Extradition: Bail Pending the Appeal of a Committal Order

The Test for Release under s. 20 of the Extradition Act Section 20(a) of the Act provides that the test to be applied is that set out in s. 679 of the Criminal Code[Section 679: Release pending determination of appeal] with any modifications that the circumstances require.  Accordingly, the Applicant must show that:a)              his appeal is not frivolous;b)              he is not a flight risk; and                                                                   c)              his detention is not necessary in the public interest.The public interest has two components: (1) public safety; and (2) public confidence in the administration of justice: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.); and R. v. Forcillo, 2016 ONCA 606, at para. 9.Public confidence in the administration of justiceIn considering whether continued detention is necessary to maintain the public’s confidence in the administration of justice, the court must consider how a reasonable and properly-informed member of the public would perceive the granting of bail: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 87.  In France v. Ouzghar, 2009 ONCA 137, 95 O.R. (3d) 187, at para. 14, the Court of Appeal for Ontario indicated that where legitimate public interest concerns are raised in connection with the applicant’s release, a “harder look at the merits of the application will be justified”.  In United States v. Viscomi, 2016 ONCA 980, for instance, the Court found that while the proposed grounds of appeal met the low threshold of “not frivolous”, the evidence was extremely strong that the Applicant had committed the offences for which extradition was sought.   Given the violent, heinous and exploitative nature of the alleged offences, the very weak merits of the appeal became an important consideration for the Court within its

The Effect of False or Misleading Information on the Validity of the Search Authority

Applications for search warrants and authorizations to intercept private communications under Part VI are ex parteproceedings. As a result, the author of the supportive document must make full, fair and frank disclosure of all material facts so that the authorizing judge or justice can assess whether the contents satisfy the conditions precedent to issuance of the search authority: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 998, at para. 46. The obligation to make full, fair and frank disclosure of all material facts in an ITO or Part VI affidavit is a function of the ex parte nature of the procedure involved in obtaining the search authority.R. v. Donnelly, 2016 ONCA 988 at para 82.     Without more, inclusion of false or misleading information in the ITO or supportive affidavit does not vitiate the search authority. The reviewing judge excludes the erroneous information and then determines whether there remains reliable information that might reasonably be believed on the basis of which the search authority could have issued.R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; Araujo, at para. 54.

Bail Hearing Adjournments (Section 516, Criminal Code)

Criminal Code516. Remand in custody 516. (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused. Section 516(1) of the Criminal Code permits a justice, before or at any time during the course of a judicial interim release hearing, on application by the prosecutor or accused, to adjourn the proceedings and remand the accused in custody in prison. Where the adjournment exceedsthree clear days, the consent of the accused is required. It necessarily follows that an adjournment that is notmore than three clear days does not require any consent on the part of the accused. R. v. Donnelly, 2016 ONCA 988 at para 76     A Crown’s request for adjournment pursuant to s. 516 is not an absolute right, but rather must be made on a good faith basis and informed by the requirement for a just cause analysis pursuant to s. 515, such that an accused otherwise entitled to release will not be arbitrarily detained. R. v. Donnelly, 2016 ONCA 988,at para 80.The lack of perfect fidelity between the current state of the investigation and the information provided to and disclosed by prosecutor making the 516 adjournment application does not warrant a finding that s. 9 of the Charterhas been breached.  [Section 9 of the Charter provides that “Everyone has the right not to be arbitrarily detained or imprisoned”].  To require police to provide error-free, up-to-moment disclosure of the progress of the investigation to the prosecutor would impose a

Arguing Constitutional Violations of Security of Person under Section 7 of the Charter

         Canadian Charter of Rights and FreedomsLife, liberty and security of person7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.It is not every qualification or compromise of a person`s security that comes within the reach of s. 7 of the Charter. The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s. 7 risks trivializing the protections of the Charter: Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 151. Security of the person protects both the physical and psychological integrity of the individual: Blencoev. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 55; R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 56 and 173; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64 & 71. For a restriction of security of the person to be established, the state action in issue must have a serious and profound effect on a person’s psychological integrity: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 59-60. The descriptive “serious state-imposed psychological stress” fixes two requirements that must be met before the security of the person interest protected by s. 7 becomes engaged. First, the psychological harm must be state imposed, that is to say, the harm must result from actions of the state.  Second, the psychological harm or prejudice must be serious. It follows that not every form of psychological prejudice or harm will constitute a violation of s. 7: Blencoe,

Sentencing of Youthful First Offenders for Serious Crimes

 While individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle of sentencing stated in s. 718.2 of the Criminal Code: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".R. v. Brown, 2015 ONCA 361Similarly, in R. v. Thurairajah, 2008 ONCA 91 (CanLII), which concerned the sentencing of a youthful first offender for a particularly serious sexual assault, the Court of Appeal for Ontario held: Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597 (CanLII), 87 O.R. (3d) 81 at 93-94 (C.A.).Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells (2000), 2000 SCC 10 (CanLII), 141 C.C.C. (3d) 368 at para. 26 (S.C.C.).The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.

Credit for Pretrial Custody On Unrelated Charges

The time spent in custody by an offender on unrelated charges can be considered in a limited way in determining a fit sentence. As Justice Rosenberg stated in R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285 at para. 46, “a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender.” Justice Rosenberg cited as one example a situation where an offender with a drug problem received treatment while serving his sentence.  However, it would be an error in law for the sentencing judge to go beyond this limited analysis and grant credit for the time served on unrelated charges.R. v. Pammett, 2016 ONCA 979 at para 29. Giving an offender credit for pretrial custody for unrelated charges would permit an accused to “bank” time spent in custody. As Rosenberg J.A. observed in R. v. Wilson, at para. 45:But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration. The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction.R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285.Justice Rosenberg recognized that in R. v. Reid, 2005 CanLII 14964 (Ont. C.A.) and R. v. Tsai (2005), 198 C.C.C. (3d) 533 (Ont. C.A.), the Court of Appeal for Ontario appears to have given some credit for pretrial

The Defence of Accident

The defence of accident varies with the nature of the crime. In Criminal Pleading & Practice, Ewaschuck (2nd Edition), the Learned Justice states as follows: The “so-called” defence of accident varies depending on the nature of the crime. Where the crime involves specific intent, the defence of accident may relate to a denial of a voluntary act causing the prohibited harm or to a denial of intent or purpose to cause the prohibited harm. Where the crime involves general intent or recklessness, the defence of accident generally relates to an unexpected or chance event so unreasonably foreseeable that it exculpates the accused from any blameworthy conduct preceding the accident.In the criminal law, the term “accident” is used in two senses: an unintended act and an unintended consequence. The former relates to the conduct or actus reus element of an offence, the latter to the fault or mens rea element.R. v. Ward, 2016 ONCA 984; R. v. Mathisen, (2008) 2008 ONCA 747 (CanLII), O.J. No. 4382As with any viable defence, there is no onus of proof on the accused to prove that his conduct was accidental. Where there is an air of reality to the defence, the onus is on the Crown to prove beyond a reasonable doubt that the defence of accident could not succeed.R. v. Sutherland, (1994) 1993 CanLII 6614 (SK CA), 84 CCC (3d) 484 (Sask. C.A.),

The Offence of Fraud

THE OFFENCE OF FRAUDLike virtually all offences, fraud consists of two main components, the prohibited act (actus reus) and the required state of mind (mens rea). MENS REAThe mental element of fraud consists of two states of mind: 1.       Subjective knowledge of the prohibited act; and2.       Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).R. v. Théroux, [1993] 2 S.C.R. 5 at p. 20; R. v. Zlatic, [1993] 2 S.C.R. 29 at p. 43.The question is not whether the accused believed the acts or their consequences to be moral.  A defrauder will not be acquitted because he or she believed that what they were doing was honest. Mens rea for fraud consists of the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk.  R. v. Théroux, [1993] 2 S.C.R. 5.This applies as much to the third head of fraud, “other fraudulent means”, as to lies and acts of deceit.R. v. Théroux, [1993] 2 S.C.R. 5 at para 25, 26.Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.R. v. Théroux, [1993] 2 S.C.R. 5 at para 28ACTUS REUSThe actus reus has two aspects:1.  an act of deceit, a falsehood or some other fraudulent means; and2.  deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk. R.

The Frequency of a Crime in a Local Community — a Relevant Factor in Sentencing

Local Situation It may be appropriate for a judge to consider the fact that a type of offence occurs with particular frequency in a given region as a relevant factor in determining a just and appropriate sentence. R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 13.Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. In R. v. M. (C.A.), [1996] 1 S.C.R. 500 Lamer C.J. stated the following:The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. [Emphasis added]Considerations of procedural fairness will generally require that a judge who intends to attach weight to the local reality and to the frequency of a crime in a given region offer the parties an opportunity to make representations on the subjectR. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089at para 94.The frequency of impaired driving offences, for instance, is something that can be determined objectively by consulting the court rolls. In short, it is public information that is known and uncontroversial. It is well established in our law that judges can take judicial notice of the contexts in which they perform the duties of their offices: R. v. Lacasseat para 95; R. v. Z.Z., 2013 QCCA 1498, at para. 68 (CanLII); R. v. Hernandez, 2009 BCCA 546, 277 B.C.A.C. 120, at para. 29.Trial judges and provincial courts of appeal are in the best position to know

The Late Guilty Plea

The timing of a guilty plea affects its impact in mitigation. A plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly.R. v. O. (C.), 2008 ONCA 518, 91 O.R. (3d) 528, at paras. 16‑17; R. v. Wright, 2013 ABCA 428, 566 A.R. 192, at para. 12. The trial judge was right to attach less weight to the remorse expressed by the accused and to his guilty plea because of the lateness of that plea.R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 81.