Canadian Criminal Appeals - Week of June 15, 2020

Cases:

In R v Carbone, 2020 ONCA 394, the ONCA (per Doherty JA) clarified - in obiter - Morrison, George and the mens rea requirements for sexual offences involving minors, where the mistake of age/reasonable steps could be at play. The gist is that it is not enough for the Crown to negate beyond a reasonable doubt that the accused took reasonable steps under 150.1(4) or 172.(4), respectively. The Crown must also prove that the accused believed the complainant was underage. This, of course, was established in Morrison in relation to child internet luring (s. 172.1(1)) where the majority also held that recklessness will not suffice; actual knowledge (including wilful blindness) is required (89). This is "because [an] accused’s belief he is speaking to a person under 16 is what makes the conduct sufficiently harmful and blameworthy to warrant criminalization" (99). In the case of the offences governed by s. 150.1(4) - where the complainant is actually under 16 - the mens rea can be satisfied on the basis of actual knowledge or recklessness, which, in the case of the latter, will - practically speaking - be made out in most cases by proving a failure to take reasonable steps (120-131). See also: Morrison at 88. NB: the conviction appeal was allowed because the trial judge, despite his correct self-direction on the burden of proof, repeatedly “looked to the defence to convince or persuade him the defence evidence on certain key issues established exculpatory facts” (45).

In R v Sandeson, 2020 NSCA 47 the NSCA (per Farrar JA) allowed a first degree murder conviction appeal because the trial judge failed to declare a mistrial after a significant and “unique” disclosure violation became apparent in the middle of the trial. While the undisclosed material did not relate to guilt or innocence, a mistrial should have been declared because "the right to make full answer and defence includes not only the ability to challenge the Crown’s case on the merits but also the ability to advance reasonable Charter and/or other process-oriented responses to the charges" (73 and following). The mid-trial disclosure revealed serious - and really quite remarkable - misconduct: a private investigator hired by the defence became convinced that the accused was guilty, hoped that he would be convicted and, because he was worried that the police were not doing enough, disclosed defence-obtained evidence to the police (30). The police, in turn, exploited and improperly withheld the circumstances from the accused and his counsel (see 117-124). The remedy provided by the trial judge - an adjournment and additional cross-examination - was “inadequate” because the defence required meaningful time to investigate this novel issue; “they did not have [that] while juggling the trial proper” (see 129-157). NB: the trial judge - Justice Joshua Arnold - is reportedly one of several friends of Peter MacKay (indeed, the “best man” at Mr. MacKay’s 2012 wedding) who was appointed to the bench in 2013 when Mr. MacKay was the Minister of Justice.

In R v Bacon, 2020 BCCA 140, the BCCA (per curiam) overturned the stay of proceedings entered on charges of first degree murder and conspiracy to commit murder (“the most heinous of peace time crimes”). This matter relates to the high-profile, execution-style killing of 6 people in Surrey in 2007 (the "Surrey Six"). A notable thing about this judgment is that the facts relating to the police misconduct are redacted and sealed (3). Indeed, the pre-trial motions (and appeal) proceeded in camera and - at times - just with amicus; in some instances the accused was not present (20-21). The BCCA essentially found that despite the trial judge's otherwise laudable decision making - “a Herculean task of almost unprecedented complexity” wherein the trial judge provide “thoughtful and precise reasons" in relation to pre-trial proceedings that spanned four and a half years (72) - she erred in finding police misconduct on the basis that the police did not follow certain internal policies where that non‑compliance did not “tarnish the integrity of the justice system” (56). While much of the other (unmentioned) police misconduct had been conceded by the Crown on appeal, the trial judge’s discrete errors skewed the balancing under Babos. Considered afresh, the BCCA determined that a stay was not warranted, concluding that the community has a “profound interest” in seeing this particular matter brought to trial (64-65). The BCCA was also "disquieted" to learn that some of the trial "proceeded off‑docket", a practice that is anathema to the open court principle - even if the public was properly excluded, "a court should not hide the fact a hearing is proceeding" (68-70). NB: The accused is associated with the “Bacon Brothers”, undoubtedly the most Canadian of sounding criminal law references other than, perhaps, a maple syrup heist, or this.

In R v Veen, 2020 ABCA 240 the ABCA (per Antonio JA) granted leave to the Crown to appeal Justice Sullivan’s decision in R v Veen, 2020 ABQB 99,  which upheld the trial judge's determination that s. 495(3) cannot be interpreted to insulate from Charter review and remedy an arrest - otherwise founded on reasonable and probable grounds under s. 495(1) - that does not comply with the limits on detention provided for under s. 495(2), and notwithstanding the contrary view of provincial appellate authorities: R v Cayer (1988), 66 CR (3d) 30, 28 OAC 105 (CA); R v Jowett Work, 2019 BCCA 236. In contrast, see Harradence JA’s dissent in R v Sieben, 1989 ABCA 258. Veen is one to watch, particularly given the Supreme Court’s recent efforts to cajole courts into actually applying the Bail Reform Act (although I note that - as in R v Gill, 2015 ONSC 7764 - no constitutional challenge was made to the legislation itself). Also this week, the ABCA in R v Bird, 2020 ABCA 236 engaged in an interesting (and consequential, for Mr. Bird) discussion about “personal possession”, “innocent possession” and the “absence of an intention to control”. Some may disagree with the conclusion in Bird that the appellant’s knowledge and control necessarily extended beyond the “mere quiescent or passive knowledge” required to ground liability (14). NB: Do not borrow your friend’s vehicle if there are illegal items inside, and in plain view (this is not legal advice, just words to live by…).

Ryan Clements