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Sentencing Outside the Range

Standard for Intervention on an Appeal From a SentenceAbsent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code.R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 90Except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 11. Sentencing RangesSentencing ranges are primarily guidelines, and not hard and fast rules: As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle.R. v. Lacasse, at para 60; see also R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 44Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

Consumption of Cannabis Used as Evidence of the Accused’s Irresponsibility

In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 the accused was charged with impaired operation of motor vehicle causing death.  It was undisputed on appeal that at the time of the motor vehicle accident, the accused was impaired by alcohol.The majority of the Supreme Court of Canada noted in obiter that although the consumption of cannabis by the accused may not have played a role in fatal motor vehicle accident, it could be considered an aggravating factor on sentence, as it was evidence of the accused’s irresponsibility.  Presumably because of the risk the accused undertook when he consumed cannabis and then drove. R. v.Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089at para 84

Contacting Counsel a Second Time

Canadian Charter of Rights and Freedoms10. Everyone has the right on arrest or detention     a) to be informed promptly of the reasons therefor;     b) to retain and instruct counsel without delay and to be informed of that right;Section 10(b) of the Canadian Charter of Rights and Freedoms does not mandate the presence of defence counsel throughout a custodial interrogation. In most cases, an initial warning of the right to counsel, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not (the right to silence).  Normally, this purpose is achieved by a single consultation with counsel at the time of detention or shortly thereafter.R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] S.C.J. 35 at para 47 For there to be such an obligation on police to contact counsel a second time and facilitate a consultation, there must be a change in circumstances such that the choice facing the detained person has been significantly altered.                                                                                                                                                          R. v. Sinclair, at para. 65 Such an alteration occurs where the adding of an additional criminal charge significantly increases the alleged moral blameworthiness of the accused, and thus the potential penalty the accused faces.R. v. Moore, 2016 ONCA 964

Satisfying the Necessity Criterion for the Admission of Hearsay (Undue Trauma, Lack of Recollection)

R. v. Wills, 2016 ONCA 965 the Court of Appeal for Ontario held that that trial judge had erred in admitted the child complainants’ hearsay statements about the alleged offences as evidence at trial based on a finding that 1. the children would be unlikely to provide a coherent and comprehensive account of the events due to a lack of present recollection, and 2. because having to testify in court would cause them undue trauma.The trial judge made these determinations based on evidence from the complainants’ parents and a video recording of brief police interviews with each child shortly before trial and about a year after their initial disclosures.Undue TraumaUnless the trial judge has had the opportunity to see the child’s reaction to questioning in the courtroom setting, “it will be a rare case … where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of the child by a qualified expert”. R. v. S.M.R. (2004), 24 C.R. (6th) 185 (Ont. C.A.), at para. 45.In R. v. Wills, however, the trial judge did not have the opportunity of seeing the children testify. Their parents’ evidence, which consisted primarily of observations of changes in each child’s behaviour, was simply not sufficient to displace the need for a proper assessment by a qualified expert.R. v. Wills, 2016 ONCA 965 at para 20.Lack of present recollection If the witness is physically available and there is no suggestion that he or she would suffer trauma by attempting to give evidence, that evidence should generally not be pre-empted by hearsay unless the trial judge has first had an opportunity to hear the potential witness and form his or her own opinion as to testimonial

Establishing Guilt Solely on Circumstantial Evidence

Facts in issue cannot always be proved by direct evidence alone.“Usually, witnesses testify as to what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is called direct evidence.Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.”10.2 of the Model Jury Instructions prepared by the National Committee on Jury Instructions of the Canadian Judicial CouncilIt has become standard in Canada for the trial judge, in the course of the instructions to the jury, to explain to the jury the difference between direct and circumstantial evidence. This instruction is usually accompanied by a simple everyday example (such as the one set out in the Model Jury Instruction above). In addition, the judge will usually explain that circumstantial evidence can present a further problem not necessarily present in direct evidence, namely, that proof of the fact in issue depends on the correctness of the inference to be drawn and not simply on the reliability and credibility of the witnesses. In the early part of this century, it was considered necessary for the trial judge to give the jury a special instruction on the application of the burden of proof in cases of circumstantial evidence. This special instruction was known as the rule in Hodge's Case.It is now settled that no particular form of instruction to the jury is

The Admissibility of Non-Expert Opinion Evidence

 As a general rule, opinion evidence is not admissible; witnesses testify as to the facts which they perceived, not as to the inferences – that is, the opinions -- that they drew from their perceptions: Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R.There is, however, an exception for witnesses duly qualified to express an expert’s opinion: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24.The opinion evidence of non‑expert witnesses is generally inadmissible. In R. v. D.D., 2000 SCC 43 (CanLII), [2000] 2 S.C.R. 275at para. 49, Justice Major summarized this long-standing exclusionary rule:A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience. This is a commendable  principle since it is the task of the fact finder, whether a jury or judge alone, to decide what secondary inferences are to be drawn from the facts proved.There is an exception to this rule: the compendious statement of facts exception. The modern approach to the compendious facts exception was set out by Mr. Justice Dickson in R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. Dickson J. began by noting the tenuous distinction between fact and opinion evidence:Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear…I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.Additionally,

Is Demeanour evidence Hearsay?

See my earlier blog entry Hearsay in a Nutshell for a general elaboration as to the nature of hearsay.  In this blog entry I will discuss the relationship between demeanour evidence and hearsay.Although hearsay typically consists of spoken words, it can consist of conduct.  Such conduct can be of two types:  assertive and non-assertive.  R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399 at para 106, leave to appeal refusedAssertive conduct Assertive conduct refers to non-verbal conduct that is intended as an assertion.  Examples of assertive conduct include nodding the head (indicating “yes”) and pointing to someone or something.  Assertive conduct is conduct that is tendered in evidence to prove the truth of an assertion Badgerow, at para. 107Non-assertive conductNon-assertive conduct describes conduct, whether by words or deeds or both, from which the trier is asked to infer a statement based on the “declarant’s” belief. Badgerow, at para. 109 Demeanour evidence is not assertive conduct, but is it hearsay by non-assertive conduct?Demeanour evidence is not assertive conduct.  A person’s facial expression (or non-expression) is not non-verbal conduct like a nod of the head or pointing at something.R. v. H.B., 2016 ONCA 953, at para 82Demeanour evidence is not necessarily hearsay by non-assertive conduct         As for demeanor evidence being hearsay by non-assertive conduct: simply because the Crown or the defence asks the jury to draw an inference from the demeanour evidence does not render that evidence an implied statement of belief adduced for the truth of its contents.  R. v. H.B., at para 83In R. v. H.B., the Court of Appeal for Ontario held that the demeanour evidence of the complainant’s mother (the observable emotional state of the complainant’s mother upon being told of the allegations her

What must the Police Tell Me upon Arrest?

Section 10(b) of the Canadian Charter of Rights and Freedoms fulfills its purpose in two ways.  First, it requires that the detainee be advised of his right to counsel.  This is called the informational component.  Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel.  This is called the implementational component. In today’s blog entry, I discuss the informational component of the section 10(b) Charter right.  Or more simply: what must the police tell you upon arrest/detention?Canadian Charter of Rights and Freedoms10. Everyone has the right on arrest or detention                a. to be informed promptly of the reasons therefor;                b. to retain and instruct counsel without delay and to be informed of that right.Overview of the 10(b) rightThe Supreme Court of Canada has recognized that the purpose of the right to retain and instruct counsel guaranteed by section 10(b) of the Charter is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 at 1242-43.  See also R. v. Taylor, 2014 SCC 50 (CanLII), [2014] 2 S.C.R. 495 at para. 21. A person who is detained or arrested is, “in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.” The assistance of counsel helps to ensure that those who are in custody, and therefore in legal jeopardy, are positioned to make a voluntary and informed decision whether or not to speak, or otherwise cooperate, with the police.R.

Adjourning the Trial When a Witness Fails to Attend

OverviewApplications for a trial adjournment may be made by the Crown or the defence.  It is undisputed that whether an adjournment or a postponement should be granted or not is a discretionary matter for the trial judge: Manhas v. The Queen, 1980 CanLII 172 (SCC, [1980] 1 S.C.R. 591; R. v. Barrette, 1976 CanLII 180 (SCC), , [1977] 2 S.C.R. 121, 29 C.C.C. (2d) 189; R. v. Darville, (1956), 116 C.C.C. 113 (S.C.C.); R. v. MacDonald, 1998 CanLII 18016 (NL CA), [1998] N.J. No. 340 (QL) (C.A.) [reported 132 C.C.C. (3d) 205].The leading case governing trial adjournment applications is that of Darvillev. the Queen, (1956) 116 C.C.C. 113 (S.C.C.) which sets out a straightforward three-part test.  Though Darville remains foundational, the test has been elaborated and expanded upon and may, it appears, include such additional factors as the consideration of the public interest in having a trial on the merits (including the related consideration of the seriousness of the offences charged), and whether there would be a lack of significant prejudice to the accused.Further—in my opinion—where the defence seeks the request, the accused’s right to full answer and defence and even the right to a fair trial, section 11(d) of the Canadian Charter of Rights and Freedoms,may be engaged.  For an overview of the right to full answer and defence see R. v. Mills, [1999] 3 S.C.R. 668Trial Adjournment - The Darville Test On the elements to be considered by a judge when asked to grant an adjournment of a criminal trial due to the absence of a witness, the Supreme Court of Canada provided some guidelines in 1956 in R. v. Darville:( 1)   that the absent witnesses are material witnesses in the case;(2)   that the

Material Witness Warrants under Section 705 of Criminal Code

Section 705 of the Criminal Code establishes and governs the court’s power to issue a material witness warrant to arrest an individual who has been properly served with a subpoena but does not attend court.  In accordance with this provision, the trial judge has discretion to issue a material witness warrant if two pre-conditions have been satisfied:  first, that subpoenas have been properly served on the prospective witnesses, and second, that the person is likely to give material evidence. CRIMINAL CODE Section 705 (1)      Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established(a)      that the subpoena has been served in accordance with this Part, and (b)      that the person is likely to give material evidence,issue or cause to be issued a warrant in Form 17 for the arrest of that person.(2)      Where a person who has been bound by a recognizance to attend to give evidence in any proceeding does not attend or does not remain in attendance, the court, judge, justice or provincial court judge before whom that person was bound to attend may issue or cause to be issued a warrant in Form 17 for the arrest of that person.(3)      A warrant that is issued by a justice or provincial court judge pursuant to subsection (1) or (2) may be executed anywhere in Canada. The decision to grant or refuse a material witness warrant is an exercise of the trial judge’s discretion that should not be lightly overturned by an appellate court. It is a

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