CRIMLNWS 2014-16

Criminal Law Newsletters

August 4, 2014

— Watt's Criminal Law and Evidence Newsletter

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All

rights reserved.

Contents

• Case Law Highlights

[CL 1] Threatening Justice System Participants as a Serious Personal Injury Offence

[CL 2] The Requirements for a Valid Demand under s. 254(2)(b)

[CL 3] Yelling Obscenities and Causing a Disturbance

[CL 4] Trial-free NCR?

[CL 5] CSIS Human Sources and Privilege

[CL 6] Cell-sharing and Liberty

[CL 7] Reviewing the ITO

[CL 8] Repudiating Trial Positions on Appeal

[CL 9] Surrounding Circumstances and the Admissibility of Hearsay

[CL 10] Designations of Counsel and Waiver of Elections

[CL 11] A Detention Checklist

[CL 12] Saving the Charter for Later

[CL 13] Diseases of the Mind and Diseases of the Brain

[CL 14] The Use of 911 Calls as Res Gestae

Case Law Highlights

[CL 1] — Threatening Justice System Participants as a Serious Personal Injury Offence

If the evidence supports the conclusion that the offence caused or was likely to cause severe

psychological damage, an offence under s. 423.1 can be a serious personal injury offence:

R. v. Armstrong (May 6, 2014), Doc. CA 037881, 2014 CarswellBC 1204(B.C. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 752, "Serious Personal Injury Offence".

[CL 2] — The Requirements for a Valid Demand under s. 254(2)(b)

A valid demand under s. 254(2)(b) requires that:

i. the police officer subjectively (honestly) suspects the detained driver has alcohol in his or her body;

and

ii. the police officer's subjective suspicion is based on a constellation of objectively verifiable

circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his

or her body is reasonable.

R. v. Yates (May 1, 2014), Doc. CACR 2327, 2014 CarswellSask 248 (Sask. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 254, "Reasonably Suspects".

[CL 3] — Yelling Obscenities and Causing a Disturbance

Merely yelling obscenities at the police does not amount to the offence of causing a disturbance.

Contributing to raising the tension at the scene of an interaction between the police and the public

does not amount to the kind of disturbance required under s. 175(1)(a) of the Criminal Code. The

conduct must cause an externally manifested disturbance of the public peace in the sense of

interference with the ordinary and customary use of premises by the public:

R. v. Kukemueller (April 17, 2014), Doc. C57836, 2014 CarswellOnt 4915 (Ont. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 175, "A Disturbance: s. 175(1)(a)".

[CL 4] — Trial-free NCR?

An NCR finding entered without election, plea or trial is made without jurisdiction: R. v.

Cavanaugh (May 8, 2014), Doc. CA 97-13-CA, 2014 CarswellNB 200, 2014 CarswellNB 201 (N.B.

C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 672.34.

[CL 5] — CSIS Human Sources and Privilege

CSIS human sources are not protected by a class privilege. Police informer privilege does not attach to

CSIS human sources and no new class privilege should be created for them:

Canada (Citizenship and Immigration) v. Harkat, 2014 CarswellNat 1463, 2014 CarswellNat 1464, 10

C.R. (7th) 225 (S.C.C.)

See, Watt's Manual of Criminal Evidence, §15.01, "General Principles", §15.06, "The Scope of the

Privilege".

[CL 6] — Cell-sharing and Liberty

No deprivation of liberty occurs when correctional authorities deny the request of inmates to be housed

together. Thus, refusal of the request is not remediable on habeas corpus:

Richer v. Canada (Attorney General) (April 28, 2014), Doc. CACR 2372, 2014 CarswellSask

247 (Sask. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 774, "General Principles".

[CL 7] — Reviewing the ITO

On search warrant review, the reviewing court must consider whether the material filed in support of

the warrant, as amplified on review, could support the issuance of the warrant. The ITO is to be

reviewed in its totality on a practical, non-technical and common sense basis, not in a piecemeal way.

The issue for the reviewing judge to determine is not whether she or he would have granted the order,

but whether there was an objective basis on which the issuing justice could have done so. The

standard to be applied is one of "reasonable probability" or "reasonable belief", which reflects the point

at which credibly-based probability replaces suspicion, not proof beyond a reasonable doubt or a prima

facie case:

R. v. Liu (May 2, 2014), Doc. CA 040879; CA 040918, 2014 CarswellBC 1174 (B.C. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 189, "The Nature and Scope of

Authorization Review", s. 487, "Review of Warrant General Principles".

[CL 8] — Repudiating Trial Positions on Appeal

Although no rule or principle precludes P from repudiating a position on sentence taken at trial, the

jurisprudence limits such a shift to exceptional circumstances where it can be shown that the public

interest in the orderly administration of justice is outweighed by the gravity of D's crime and the gross

inadequacy of the sentence imposed at trial. Appellate courts have refused to intervene on sentence

appeals by P where D demonstrates reliance upon P's position, especially where D has pleaded guilty

after receiving sentencing assurances from P, or where the parties have made a joint submission:

R. v. S. (H.), 2014 CarswellOnt 5356, 308 C.C.C. (3d) 27 (Ont. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 676, "Sentence s.676(1)(d)", s. 687,

"The Effect of Joint Submissions on Sentence".

[CL 9] — Surrounding Circumstances and the Admissibility of Hearsay

Evidence existing independent of a 911 call may assist in establishing the existence of a shocking

event, and thus the spontaneity of a statement offered under the res gestae exception:

R. v. Sylvain (May 1, 2014), Doc. CA 1301-0038-A, 2014 CarswellAlta 701(Alta. C.A.)

See, Watt's Manual of Criminal Evidence, §27.08, "General Principles of the Exception", §27.09,

"Conditions Precedent".

[CL 10] — Designations of Counsel and Waiver of Elections

Where designated counsel chooses trial in Provincial Court without insisting on compliance with s.

536(2) and D pleads guilty in that court, D has unequivocally waived his right to a trial by jury:

R. v. Albert (May 1, 2014), Doc. 115-13-CA; 120-13-CA, 2014 CarswellNB 180, 2014 CarswellNB

181 (N.B. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 536, "Election: s. 536(2)", s. 650.01,

"Effect of Designation".

[CL 11] — A Detention Checklist

To determine whether a reasonable person in D's circumstances would conclude that she or he had

been deprived by the state of the liberty of choice, a court may consider, among others, factors such

as:

i. the circumstances giving rise to the encounter with police as would reasonably be perceived by the

individual;

ii. the nature of the police conduct; and

iii. where relevant, the particular characteristics or circumstances of the individual.

The first factor involves consideration of whether the police were:

• providing general assistance;

• maintaining general order;

• making general inquiries about a particular occurrence; or

• singling out the individual for focussed investigation.

The second factor includes consideration of:

• the language used;

• the use of physical contact;

• the place where the interaction occurred; and

• the duration of the encounter.

The final factor may include the:

• age;

• physical stature;

• minority status; and

• level of sophistication of the individual.

R. v. Papilion (April 24, 2014), Doc. CACR 1969, 2014 CarswellSask 260 (Sask. C.A.)

See, Watt's Manual of Criminal Evidence, §38.01, "Detention: Psychological Detention", "Detention:

The Factors to Consider".

[CL 12] — Saving the Charter for Later

Fact-finding should take place at trial. Where, as a result of D's failure to raise a Charter argument at

trial, the judge was relieved of the need to make findings of fact, it is generally not appropriate to

permit counsel to raise the argument on appeal:

R. v. Andel (May 8, 2014), Doc. CA 039403, 2014 CarswellBC 1239 (B.C. C.A.)

See, Watt's Manual of Criminal Evidence, §41.01, "Exclusion of Evidence: General Principles",

"Exclusion of Evidence: Appellate Review of Findings".

[CL 13] — Diseases of the Mind and Diseases of the Brain

What medicine regards as a "disease of the brain" does not remove a condition from the legal term

"disease of the mind". Both physical and functional disorders may be a "disease of the mind":

R. v. H. (S.) (April 22, 2014), Doc. C56874, 2014 CarswellOnt 5065 (Ont. C.A.)

See, Tremeear's Annotated Criminal Code, Criminal Code, s. 2, s. 16, "Mental Disorder: 'Disease of

the Mind'".

[CL 14] — The Use of 911 Calls as Res Gestae

Res gestae statements, including 911 calls, are admissible as proof of the truth of their contents. A 911

call may also be relevant to:

i. the time and place of the events;

ii. the emotional state of the participants;

iii. the physical state of the caller; and

iv. the sequence of the events.

R. v. Sylvain (May 1, 2014), Doc. 1301-0038-A, 2014 CarswellAlta 701 (Alta. C.A.)

See, Watt's Manual of Criminal Evidence, §27.08, "General Principles of the Exception", §27.09, "Jury

Instructions".