Jordan analysis for Charter delay applications

R. v. Islam, 2017 ONCJ 335 is a useful case for POA prosecutions. 

Some take aways include:

S11(b) Jordan analysis applies to POA matters. 

Time runs on Part 1 POA prosecutions from date of charge and not date defendant took some step - that seems obvious but was argued. 

Cases are not argued well and the parties should prepare properly and be concise - 

"43.         The court also ventures to state that part of the issue with regard to delay in this case rests with the conduct of this case by the respondent and the often irreverent response and caustic and adversarial behavior of the applicant, who would like to avail himself of his status as a law student and his knowledge of the law, while at the same time relying on the fact that he is a self-represented defendant who is not familiar with trial procedure.  This case should never have taken the time it has taken to get to today's date.  While the defendant's status has not fared in the court's analysis of the facts, neither side has applied a systematic analysis of Jordan nor followed the test set out in Jordan.  Rather both sides have demonstrated a lack of knowledge of this case and have not pro-offered relevant case law or any case law for that matter, as was the situation with regard to the respondent.  It is not enough for the applicant to submit cases to the court without showing the court how these cases apply to our given fact situation.  It is incumbent upon anyone making an application before any court, to make the argument as to why the court should grant the application or relief that is being sought and make it in a relevant and succinct manner."

Important Bail Case from Supreme Court of Canada

R. v. Antic (June 1), 2017 SCC 27 (S.C.C.)

67 Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a)    Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b)   Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c)    Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d)   The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly.

(e)    If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f)    Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g)   A recognizance with sureties is one of the most onerous forms of release.  A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h)   It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. 

(i)     When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. 

(j)     Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person.

(k)   Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.

Notes on Bail, Hearsay and Search Warrant review

Justification for detention

In Canada, there are only three grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.

Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court.^] Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.

Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.^]

Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider are:

• the apparent strength of the prosecutor's case,
• the seriousness of the offence,
• the circumstances surrounding the offence, including whether a firearm was used, and
• if found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail.

1. v.St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328
2. v. Hall, 2002 SCC 64

 

Hearsay

Hearsay evidence is generally inadmissible in Canada unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan 1990] 2 S.C.R. 531 and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted where established that such evidence is both "necessary and reliable". Additionally, hearsay evidence that would otherwise be admissible as an exception can nonetheless be excluded if it is not necessary and reliable, as in R. v. Starr [2000] 2 S.C.R. 144.

 

Search Warrants – Issuing and Review

Issuing of Warrant: Reasonable and Probable Grounds

The Charter requires that for all warrants police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search"^[1] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure"^[2]

In more recent times the standard is called "reasonable grounds to believe". ^[3]

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.^[4] It is a standard of reasonable probability and is credibility based. It must be more than mere possiblity or suspicion.^[5] It is a standard of "credibly-based probability" ^[6]

The key elements to credibility-based probability includes:^[7]

1. The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place^[8]
2. The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage."^[9]
3. The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.

The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.^[10]

The Justice of the Peace may draw reasonable inferences from the information found in the ITO.^[11]

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.^[12]

The Information to Obtain the search warrant (ITO) does not need to state every step a police officer takes in obtaining information.^[13]

An ITO can be read in a practical, non-technical, common-sense fashion.^[14]

The officer's are not held to the same drafting quality as counsel.^[15]

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation". ^[16]

The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state.

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.^[17] Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater". ^[18]

Generally, an approving justice should be satisfied that:^[19]

1. that the items specified exist;
2. that the items specified will be found in the place to be searched at the time of the search;
3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
4. that the items specified will afford evidence of the offence alleged; and
5. that the place to be searched is the location where the items will be located.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation" ^[20]

1. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168
   See also R. v. Vella (1984) 14 CCC 513
   R. v. Harris, 1987 CanLII 181 (ON CA)
2. Hunter v Southam at p. 168
3.  Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40[1] at para. 114
4.  ibid.; R. v. Le 2006 BCCA 298; 2006 BCCA 463
5.  Hunter et al v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145
   Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416)
6.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 11; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 167
7.  R. v. Morris 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para. 31
8.  R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365
9.  Sanchez, supra, at 364
10.  R v. MacKenzie 2011 SKCA 64 at para. 27, see also R v. Navales 2011 ABQB 404
    R. v. Sanchez (1994), 93 C.C.C. (3d) 537 (Ont.Gen. Div.)
11.  See R. v. Durling, 2006 NSCA 124 (CanLII) at paras. 27-28; R. v. Vu at para. 40
12.  R. v. Turcotte 1987 CanLII 984 (SK CA), (1987), 39 C.C.C. (3d) 193 (Sask.C.A)
13.  R. v. Sanchez, [1994] OJ No. 2260 at para. 20
14.  R. v. Whitaker, 2008 BCCA 174 at 41-42
15.  Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190;
    R. v. Durling 2006 NSCA 124 , (2006), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19;
    R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
    Re Chapman and the Queen, (1983), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
16.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65, (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
    R. v. Ling 2009 BCCA 70, (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
17.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 12
    See R. v. Debot 1989 CanLII 13 (SCC), 1989 CanLII 13 (SCC), (1989), 52 C.C.C. (3d) 193 at page 215 (S.C.C.)
18.  R v Debot, at page 218
19.  R v Adams 2004 CanLII 12093 (NL PC) at para. 24
20.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65 (CanLII), (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470
    R. v. Ling 2009 BCCA 70 (CanLII), (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)

Standard of Review: The Garofoli Application

A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant.

Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. ^[1] This presumption applies not only to the warrant but the ITO as well.^[2]

Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection. ^[3] Rather the judge must look at whether there is sufficient evidence for the warrant.^[4]

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.^[5]

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."^[6]

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".^[7]

Quality of Drafting
Flaws are to be expected. ^[8]Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.^[9]

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."^[10]

The ITO is examined as a whole and not one piece of evidence at a time. ^[11]

Excised Portions of ITO
Inaccurate or omitted information in an ITO does not necessarily render it invalid.

Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.^[12]

Amplification Evidence
Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence.

This form of evidence can be adduced to correct innocent, minor or technical errors.

1.  R. v. Campbell, 2010 ONCA 558, at para. 45. (aff'd, 2011 SCC 32)
   R v Shier, [1998] OJ No 5751 at para. 48
   Quebec (Attorney General) v. Laroche, 2002 SCC 72 (CanLII), [2002] 3 S.C.R. 708
2.  R v Collins (1989) 48 CCC (3d) 343 at p. 356
3.  R. v. Grant 1999 CanLII 3694 (ON CA), (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.)
   R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 at para. 15-18
   Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79.
4.  R. v. Nguyen, 2011 ONCA 465 at 57
5.  R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para. 54
   See also R. v. Witaker 2008 BCCA 174
   R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para. 56
   R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223 at para. 49
   R v. Veinot (1995), 144 N.S.R. (2d) 388 (C.A.) at p. 391, 1995 CanLII 4262
   R v Morelli, 2010 SCC 8 at para. 40
6.  R v Garofoli 1990 CanLII 52 (SCC)
7.  R. v. B.(J.E.), (1989), 52 C.C.C. (3d) 224 (N.S.C.A.)
8.  Nguyen, at 58
9.  R v Pires 2005 SCC 66 at 30
10.  R. v. Bisson, 1994 CanLII 46 (S.C.C.), [1994] 3 S.C.R. 1097; (1995), 94 C.C.C. (3d) 94 at p. 1098
11.  R. v. Whitaker, 2008 BCCA 174
    R. v. Brachi, 2005 BCCA 461
    Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 C.C.C. (3d) 449 (Ont. C.A.))
12.  See R v Bisson 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, (1994) 94 CCC (3d) 94 at pp. 95-96
    R. v. Budd, 2000 CanLII 17014 (ON CA) at para. 20-23
    R. v. Agensys International Inc., 2004 CanLII 17920 (ON CA) at para. 32

Pre-Charge delay

The Supreme Court today (R. v. Hunt 2017 SCC 25) upheld a lower court decision (R. v. Hunt, 2016 NLCA 61) which limited the effect of pre-charge delay to rare cases of prejudice.  The Court below, cited by , stated:

[81]        Subject to a few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods (Rourke).  (See also R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701.)  Limitation periods in criminal law are the province of parliament, subject to judicial scrutiny only for constitutional compliance and the ability of courts to control their own processes to protect accused persons through the doctrine of abuse of process.  The invocation of section 7 of the Charter to assist an accused person whose regularly constituted charges involve significant pre-charge delay has been carefully confined to few and unusual circumstances where demonstrated prejudice to his or her fair trial rights or abuse of process is found.

Limitation does not run against tortfeasor who caused damages while tortfeasor is trying to fix problem

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325:

[20]        First, the cases suggest that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional's alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

Of the Law Societies of Upper Canada and Nunavut 

Damages for bad faith in terminating a partnership

Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292:

[68]        Keays holds that, because employers have an implied contractual obligation of good faith in the manner of dismissal, damages for bad faith in the manner of dismissal are within the contemplation of the parties when they enter into the contract. Given the duty of utmost good faith owed between partners, confirmed in Rochwerg, the reasoning in Keays should apply in the partnerships context: damages flowing from bad faith in the manner of a partner's expulsion are within the reasonable contemplation of the parties when they enter into the partnership agreement. Such damages can be awarded on the Hadley v. Baxendale principle.

Of the Law Societies of Upper Canada and Nunavut