Monday, July 21, 2014

Crown Prosecutor's Duty

R. v. Hurd, 2014 ONCA 554:

[32]       Crown prosecutors are advocates who are expected to act rigorously but fairly, persuasively but responsibly.  A criminal prosecution takes place within the parameters of an adversarial system.  As Moldaver J.A. emphasized in Clark, at para. 126, a murder prosecution is not a tea party: "both sides [are] entitled to press their case and put their best foot forward."
[33]       On the other hand, as noted by this court in R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at p. 638, Crown counsels' role is unique given their role as "ministers of justice".  Rand J. described the role, as far back as 1954, in R. v. Boucher, [1955] S.C.R. 16, at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[34]       While these principles are easy to state, Crown counsel's dual role presents a certain tension and the application of the principles sometimes proves challenging.  Nonetheless, Crown counsel must never part company with fairness and integrity.  The fundamental question to be answered in each case is: has the accused been deprived of a fair trial?

Saturday, July 19, 2014

Police must facilitate access to counsel promptly on detention

R. v. Taylor, 2014 SCC 50:

[24]                          The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel.  The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity.  The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)).  Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[25]                          This means that to give effect to the right to counsel, the police must inform detainees of their s. 10 (b) rights andfacilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

[26]                          Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269). 

[27]                          The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have provided his own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10 (b).  The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

[28]                          But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated.  While s. 10 (b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the firstreasonable opportunity.

Friday, July 18, 2014

Happy Friday

Constructive trusts

306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548:

[23]       In Canada, constructive trusts belong to the law of remedies.  If a plaintiff successfully establishes a restitutionary claim, often but not always, on the basis of unjust enrichment, the judge may, in the exercise of his or her discretion, grant a constructive trust over specified property if the judge concludes that a monetary award does not properly address the plaintiff's legitimate remedial needs in the particular circumstances: Peter v. Beblow, [1993] 1 S.C.R. 980, at pp. 987-88, 997;Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, at pp. 673-77, per La Forest J.

[24]       Because a constructive trust is a proprietary remedy, it carries with it certain benefits that do not attach to personal remedies.  Those benefits include the removal of the property from the estate of the bankrupt, effectively trumping the priority scheme under the bankruptcy legislation: Peter D. Maddaugh and John D. McCamus, The Law of Restitution, loose-leaf edition (Toronto: Canada Law Book, 2013), at para. 5:200.

[25]       In Lac Minerals, at p. 678, La Forest J. connected the appropriateness of granting the remedy of a constructive trust to the unique benefits that flowed from that remedy: 

The constructive trust awards a right in property, but that right can only arise once a right to relief has been established.  In the vast majority of cases a constructive trust will not be the appropriate remedy. … [A] constructive trust should only be awarded if there is reason to grant to the plaintiff the additional rights that flow from recognition of a right of property.  Among the most important of these will be that it is appropriate that the plaintiff receive the priority accorded to the holder of a right of property in a bankruptcy.  [Emphasis added.]

[26]       The very nature of the constructive trust remedy demands a close link between the property over which the constructive trust is sought and the improper benefit bestowed on the defendant or the corresponding detriment suffered by the plaintiff.  Absent that close and direct connection, I see no basis, regardless of the nature of the restitutionary claim, for granting a remedy that gives the plaintiff important property-related rights over specific property.  A constructive trust remedy only makes sense where the property that becomes the subject of the trust is closely connected to the loss suffered by the plaintiff and/or the benefit gained by the defendant.  Professor Paciocco, at p. 333, explains the need for the connection:

So long as the constructive trust is a remedy attaching to particular property and creating rights to that property in the plaintiff, it would be arbitrary to select simply a particular item of property and impose upon it a constructive trust.  Why that property and not other property?  There is an undeniable allure in ensuring that a plaintiff who is given a claim to particular property as a matter of remedy, [has] a claim as a matter of fact.

[27]       Professor Paciocco goes on to argue that the requirement of a close connection between the property over which the trust is sought and the product of the unjust enrichment is particularly strong in the commercial context.  He observes, at p. 333:

In the commercial context where there should be a hesitance to award proprietary relief, a purer tracing process is justifiable.  This approach accurately describes the prevailing trend in Canadian case law.

[28]       Professor Paciocco's observations made in 1989 are borne out by the subsequent case law.  In Peter, at p. 995, McLachlin J. said:

The constructive trust, based on analogy to the formal trust of traditional equity, is a proprietary concept.  The plaintiff is found to have an interest in the property.  A finding that a plaintiff is entitled to a remedy for unjust enrichment does not imply that there is a constructive trust.  As I wrote in Rawluksupra,for a constructive trust to arise, the plaintiff must establish a direct link to the property which is the subject of the trust by reason of the plaintiff's contribution.[3]  [Emphasis added.]

[29]       The requirement of the direct connection described in Peter, has been reaffirmed and emphasized in Kerr, at para. 51:

As to the nature of the link required between the contribution and the property, the Court has consistently held that the plaintiff must demonstrate a "sufficiently substantial and direct" link, a "causal connection" or a "nexus" between the plaintiff's contributions and the property which is the subject matter of the trust … A minor or indirect contribution will not suffice.

[30]       The direct connection described in Peter, and again in Kerr, has been emphasized in the commercial context in various appellate courts: e.g. Ontario v. NRS Mississauga Inc.; Creditfinance Securities Ltd. (Re), 2011 ONCA 160, 277 O.A.C. 377, at para. 43; Ladner v. Wolfson, 2011 BCCA 370, 24 B.C.L.R. (5th) 43, at paras. 49-53, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 475;Michelin Tires (Canada) Ltd. v. Canada, 2001 FCA 145, [2001] 3 F.C. 552, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 367.  The comment in Michelin Tires, at para. 19, is particularly apropos to the circumstances of this case:

In particular, a constructive trust will not be imposed unless the plaintiff can point to property in the hands of the defendant that is identifiable as the property, or its proceeds, that was transferred by or obtained from the plaintiff without a juristic reason, or that the defendant could not otherwise retain in good conscience.  That is, the constructive trust attaches to specific assets of the defendant that represent the enrichment; it is not a charge on the defendant's general assets for the amount of the plaintiff's claim.  [Emphasis added.]