Well, we’ve reached the end of 2020. Finally. If you’re like me, you spent more time reading practice directives than new case law, so now is your time to catch up on the new cases of the year that was! This year’s round-up includes a mix of COVID-related cases, along with sentencing, bail, search and seizure, intoxication and credibility.
When the pandemic hit Canada in March, the courts were quickly affected. Shut-downs meant that trials were postponed and other aspects began happening virtually. Many defence lawyers rushed to get clients out of jail and back into the community, and the courts were asked to consider what impact a novel virus would have on principles of bail and sentencing.
In April, Justice Pomerance of the Ontario Superior Court considered the impact of COVID in R v. Hearns. She found that a sentence may be reduced where it is necessary to account for other punitive consequences or it would have a more significant impact on the offender. While she did not consider COVID-19 and the resulting conditions in the jail to be a mitigating factor, she found that they are an important sentencing consideration. She wrote at paragraph 24, that where “a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.”
The Ontario Court of Appeal, meanwhile, considered the issue of whether the impact of COVID-19 falls into the category of collateral consequences in sentencing in R v. Morgan. It found, within the context of the Supreme Court’s decision in R v. Suter, that collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or moral blameworthiness of the offender. Ultimately, they found that they could not reduce the sentence any further due to COVID, as it would leave the sentence outside of the acceptance range.
The Supreme Court of Canada heard the highly anticipated case of R v. Chouhan with respect to peremptory challenges in jury selection. The Court released a decision orally that day, finding that the court is of the view that the change to the jury selection process is purely procedural and can therefore be applied retrospectively. The reasons have not yet been released.
In R v. Sharma, the Ontario Court of Appeal struck down s. 742.1(c) of the Criminal Code, which removes the availability of conditional sentences for offences where the maximum penalty is 14 years or life in prison. Ms. Sharma, a young Indigenous woman, plead guilty to importing cocaine, and was successful in arguing that the provision discriminates against Aboriginal offenders, as well as offending s. 7 for being arbitrary and overbroad. In striking down the section, the Court emphasized that an Indigenous person does not need to show a causal link between the systemic and background factors affecting Indigenous people, and the commission of the offence. It also recognized that Aboriginal offenders start from a place of substantive inequality in the criminal justice system, and that the unavailability of conditional sentences exacerbates that disadvantage. In doing so, it makes conditional sentences available in a wide range of offences to all individuals, whether they are Indigenous or not.
The Supreme Court released the decision of R v. Friesen, which dealt with the appropriate sentencing range for sexual offences against children. The Court reiterated the longstanding principles that appellate courts should defer to sentencing judges in their decisions, except if the sentence is demonstrably unfit or the judge made an error in principle. It emphasized that sentencing ranges and starting points are guidelines, as opposed to hard and fast rules. In cases of sexual violence against children, the Court declined to create a national starting point or sentencing range. The Court ultimately restored the sentence imposed by the sentencing judge, as it was not demonstrably unfit.
Search and seizure
In R v. Canfield, the Alberta Court of Appeal considered whether searches of electronic devices by the Canadian Border Services Agency (CBSA) at the Edmonton Airport were lawful. The previous authority on this issue, R v. Simmons, dates back from 1988. The Appellants argued that the case is completely different from today’s technological reality and the reasonable expectation of privacy that attaches to personal electronic devices. In considering the changes in the law, particularly in cases such as R v. Morelli, R v. Vu, and R v. Fearon, the Court was satisfied the threshold test for revisiting the law was met. The Court considered that the high expectation of privacy that individuals have in their personal devices must be balanced with the low expectation of privacy when crossing international borders. Still, the Court found that s. 99(1)(a) of the Customs Act violates the s. 8 protection against unreasonable searches in the Charter and is not saved by s. 1 as a reasonable and demonstrably justified limit. The Court ultimately suspended the validity of the section for one year to allow the government to craft a solution that addresses and balances the competing privacy interests with border protection.
In R v. Roth, the BC Court of Appeal dealt with the credibility assessment in a sexual assault trial. In this case, the Appellant argued that the trial judge had scrutinized the defence evidence more rigorously than the Crown evidence. In assessing the trial judge’s treatment of the complainant’s evidence, the Court noted that while it is an error to ground an adverse credibility finding in stereotypes about how a complainant ‘should’ act, a complainant’s behaviour may be used for analytical purposes and a piece of evidence may still be permissible in assessing the evidence as a whole. Assessing a complainant’s conduct in the context of the particular facts of a case, for a proper purpose, does not constitute an error, even where the conduct may involve the complainant’s reaction to a sexual assault.
Another case involving credibility assessments was heard by the Ontario Court of Appeal. In R v. Alisaleh, the Court considered a decision where the trial judge found that the complainant’s credibility was heightened by her measured and understated description of the assault. The Court found that while it is permissible to note the lack of embellishment, that it is an error to reason that because an allegation could have been worse, that is it more likely to be true.
The Supreme Court once again dealt with the issue of bail in R v. Zora. In this case, the accused was charged with not answering his doorbell when he was on strict curfew conditions, and the Court found that in order to prove a breach of recognizance, the Crown must prove that the accused knowingly or recklessly breached their conditions. In other words, a breach of recognizance requires a subjective mens rea. The Court (yet again) reminded us that bail is to be guided by the principle of restraint and that conditions should be the least restrictive as possible.
In one of the most controversial decisions of 2020, the Ontario Court of Appeal struck down s. 33.1 of the Criminal Code in R v. Sullivan. The case dealt with two sets of facts, involving violent assaults where the individual was in the midst of a drug-induced psychosis when the attacks took place. Justice Paciocco wrote that s. 33.1, which prohibits the use of non-mental disorder automatism as a defence where intoxication is self-induced, contravenes ss. 7 and 11(d) of the Charter. He found that the provision bypasses the element of voluntariness, which is a principle of fundamental justice. It was also problematic that s. 33.1 has no link between voluntary intoxication and the violent act, and it does not matter whether there is a foreseeable risk of harm. In striking down the provision, the Court ordered a new trial for Mr. Chan and an acquittal for Mr. Sullivan.
Thank you for reading and here’s to a healthy 2021!