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Are the excerpts of a user manual related to the “testing and operation” of a speed measuring device subject to disclosure under the first party regime or production under the third party regime – as well as the related issue of relevance of such records.
The “testing and operation” instructions contained in the user manual for speed measuring devices are subject to disclosure under the first party regime. While they are not fruits of the investigation, they are “obviously relevant” and thus disclosable.
The Fine Print
The issue came to the Court of Appeal via an appeal from a certiorari decision – of interest is that in a footnote in the ruling the court commented that the “writ of certiorari is no longer issued We use the phrase the “certiorari order” as shorthand for the more cumbersome “order in lieu of certiorari” [footnote 2]. The Justice of the Peace [JP] had ordered disclosure. The Crown succeeded in quashing that order on the review. The Court of Appeal reinstated the initial order. The notable points include:
First, here the JP had the jurisdiction to “determine disclosure issues and to grant or deny disclosure order…[and] to determine whether the disclosure sought fell within the first party or third party disclosure regime” [para 63].
Second, on the issue of the availability of certiorari, the court noted that s141(4) of the Provincial Offences Act limits such a review to cases where there is a “substantial wrong or miscarriage of justice” [para 58]. Properly considered, certiorari should not have been granted.
Third, the manual related to operation and testing is “obviously relevant” and falls under first party disclosure in line with the principles of R v McNeil, 2009 SCC 3.
Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:
Did the segregation amount to a violation of sections 7 or 12
If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate
The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.
The Fine Print
In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:
It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing. Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26,  1 SCR 575; R v Adams, 2016 ABQB 648 at para 29,  4 WWR 741. [Para 19].
Second, with respect to segregation, the court arrived at the following conclusions:
Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells. They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall.
Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]
Third, the court discussed limits and expectations regarding the length of segregation:
To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim.
Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].
Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:
I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.
Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury.
Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].
Finally, in terms of remedy, the court found a stay was not appropriate:
Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].
What factors govern the granting of credit for pre-sentence custody, especially in relation to an offender sentenced to a reformatory period of incarceration.
The Court of Appeal noted the difference between provincial and federal jail time:
A prisoner who is sentenced to 18 months jail, but does not obtain parole is released after 12 months because of earned remission, unless institutional misconduct results in forfeiture of remission. Twelve months of presentence custody is equivalent to an 18 month sentence in these circumstances. According to Summers, this differential alone justifies enhanced credit at a ratio of 1.5:1. [@7]
The court clarified the approach and noted the error of the sentencing judge:
The sentencing judge was wrong to equate re-committal for violation of the terms of statutory release under the federal system with misconduct while serving a sentence within a provincial institution which would lead to a loss of earned remission under the provincial system. There was no evidence here of institutional misconduct which would likely lead to a prolongation of the appellant’s incarceration past the two thirds mark of his sentence. [@10]
The Fine Print
For context, the sentencing judge refused the 1.5:1 credit for the following reasons:
I have considered the defence request that Mr. Plante receive enhanced credit for his presentence in custody. On five previous occasions Mr. Plante was a statutory release violator. I conclude that he is not a candidate for parole or early release. I have not been provided with information about overcrowding at the detention centre or other conditions that might have made Mr. Plante’s presentence detention more onerous. The defence has not met its onus to demonstrate that enhanced credit should be awarded for the presentence in custody. [@2 ONCA]
See to similar effect R v Pitamber, 2018 ONCA 518 where the Court of Appeal offered the following:
The sentencing judge refused to give the appellant credit for pre-sentence custody on any more than a one-for-one basis as the appellant had breached the no contact provisions of previous orders on many occasions. The sentencing judge did not have the benefit of R. v. Plante, 2018 ONCA 251 (CanLII), as well as the fresh evidence indicating that the accused has behaved well during his time in custody.
There is no reason to believe that the accused will not be entitled to release after serving two thirds of his sentence in a provincial institution. Parity of treatment in these circumstances between persons released on bail and those detained in custody mandates a further credit on a 1.5:1 basis of 43 days. The sentence was otherwise fit. [@1-2]
The standard and appropriateness of imposing a restitution order under s738 of the Code.
Stand-alone restitution orders are constitutionally valid. They are discretionary and such discretion must take into account an offender’s ability to pay: R v Zelensky,  2 SCR 940. However, where there is a breach of trust, ability to pay is not a predominant consideration: R v Castro, 2010 ONCA 718.
The Fine Print
In the present case there was a breach of trust. The evidence did not support an inability to pay. The $35,821.85 restitution order was upheld.
Can a complainant adopt her s715.1 statement if her viva voce evidence is inconsistent with her video statement; and what impact do leading questions have on admissibility of such a statement.
The test for admissibility of a s715.1 statement was set out by the court:
The video statement is admitted on the basis that young children cannot be expected to clearly remember events that occurred months or years prior to trial and the statement “will almost inevitably reflect a more accurate recollection of events than will testimony given later”: R. v. F.(C.C.), 1997 CanLII 306 (SCC),  3 S.C.R. 1183 at para. 19. This is especially true when the child retains no memory of the incident and the video is the only way to bring the child’s evidence before the court: F.(C.C.) at para. 21.
To be admissible at trial, the statement must be properly adopted, meaning the child must recall giving the statement and testify that she intended to be honest when she gave the statement: F.(C.C.). The child does not need to remember the specific events discussed in the statement, although the inability to cross-examine the child on this evidence should necessitate a warning to the trier of fact about convicting on this evidence alone: F.(C.C.) at para. 44. [@52-53]
The Fine Print
The Court of Appeal upheld the trial judge’s ruling admitting the statement.
In this case, the use of leading questions within the s. 715.1 statement went to the issue of weight to be given to the evidence at trial and not to the admissibility of the statement. The judge did not err by failing to address the issue of weight at this stage. In my view, he properly exercised his discretion to admit the s. 715.1 statement as evidence at the trial. This decision is reasonable and entitled to deference. [@64]
Does 724(3)(e) ) of the Code allow a sentencing judge to infer a disputed aggravating fact from the undisputed facts presented at an informal sentencing hearing?
In short, yes. The NBCA cited R v Gardiner,  2 SCR 368 where the SCC held as follows:
It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. [Gardiner @111].
The Fine Print
The NBCA held that the sentencing judge could, in this case, draw the impugned inference:
In this case, the dispute centres on the sentencing judge’s inference of premeditation, a state of mind which is a question of fact. In my view, the judge was entitled to draw the inference if she was satisfied beyond a reasonable doubt it was the only reasonable inference to be drawn from the facts. On this point, although Mr. LeBreton admitted to planning and taking the steps necessary to implement his plan, as noted, his dispute rested with whether the plan was for the purpose of scaring or killing his victim, which raised a question of his state of mind. I conclude his state of mind could be inferred from the facts. Applying Gardiner, it is easily concluded the sentencing judge had the right to rely on admitted facts to infer Mr. LeBreton’s state of mind. It is for this reason I am of the view the sentencing judge’s interpretation of s. 724(3)(e) was consistent with the framework set out by the Supreme Court in Gardiner. [@18]
Where the Crown’s case is entirely circumstantial in relation to an element of the offence (or the all of them), what if anything can a trier of fact do with the fact that an accused has not testified.
Where a case is entirely circumstantial, an inference of guilt must only be drawn if it is the only reasonable inference: see R v Villaroman, 2016 SCC 33. When assessing if there is another reasonable inference, the lack of evidence from the accused permits the court to reject innocent inferences – the “failure to testify negates the alternative inference” [para 32].
Where there is a “strong case to answer” the court is entitled to “consider the appellant’s failure to testify in assessing whether an innocent inference was available: Noble, at para. 103” [@35].
The Fine Print
There was a dissent – the matter is likely headed to the SCC. In dissent Hourigan JA offered the following:
The fact that the appellant did not testify to offer a plausible alternative version of events is of no assistance to the Crown in this case. Appellate courts may refer to an accused’s silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal. However, the accused’s failure to testify is generally relevant only in cases where the Crown has adduced a compelling body of evidence: R. v. Noble, 1997 CanLII 388 (SCC),  1 S.C.R. 874, at para. 103.
In R. v. LePage, 1995 CanLII 123 (SCC),  1 S.C.R. 654, at paras. 29-30, a majority of the Supreme Court of Canada endorsed the following statement from R. v. Johnson (1993), 1993 CanLII 3376 (ON CA), 12 O.R. (3d) 340 (C.A.): “No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify.” See also R. v. Hay, 2009 ONCA 398 (CanLII), 249 O.A.C. 24, at para. 37; and R. v. Tremble, 2017 ONCA 671 (CanLII), 354 C.C.C. (3d) 27, at para. 98.
Thus, while the jurisprudence makes clear that the accused’s failure to testify may be taken into account in assessing whether there is an innocent inference available, it would make little sense to factor in that failure when reasonable innocent explanations are already apparent by looking at the gaps in the Crown’s case. In the case at bar, the evidence against the appellant that he had counselled the SUV driver to shoot at Mr. Foster was weak. It would have been foolhardy for any competent defence lawyer to advise a client to testify in these circumstances. There was simply no need to call evidence to support an alternative version of events.
In my view, there was a lacuna in the evidence such that no trier of fact acting reasonably could have concluded that there was no reasonable inference other than guilt. [@17-20]
Does the failure by an officer to consider the presence of residual mouth alcohol make it unreasonable for the officer to rely on an ASD fail result in forming reasonable and probable grounds for an arrest and evidential breath demand?
The answer is no. “There can be reasonable grounds even where an officer fails to consider the presence of residual mouth alcohol…The existence of reasonable and probable grounds does not turn upon whether an arresting officer has considered the possibility of residual mouth alcohol or its effects” [@22 and 23].
First, “it is settled law that arresting officers do not have a duty to inquire into the presence of residual mouth alcohol; it makes no sense to treat a failure to consider something that there is no duty to inquire about to be a Charter violation” [@24].
Second, “the reasonable and probable grounds test does not turn on the quality of the inquiry, such as whether the arresting officer asked herself all of the questions that a prudent person would. It turns, instead, on whether the arresting officer subjectively has an honest belief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief” [@25].
The Fine Print
First, there is not duty to inquire into the presence of residual mouth alcohol and failure to ask about last drink is not fatal: “Reasonable and probable grounds is determined, instead, according to the subjective belief of the arresting officer, and whether, on the information known to the officer, that belief is reasonable” [@33].
Second, “the effect of the law relating to the objective component of the reasonable grounds test can be put this way”:
If the information known to an arresting officer about a suspect’s residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.
Does late disclosure, delaying a bail hearing and causing “unnecessary and prolonged uncertainty [regarding his bail status] for the appellant and his family that he supported”.
Credit may be provided for state conduct as per R v Nasogaluak, 2010 SCC 6. In this case, however, the trial judge properly rejected the request:
In the view of the sentencing judge, the alleged misconduct did not have anything to do with the circumstances of the offence or the offender so as to warrant consideration in sentencing: see Nasogaluak, at paras. 3 and 49. We agree. Moreover, even if the late disclosure can be described as state misconduct, it does not rise to the level of being a mitigating factor in this case. [@17].
What is the standard of review of a Law Society’s misconduct findings. Related, and case specific, what can be said, and how often, in pursuit of one’s position in the criminal justice system.
Frist, the standard of review is reasonableness – per the majority:
In this regard, I agree with Cronk J.A. that “the application of the reasonableness standard of review in cases like this one in no way intrudes on a presiding judge’s authority to control the process in his or her courtroom”: para. 67. Courts and law societies enjoy concurrent jurisdiction to regulate and enforce standards of courtroom behaviour. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court.
To be clear, the location of the impugned behaviour is unquestionably relevant to the misconduct analysis itself. As I will explain, the fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review.
In sum, the Appeal Panel’s decision is reviewed for reasonableness. [@55-57]
Second, what Groia said and how he said it was not professional misconduct:
Mr. Groia’s allegations were made in good faith and they were reasonably based. As such, the allegations themselves could not reasonably support a finding of professional misconduct.
law societies should not sanction lawyers for sincerely held but mistaken legal positions or questionable litigation strategies.
In assessing “what” Mr. Groia said, the Appeal Panel reiterated that misconduct allegations or other challenges to opposing counsel’s integrity cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. The Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in good faith. It based its finding of professional misconduct primarily on the fact that his allegations lacked a reasonable basis. However, contrary to its own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous legal beliefs to reach this conclusion — one which, as I have explained above at paras. 88-91, cannot be reasonable.
Once the allegations of impropriety — what Mr. Groia said — are no longer in the mix, it becomes apparent that the other factors in this case cannot reasonably support a finding of professional misconduct against him. As I will explain, the frequency of Mr. Groia’s allegations was, to some extent, a product of the uncertainty surrounding the manner in which abuse of process allegations should be raised — a factor the Appeal Panel did not consider.
The Appeal Panel’s finding of professional misconduct against Mr. Groia was unreasonable. The Appeal Panel used Mr. Groia’s sincerely held but mistaken legal beliefs to conclude that his allegations of prosecutorial misconduct lacked a reasonable basis. But, as I have explained, Mr. Groia’s legal errors — in conjunction with the OSC prosecutor’s conduct — formed the reasonable basis upon which his allegations rested. In these circumstances, it was not open to the Appeal Panel to conclude that Mr. Groia’s allegations lacked a reasonable basis. And because the Appeal Panel accepted that the allegations were made in good faith, it was not reasonably open for it to find Mr. Groia guilty of professional misconduct based on what he said. [@7, 85, 122-123, 159]
The Fine Print:
Takeaway points. First, the criminal justice system is no tea party:
To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.
By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.] @2-3]
Second, the bar for misconduct has been set, arguably quite high. Putting the conduct that the majority condoned in context is helpful to appreciate just where (or how high) that bar lies. The Appeal Panel characterized the conduct this way:
Taken as a whole, the submissions we have excerpted can best be described as a relentless personal attack on the integrity and the bona fides of the prosecutors. It is important to emphasize that the examples we have selected provide some flavour, but it is difficult to convey the cumulative effect of the unabated repetition over the course of 10 hearing days of Mr. Groia's vehement and very lengthy attacks on the prosecutors.
These attacks were personal in nature. ... Taken together, in context, over the course of this lengthy trial, it is very clear that they were decidedly personal.
These attacks were aimed at the integrity of the prosecutors, by repeatedly asserting that they had broken their 'promises' and could not be relied on to do what they represented to the court and were, in a word, untrustworthy.
These attacks also included numerous allegations of deliberate prosecutorial misconduct: that the prosecutors intended to 'win at all costs', that their conduct offended the ethical principle that the duty of the Crown is not to seek a conviction, that they were deliberately putting the evidence though a 'conviction filter', and, most troubling, that they were intentionally acting so as to ensure that Mr. Felderhof did not obtain a fair trial.
Nothing the prosecutors did justified this onslaught. These attacks on their integrity and bona fides did not have a reasonable basis.
. . . . .
Likewise, we conclude that Mr. Groia had no reasonable basis on which to attack either the integrity of the prosecutors or their motives. The prosecutors had not promised that they would introduce all relevant documents, regardless of the rules of evidence. They were under no obligation to call evidence favourable to the defence. They had not resiled from their promises. Their positions on evidentiary issues were not improper and were often correct.
. . . . .
[A]ccepting that Mr. Groia was not deliberately misrepresenting the law and was not ill-motivated, we are nevertheless satisfied that Mr. Groia's misconduct had a serious adverse impact on the trial, by causing numerous delays in the evidence of the trial's first witness, by distracting the prosecutors from the presentation of the evidence, and by forcing the trial judge to become involved in many unnecessary disputes.
Having reviewed the relevant parts of the record, described in part above, I conclude that these critical findings were amply justified. Mr. Groia's remarks on the days in question, quoted above, were uncivil and discourteous and exceeded even the most broadly defined reasonable boundaries of zealous advocacy. They struck, without a reasonable basis, at the heart of the OSC prosecutors' duties to the court, to opposing counsel and to the administration of justice — in short, at their most basic duties as 'ministers of justice' and officers of the court. They also affected the orderly progression of the trial and the dignity of the proceedings and contributed to the delay in the completion of the testimony of the first witness at trial. [@211]
The dissent at the SCC commented on their concerns about the fallout from the ruling including citing possible impacts by “immunizing accusations based on honestly believed legal errors; validating uncivil conduct; and undermining the administration of justice:
Condoning Mr. Groia’s conduct risks eroding civility in courtrooms and increasing the pressures on an already strained system. Moreover, setting aside the decision of the Appeal Panel has the potential to undermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culture change we need. Through their enabling legislation, they are provided with the authority to sanction lawyers who commit professional misconduct and, in turn, promote efficiency in our system. They should be empowered to do that, not undermined through second-guessing by the courts. Their decisions respecting professional misconduct should be approached with deference. [@231]