin by

outlining the Fearon decision and the law

enforcement challenges posed by evolving

smartphone technology. I will then discuss the

jurisprudence surrounding ss. 7 and 8 of the

Charter as applied to smartphone searches.

Finally, I will discuss the proposed law and

potential ways it may be balanced and justified in

accordance with the Charter, with consideration

of Customs Act jurisprudence and lessons from

the United States and United Kingdom.

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Privacy and Connected Objects

Nicolas Karsenti (Student-at-Law, Stikeman

Elliott LLP, Québec) (May 2019) 17 Can. J. L. &

Tech. 34

The paper explores the privacy concerns that

emerge from connected objects. More

specifically, it examines how these objects fit

within the framework of Quebec's privacy

legislation, as well as Canada's federal privacy

legislation. It also seeks to highlight the current

flaws in the application of this framework to

connected objects.

Big Brother Riding Shotgun: Internal

Surveillance of Semi-Autonomous Vehicles

and Its Effects on the Reasonable Expectation

of Privacy

Tunca Bolca (LL.M. candidate, University of

Ottawa) (May 2019) 17 Can. J. L. & Tech. 77

The practice of internal surveillance of

autonomous vehicles raises novel privacy

concerns for the drivers and passengers of these

vehicles. In Canadian jurisprudence, it has been

accepted that individuals have a reasonable

expectation of privacy in their vehicles and are

protected from unreasonable searches of the state

under s. 8 of the Canadian Charter of Rights and

Freedoms. This article examines the concept of

internal surveillance and identifies how the

individual’s reasonable expectation of privacy

will be affected by the introduction of semi-

autonomous vehicles that use internal

surveillance methods.

Law Enforcement Access to Encrypted Data:

Legislative Responses and the Charter

Steven Penney (Faculty of Law, University of

Alberta), Dylan Gibbs (JD candidate, University

of Alberta) (December 2017) 63 McGill L.J. 201

In our digital age, encryption represents both a

tremendous social benefit and a significant threat

to public safety. While it provides the confidence

and trust essential for digital communications and

transactions, wrongdoers can also use it to shield

incriminating evidence from law enforcement,

potentially in perpetuity. There are two main

legal reforms that have been proposed to address

this conundrum: requiring encryption providers

to give police “exceptional access” to decrypted

data, and empowering police to compel

individuals decrypt their own data.

This article evaluates each of these alternatives in

the context of policy and constitutional law. We

conclude that exceptional access, though very

likely constitutional, creates too great a risk of

data insecurity to justify its benefits to law

enforcement and public safety. Compelled

decryption, in contrast, would provide at least a

partial solution without unduly compromising

data security. And while it would inevitably

attract constitutional scrutiny, it could be readily

designed to comply with the Charter. By

requiring warrants to compel users to decrypt and

giving evidentiary immunity to the act of

decryption, our proposal would prevent

inquisitorial fishing expeditions yet allow the

decrypted information itself to be used for

investigative and prosecutorial purposes.

Protecting the Right to Privacy in Digital

Devices: Reasonable Search on Arrest and at

the Border

Robert Diab (Faculty of Law, Thompson Rivers

University) (2018) 69 U.N.B. L.J. 96

Canada’s courts in recent years have consistently

recognized a high degree of privacy in the content

of digital devices. Yet the law authorizing device

searches on arrest and at the border has failed to

reflect this higher interest. In both contexts,

courts have assumed that the state has a

compelling interest in immediate access to device

data to advance pressing law enforcement

objectives—but the claim is not supported by

evidence. This paper builds upon earlier critical

views of device search law and policy by

demonstrating that searches are being carried out

on arrest and at the border without clear limits,

resulting in significant intrusions into personal

privacy and without effective avenues of

recourse. Part I critically examines the Supreme

Court’s justification in Fearon for authorizing

device searches on arrest, including its dismissal

of the U.S. Supreme Court's approach in

Riley v. California (requiring a warrant). Part II

examines the Canada Border Services Agency’s

rationale and practice for groundless device

searches under the Customs Act. Finally, it argues

that the guarantee against unreasonable search in

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section 8 of the Charter requires a warrant for

device searches at the border, because the state’s

interest in searching devices there is less pressing

than the state’s interest in searching a person.

R. v. White: Privacy in Common Spaces

Chris de Sa (Justice of the Ontario Superior Court

of Justice) (2018) 65 C.L.Q. 370

Up until White, the general consensus was that

the common spaces in a condominium or

apartment were not subject to a reasonable

expectation of privacy by the building occupants.

Courts had routinely rendered decisions rejecting

reasonable expectation of privacy claims in

several cases involving the common areas of

multi-unit buildings. This article is an

examination of the White decision from the

Ontario Court of Appeal.

CHARTER: Section 9 (Detention or

Imprisonment)

The Hidden Harms of Arbitrary Detentions on

the Psychology of the Detainee and the

Reputation of the Administration of Justice

Nick Kaschuk (Of the Ontario Bar) (2017) 65

C.L.Q. 164

When the subject of arbitrary detention is brought

up, reactions seem to differ based upon personal

and or communal experience. That said, the

intention of this article is not to dwell upon the

various reactions that arbitrary detentions

provoke; rather, it is to identify and examine

some of the more insidious effects arbitrary

detentions may be having. Following this,

consideration will be given to the obstacles that

are currently preventing the courts and the police

from fully responding to such dangers. Finally,

three possible solutions will be suggested to help

avoid and ultimately eliminate unjust detentions

from occurring in the first place. It is hoped that

by shedding a light on some of the more insidious

harms which can result from unjust detentions,

the justice system will once again, turn its

compassionate and moral genius toward solving

this problem.

Lifting the Judicial Embargo on Race-Based

Charter Litigation: A Comment on R. v. Le

Danardo S. Jones (Graduate student, Osgoode

Hall Law School) (2019) 67 C.L.Q. 14 (Notes and

Comments)

Legal scholars have long discussed the Supreme

Court of Canada’s (the Court) erasure of race in

its Charter jurisprudence. The lack of

recognition is particularly noticeable in the

Court’s jurisprudence on policing. It is well-

established that African-Canadians and

Indigenous people are disproportionately

detained, arrested and charged by police, and

thereby overrepresented in the criminal process.

Criminologists and legal scholars largely agree

that biased policing is one of the primary conduits

through which Black, Indigenous and other

racialized bodies are funnelled into the criminal

justice system. Despite this fact, the Court has

only ever marginally engaged in a race-based

analysis of the Charter rights that are engaged by

police encounters. In R. v. Le, the Court may have

potentially lifted the judicial embargo on the

discussion of race and biased policing; and, in so

doing made a significant, and much needed,

contribution to critical race Charter litigation.

The precedential impact of the decision is

challenging to predict, but there is reason to hope

that Le will provide a veritable roadmap for

lawyers who are seeking to mobilize race in the

detention analysis under s. 9 of the Charter.

CHARTER: Section 11(b) (Trial within a

Reasonable Time)

Fighting the Culture of Complacency: A

Comparative Analysis of Pretrial Delay

Remedies in Canada and the United States

Myles Anevich (of the Ontario Bar) (March

2019) 24 Can. Crim. L. Rev. 39

The right to a trial without delay is fundamental

to protecting the interests of those accused of

criminal acts. This right has been codified for

almost 1000 years and is enshrined in both the

Canadian and American constitutions. However,

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

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on the other hand does not have this problem.

This paper attempts to answer the question “why

do cases resolve at such a faster rate in the Federal

system of the United states, and can the methods

used in ameliorating pretrial delay in the United

States be imported into Canadian law?” To

answer this question first we must understand

how the right to a trial without delay operates in

Canada and the United States respectively, both

from a theoretical as well as practical perspective.

Once this is determined we can then turn to the

issue of what legislative reforms, if any, could be

implemented to accelerate processing times in

Canada. At this second stage of analysis the

author suggests that eliminating preliminary

inquiries will not be an effective remedy to the

problem, and instead suggests a ‘Canadianized’

version of the Speedy Trial Act of 1974, as well

as an infusion of resources into the criminal

justice system.

Sentence Indication Hearings: Time for a

Canadian Version

David P. Cole (Justice of the Ontario Court of

Justice) (2018) 65 C.L.Q. 320

The June 2017 Canadian Senate Committee

Report on lengthy court delays contains a brief

discussion of promoting more efficient

mechanisms to reduce “late” guilty pleas. One of

the Committee’s recommendations on point is

that the Criminal Code be amended “to add a

principle to s. 718.2 that when an accused person

pleads guilty early in the proceedings, the court

should consider it to be a mitigating factor in

sentencing”. While helpful, this does little more

than confirm existing trial court practices

endorsed by appellate courts. The Committee’s

attention does not seem to have been drawn to

experience in several common law jurisdictions

in various parts of the world where ‘sentence

indication hearing schemes’ have been

functioning for at least two decades. The purpose

of this article is to describe the principles and

structures under which most of these schemes

currently exist, and to recommend that pilot

projects be expeditiously set up in several courts

to determine their utility in the Canadian context.

CHARTER: Section 24(2) (Exclusion of

Evidence)

Exclusion of Evidence Under Section 24(2) of

the Charter Post-Grant in the Years 2014-

2017: A Comprehensive Analysis of 600 Cases

Benjamin Johnson and Victoria Weir (Recent

graduates of the Robson Hall Law School,

University of Manitoba), Richard Jochelson

(Robson Hall Law School, University of

Manitoba) (2019) 67 C.L.Q. 57

In 2009, in the landmark decision of R. v. Grant,

the Supreme Court of Canada reformulated the

framework for the constitutional exclusion of

evidence under s. 24(2) of the Canadian Charter

of Rights and Freedoms, resulting from breaches

of Charter-protected rights. In the wake of

Grant, studies were conducted that analyzed

exclusion rates and other variables which will

have significant impact on this article. A study,

conducted by Richard Jochelson, Debao Huang

and Melanie J. Murchison, analyzed Grant cases

up until August 1, 2014, and found a Canada-

wide exclusion rate of approximately 66 percent;

a more recent study of 100 randomly selected

cases found a 67 percent exclusion rate in 2016.

This article picks up where Jochelson et al. left

off on August 2, 2014, using the same

methodology, and undertakes an analysis of

Grant cases up until August 1, 2017. Over that

period, on the basis of the reported case law, there

has been a Canada-wide increase in rates of

exclusion in the past three years at the trial court

level. Trial decisions yielded an exclusion rate of

74.5 percent of at least one piece of evidence in a

case. Appellate cases yielded a much lower

exclusion rate of 21 percent exclusion; that is

appellate courts excluded new evidence in 21

percent of cases when the Grant test was

undertaken de novo or when it was repeated to

correct errors. If we calculate the results to a

Canada-wide exclusion rate, the global rate of

exclusion of evidence is 62.4 percent which

suggests a significant decrease after the first five

years of Grant. We also review other statistics of

interest related to exclusion of evidence below.

First, we undertake a truncated review of the

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

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rates over time are not so dramatic that they

cannot be explained by mundane hypotheses.

YOUTH CRIMINAL JUSTICE ACT: Sections 28-31

(Detention and Release)

YCJA Bail Conditions: “Treating” Girls and

Boys Differently

Jane B. Sprott (Department of Criminology,

Ryerson University), Allan Manson (Faculty of

Law, Queen's University) (February 2017) 2 Can.

Crim. L. Rev. 77

Concerns have been raised about the volume and

nature of bail release conditions imposed on

youths. Using a representative sample of youth

court cases from a large urban court, we explore

the number of conditions imposed and the

imposition specifically of a ‘treatment’ based

release condition. We find a large volume—on

average around seven—conditions imposed and a

relatively broad use of ‘treatment’ conditions

with 49 percent of the sample receiving such a

condition. We also, however, find a gender

difference in the use of treatment conditions.

Specifically, while the nature of the offence,

number of charges and previous charges all help

to predict the likelihood of having a condition to

attend a treatment program imposed for boys,

those factors do not predict the likelihood for

girls. Girls appear to be given that condition more

often than boys, and factors other than the

offence, the number of charges and previous

charges appear to be driving the imposition of a

condition to attend a treatment program for girls.

We explore these findings within the legal

context of the Youth Criminal Justice Act.

YOUTH CRIMINAL JUSTICE ACT: Sections 117-

129 (Access to Records)

Off the Record: A Critical Analysis of Youth

Record Disclosure Practices

Chantelle Van Wiltenburg (JD candidate,

University of Toronto) (Winter 2018) 76 U.T.

Fac. L. Rev. 29

In an age of rapid technological advancement,

third party requests for police record checks have

proliferated. Police record disclosure practices

present unique legal issues when such records fall

under the jurisdiction of the Youth Criminal

Justice Act (YCJA). This article critically

evaluates the legitimacy of criminal record

disclosure practices in the youth criminal justice

context, and traces the impact of such practices

on two critical areas of a young person's life:

housing; and employment. This paper suggests

that in such contexts, police services should not

facilitate third party youth record disclosure for

several reasons: first, a young person’s consent is

arguably deficient; second, the uses to which

these records will be put contravene the privacy

provisions of the YCJA; and third, these practices

undermine the YCJA’s broader aims of privacy

protection and rehabilitation of young persons.

To conclude, this article highlights provincial

legislation’s pivotal role in implementing the

overarching goals of the YCJA, and provides

some suggestions for legislative reform.

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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

firearm offences—whether that be possession,

trafficking or use offences—plague both our

larger cities and smaller towns throughout

Ontario. Bail hearings are the Crown’s first

chance to speak on behalf of the community about

the inherent dangers in these cases, both as those

dangers relate to the circumstances of the

Crown’s case and the particular threat an accused

may pose to public safety. Here are some

practical tips that hopefully will help you in your

show cause submissions in firearm cases,

drawing on our experience on the Toronto

Firearm Bail Team.

Antic, the Ladder Principle and Reverse Onus

Hearings

Following the Supreme Court of Canada’s

decision in R. v. Antic,1 there was some debate in

lower court judgments about whether the ladder

principle outlined in s. 515(3) of the Criminal

Code2 should apply in a reverse onus situation. In

the bail review decision of R. v. Ishmael,3 Justice

Goldstein found it is an error in law for a justice

of the peace to apply the ladder principle in such

situations. In a fulsome analysis of this issue, he

held: “[w]hen properly read Antic does not

overturn the notion that the ladder principle does

not apply in a reverse onus situation”.4 It is the

accused who must show cause in a reverse onus

hearing under s. 515(6) and it does not fall to the

Crown to justify more stringent conditions. Why

that is important is this: if an accused’s release

plan is weak or otherwise insufficient, that can be

a basis for an argument for her or his detention

because he or she will not have met their onus.5

Reverse Onus and s. 515(6)(a)(viii) of the

Criminal Code

Most of the time it is obvious when the various

reverse onus provisions under s. 515(6) apply to

a case, but subsection 515(6)(a)(viii) merits some

closer consideration. Under this subsection, it is

a reverse onus situation when an accused is

charged with offences that involve a firearm (or

ammunition, prohibited device, etc.) while under

a prohibition order within the meaning of s. 84(1)

of the Code. A prohibition order is defined as

any order made under the Code or any other Act

of Parliament that prohibits someone from

possessing any firearm, cross-bow, prohibited

weapon, restricted weapon, prohibited device,

ammunition, prohibited ammunition or explosive

substance. This includes the obvious, such as

prohibition orders under s. 109 and s. 110 of the

Code or s. 51(1) and s. 51(3) of the Youth

Criminal Justice Act.6 However, it also includes

‘no weapons’ conditions on bail orders, probation

orders or section 810 to 810.2 recognizances. It

is not unusual to see fail to comply or breach of

recognizance charges laid in firearm cases when

an accused is on bail or probation. However,

police officers are frequently unaware of the

ability to also add a possession contrary to a

prohibition order charge under s. 117.01 in these

situations, or of the reverse onus nature of such

hearings.

Illegal Handguns are a “Social Evil”

The proliferation of handguns has been

repeatedly denounced by the Courts. Secondary

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.

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An poignant example can be found in the decision

of R. v. Kawal, where Justice Harris stated:

Handguns are a social evil… Gun-related

crime poses grave danger to Canadians…

The primary purpose of handguns is the

maim and kill… They are a disease, a

plague on our communities. We have the

means at our disposal to eradicate or at

least to drastically curtail them. It is

difficult to understand why our society

would not do everything in its power to

ensure that handguns are not available for

criminal purposes.7

The Kawal decision includes a series of helpful

comments by Justice Harris about the dangers

that firearms pose, but the part that speaks

directly to the secondary and tertiary grounds is

as follows:

A person does not stumble upon an illegal

firearm. There is a process of purchasing

from a trafficker and secreting the handgun

to avoid detection and prosecution. There

is high degree of deliberation and

contemplation involved. In order to

dissuade those who would possess and use

firearms, there is a duty to ensure that there

is no mistake about the not-give-an inch

opposition and contempt for all that

handguns represent.8

If a firearm is found in conjunction with any

narcotics, it is important to highlight to the Court

that it is being “used” under the third enumerated

factor in the tertiary ground as a tool of the drug

trade, even if not brandished or fired. Courts

have time and time again highlighted that this

combination increases the seriousness of the

firearm possession. In R. v. Wong, the Court of

Appeal held:

The courts have repeatedly emphasized

that the toxic combination of drugs and

guns poses a pernicious and persisting

threat to public safety and the welfare of

the community. The social ills, including

associated criminal conduct, fueled by this

combination is now well recognized.9

In a Strong Case, a Detention Order is the

Expected Result

The tertiary ground under s. 515(10)(c) specifies

four factors that the Court must consider: (1) the

apparent strength of the prosecution’s case; (2)

the gravity of the offence; (3) the circumstances

surrounding its commission; and (4) the potential

for a lengthy term of imprisonment. It is

important to highlight that the third and fourth

factors require the presiding jurist to consider

firearms specifically—that is whether or not a

firearm was used in the third factor, and if there

is any mandatory minimum sentence of three

years or more for a firearm-related offence in the

fourth factor. You should argue that the tertiary

ground necessitates the detention of an accused in

firearm cases, in particular where the Crown has

a strong case, given that in such situations the

other three factors will usually be present. In the

face of defence arguments to the contrary, it is

worth remembering that the “tertiary ground is a

constitutionally valid limit on the constitutional

protection of the presumption of innocence”.10 In

a strong Crown case where the four tertiary

ground factors have strong force, the “denial of

release is the usual or expected result”.11

The Current Climate: It Matters

Most bail hearings for possession or use of

firearm offences obviously engage the tertiary

grounds. Therefore, they also engage what is

actually happening in real time, in the

communities where that offence is alleged to have

been committed. In Toronto, for example, “the

proliferation of handguns in the Greater Toronto

Area has been decried by the courts and the public

for many years. It is a pressing and urgent matter

of public safety”.12 In R. v. St. Cloud, the

Supreme Court told us that “‘[t]he media have a

vitally important role to play in a democratic

society’… such opinion evidence can therefore

be considered by the courts when it is admissible

and relevant”.13

How does that help? While newspaper articles

may offer some evidence of the community

sentiment, police forces also release statistical

data about firearm offences. You can go straight

to the source for information relevant to your

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hearing. This data is updated frequently and

speaks directly to what is happening in our cities.

In Toronto, for example, as of September 22,

2019 there have been 325 shootings with 484

victims. This is an increase of nearly 250% from

2014.14 Similar data is also available for the

following urban centres:

• Ottawa;15

• Windsor;16

• London;17 and

• Thunder Bay.18

These statistics provide tangible evidence of the

real threat firearm offences are causing in these

communities. They can be used in your

submissions on the tertiary ground, specifically as

they relate to the circumstances of the offence and

the public’s confidence—especially a public

mired in gun violence—in the judicial system.

Cross-Examining a Surety on Discussions with

the Accused about the Offence:

Often in a bail hearing, the Crown will ask a

proposed surety about their discussions with the

accused about the allegations. There are two

recent cases worth knowing on this issue. The

first is R. v. K.K.,19 which prohibits the Crown

from asking questions to elicit admissions made

by the accused to the proposed surety. In the

second, R. v. P.N.,20 Justice O’Marra rejected

Justice Harris’ broad prohibition on such

questions. Instead, Justice O’Marra ruled that

questions about statements made by the accused

to the surety about the allegation(s): (1) do not

negatively impact the fair trial interests of the

accused; (2) can be limited by the bail jurist if

they become abusive or protract the proceedings;

and, most importantly, (3) “such questions may

be relevant to the strength of the Crown’s case

and in some cases to the protection of the

public”.21

The views or opinions expressed in this article are

those of the authors, and do not necessarily reflect

those of the Ontario Ministry of the Attorney General

or the Ontario Crown Attorneys Association. 1 2017 SCC 27. 2 R.S.C. 1985, c C-46. 3 2019 ONSC 596.

Therefore, you should continue to ask these

questions of potential sureties in appropriate

circumstances. Come prepared with the case law

and your arguments as to why these questions are

probative and relevant to a live issue at the bail

hearing. For example, the questions can elicit

helpful evidence about the ongoing risk to the

victim(s) or public, the relationship between the

accused and the surety and the strength of the

Crown’s case. A word of caution though: “[I]f

the prospective surety does not seek or receive

information about the allegation from the

accused, that should not reflect adversely on the

acceptability of the surety”.22

Paper PALs:

We would like to conclude with one final

recommendation. Sometimes a person charged

with a firearm offence may have a valid

Possession Acquisition Licence (PAL). For

example, think of a domestic violence case with

an allegation that a firearm was used or even

simply that the accused otherwise possesses such

a licence. Although a bail order will include a ‘no

weapons’ clause and a clause that the accused

must surrender his or her firearm to the police, the

accused may still have a paper copy of the PAL

at home. In those circumstances, there is a risk

the accused will simply walk into a store with the

PAL and obtain a new firearm. You should ask

the Court to include a bail term that the accused

surrender the PAL to the officer-in-charge or

designate within 24 hours of their release,

pursuant to s. 515(4.11) of the Code. In addition,

ensure that the presiding Justice requests that a

copy of the Recognizance of Bail be forwarded to

the Chief Firearms Officer. There is a check box

on the bottom of the standard bail recognizance

for the clerk’s or registrar’s assistance in this

regard.

4 Ibid at para. 32. 5 See also R. v. Sakhiyar, 2018 ONSC 5767 at para. 7;

R. v. Anderson, 2018 ONSC 5720 at para. 51. But

see R. v. Pascal, 2018 ONSC 2896 at para. 41. 6 S.C. 2002, c. 1. 7 2018 ONSC 7531 at para. 11 [Kawal]. 8 Ibid at para. 16.

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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:

<http://data.torontopolice.on.ca/pages/shootings>. 15 Ottawa Police Service, Crime Stats, online:

<https://www.ottawapolice.ca/en/crime/crime-

stats.aspx>. 16 Windsor Police Service, Crime Statistics, online:

<https://www.police.windsor.on.ca/services/open-

data/Pages/Crime-Statistics.aspx>. 17 London Police Service, Crime Statistics, online:

<https://www.londonpolice.ca/en/about/Crime-

Statistics.aspx>. 18 Thunder Bay Police Service, Crime Map, online:

<https://www.thunderbaypolice.ca/crime-map>. 19 2019 ONSC 1578. 20 2019 ONSC 2858. 21 Ibid at para. 5. 22 Ibid at para. 8.

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Revoking Suspended Sentences

Jennifer Ferguson, Kingston Crown Attorney’s Office

The Criminal Code provides for it. But how

often is it done? This trite bite is to remind

Crowns of the availability of s. 732.2(5) in our

tool kits.

It is trite that when the term ‘suspended

sentence’ is used in Canadian criminal law, it is

a short form of the expression ‘suspended

passing of sentence’. It derives its current

existence from s. 731(1)(a) of the Criminal

Code, which provides that “Where a person is

convicted of an offence, a court may, having

regard to the age and character of the offender,

the nature of the offence and the circumstances

surrounding its commission, if no minimum

punishment is prescribed by law, suspend the

passing of sentence and direct that the offender

be released on the conditions prescribed in a

probation order”.

Subsection 732.2(5)(d) of the Criminal Code

sets out that where an offender who is bound by

a probation order is convicted of an offence,

including breach of probation, the court that

made the probation order may require the

offender to appear before it and, after hearing

the prosecutor and the offender, may: revoke the

order and impose any sentence that could have

been imposed if the passing of sentence had not

been suspended; make such changes to the

optional conditions as the court deems desirable;

or extend the period for which the order is to

remain in force for up to one year. This is in

addition to any other punishment for the new

substantive offence or breach.

The application must be made by the prosecutor

to the court that made the original probation

order.1 In some cases, where an offender is

subsequently charged in the same jurisdiction,

this may result in a blended sentencing and

revocation hearing. In other cases, separate

hearings before different courts may be held.

An application may not be made until the appeal

period has expired, the appeal has been

dismissed, or the offender has given written

notice that they either elect not to appeal or have

abandoned their appeal. The application must be

brought while the probation order is in force.

Once the probation order has expired, the court

has no jurisdiction to revoke it and impose

sentence, even where the act giving rise to the

Crown’s application occurred during the

currency of the order.2 However, where the

probation order is revoked prior to its expiration,

the adjournment of sentencing to a time beyond

the period when the probation order would have

expired is not fatal.3

Notice must be given to the offender in writing.4

In R. v. Tuckey, the Ontario Court of Appeal

held that, although the present Criminal Code

did not require the formalities of an information

and was silent as to procedure, the basic

principles of natural justice must prevail. These

include fair notice and full answer and defence.

The notice should clearly articulate the nature of

the proceedings, the grounds upon which the

Crown intends to rely in support of its

application, the nature of the order sought, and

the hearing date.

The Court may issue a summons, warrant or

production to the compel the offender’s

attendance.5 A hearing is held, and both the

Crown and the offender make submissions. An

offender is entitled to be represented by counsel

and may be entitled to an adjournment for that

purpose.6

When an offender violates their probation order,

whether by breaching a specific condition of the

order or by virtue of having been convicted of

another substantive office, an application under

s. 732.2(5)(d) is appropriate. The court has a

broad discretion as to the appropriate order to

made. Where the probation order is revoked, the

trial judge may impose “any sentence that could

have been imposed if the passing of sentence

had not been suspended”. Proportionality does

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remain paramount, although by virtue of their

conduct, the offender will have forfeited their

right to leniency. The function of the trial judge

becomes to substitute a sentence proportionate to

the offence which the offender had committed.7

This sentence is “in addition to any punishment

that may be imposed for [the subsequent]

offence”. However, the totality principle must

be respected.8

One factor for Crown counsel to consider when

deciding whether to pursue an application under

s. 732.2(5)(d) is whether the offender is already

facing a significant sentence for the breach or

substantive offence charged. Where the court

revokes the probation order because of the

commission of an offence while on probation, it

has no power to make the substitute sentence

consecutive to the sentence imposed for the

offence which brought about the revocation.

This is because at the time the passing of

sentence was suspended and the accused was

released on probation, he was not then serving

any sentence to which the sentence could be

made consecutive.9 This leaves the Crown to

either seek a longer appropriate concurrent

sentence or to decide not to proceed with the

application in the circumstances.

Another factor is the procedural complexity of

probation breach enforcement compared to

breaches of conditional sentences. However,

both the array and severity of potential penal

sanctions following proof of a breach of a

probation order are much greater.10 In

R. v. Voong, the B.C. Court of Appeal explained:

Because a breach of the probation order

can result in a revocation and sentencing

on the original offence, it has been

referred to as the “Sword of Damocles”

hanging over the offender’s head.11

For examples of significant punitive responses,

see the cases of R. v. Moore12 and R. v. Patrick,13

in which suspended sentences were revoked and

replaced with penitentiary-length terms of

imprisonment—five years and two years,

respectively.

The principles applicable to suspended sentences

also apply in the context of conditional

discharges. Subsection 730(4) governs the

consequences of an offender’s subsequent

conviction for any offence, including breach of

probation. In addition to, or in lieu of,

exercising its authority under s. 732.2(5), the

court may revoke the discharge, convict the

offender of the offence to which the discharge

relates, and impose any sentence that could have

been imposed if the offender had been convicted

at the time of the discharge.

Where probation is imposed not as a result of a

conditional discharge or the suspending of the

passing of sentence, but as part of another

sentence, then pursuant to s. 732.2(5)(e) the

court may not revoke the probation order but

may make such changes to the optional

conditions as it deems desirable, or extend the

period of probation for up to one year. The views or opinions expressed in this article are

those of the author, and do not necessarily reflect

those of the Ontario Ministry of the Attorney General

or the Ontario Crown Attorneys Association. 1 This is the case unless the proper transfer procedure

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

(Alta. Q.B.). 3 See Re Montanaro and R. (1980), 55 C.C.C. (2d)

143 (Que. C.A.). 4 See R. v. Tuckey (1977), 34 C.C.C. (2d) 572 at 575

(available on Q.L. at para. 10) (Ont. C.A.). 5 Subsection 732.2(6) incorporates the provisions of

Part XVI and XVII with respect to compelling the

appearance of an accused before a justice, with such

modifications as the circumstances require. 6 See Tuckey, supra note 4 at 575 (available on Q.L.

at para. 11). 7 See ibid at 576 (available on Q.L. at para. 15). 8 See R. v. MacArthur, 2018 PECA 10 (where the

accused had been sentenced the previous day for a

separate crime committed against the same victim.

The Prince Edward Island Court of Appeal held that

it was an error in principle for the sentencing judge to

fail to consider the totality principle in relation to the

other sentence). 9 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.

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

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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.

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