SCC Refuses to Revisit Murder Mens Rea Standard

In the years following the adoption of the Canadian Charter of Rights and Freedoms, the courts in Canada used their new-found power under section 7–the right to life, liberty and security–to scrutinize objective standards of mens rea. This resulted in a push for more subjective standards, under the premise that objective standards threatened to punish the morally innocent, as they did not require the accused to possess a positive state of mind such as intention or foresight.  This scrutiny was particularly intense in the context of high-stigma crimes such as murder.

This perspective on objective standards led the Supreme Court of Canada (SCC) to rule that the felony-murder provisions of section 213 (now section 230) of the Criminal Code were unconstitutional in R v Vaillancourt, [1987] 2 SCR 636, and R v Martineau, [1990] 2 SCR 633, and that a mens rea of subjective foresight of death is constitutionally required for a  murder conviction.

In R v Shand, 2011 ONCA 5, the debate regarding the constitutionality of the Code’s murder provisions resurfaced.  In Shand, the accused was charged with second-degree murder under section 229(c) when, in the course of a robbery, their handgun accidentally discharged and killed the victim.  The accused was convicted at trial and granted appeal.  At the Ontario Court of Appeal, the  appellant argued that section 229(c) of the Criminal Code–the only surviving provision that does not require a specific intention to seriously harm or kill–is unconstitutional because it labels an unintentional killing as murder.  The appelant’s argument rested on the premise that the label of “murderer” should be applied based only on a mens rea of intention, not mere foresight in order to conform with the principles of fundamental justice.

The Court of Appeal rejected the appellant’s constitutional arguments and upheld the trial court’s conviction.  They agreed with the Crown that Martineau and concurrent decisions (R v Arkell, R v Luxton) went far enough in protecting the morally innocent from being labeled murderers by ensuring subjective foresight of death as a constitutional requirement of a murder conviction.  In fact, in Martineau, the court specifically addressed section 229(c) by striking down the objective “ought to know” portion of the mens rea requirement, while leaving the subjective mens rea requirement intact. The Court of Appeal concludes that “when the subjective foresight of death is combined with an ulterior intent that is itself sufficiently culpable, together they constitute a proper normative substitute for an intent to kill.”

This week, the SCC denied leave to appeal in the Shand case.  While it would be valuable to criminal lawyers across the country to get a definitive ruling from Canada’s highest court on the future of section 229(c), this signals that the Court is not interested in re-engaging in constitutional scrutiny of the mens rea requirement for murder for the time being.  Perhaps the Court will see the need to offer judgment when the provision is challenged in another  jurisdiction.  Until then, as per R v Arkell, [1990] 2 SCR 695, subjective foresight of death remains “the highest level of moral culpability” in Canadian criminal law.

Torture Cases Denied Leave to Appeal

A leave for appeal was also denied in the case of Abdullah Almalki et al v Attorney General of Canada. In what are commonly referred to as the “torture cases” by the media, Almalki and his co-appellants Abou-Elmaati and Nuayyed Nureddin filed civil claims against the Canadian government alleging complicity in their detainment and torture in Syria and Egypt between 2001 and 2004.

These claims were put on hold while a Commission was convened to inquire into the actions of government officials in relation to the appellants’ detainment. Following the publication of the Commission’s report, the appellants put forward a motion in the Ontario Superior Court of Justice to allow for the discovery of documents that were noted in the reports.

In response, the Attorney General of Canada applied for an order in the Federal Court (FC) to have the documents withheld pursuant to section 38.04 of the Canadian Evidence Act (CEA), which allows sensitive information to be withheld for reasons of national security. This request was denied in Canada v Almalki, 2010 FC 1106, where the FC concluded that the AG failed to demonstrate a sufficient injury would result in releasing the information.

However, in Canada v Almalki, 2011 FCA 199, the Federal Court of Appeal quashed the denial, arguing that the FC judge erred in applying the three-part test set out in Ribic v Canada, 2003 FCA 246, as the appropriate standard for determining the disclosure of documents under section 38 of the CEA.  The Ribic test requires the courts to complete a balancing act which considers (1) the relevance of the information to the underlying procedure, (2) the impact of disclosure on “national security, international relations or national defence” and (3) “whether the public interest in disclosure is outweighed by the public interest in non-disclosure.”

While the Ribic decision provided that applications for disclosure “are reviewable on a standard of correctness,” the FCA also concluded that cases such as this, involving “a mixed question of fact and law,” should be “subject to the more deferential standard of ‘palpable and overriding error’” set out in Housen v Nikolaisen, 2002 SCC 33.

The FCA also concluded that when applying the Ribic test, the FC judge failed to give proper consideration to the evidence for potential injury and instead gave “undue weight to the public interest in disclosure of the information.” In response to this error, the FCA allowed the appeal and ordered the documents be withheld “to prevent and minimize injury to international relations, national security and national defence.”

The power to order disclosure under section 38 of the CEA requires the courts to engage in a delicate balancing act, which pits the public interests of disclosure against the potential for injury caused to national security. However, the FCA’s decision, and the subsequent denial for an appeal, signals that Canadian courts should be cautious about weighing evidence for a sympathetic disclosure of information more heavily than the public interest of national security.

Facts & Law

The accused, P, had been charged with assault and rape and was detained by police for interrogation. At the police station, P told police he had had an adverse reaction to a powdered substance on the night of the alleged sexual assault, and that a friend could confirm this. The accused was not given access to legal advice prior to or during the interview. Following up on P’s alibi, the police spoke to the friend, who confirmed P’s story, but also mentioned a conversation he had with P the following morning in which P described meeting a woman the previous night and having consensual sex with her.

The accused, relying on Cadder, argued that his rights under Article 6(3) would be contravened if the Crown were allowed to introduce the evidence from his friend as it was obtained, in this case, as a direct result of the counsel-less interrogation.

The relevant portions of Article 6 of the ECHR read as follows:

Right to a fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

…

(3) Everyone charged with a criminal offence has the following minimum rights:

…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

…

As noted above, Article 6(3)(c) has been interpreted to make admissions obtained from detainees without access to legal counsel inadmissible.

Holding

Affirming the ECtHR’s holding from Gafgen v Germany, the UKSC accepted that the Salduz principle extends beyond mere admissions made without access to legal advice. Nonetheless, noting the dominant principle in Scot’s law, the court held that the mere irregularity in the method in which the evidence was obtained did not make it inherently inadmissible. Ultimately, ruled the Court, the test is whether it would be fair to admit the evidence.

Arguing that, even post Gafgen, the exact scope of the exclusionary rule is unclear, the UKSC cited the law of England and Wales as well as Canadian jurisprudence to find the evidence admissible. Citing the Canadian case, Thomson Newspapers Ltd v Canada (Director of Investigation and Research)  [‘Thomson Newspapers’], the UKSC accepted the Supreme Court of Canada’s [‘SCC’] distinction in that case between evidence that would not have existed independently of the exercise of power to compel it and evidence derived from compelled testimony which would exist independently of the compelled testimony.

As such, the UKSC held that “there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c) [of the ECHR].” The determinative factor in the case was that the evidence of P’s friend had an “independent life of its own.”

Analysis

P (Scotland) is noteworthy on a number of levels. First, the actual evidentiary issue at the forefront of the case is interesting, and has comparative relevance for most constitutional democracies. In this regard, the Court’s holding makes sense, notwithstanding conceptual problems regarding what constitutes an “independent life of its own.” On the facts of P (Scotland), it seems apparent that the police could have been reasonably expected to uncover the friend’s information in the course of their investigation; the evidence was not entirely contingent upon the interrogation of P. As such, we can be reasonably comfortable characterizing it as having a life of its own. Like all legal buzzwords (think “reasonable,” or “meaningful”), however, future cases may well turn on what constitutes an “independent life” given the specific facts of the case.

Second, and related, the comparative dimensions of the case are discussion-worthy. On the one hand, the interplay between the quasi-constitutional ECHR and Scots law as well as the references to other legal systems (namely Canadian and American, but also English and Welsh) speaks to the increasingly intertwined and globalized nature of constitutional law, at least in the Western world. The consideration and usage of foreign jurisprudence should be encouraged as, particularly in the case of Constitutional democratic states, it allows Courts to leverage the expertise and experiences of other justice systems. Conversely, references to other constitutional systems may be fraught with danger given that a country’s constitutional jurisprudence on a given matter will not exist within a vacuum, but in relation to its other constitutional protections. In this case, while Thomson Newspapers was accurately understood and applied by the UKSC, it cannot account for the reality that the Thomson Newspapers decision exists within the greater context of our ss. 1, 10(b), 11(d) and 24 jurisprudence. Divorcing the holding of the SCC in Thomson Newspapers from this reality – specifically, that police in Canada would have to provide an accused with the opportunity to access counsel upon detention pursuant to 10(b), whereas police in the UK are evidently not so obliged – evidences some of the limits of relying on comparative jurisprudence.

This question was answered by the Supreme Court of Canada (SCC) in Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, on May 26, 2011. In addition to clarifying the proper approach to confusion analysis, the SCC also confirmed that the use of a trade-mark confers priority of title to a trade-mark rather than registration itself. Therefore, in the case at bar, even though the prior mark had not been registered and was only used locally in Alberta, it could still afford national rights. In doing so, the SCC made it easier for owners to enforce common law trade-mark rights in Canada.

Background

Masterpiece Inc. has been using its name and trade-mark “Masterpiece the Art of Living” in the retirement residence industry in Alberta since 2001; however, it never sought to register the mark with the Registrar of Trade-marks. On December 1, 2005 Alavida, an Ontario company, applied to register the mark “Masterpiece Living” based on proposed use with retirement residences, and began using the mark since 2006. Nobody opposed Alavida’s application, which was subsequently granted on March 23, 2007.

The problem occurred when Masterpiece Inc. applied to register “Masterpiece” and “Masterpiece Living” in January 2006, which was denied by the Registrar because the marks were confusing with Alavida’s trade-mark “Masterpiece Living”.

Typically, there are two remedies available: Masterpiece Inc. could either oppose Alavida’s application, or have Alavida’s mark expunged. However, since Masterpiece Inc. had missed the opportunity to oppose Alavida’s application, it sought to expunge Alavida’s registration on the basis that Alavida’s mark is confusingly similar with its own trade-marks used prior to Alavida’s application.

Issues on Appeal

There are four issues before the SCC:

1. Is the geographical location where a mark is used relevant when considering the likelihood of confusion between a registered trade-mark and a prior unregistered trade-mark?

2. What considerations are applicable in the assessment of the resemblance between a proposed use trade-mark and an existing unregistered trade-mark?

3. What effect does the nature and cost of the wares or services have on the confusion analysis under s. 6(5) of the Act?

4. When should courts take into account expert evidence in trade-mark confusion cases?

Is the Location Relevant When Considering the Confusion Analysis?

By way of background, s. 6(5) of the Act sets out the surrounding circumstances that must be considered in a confusion analysis, including: (a) the inherent distinctiveness of the trade-marks and extent to which they have become known; (b) the length of time the trade-marks have been in use; (c) the nature of the wares, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them.

The test for confusion created a bit of confusion when s. 6(2) provides that “the use of a trade-mark causes confusion…if the use of both trade-marks in the same area would be likely to lead to the inference that the wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person.”

The SCC held that the test for confusion is based upon the hypothetical assumption that both marks at issue are used “in the same area”, regardless of whether this is actually the case. As a result, actual geographical separation does not play a role in this hypothetical test. Since s.19 of the Act explicitly confers the owner the exclusive right throughout Canada, the trade-mark should have national rights even if it is only used locally.

Consideration of the Resemblance between the Marks

First, the Court confirmed the test for confusion as the following: whether, “as a matter of first impression, the ‘casual consumer somewhat in a hurry’ who sees the Alavida trade-mark, when that consumer has no more than an imperfect recollection of any one of the Masterpiece Inc. trade-marks or trade-name, would be likely to be confused; that is, that this consumer would be likely to think that Alavida was the same source of retirement residence services as Masterpiece Inc.”

Furthermore, the SCC held that the confusion analysis should start with s. 6(5)(e) – a consideration of the resemblance between the marks. If the marks do not resemble one another, then it is unlikely to find them as confused. The other factors set forth in s. 6(5) are significant only when the marks are found to be identical or very similar.

Moreover, in deciding a likelihood of confusion, one should consider whether the entire scope of potential uses that were granted under the registration would be confused with an existing mark, rather than simply considering the actual use that has been undertaken in the past. This analysis is different for trade-marks that are protected at common law, since unregistered marks may only rely on how the marks had actually been used in the business in the past.

People Think Twice before Buying Expensive Goods – Is this Relevant for Confusion Analysis?

In applying the confusion analysis, the trial judge incorrectly held that, because of the nature and cost of retirement residences, consumers will perform subsequent research to inform themselves of the brand, and consequently, they will become less susceptible to confusion about the source of the goods or services.

The SCC disagreed and stated that, even though consumers of expensive goods may exercise caution and wariness when purchasing, brand owners should not lose the benefit of trade-mark protection. Also, subsequent research is not relevant to the confusion analysis because the analysis should be based on the “first impression” the consumer had when first encountering the mark in the marketplace. Whatever the consumer does after first encountering the mark does not detract from the confusion that has already occurred. The Court further stated that “leading consumers astray in this way is one of the evils that trade-mark law seeks to remedy. Thus, it was an error to discount the likelihood of confusion by considering what actions the consumer might take after encountering a mark in the marketplace. “

Do we need Expert Evidence in Trade-mark Confusion Cases?

Tendering expert evidence in a trade-mark case is no different than proffering expert evidence in other contexts; to be accepted, four requirements must be met: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert.

Here, Alavida adduced expert testimony on how a consumer is likely to react when presented with the trade-marks, and Masterpiece Inc. produced a survey which was heavily critiqued by an expert for Alavida. However, the SCC disregarded the costly and convoluted expert evidence altogether.

The SCC wrote that, because this is a case of retirement residences, which is being marketed to the general public, the average consumer is not expected to be particularly skilled or knowledgeable. Thus, judges should use their own common sense to consider the marks at issue, and exclude influences of their “own idiosyncratic knowledge or temperament” to determine whether the casual consumer would be likely to be confused. Thus, the SCC strongly rejected the evidence that discussed morphology, semantics, rules of grammar, and conventions of expression.

While the Court cautiously recognized that reliable and valid surveys might add some value for confusion analysis, it could still be distracting rather than helpful. Because Masterpiece Inc. did not have a presence in the community, there was no average consumer with “imperfect recollection” of Masterpiece Inc.’s marks to test. Thus, such costly surveys were found to be invalid.

Lastly, the Court opined that case management judge should assess the admissibility and usefulness of proposed evidence at an early stage and, where appropriate, steer parties away from expending resources on evidence of little utility.

Outcome

Alavida was not entitled to registration of its trade-mark and its registration was expunged.

How to Avoid Litigation

For many small businesses that do not invest in the resources to apply for trade-mark registration, this case offers them an optimistic solution because unregistered trade-mark could also have enforceable rights across Canada even when the mark is only used locally. However, if Masterpiece had registered its mark in the first place, Alavida would not have been able to obtain trade-mark registration, and the expense and uncertainty of litigation could have been avoided. Litigation could also have been precluded if Alavida had performed its clearance searches properly prior to adopting the mark “Masterpiece Living” for its marketing campaign.

Another important point of this case is related to the admissibility of expert evidence. Recently, the use of expert evidence has proliferated uncontrollably and has become one of the major costs in civil litigation. The SCC is to be commended for suggesting that unnecessary and potentially distracting expert and survey evidence should not be allowed to complicate court proceedings. After all, litigation is costly and courts should fulfill their gatekeeper role to minimize delay and complexity and maximize access to justice for the parties.

The Crown alleged that Mr. Salmon had been “instrumental” in acquiring at least two pieces of fake ID for the complainant in order to show that she was 18 years of age – evidently, this would make it easier for her work in certain Brampton sex clubs. This allegation was supported at a preliminary inquiry by the sworn testimony of Mr. George Wang, a Constable with the PRPS. During the arrest, Constable Wang was given the responsibility of tagging all confiscated property (i.e. Mr. Salmon’s wallet) and preparing a detailed exhibit list. According to both his notes and his testimony, the complainant’s fake ID was found in the wallet of Mr. Salmon at the time of his arrest. In theory, this fact would be used to demonstrate the extent to which Mr. Salmon’s exerted “control” over the complainant.

The controversy began, however, when Ms. Penman – counsel for Mr. Salmon – came into possession of the notes taken by the officer present when the complainant first arrived at the station. These notes had not been included in the general disclosure package, so a suspicious Ms. Penman requested them specifically. As it turned out, the officer’s notes stated very clearly that the complainant had turned the fake ID over to the police when she first arrived at the station, long before the arrest took place.

Immediately after this evidence surfaced, which was one day before the trial, Ms. Penman applied for a stay of proceedings, pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Thus, the task facing Ontario Superior Court Judge Douglas Gray was threefold. (1) In light of the conflicting evidence, what are the actual facts? (2) Do the facts constitute a violation of Mr. Salmon’s Charter rights? If so, (3) what is the most appropriate remedy?

(1) What really happened?

Ms. Penman’s central argument was that the fake ID had been turned in by the complainant prior to the arrest, so it could not have been found in Mr. Salmon’s wallet, as Officer Wang had claimed. This meant that the police had either physically planted the ID in Mr. Salmon’s wallet during his arrest or they had “fabricated a scheme” to make it seem as though the ID had been found in his wallet.

In light of this new evidence, Judge Gray requested that Crown counsel clarify its position with respect to the fake ID. The Crown did not budge, maintaining that the ID was indeed found in Mr. Salmon’s wallet, and that the notes taken by the officer at the station must have been, for some unknown reason, made in error.

Judge Gray reviews, in great detail, the testimony provided by the officers involved in Mr. Salmon’s arrest. The most remarkable testimony, of course, was that of Constable Wang:

MS. PENMAN: …But where did these two pieces of identification come from?

ANSWER: I – - I don’t know. It – - obviously the – - I’m – - I’m saying now that they weren’t from his wallet. So, I don’t know if they were placed on the desk and, and got inadvertently mixed in with, with the other ID.

After Constable Wang reversed his preliminary testimony and contradicted his written notes, there was no denying that the ID had, as a matter of fact, been turned in prior to the arrest. Judge Gray outlined three possible explanations for the “erroneous notes, the erroneous exhibit list…and Constable Wang’s erroneous testimony” during the preliminary inquiry: (1) “incredibly sloppy police work,” (2) “the planting of the false identification in Mr. Salmon’s wallet” or (3) “the fabrication of evidence by Constable Wang and one or more [other] police officers.”

It is important to note at this point that the burden of proof in a section 24(1) application lies with the applicant. The onus was on Mr. Salmon, therefore, to prove his factual assertions, and Charter claims, on a balance of probabilities. Judge Gray acknowledges that this standard of proof may seem slightly low considering the magnitude of the allegations and the potentially disastrous consequences that his findings might have on individual officers. Having said that, the jurisprudence dictates that the seriousness of the issue does not change standard of proof:

In the criminal context, on motions brought by an accused pursuant to s. 24(1) of the Charter, this Court has followed the general rule and placed the burden on the accused to establish racial profiling on the balance of probabilities:  Peart v. Peel Regional Police Services Board, [2006] ONCA.

Having established the appropriate standard of proof, Judge Gray declares that Constable Wang is quite simply “unworthy of belief.” The Judge proceeds to call out nearly every other officer involved in the case. Take Detective Sergeant Kippen, for example, the senior officer who came into possession of the ID after the complainant dropped it off at the station. With 31 years of policing experience, Kippen acknowledged the importance of taking detailed notes in order to preserve evidence continuity. Nonetheless, he claimed to have zero recollection as to what he did with the ID after he received it.

Then there is Officer Viozzi, who was in charge of the case. Prior to the arrest, Officer Viozzi attended a briefing with Detective Sergeant Kippen. According to witnesses, the ID was literally sitting on the table throughout the briefing. However, when he reviewed Constable Wang’s six-item exhibit list – which clearly stated that the ID was found in Mr. Salmon’s wallet – Officer Viozzi found no errors.

Before reaching his conclusion, Judge Gray zeros in on Officer Viozzi’s motivation. Apparently, Officer Viozzi was, along with other PRPS officers, very familiar with Mr. Salmon. In fact, Mr. Salmon had been charged with similar offences before, but the PRPS had failed to secure a conviction. According to Judge Gray, the officers felt that he had “gotten away with it.” They were not about to let that happen again. With this in mind, the Judge concludes:

on a balance of probabilities, that it is more likely than not that Constable Wang, together with one or more other police officers, concocted a scheme to make it appear that the false identification of the complainant was found in Mr. Salmon’s wallet.

(2) Was there a Charter violation?

It almost goes without saying that fabricating evidence and giving false testimony constitutes an abuse of process. As Judge Gray sees it, however, this type of police misconduct is so severe that it “contravenes fundamental notions of justice and undermines the integrity of the criminal judicial process.” The question then becomes: does an abuse of process of this magnitude constitute a violation of Mr. Salmon’s liberty, as protected by section 7 of the Charter?

The answer, evidently, is yes. In reaching this conclusion, Judge Gray relies heavily on the words of Justice L’Heureux-Dubé for a Supreme Court of Canada majority in R. v. O’Connor, [1995] 4 SCR 411:

[I]t seems to me that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused.  It would violate the principles of fundamental justice to be deprived of one’s liberty under circumstances which amount to an abuse of process and, in my view, the individual who is the subject of such treatment is entitled to present arguments under the Charter and to request a just and appropriate remedy from a court of competent jurisdiction.

…

In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

(3) What is the most appropriate remedy?

Having concluded that the scheme undermined the integrity of the judicial system to the point where it violated Mr. Salmon’s Charter rights, Judge Gray must decide what exactly should be done about it. Predictably, Crown counsel argued that the charges – and evidence – related to Mr. Salmon’s possession of the complainant’s fake ID should simply be thrown out, and that the case should continue. Not so fast, says Judge Gray.

Section 24(1) confers upon the court a significant amount of discretionary power with respect to determining the most appropriate remedy. To the casual observer, it seems reasonable to assume that the police could be held accountable for their wrongdoing while still forcing Mr. Salmon to stand trial. Judge Gray is convinced, however, that a stay of proceedings is his only real option. As Justice Doherty noted in R. v. Jageshur (2002), 169 C.C.C. (3d) 225:

The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of the community and demand that the court not lend its process to a prosecution flowing from such conduct.

In essence, the Crown’s case is ruined beyond repair. For starters, the officers’ credibility is now completely “in tatters.” After they lied under oath, it would be very difficult to trust any of their future testimony in this case. The kicker, of course, is that by simply tossing out the charges related to the fake ID and proceeding with the case, the court would be implicitly condoning the officers’ conduct. The court has a duty to distance itself from such egregious acts of misconduct by state actors. As Judge Gray sees it, the fabrication of evidence “precludes any further investigation of the societal interest in the prosecution of the case.”

Judge Gray is correct in his assertion that society’s interest in preserving the integrity of Canada’s judicial system is paramount. Having said that, one gets the feeling that justice, in this case, has not been fully served. The Judge was supposed to be deciding whether or not Mr. Salmon pushed a young woman into prostitution and stole her money. Unfortunately, that question remains unanswered.

- Abella J. in R. v. O’Brien

The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.

- McLachlin C.J. in R. v. E.M.W.

The month of June has seen not one but two important statements from the Supreme Court of Canada on criminal procedure and evidence. In R. v. O’Brien, the majority of the Supreme Court, led by Abella J., seemed inclined to take a trial judge’s words at face value. If the trial judge asserts that his decision was based “entirely” on DNA evidence, then any error in law could only be harmless and could not constitute a substantial wrong or miscarriage of justice. One week later, the majority of the Court in R. v. E.M.W. adds another wrinkle: even if the trial judge did not directly address the inappropriate aspects of the trial, it may be inferred from his reasoning that he did in fact give them appropriate weight (“alive to the concerns”).

Put together, the logic behind these two statements from our top court is confounding. Unraveling the logic, these two cases, particularly the more recent case of R. v. E.M.W., reveal a growing uncertainty about judicial decision-making at the lower court levels.

A Divided Appellate Court:

E.M.W. was convicted of sexually assaulting his young daughter after he stood trial before a judge alone. The defendant subsequently appealed the decision. At the Court of Appeal, the majority allowed the appeal from conviction and ordered a new trial for the reason that a miscarriage of justice had taken place. The dissenting judge, Fichaud J.A., argued that a miscarriage of justice could not be established. Even if it could be established, the majority had failed to raise the grounds for it in the Notice of Appeal.

Against the Current: Fish J.’s Dissent in R. v. E.M.W.

Usually, when a case has been backed by a majority decision from the Court of Appeal, the Supreme Court returns a unanimous decision. In the case of R. v. E.M.W. decided last week, the Court ended up with a very uncommon 6-1 split. Fish J. was the sole voice of dissent. His message? The issues in this case notuncontroversial.

(Interestingly, Fish J. abstained from the decision in R. v. O’Brien while LeBel J. abstained from this decision. One could imagine that those two more liberal-leaning justices would have sided with each other. Binnie J., in contrast, dissented in the earlier case of R. v. O’Brien but agreed with the majority inR. v. E.M.W.)

While McLachlin C.J., writing for the majority of the Court, teases out three main issues in the case – jurisdiction, evidence and trial procedure – Fish J. focuses solely on the last issue. In his dissent, Fish J. takes issue with how the trial judge conducted the court. “I have concluded that the respondent’s trial was unsatisfactory ― notably because of the inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” At this point, Fish J. does not necessarily deviate too far from his colleagues on the Court. The majority of the Court acknowledges that errors were made during the initial proceeding and that, as a whole, “the trial was far from perfect.” Fish, however, refuses to buy into the majority’s reasoning that, if the trial judge’s understanding of the evidence as a whole and the proceeding overall were sound, then these errors could not have given rise to a miscarriage of justice. Rather, Fish assertively states at the end that, “I recognize that the trial judge delivered detailed and thoughtful reasons for concluding as he did… In my respectful view, however, they cannot set right the unsatisfactory nature of the trial.”

Fish Out of Water?

While Fish does not concern himself with the issues of jurisdiction and evidence, these issues remain contentious in R. v. E.M.W. The majority of the Court first turns to the issue raised by Fichaud J.A. – did the Court of Appeal even have jurisdiction to hear the issue of the miscarriage of justice?

a. Jurisdiction

Here, the Court seems very comfortable granting additional discretion to the lower courts. Summarizing their position, McLachlin states that, “We agree with the respondent that the failure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a Court of Appeal of jurisdiction to consider that issue.  A potential miscarriage of justice is always something a court must be able to consider [italics added].”

This position adopted by McLachlin seems sensible, granting an appropriate degree of discretion to the Court of Appeal to ensure that technicalities do not get in the way of a fair and full hearing. As well, it is very sensible for McLachlin to note that it is part and parcel of good practice to grant an adjournment in cases where the court wishes to explore an issue that has not yet been raised.

b. Improper Use of Evidence

At this point, the majority of the Court sets their sights on the trial judge. One of the reasons why the Court of Appeal set aside the conviction and ordered a new trial is that they deemed the trial judge to have improperly used evidence. The defendant had made statements to a friend and the police prior to testifying at trial. These statements were brought up or at least alluded to during the trial, so as to give an unfair advantage to the prosecution. The Supreme Court’s position on this issue seems to be somewhat controversial: “In our view, the majority of the Court of Appeal was wrong to seize on the trial judge’s reference to the content of the complainant’s disclosures to show that he had improperly used the evidence about these disclosures. The trial judge’s careful and thorough reasons when read as a whole in light of the trial record do not support the inference drawn by the majority of the Court of Appeal.”

McLachlin C.J. appears to be putting forth the argument that the Court of Appeal was making too big of a deal of the fact that the trial judge had referred to evidence that was not properly gathered (“it was wrong to seize on…”). The majority of the Court opts to not directly challenge the Court of Appeal as to whether these references constitute an improper use of evidence in and of themselves. Taken within the context of the rest of the trial judge’s carefully reasoned decision – taken “as a whole” in the words of the Court – these references do not constitute an improper use of evidence, however.

c. Miscarriage of justice

It is the issue of miscarriage of justice that forces Fish to separate himself from the crowd. Both he and the majority of the Court agree that the trial, in one way or another, was unsatisfactory. They point to different reasons, however: McLachlin points to “tasteless” and “unsavory” questions that were asked or statements that were made and the “unnecessary” soliloquizing on personal matters by the Crown counsel; Fish, on the other hand, is dissatisfied with the “inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” McLachlin does not refute that the trial was conducted inadequately. Rather, she and most of her colleagues have read those inadequacies into the trial judge’s decision: “The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.” For that reason, “the shortcomings of the trial… did not, in this case, result in a miscarriage of justice.” The majority of the bench Court insists that the trial judge had mitigated the potential miscarriage of justice, as they found the judge to have implicitly acknowledged it in his well thought out decision.

R. v. O’Brien and R. v. E.M.W.: Two Sides of the Same Coin?

Regarding the implicit acknowledgment of the potential miscarriage of justice, Fish J. rightly questions whether the Court is giving the trial judge too much credit in R. v. E.M.W. Thus, R. v. O’Brien is really a different side of the same coin. LeBel J. and Binnie J. question if the Court is giving the trial judge too much credit when he is taken at his word completely. Just because the trial judge states that his conclusion arose out of admissible evidence does not mean that the inadmissible evidence, character evidence, for example, played no part in shaping the judge’s conclusion and, thus, should be allowed.

The Backdrop

The complainant, S.A., and her husband, the accused, J.A.A., had agreed to separate in May 2007 but continued to live together in the matrimonial home.  S.A. testified that on June 8, 2007, J.A.A. sexually assaulted her repeatedly while threatening her with a knife.  At one point J.A.A.’s hand was over her mouth and S.A. bit him “as hard as she could.”  Immediately after the incident, S.A. drove to a friend’s home and called the police.  A police officer testified that he had noticed a cut that looked like a “bite mark” on one of J.A.A.’s fingers.  On cross-examination, the officer conceded that he was not an expert in this area, but the defence did not offer any expert testimony that contradicted the officer’s evidence.  J.A.A. testified and insisted that the sexual intercourse was consensual.

In convicting J.A.A., the trial judge stated that both testimonies were credible but that other evidence, including the bite mark and the knife found in the home, corroborated S.A.’s story.  Before the Ontario Court of Appeal, J.A.A. sought to introduce fresh evidence from Dr. Wood, a forensic scientist, under s. 683(1)(d) of the Criminal Code.  The section states:

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

….

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness

Dr. Wood would have testified that the mark on J.A.A.’s finger was not a bite mark.  The majority of the Court of Appeal found that the new evidence would not have affected the result of the conviction and dismissed the appeal.  It further emphasized the importance of introducing such evidence at trial and found that the defence had not fulfilled its due diligence.

Court says Dr. Wood should have his say

The SCC’s analysis rested on four criteria laid out in its decision in Palmer v. The Queen, [1980] 1 S.C.R. 759.  In that case, the accused were charged with conspiring to traffic in heroin.  A key Crown witness, whose testimony had been heavily relied upon by the trial judge, later declared several times that his trial evidence had been completely fabricated.  The Palmers sought to introduce this new evidence.  The SCC dismissed their appeal, agreeing with the B.C. Court of Appeal that the witness’ subsequent statements were entirely unreliable.  In doing so, the Court was called to flesh out on the meaning of “the interests of justice” in, what is now, s. 683.  The Court introduced four principles to consider:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

In J.A.A.’s case, the issues centred on criteria (1) and (4), as the Crown had already conceded that criteria (2) and (3) had been met.

The majority, led by Justice Charron, found that the defence had not met the due diligence criterion, but essentially agreed to excuse this, given that the Crown, too, had not introduced expert evidence regarding the bite mark.  Rather, Justice Charron focused on the fourth criterion, setting up the trial judge’s decision as a “close call” between the competing testimonies of S.A. and J.A.A., with the presence of singular pieces of corroborative evidence, such as the bite mark, pushing the judge over the line beyond any reasonable doubt.  She maintained that Dr. Wood’s evidence would not merely remove a piece of corroborative evidence but could undermine the credibility of S.A.’s testimony and the segment about having bitten J.A.A. in particular.  This was sufficient to reasonably expect that Dr. Wood’s evidence would affect J.A.A.’s verdict.

Justice Rothstein, who wrote the reasons for the dissent, agreed with the majority of the Court of Appeal.  First, falling short of due diligence would not trump the other Palmer principles, but it could also not be ignored; the dissent emphasized that it played “an important role in the administration of justice.”  Justice Rothstein further asserted that it was unreasonable to expect that Dr. Wood’s evidence would change the result of the case.  In his opinion, the bite mark was only a “minor issue” in the trial judge’s decision, and S.A.’s version of the events had already been corroborated by ample evidence, including her post-event demeanour, the condition of the home and the presence of the knife, and the logic and consistency of S.A.’s testimony.

SCC decides to err on the side of caution

This judgment boiled down to the “he said, she said” scenario of many sexual assault cases, which meant that corroborative evidence was critical to the verdict.  This was particularly important here, where the trial judge found both the testimonies of S.A. and J.A.A. to be credible.  In his dissent, Justice Rothstein suggested that by allowing the new evidence, the majority’s decision really reflected a leaning towards diminishing the weight of evidence given by a sexual assault complainant in favour of evidence offered by a third party expert.  He is probably right.  At the same time, it is easy to be sympathetic with the majority and to want to err on the side of caution.  The trial judge’s verdict appeared to be a narrow call, and Dr. Wood’s evidence had the potential to contradict S.A.’s testimony.  It is also important to recall that the threshold for a conviction is exceptionally high.  All it takes to reverse it is one reasonable doubt.  And Dr. Wood might have been sitting on just that one.

The steep consequences of what may have been a mere slip of the tongue are generating new questions about the importance of viva voce evidence in trials and the distinction between the substance of the testimony and the demeanour of the person testifying.

Misinterpretation: The Facts

In June 2006, the Vancouver police arrested Mr. Sue and three other men after discovering a large amount of drugs in the kitchen of a basement apartment.  Many of Mr. Sue’s personal documents, including his driver’s license, a citizenship application and banking records were scattered throughout the suite outside of Mr. Sue’s bedroom.

Charged with the possession of drugs, Mr. Sue decided to testify at his trial without the aid of an interpreter even though English was not his first language.  Mr. Sue’s co-accused did not testify but used an interpreter to understand the proceedings.  Mr. Sue testified that he lived with his wife in Toronto but had a girlfriend in Vancouver and stayed at his friend’s place every time he visited.  He denied any involvement with the drugs and said that the documents could have been brought over when his friend had moved from his previous residence.

The trial judge convicted Mr. Sue and, in her oral reasons, commented on the accused’s credibility.  She said:

He was asked by his counsel why he did not move his belongings into the room where he was sleeping. Making allowances for the fact that Mr. Sue was testifying through a translator, his explanation for this was still nonsensical. He said there was no point in moving the suitcase because he had known Mr. He for so long.

….

I do not believe Mr. Sue’s assertion that he had nothing to do with the drugs found in the suite. I have taken into account the following certainties in assessing his credibility when he makes this assertion. He was present in the suite. There was a very large quantity of drugs and a large amount of money in the suite. The key to the sliding glass door to the suite was in his possession.

….

My conclusion in respect of Mr. Sue’s credibility is based primarily on the nonsensical explanations he gave for the presence in the suite of a large number of documents which would have been important to him and indeed some of them he indicated were very important to him. I do not believe him nor does his testimony raise any doubt in my mind.

Mr. Sue appealed, claiming that the trial judge’s inaccurate statement showed she had misapprehended the evidence and wrongly concluded that he was in possession of the drugs.

Miscarriage of Justice: The BCCA Ruling

Although all three judges wrote separate opinions, Justice Ryan and Justice Saunders agreed that “a reasonable and well-informed person outside the judicial system” would have perceived that Mr. Sue’s trial was unfair, or at least appeared to be so.  Justice Saunders emphasized that the case turned on Mr. Sue’s credibility.  There was a “substantial body of evidence” against him and the existence of any reasonable doubt would have wholly depended on whether the trial judge believed the accused’s explanation.  The trial judge’s erroneous comment showed that the starting point of her assessment of Mr. Sue’s credibility was already inaccurate.  Justice Ryan found that the reasonable person would have believed the trial judge had not paid attention to Mr. Sue’s demeanour when he testified and that, as a result, he did not have a fair trial.

Justice Lowry, on the other hand, wrote a dissenting opinion.  He held that the trial judge’s reasons showed she had not misunderstood or failed to properly state the evidence.  He found that the fact that Mr. Sue had testified without an interpreter was not substantive evidence of anything and played no role in the trial judge’s reasoning process.  Rather, the trial judge had shown that her reservations about Mr. Sue’s credibility stemmed from the substance of his testimony, including the “nonsensical explanation” for all the personal documents lying around the suite.  Finally, Justice Lowry wrote that it is not necessary that a trial judge consider a witness’ demeanour if it is otherwise clear that the testimony is not credible.  Rather, a judge should focus on the substance of the evidence.

Misjudgement? Right Principles, Wrong Case.

The importance of in-court testimony has long been upheld by English, then Canadian courts.  We elevate the truth of evidence in court because it is given under oath, can be tested and cross-examined by opposing counsel, and the trier of fact can observe and assess the witness.  The Canadian judicial system holds that it is one of the most effective ways to test a witness’ credibility.

Given these reasons for in-court evidence, the broad principles articulated by the majority’s reasons are sound.  It is important that the trier of fact assess the demeanour of a witness giving evidence in trial and it is one factor to consider in lending weight to the testimony.

That said, an assessment of credibility encompasses more than an observation of a witness’ demeanour.  In fact, as was maintained by Justice Lowry, what is most important is the substance of the evidence itself.  An irregular demeanour might cast a shadow of a doubt on a consistent and logical narrative, but an inconsistent or illogical story would most certainly undermine a sincere demeanour.  Ultimately, the trier of fact is trying to gauge the reliability of the evidence proffered.

Was there a miscarriage of justice in this case?  Recall the following comments made by Justice LeBel in R. v. Khan, 2001 SCC 86:

Whether a “miscarriage of justice” has occurred asks whether the trial was unfair, or alternatively whether an appearance of unfairness was created…  We must look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so.

Whether unintentional or otherwise, the trial judge undoubtedly made a mistake.  It might have been a critical mistake if her decision had turned on her assessment of Mr. Sue’s demeanour.  However, it is clear from her reasons that the trial judge found the accused’s explanations to be “nonsensical” and inconsistent with the rest of the evidence against him.  Would a reasonable and well-informed person considering the whole of the circumstances have thought that Mr. Sue had an unfair trial?  I would say no.  Although demeanour can be an important factor in testing credibility, it was not material to the trial judge’s decision here.  Rather, the B.C. Court of Appeal’s reversal of Justice Bagnall’s conviction and degraded threshold for a “miscarriage of justice” may have brought about more uncertainty than peace of mind for both future trial judges and Mr. Sue.

What started out as a normal night out in 2004 turned quickly into a tragedy. There was a bush party on the Penticton Indian reserve in British Columbia, and many of the partygoers were under the influence, with alcohol, marijuana and cocaine in full supply. Dustin Paul was 23 years old, high on a combination of drugs and alcohol, and having an intense conversation with himself. His father, a drug dealer, had been murdered when Dustin was 19 years old, and he could not keep his mind off of his loss.

He testified in his trial that this night he “started to think about death. If this life isn’t real, what’s death? Is it to wake up in a better life, or even a human life?” According to the judgment, “Mr. Paul said that he then heard a man’s voice say his name which startled him. It sounded close. He said that he turned to look. No one was walking by. Mr. Paul said that he answered ‘yeah.’ The voice then said, ‘It’s time to wake up.’” He testified that he took this to mean “wake up in a better life.”

Acting on a promise by the voice that he would “wake up with all these people,” he left the party, went to his vehicle and returned with a 9mm semi-automatic handgun. He picked out several individuals that he knew, and fired shots at each of them. In the end, he shot five men and killed three of them, including friends and his cousin.

The appellant then attempted suicide and was discovered floating face down in creek with “gaping wounds” on both sides of his throat and a “very, very blank dark look in his eyes,” according to testimony by the RCMP police constable who found him.

Paul survived his injuries and was charged with three counts of second-degree murder under s.235(1) of the Criminal Code of Canada (“CCC”) and two counts of attempted murder under s.239(a) CCC. He was convicted in 2006 on all five counts by a trial judge and jury at the British Columbia Supreme Court in Penticton.

On February 4, 2011, the appellant appealed his conviction in R. v. Paul 2011 BCCA 46. The appeal relied heavily on expert testimony on the appellant’s psychiatric state, and the grounds of appeal centered on the trial judge making several errors in instructing the jury.

The Main Ground of Appeal among Six

The Defence’s primary claim was that the trial judge erred in not putting to the jury the defence of “not criminally responsible by reason of mental disorder (NCRMD), formerly known as the “defence of insanity,” and found in s.16 CCC.

In the end, the Defence failed on all six grounds of their appeal. The main one of interest here is that “the learned trial judge erred in not satisfactorily explaining to the jury the mental capacity required for criminal culpability.” Although it was not a ground pursued at trial, it was now one of six grounds submitted in this appeal.

The Crown’s Case

The Crown anticipated a defence of drunkenness and opened with evidence from their expert toxicologist, followed by evidence from a psychiatric expert.

Referring to the appellant’s alcohol and drug use at that party, the Crown’s toxicologist, Ms. Dinn, concluded that appellant likely had a high level of tolerance to alcohol if he was still able to dose himself with cocaine after the amount he had consumed. Ms. Dinn also testified that “when scientists speak of a ‘black out’ they are referring to a period of memory loss with a loss of consciousness.” The BCCA noted that “[Ms. Dinn] said that the drugs that the appellant was said to have consumed would have affected his judgment and altered his behavior.”

The Defence’s Case

The Defence’s argument attempted to reason the appellant’s actions were based solely on the delusions. The defence’s psychiatrist testified that:

In [the appellant’s] opinion getting the gun and shooting the victims was the result of a bizarre belief, prompted by the auditory hallucinations and his delusional interpretation of them, that by killing himself and the victims they would all awaken to a better world.

The Defence claimed that Paul could not have formed a motive and lacked intent to commit the crime, even though their expert psychiatrist could not conclusively say that he was or was not NCRMD even though “his psychotic symptoms were due to massive substance and transient life stressors, not mental disease.”

The Defence then argued to the jury that the appellant did not have capacity to form the the intent to murder when the appellant “lost contact with objective reality.” They urged the jury to acquit Paul of murder and attempted murder, and bring back verdicts of manslaughter and assault with a weapon because he did not “have the required capacity to form an intent – a specific intent to kill.”

The Crown’s Rebuttal

The Crown’s rebuttal brought forth their own forensic expert who testified that the appellant “did not suffer from a mental disease and that, at the time of the shooting, he was in a self-induced state of intoxication.” According to the Crown’s forensic expert, the appellant had a “short psychotic episode” and subsequently engaged in “complex and sequential behavior” and, therefore, could not be NCRMD.

The Crown then submitted that Paul was in a “self-induced state of intoxication” and the voice told the appellant to “wake-up”— not to kill. The Crown also pointed to the fact that the appellant deliberately chose his victims as evidence of objective lucidity.

The Judge’s Reasoning

In evaluating this ground of appeal, the Court examined requirements of the NCRMD defence, including intent.

First, it was ruled that the defence failed to meet the requirements of the NCRMD defence. The BCCA cited R. v. Cooper [1980] 1. S.C.R. 1149, a Supreme Court of Canada case involving a patient murdering another patient at a psychiatric hospital:

In summary one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity [now a defence of not criminally responsible by reason of mental disorder] the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong. [Original emphasis added in appeal judgement]

Based on prior evidence, the appeal judge held that Paul’s condition met “none of the criteria for mental disorder set out in Cooper,” therefore, the NCRMD defence was not available to him.

Second, the appeal judge emphasized the difference between intent and motive. The BCCA criticized the trial judge for not instructing the jury to ignore the Crown psychiatrist’s theory of the meaning of intent (that the “irrational objective” of the killing – going to a “better place” – should be viewed as a motive to kill”). The court noted that this motive, regardless of its rationality or lack thereof, must be distinguished from the meaning of intent. Nevertheless, the BCCA held that “the failure of the trial judge to spell out this more fully to the jury can only be seen as a factor favourable to the defence,” which gave them no reason to overrule the jury’s decision.

The BCCA then swiftly dismissed the remaining grounds of appeal. Consequently, the appellant will serve life in prison without eligibility of parole for 16 years as sentenced in April 2007.

Commentary

The BCCA presented an interesting analysis of the defence of NCRMD despite the crux of the six grounds of appeal being based on the interactions between the trial judge and jury. While the Crown had a strong theory of the case, it moved through the mainstream criminal justice system where there are high rates of incarceration of members of the Aboriginal community. Contextual factors based on historical trauma and social issues related to drugs and violence on Aboriginal reserves is also important to consider as the events unfolded in a troubled community that has sadly received little public attention. On the other hand, some may argue that the appellant’s living conditions is not correlated with NCRMD and may not be directly relevant to a legal determination of his state of mind at the time of the shooting. It is unclear to what extent the role of Aboriginal healing circles and restorative justice plays in this case, if at all, even though there is alternative recourse available in conjunction with the Correctional Service of Canada. While this case was rightly decided, in my opinion, going to a “better place” for justice may require further inquiry into how contextual factors contribute to the outbreak of a crime such as this one.

s. 38  of the Canada Evidence Act, RSC 1985, c. C-5 (“CEA”) sets out an elaborate framework to (where possible) reconcile the state’s dual obligations of protecting  national security and prosecuting accused criminals.  R. v. Ahmad, 2011 SCC 6 questioned whether this legislation went too far.   An unanimous Court held that it did not.

s. 38

s. 38 attempts to reconcile the two competing objectives of protecting national security and effectively combatting crime. Without going into excessive detail here, the important provisions to this case comment are outlined below.

First, disclosure (in court) of allegedly sensitive material may be authorized if it is found there is no threat to national security. (s. 38.06(1)).

If there is a national security threat, disclosure may only be authorized if the public interest in disclosure outweighs the public interest in non-disclosure ((38.06(2)).

Conditions may also be imposed on disclosure (s. 38.07).  At the same time, if disclosure is deemed necessary, a judge presiding over the criminal trial has the power to make any order considered necessary in order to protect the accused’s rights to a fair trial, although the judge is powerless to order production of the material in question. (s. 38.14)

Since we’ll find s. 38.14 to be a critical provision to this analysis, it is reproduced below.

38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

Background

18 alleged terrorists were arrested on the suspicion that they were plotting terrorist attacks in Toronto.  Before trial, the Crown notified the Attorney General of Canada that the proceedings could potentially disclosed sensitive government information.  Pursuant to s. 38 of the CEA, the Attorney General brought the issue before the Federal Court, who ordered a hearing and required that notice be given to the Superior Court judge (Dawson J.).  The accused then applied in Superior Court, challenging the constitutionality of s. 38.

Dawson J. of the Ontario Superior Court held that the s. 38 scheme was unconstitutional. Specifically, he held that the scheme violated s. 96 of the Constitution Act, 1867, stating that by exclusivly vesting “privilege” determinations in federal court the provision invaded the core jurisdiction of superior courts. He found this violation was an unjustifiable infringement of s. 7 of the Charter – the right to life, liberty and security of the person.

Interpreting Section 38

The unanimous reasons of the Court on this appeal begin with an in-depth analysis and interpretation of the section.

First, the reasons apply the well-accepted contextual and purposive method of statutory interpretation, stating that preventing the disclosure of sensitive data cannot prima facie be equated with denying an accused the right to make a full answer and defence (which would result in an unfair trial).  The legislature is presumed to have drafted the provision to conform with the Charter (R. v. Hamilton, 2005 SCC 47).  This presumption is bolstered here by the existence of s. 38.14 of the CEA, which clearly indicates that the fair trial rights of the accused must be protected in applying the other provisions of the scheme.

Having established these critical assumptions, the Court clarified that the trial judge has a right to receive notice of a s. 38 application being commenced in Federal Court.  This notice will trigger s. 38.14, where the trial judge must then consider the impact of non-disclosure on trial fairness.  In so doing, the trial judge may require a summary of the information or more substantive information regarding the content.  It is still unclear as to the amount required by a trial judge, which then requires the trial judge to determine whether they have a sufficient basis on which to exercise their discretion judicially. With this, the Court went on to discuss the section’s constitutionality.

Section 38 Passes Constitutional Muster

The constitutional analysis centres around two provisions in the constitution: s. 7 of the Charter and s. 96 of the Constitution Act, 1867.

s. 96 Argument

Section 96 gives superior, district and county courts in each province the jurisdiction to hear and decide cases.  The scope of this jurisdiction has always been a topic of heated debate,  but for our purposes, scope was not at issue.

A main aspect of the respondent’s argument was that the trial judge’s inability to completely access the material in question interfered with the ability of superior court judges to apply the Constitution, which invaded the core jurisdiction of superior courts.

The test applicable to determining if a conferral of power violates s. 96 is set out in Re Residential Tenancies Act, 1979, [1981] 1 SCR 714 and poses three questions.

1. Whether the power conferred broadly conforms to a power exercised by a court at Confederation;
2. If so, whether the power is judicial and;
3. Whether the power is subsidiary or ancillary to an administration function or necessarily incidental to such a function.

The first question under the test requires a historical inquiry.  The SCC, after conducting this inquiry, found that superior courts did not exercise any such power of review at Confederation.  As a result, the respondent’s argument failed the first branch of the Residential Tenancies test.

In obiter (as the historical test dispersed of the issue) the SCC went on to answer another constitutional attack.  MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725 states that if legislation purports to confer exclusive jurisdiction of a s. 96 matter, it will be unconstitutional.  The SCC held that, here, the core jurisdiction was not removed from any s. 96 court – as criminal courts retain the ability to ensure every subject of a criminal prosecution is able to receive a fundamentally fair trial (which is supported by s. 38.14).

s. 7 of the Charter

The statutory scheme was also found to violate s. 7 as it had the effect of violating the accused’s right to timely disclosure of pertinent information.  The SCC quickly disposed of this argument, finding that s. 38.14 allows trial judges to order whatever remedy pursuant to the Charter is required to protect the accused’s right to a fair trial – even a drastic remedy such as a stay of proceedings.  In drafting the section, Parliament chose to live with such drastic outcomes.

Conclusion

When I first heard about this case and discussed it with other law students, a generally pessimistic view emerged that the SCC had, yet again, upheld “public safety” at the expense of an accused’s right to a fair trial.  But upon a close reading of the written reasons, one can see that this is not the case.  Specifically, the entire analysis focuses on s. 38.14 of the CEA, which  requires a trial judge to consider the accused’s right to a fair trial and, if necessary, order a less-than-ideal outcome (such as a stay of proceedings).  If that isn’t a fair and reasonable balancing of the two important objectives, I don’t know what is.

The latest development in the David and Goliath saga that is The Canadian Government v. Alan N. Young is as intriguing as always, yet also somewhat disheartening.

It pits Osgoode’s venerable criminal law professor in his role as Co-Founder/Director of the Innocence Project, an organization that engages law students in the investigation of suspected wrongful convictions, against an overburdened judicial system struggling to keep its head above water and shedding weight to stay afloat.

In the middle of it all is Amina Chaudhary, the second woman in Canada to be convicted of first-degree murder since capital punishment was abolished in 1976 [From here - read the article only if you dare, it’s Christie Blatchford at her absolute nastiest, circa 1999].

Ms. Chaudhary may still have her life, but it’s certainly been a long one behind bars for a crime some say she didn’t commit.  And now, some twenty years after she was sentenced, the Innocence Project claims autopsy photos of the deceased may help exonerate their client. But, here’s the rub – these photos have been lost; and, for all intents and purposes, they no longer exist.

After discovering that this evidence relevant to her case had been misplaced, Mrs. Chaudhary filed an application under Rule 14.05(3)(g.1) (FYI, this is the same rule relied on in Bedford – only they were seeking declaratory orders, and here the relief sought is Charter remedy). The application states:

… [I]t is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms that upon conviction for an offence prosecuted as an indictable offence all evidence and exhibits pertaining to the case be preserved for the lifetime of the offender, unless (1) the offender waives this requirement, or (2) a Court Order is obtained, upon notice to the accused, allowing for the destruction of any or all of the evidence.

The federal and Ontario AGs brought a motion to strike this motion for application on the grounds that it does not disclose a reasonable cause of action. That motion was granted, and Ms. Chaudhary’s application was struck with leave to amend as recommended by Justice Belobaba.

On its proverbial hands, the Department of Justice should see the stain of a woman who has steadfastly maintained her innocence while earning three degrees behind bars, and a photo that may prove she’s been telling the truth, but can no longer be found. Why would they not do anything possible to remove this mark? The price Alan Young put forward for this crime against the people has been deemed unreasonably high. They’ll let the lady rot – for now.

What’s done, is done: some background facts

In 1984, Amina Chaudhary was convicted of the first-degree murder of her ex-lover’s eight-year-old nephew.  Her appeals were unsuccessful, but she has always maintained her innocence. She says she was so convinced the Crown could not convict her that she turned down a plea-bargain offer of accessory to murder, which would have carried a sentence of just 18 months.

Professor Young is quoted here remarking on the strangeness of this offer. He hypothesizes the offer indicated the Crown suspected someone else may have been involved in the murder of the young boy, Rajesh, who was physically subdued and then strangled.

Why would the Crown suspect someone else was present? That relates both to the respondent’s insistence of her innocence and to the recent scandal regarding the lost autopsy photos. Two years before the death of Rajesh, Mrs. Chaudhary fell victim to a brutal machete attack at the hands of her brother. Her arms and chest were so badly maimed that afterwards, she claimed, she could hardly dress herself – let alone beat a boy unconscious or drag his body across a parking lot.

The Innocence Project recently put forward the claim that certain autopsy photos depicting bruising around the deceased’s head might prove “vital” on the application for ministerial review of the case, as authorized by s. 696 of the Criminal Code. Those photos were not adduced at trial, and were not admitted into evidence. After an extensive search of the Crown Law Criminal Office, it has been admitted that the photos are lost.

The judge notes that the retention of evidence is not uniform in Canada, or even in Ontario. The Toronto Bylaw 689-2000 sets out a detailed retention schedule, generally requiring more evidence be preserved as the seriousness of the crime escalates; fingerprints relating to homicide cases, for instance, are kept indefinitely, but the prints in robberies or sexual assault cases are destroyed five years after the final appeal.

Justice Belobaba also notes that the loss or destruction of evidence is a serious problem for the wrongfully convicted – as evidenced by the cases of Stephen Truscott, Guy Paul Morin and David Milgaard.  The Innocence Project has had to drop seven cases in the past 13 years because relevant evidence could not be found. But, what is the Crown to do? Belobaba J.’s analysis sheds some light on the problems of the claim, and the issues of standing that arose from the wording of the application.

Look like the innocent flower, but be the serpent under’t: the judicial analysis

Belobaba J remarks that there is no dispute regarding Ms. Chaudhary’s right to seek declaratory relief with respect to her own ministerial review and the lost autopsy photos. An application confined to the facts of her case would disclose a reasonable cause of action. As framed, however, the application is so broad and sweeping that this judge finds two central issues:  1) that the request would be judicially unmanageable, and 2) the applicant may not have standing and/or public interest standing under the specific Charter provisions she seeks remedy under.

On the first point, I’d have to agree that the application is eye-poppingly broad. Take a second look: it declares that it is a s. 7 right of fundamental justice that all evidence and exhibits pertaining to all indictable offences be preserved for the lifetime of the offender (unless the offender waives this right, or a judicial order is granted).

Ms. Chaudhary is not arguing for the preservation of evidence in all first-degree murder cases, but in all indictable offences, which include hybrid offences. Furthermore, she’s not applying for the uniform preservation of certain types of evidence, which may prove critical for future ministerial reviews, like photographs and DNA samples, but all evidence.  This would include: property belonging to third parties (like stolen cars) evidence that is transitory (like crime scenes in people’s houses) and evidence that is perishable or hazardous to public safety (like corpses, toxic chemicals, and illegal substances) [para 16].

On the second point, the problem of standing, there are two sub-issues: private standing as it relates to s. 24(1), and public interest standing.

Ms. Chaudhary is not challenging a law or regulation, and cannot base her claim under the supremacy clause set out in s. 52 of the Charter. Owing to the fact that there is no law to regulate the harm that has potentially been done to her, she must bring her case under an application according to the Rules of Civil Procedure, specifically Rule 14.05(3)(g.1) which allows a remedy under the Charter. The applicable remedy is s. 24(1), which provides

“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

In this judgment, it is made out that s. 24(1) has a very narrow window for standing – even narrower than s. 52(1). A quick reading suggests this can’t be the case, you might think, but the constitutionally omnipotent Peter Hogg puts forward the assertion[Footnote 2, in para 20]. The right to remedy under s. 24(1) is said to be limited to someone whose rights have been infringed or denied. While that criterion may, after a case for it is made and argued on the merits, apply to the respondent, it can conclusively be stated that it does not extend to the whole range of criminals incarcerated for indictable offences cited in her application.

If public interest standing is available under s. 24(1), then the judge further asserts that the test for standing has not been satisfied. As outlined in Borowski v. A.G. Canada et al. 1989 CanLII 123 (S.C.C.), , the public standing litigant must show that:

There is a serious issue raised

The plaintiff is directly affected by the legislation or that the plaintiff has a genuine interest in its validity.

That there is no another reasonable and effective way to bring the issue before the Court.

While Ms. Chaudhary satisfies the first two requirements, she is said to fail the third, for she is not directly affected by the lack of uniform evidence retention standards as it relates to those convicted of hybrid offences, for example, or she is not affected by the lack of nation-wide legislations governing her issue. “There are clearly other and better litigants,” writes Belobaba J.

I would like to hope that cases of wrongful conviction are relatively rare. And, I would like to think that when the court gets a wind of a potential wrongful conviction where the Crown has LOST potentially relevant evidence that any judge would be bending over backwards to make it right. In this case, this is clearly is not so. If anything, the judge simply mourns the drafting of the respondent’s application, and calls for its overhaul and reapplication.

I think the Charter has been interpreted to exclude Ms. Chaudhary from bringing her application chiefly because the application was so dauntingly broad. Who wants to be the judge that tells the government that, in effect, the police can no longer return stolen property, destroy illegal drugs, or cremate corpses without judicial decree? Not me, and not Justice Belbobaba. I want to blame him, but I can’t.

Screw your courage to the sticking-place: what comes next.

In his reasons, Belobaba also briefly states that the legislature is under no duty to legislate, and that there is no s. 7 right relating to the preservation of evidence post-conviction. These comments effectively serve as kicks in the side to an already fallen foe on this application, but he promises they will become relevant if this case is reviewed on the merits that pertain directly to Ms. Chaudhary.

I eagerly await that judgment, if only for an answer to this question: how can the legislature not be under an obligation to legislate to protect the rights of our nation’s most vulnerable, those who have already had almost every other right taken away from them?

My own thoughts about this decision primarily revolve around the wording of the motion the court struck down. Did it have to be drafted to exonerate each and every one of Ms. C’s fellow inmates? Or did her counsel, a man held up as one of the most influential lawyers in Canada, a revered law professor and champion of underdogs the country over, try to bite off more than the court could chew? I can only imagine that after years of fighting the behemoth that is the Department of Justice, Professor Young tried to pull the wool over their eyes, just this once. He didn’t want to have to limit the facts to this case, but wanted the court to mandate that the government must retain all of the evidence in any of the cases he might see over at the Innocence Project headquarters. In any event, the case still holds plenty of personal and legal intrigue, and I eagerly await the result of the next round of Young v. The Government of Canada.

The media will have its say in all high-profile murder cases, and Ms. Chaudhadry’s write-ups have run the gauntlet from authors calling her a, “a child-killing, baby-making sex machine” to being quoted as saying, “I am so cursed with bad luck.”

Whatever is closest to the truth, the fact of the matter as I see it is that it doesn’t matter if Ms. Chaudhary is innocent or guilty – she could be a catalyst for a scheme for retention of evidence that will ensure this sort of snafu never plagues the Innocence Project, or our justice system, again.

Who is a better litigant to argue for an improved standard for evidence retention than someone who may never get to prove her innocence because of a Crown oversight? Once the application is phrased in a way that is judicially manageable, say, limiting it to those convicted of murder, Ms. Chaudhary could be the face of hope for the wrongfully convicted.

Someone has to represent those who have been incarcerated but still maintain their innocence, and those people are going to have to be on the outside. I would like to say, shame on you, disorganized Crown, for losing evidence– and congratulations, Professor Young, for taking note. Now back to the drafting table.