Cross Country Noteup - March 2023
R v O'Brien, 2023 ONCA 197: in executing a search warrant - which produces an “inherently coercive atmosphere” - it was a serious and systemic Charter breach for the police to routinely demand device passwords without informed consent and, in this case, without providing the detained suspect with opportunity to consult counsel.
R v McColman, 2023 SCC 8: the police do not have the statutory authority under Ontario’s Highway Traffic Act to conduct random vehicular sobriety stops on private property even if the police formed intent to conduct the stop before the target vehicle entered onto private property.
As one commentator notes, by describing impaired driving simpliciter, prosecuted summarily, as a “serious offence” under the Grant analysis, one might wonder “what crime isn't a serious offence now?”. No election. No preliminary inquiry. Indeed, some provinces - notably AB and BC - hardly treat this offence as criminal anymore.
At the same time, the SCC seems to implicitly reject R v Jennings, 2018 ONCA 260, by acknowledging a "marked" (not "minimal") intrusion into the accused's Charter-protected interests from the entirety of the procedures that typically follow an unlawful roadside stop in this context, including being detained and observed at a police station for hours.
R v Rizvi, 2023 ONSC 1443: Crown's request on appeal to set “bright line rule” for how long police must wait for counsel of choice to call back before taking breath samples in impaired driving cases is "antithetical" to SCC case law and “the wisdom of a flexible standard”.
R v Macfie, 2023 SKCA 39: allowing Crown appeal, the Court considers what may constitute objectively reasonable grounds for impaired care and control, holding that the courts below incorrectly held that the standard was not met here: driver found “slumped over the steering wheel” in early morning; engine running; open bottle of beer in console; unlit cigarette in his fingers; slurred speech; bloodshot eyes; strong odour of alcohol; “droopy” face.
R v Metzger, 2023 SCC 5: a 3:2 majority holds that the evidence - namely the accused's DNA on cigarette butt found in a stolen vehicle located 11 hours after robbery as well as the “fraught" recollection from the victim that he heard accused's surname during robbery - could not reasonably support guilty verdicts.
R v RJM, 2023 MBCA 28: trial fairness was compromised because the trial judge wrongly - and unilaterally - held that rule in Browne v Dunn was breached, only invoked the rule in his decision on conviction and without notice to the accused, and relied on these purported breaches to reject the accused's evidence.
R v Klassen, 2023 BCCA 103: guilty pleas set aside as uninformed because the accused was unaware that he was forfeiting his right to appeal the adverse Charter rulings or to pursue an 11(b) Charter application, irrespective of whether the appeal or application would likely succeed.
R v Downes, 2023 SCC 6: it does not matter whether nudity was reasonably expected “at the time” the surreptitious observation or recording was made so long as it would be reasonably expected in certain "safe places": bedrooms, bathrooms, or here, an arena dressing room.
R v Davani, 2023 ONCA 169: irrespective of whether co-accused are pursuing a “cutthroat defence”, they may introduce evidence that could not be tendered as part of the Crown’s case, including evidence that a co-accused has the disposition to commit the offence charged so long as its probative value is not substantially outweighed by the grave potential for prejudice.
R v Hurren, 2023 ONCA 187: a 6-year jail sentence was “entirely fit” for the distraught, heavily-armed man with three loaded firearms who crashed truck into gates of Rideau Hall & sought to “arrest” the Prime Minister of Canada: “Whatever one’s political views, it is simply not acceptable…to arm oneself…in order to express those views”.
Trans Mountain Pipeline ULC v Mivasair, 2023 BCCA 115: upholds 28-days jail for Indigenous protester who breached a Trans Mountain Pipeline injunction. While belief in "a cause" that motivates an act of criminal contempt is not mitigating, “faithfulness to Indigenous legal principles" might be (but not argued here).
R v Jimmy, 2023 SKCA 28: "a bare acknowledgment that Gladue factors are present" was insufficient and suggested that "an automatic discount" was applied. Rather, judges "must endeavour to explain why those factors were applied and how they were taken into account".
R v Mosquito, 2023 SKCA 29: in dismissing the Crown’s sentence appeal, the Court expressed concern (“troubled") that the appeal Crown took "divergent" and "contradictory" positions from the trial Crown in relation to several important aspects of the sentencing (“once again, the Crown has changed its tune...")
R v Summers, 2023 NLCA 8: the Court divides on the application of the totality principle to "several pharmacy break-ins", all ultimately resolved by guilty pleas - but at different times and with some distinguishing circumstances - and whether or to what extent the prior sentences should be considered when imposing the current sentence.
R v McKnight, 2023 ABCA 72: while not finding any errors in principle, the court allows the crown’s sentence appeal in this high-profile multiple sexual assault case because the judge's 10-year jail sentence was considered demonstrably unfit, substituting a 13-year sentence.
R v Bordian, 2023 MBCA 26: although the judge applied the wrong (and more severe) sentencing range, and improperly considered as aggravating the fact that the accused was not defending himself during the assault and did not assist the victim after the assault, these errors had no impact on sentence.
R v Bharwani, 2023 ONCA 203: five-member panel clarifies the fitness to stand trial assessment, noting that an accused “must have a reality-based understanding of the nature and object and possible consequences of the proceedings” and be able to “understand relevant information, apply that information in the context of his decision-making, and intelligibly communicate” with counsel or the court (if unrepresented). However, while an accused “must have the ability to make decisions”, these need not be made "in their own best interests”.
R v Smith, 2023 NBCA 20: assault causing bodily harm is an included offence to assault peace officer causing bodily harm where the conviction on the latter offence is precluded because the peace officer was acting outside the lawful course of his or her duties.