This week’s top three summaries: Nagle v R, 2023 NBCA 35: #assault, #appeals, R v Haroon, 2023 MBCA 60: release of #exhibits, and R v Basque, 2023 SCC 18: #pre-trial driving prohib.
This week’s top two cases deal primarily with appellate law. For great general reference on the law and practice of witness prep, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Criminal Appeals: A Practitioner’s Handbook
By Mark C. Halfyard, Michael Dineen & Jonathan Dawe
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Nagle v R, 2023 NBCA 35
[May 25, 2023] Appeals: Judicial Ignoring of the Domestic Complainant, Assaults: the “Reckless” Assault [Richard C.J., Green and LeBlanc JJ.A.]
AUTHOR’S NOTE: Following what appears to have been a tour de force of trial level errors, the Court of Appeal of New Brunswick had the opportunity to remark upon many fundamental aspects of criminal law. Of particular interest was the core of the trial level problems. The NBCA outlined the legal fallout from the trial judge essentially ignoring the helpful testimony of a domestic assault complainant – a feature of many domestic trials. The phenomenon occurs something like the following: where the complaint provides evidence against the accused, this is treated as believable and where they provide evidence that exonerates the accused, that testimony is treated as the byproduct of ongoing abuse. The NBCA reminds us that it is not an option for judges to simply ignore evidence and the result is an unreasonable verdict. The second gem in this decision is the treatment of assault by recklessness. Here, the alleged reckless shutting of a door on the fingers of the complainant. Again, here there was no basis to conclude the accused “knowingly” undertook the risk when he slammed the door. The result was an unreasonable verdict. The case also covers the right to cross-examine the complainant on their criminal record and propensity for violence.
I. Overview
[1] It is rare for a trial decision to cast doubt upon a proper understanding of the fundamental tenets of criminal law. It is also uncommon for this Court to annul a conviction as unreasonable when that decision is rendered by a judge of the Provincial Court, because judges of that court routinely undertake the critical tasks of assessing credibility, evaluating evidence, and applying the law to the facts, to arrive at a definitive verdict on the charges before them. Remarkably, the present case falls within the realm of such extraordinary circumstances….
[2] Mr. Nagle was charged with the commission of four offences set out in two informations. The first charged him with three offences under the Criminal Code, which allegedly occurred on March 19 and 20, 2022: s. 267(b) (assault causing bodily harm); s. 279(2) (unlawful confinement); and s. 733.1(1)(a) (breach of probation). The second information alleged the commission of an offence on August 24, 2020, under s. 267(b) of the Code (assault causing bodily harm). The alleged victim in all matters was A.B., a woman with whom Mr. Nagle was in a common law relationship at the time. At the culmination of a trial, a judge of the Provincial Court convicted Mr. Nagle on all counts and eventually sentenced him to 12 months’ incarceration. At the hearing, Mr. Nagle’s counsel informed the Court that his client conceded the conviction for breach of probation under s. 733.1(1)(a) of the Code.
[3] In his appeal against conviction, Mr. Nagle raises several grounds. Most, though not all, are conceded. Crown counsel’s many concessions illustrate the discharge of his duty to serve the public interest by upholding the law and seeking justice rather than securing convictions at all costs, a duty which Crown counsel are expected to perform “with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings” (see Boucher v. The Queen, [1955] S.C.R. 16, [1954] S.C.J. No. 54 (QL), per Rand J.).
[4] At the conclusion of the hearing of Mr. Nagle’s appeal, we rendered an oral decision allowing it. The convictions under ss. 279(2) and 267(b) of the Code, relating to incidents that occurred in March 2022, were set aside and acquittals entered on those charges….
… The conviction under s. 267(b) of the Code, relating to the incident of August 2020, was set aside and a new trial was ordered on that charge. At the time, we indicated that reasons for our decision would follow. These are those reasons.
II. Background
[5] At the time of the incidents described below, Mr. Nagle and A.B. were common law partners and had a relationship described during the trial as “problematic” and “toxic.”
A. Incidents of March 19 and 20, 2022
[6] … A.B. had been staying at Mr. Nagle’s residence since December 2021, but an interaction between the two on March 18, 2022, caused her to leave the residence, leaving behind some of her personal belongings. The next day, she returned…
[7] Once at the residence, they argued and A.B. became very loud. Mr. Nagle made allegations against her, and she decided to leave, just wanting her belongings returned to where she was staying. As she was in the process of leaving, Mr. Nagle believed she had his keys and other belongings of his and followed her down the stairs to retrieve them. As A.B. was leaving, Mr. Nagle slammed the door shut while her hand was on the door frame. When Mr. Nagle saw A.B.’s hand had been jammed, he ran upstairs to get an icepack.
[8] Mr. Nagle testified that he did not see A.B.’s hand on the doorframe and that he slammed the door shut because A.B. was loud, fearing what impact her yelling would have on his tenants and neighbours. R.L. also testified that A.B. was being very loud and that Mr. Nagle shut the door wanting to avoid the neighbours getting upset. A.B. denied being loud or raising her voice. In her testimony, she surmised Mr. Nagle slammed the door to keep her inside the house. Of critical importance regarding the charge of assault causing bodily harm, A.B. testified she did not believe Mr. Nagle intended to slam the door on her hand and that, possibly, he had not seen her hand on the doorframe. Two other witnesses said they heard arguing and raised voices that night, noting that a female voice was the loudest.
[9] A.B. ultimately left Mr. Nagle’s residence that evening but returned there very early in the morning of March 20, 2022. The door was locked, and she knocked until she was let in. Shortly thereafter, the police came to Mr. Nagle’s door. At this time, Mr. Nagle told A.B. to “remember the plan” and hide behind the refrigerator. A.B. herself described the “plan” as one conceived by Mr. Nagle some time prior and one to which she had agreed to avoid the police seeing both of them together. Mr. Nagle acknowledged they planned to hide A.B. if the police attended at his residence, due to her outstanding arrest warrants and his no-contact order. To that end, Mr. Nagle pulled out the refrigerator and A.B. got behind it and pulled it back into place while he answered the door. A.B. explained that she hid behind the refrigerator to avoid any trouble for Mr. Nagle; she was hoping the “plan” would work and that they could eventually work through their issues. She stated she acquiesced to the “plan” because she loved him, wanted him to be happy and did not want him to get into more trouble.
[10] The police found A.B. behind the refrigerator and took her to the police station….
B. Incident of August 24, 2020
[11] A.B. also testified about an incident which allegedly occurred on August 24, 2020, when she and Mr. Nagle were arguing upon their return to his residence. A.B. stated that she was being loud, something to which Mr. Nagle is sensitive because of his tenants, and that he pushed her on the back stairway. According to A.B., Mr. Nagle held her down by forcefully squeezing her and covering her mouth; she said during this time she heard a pop in her shoulder. After quieting down, A.B. ran up the stairs, through the front door and ran away. A.B. acknowledged using speed and consuming vodka that day, whereas Mr. Nagle was intoxicated on beer. She said she recalled the events of this day because it was Mr. Nagle’s birthday. A.B. attended at the hospital the next day….
[12] Mr. Nagle testified he was not with A.B. on his birthday but had spent the previous evening with her. He testified as to an altercation with A.B. resulting in a scar behind his right ear. According to Mr. Nagle, while at a location with other people, he heard A.B. yelling. She then headed toward him and punched, scraped, and scratched him. As he was trying to hold her back, one of A.B.’s hands got loose and she scratched the back of his neck, leaving a scar behind his right ear. During this altercation, they tumbled and fell, and this is when her shoulder was injured. He later found out that A.B. had seen a message on his Facebook page from a woman he had previously dated…
C. The convictions and sentencing
[13] In her decision, the judge convicted Mr. Nagle on all four counts. He was eventually sentenced to 12 months’ incarceration, less 270 days of remand credit since being taken into custody on March 20, 2022. Counsel informed us Mr. Nagle completed his sentence.
IV. Analysis
[15] The judge committed several errors of law. Mr. Nagle and Crown counsel agree on some, but not all, of these errors. Some, but not all, of the judge’s errors had a bearing on the outcome of Mr. Nagle’s trial. Even where there is agreement between the parties, the Court has an obligation to satisfy itself the shared position put forth by the parties is correct at law. In this matter, the sheer number of errors committed by the judge compels this Court, mindful of its oversight role, to comment on the most egregious of those errors, regardless of whether they affected the outcome of Mr. Nagle’s trial.
A. The conviction for unlawful confinement under s. 279(2) of the Code
[16] The essential elements to establish an unlawful confinement under s. 279(2) of the Code were recently discussed by the Supreme Court in R. v. Sundman, 2022 SCC 31, [2022] S.C.J. No. 31 (QL). A conviction under s. 279(2) requires the prosecution to establish, inter alia, that “for any significant time period, a person is coercively restrained or directed contrary to their wishes, so that they cannot move about according to their own inclination and desire” (para. 21). The evidentiary record before the judge reveals that A.B. voluntarily agreed to get, and hide, behind the refrigerator in accordance with the “plan” to which she had agreed. The judge convicted Mr. Nagle under s. 279(2) notwithstanding this evidence. Mr. Nagle argues that the conviction under s. 279(2) of the Code is unreasonable. Crown counsel agrees. So do we.
[17] In R. v. C.P., 2021 SCC 19, [2021] S.C.J. No. 19 (QL), the Supreme Court reiterated the unreasonable verdict standard on appeal where a trial judge is sitting alone and convicts the accused. There are two pathways for an appeal court to find a verdict was unreasonable:
When a verdict is reached by a judge sitting alone and explained in reasons for judgment, there are two bases on which a court of appeal may find the verdict unreasonable. First, a verdict is unreasonable if it is not one that a “properly instructed jury acting judicially, could reasonably have rendered” (R. v. Biniaris, [2000] 1 S.C.R. 381, at para. 36, quoting R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185). In Biniaris, Arbour J. clarified that this standard, despite being expressed in terms of a verdict reached by a jury, also applies to the decisions of a judge sitting without a jury. She explained, however, that review for unreasonableness on appeal is “somewhat easier when the judgment under attack is that of a single judge,” since judges give reasons whereby
the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [para. 37]
Arbour J.’s comments in Biniaris led to the adoption, in R. v. Beaudry, [2007] 1 S.C.R. 190, and R. v. Sinclair, [2011] 3 S.C.R. 3, of a narrowly expanded, second avenue of review for unreasonableness. A verdict reached by a judge may be unreasonable, even if supported by the evidence, if it is reached “illogically or irrationally” (Beaudry, at paras….
…. This may occur if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge (Sinclair, at paras. 4, 16 and 19-21; R. v. R.P. [2012] 1 S.C.R. 746, at para. 9).
The Beaudry and Sinclair inquiry into illogical or irrational findings or inferences is not an invitation for reviewing judges to substitute their preferred findings of fact for those made by the trial judge (Beaudry, at para. 98)….
… A court of appeal reviewing credibility assessments in order to determine whether the verdict is reasonable cannot interfere with those assessments unless they cannot be supported on any reasonable view of the evidence (R.P., at para. 10; R. v. Burke [1996] 1 S.C.R. 474, at para. 7). The inquiry into the logic or rationality of a judge’s essential findings under Beaudry and Sinclair is narrowly targeted at “fundamental flaws in the reasoning process” which means that the verdict was not reached judicially or in accordance with the rule of law (Sinclair, at paras. 4, 26 and 77). [Emphasis added; paras. 28-30]
[18] … The trial judge found that it was “much more rational, logical, and believable that [A.B.] did what she was being directed to do by Mr. Nagle, that is to hide from the police for fear of getting in trouble.” This finding is not consistent with A.B.’s testimony, which the trial judge professed to have accepted. A.B.’s testimony establishes that she voluntarily placed herself behind the refrigerator in the execution of a “plan” to which she had agreed and the purpose of which was to protect Mr. Nagle.
[20] It is for these reasons that we agreed with both Mr. Nagle and Crown counsel that the trial judge’s verdict regarding the charge under s. 279(2) of the Code was unreasonable, quashed the conviction, and entered an acquittal on this charge.
B. The conviction for assault causing bodily harm under s. 267(b) of the Code relating to the incident of March 19, 2022
[21] An assault, as defined in the Code, can occur only where, inter alia, the accused person intentionally applies force to another person, without that person’s consent (s. 265(1)). In the same context, the word “intentionally” has been interpreted to include recklessness (see R. v. D.J.W., 2011 BCCA 522, [2011] B.C.J. No. 2463 (QL), at para. 70, aff’d on appeal to the Supreme Court of Canada at 2012 SCC 63, [2012] 3 S.C.R. 396, at para. 1). Consequently, an assault may occur where a person recklessly applies force to another person, without that person’s consent. A person engages in recklessness where they are subjectively aware of the risk associated with their actions and act in disregard of that risk (see Watts v. R., 2022 NBCA 34, [2022] N.B.J. No. 160 (QL), at para. 28).
[22] In the context of this appeal, and in relation to the incident of March 19, 2022, the judge could convict Mr. Nagle under s. 267(b) of the Code if satisfied that: (1) Mr. Nagle was aware of the risk that slamming the door would result in a non-consensual application of force to A.B.’s body; and (2) Mr. Nagle nevertheless proceeded to slam the door, thereby disregarding the risk of which he was aware.
[23] … Crown counsel argued that, while this evidence speaks to whether Mr. Nagle purposely slammed the door, it does not speak to whether he recklessly did so. He argued the evidence established that A.B. opened the door in a small and confined space and while in the process of her exit from the premises, Mr. Nagle rushed down the stairs and slammed the door on her hand. He argued the evidence could give rise to a possible inference that Mr. Nagle was subjectively aware that slamming the door could cause an assault upon A.B. yet proceeded to slam the door despite this. He further argued that, while this inference may not be one this Court would have drawn, it was nonetheless an inference which was available for the judge to make.
[24] On appeal, the issue is whether the inference articulated by Crown counsel was one that no properly instructed jury could reasonably have drawn, thus rendering the conviction unreasonable. Mr. Nagle testified he did not see A.B.’s hand on the doorframe and A.B., herself, testified not only that she did not believe Mr. Nagle intended to slam the door on her hand, but also testified that she was unsure he had seen her hand on the doorframe. Based on the whole of the evidentiary record before the judge, we can come to no other conclusion but that an inference that Mr. Nagle was reckless was not one available for the judge to make and that her conviction of Mr. Nagle under s. 267(b) of the Code in relation to the incident of March 19, 2022, was unreasonable. [Emphasis by PJM]
D. Palpable and overriding errors of fact
[31] Mr. Nagle alleges the judge committed several palpable and overriding errors of fact related to the incidents of March 19 and 20, 2022. Crown counsel concedes the judge made palpable errors of fact but maintains they were not overriding.
[32] For an error to be “palpable,” it must be one that is “obvious, plain to see or clear”; an “overriding” error is one that is “sufficiently significant to vitiate the challenged finding of fact” (see J.N.C. v. R., 2013 NBCA 59, at par. 15, citing Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.); Doiron v. R., 2020 NBCA 31, at para. 62). If a palpable error is identified, the Court must then determine whether this error is overriding. If determined not to be overriding, the error will be ascribed little weight in the appellate analysis. Conversely, if determined to be overriding, it will taint the lower court’s decision to a degree such that appellate intervention will be required. A palpable error will be overriding if it goes to the root of the challenged finding of fact such that the trial judge’s conclusion “cannot safely stand on the face of that error” (see J.N.C. v. R., at para. 15, R. v. Doiron, at para. 62). The factual error or misapprehension of evidence will warrant appellate intervention only where it could have affected the outcome (see R. v. Smith, 2021 SCC 16, [2021] S.C.J. No. 16 (QL), at para. 2).
[34] As the errors relate to the charges of unlawful confinement and assault causing bodily harm stemming from the March 2022 incidents, and considering we allowed Mr. Nagle’s appeal on these charges, set aside those convictions and acquitted him, we will comment no further on the judge’s errors in this regard other than to say the judge did, indeed, commit palpable errors in her findings of fact and credibility.
E. Errors resulting in a miscarriage of justice
(1) Cross-examination of A.B. on her criminal record
[36] Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, reproduced in Appendix “A” hereto, allows counsel to cross-examine a witness on their criminal record. In addition, an accused may adduce evidence of a victim’s propensity for violence if it is relevant to a fact in issue, for example, an accused advancing a claim for self- defence.
[37] At trial, during A.B.’s cross-examination, defence counsel tried to question her on her prior criminal history, initially asking about an assault against a police officer. Crown counsel at trial objected, stating that any aspect of A.B.’s criminal record would be irrelevant save and except offences involving deceit or contempt of court “or something along that line,” Recall Mr. Nagle’s testimony relating to the August 2020 incident that A.B. physically assaulted him after seeing a post on his Facebook page. Defence counsel attempted to explain to the judge the reasons for wanting to adduce evidence of A.B.’s acts of physical violence in the past, and specifically referencing A.B.’s claim that, in August 2020, Mr. Nagle assaulted her for no reason and her denial she had been the one to physically assault him that evening. Notably, the judge cut short defence counsel’s explanation, ruling that A.B.’s prior assault conviction constituted “propensity reasoning” and was irrelevant to the current charges. Defence counsel then limited his questions to a public mischief charge on A.B.’s record, which she did not recall and denied committing. Of note, in her confusion, A.B. did briefly testify about her conviction for assaulting a peace officer but based on the judge’s ruling, she would have precluded herself from relying on or considering A.B.’s answers regarding her conviction.
[38] Crown counsel concedes, and we agree, that the judge erred in curtailing defence counsel’s cross-examination of A.B. In her ruling, not only did the judge ignore the provisions of s. 12 of the Canada Evidence Act, but she also ignored and failed to recognize that Mr. Nagle had a right to adduce evidence of A.B.’s propensity for violence in accordance with the legal principles set out in Regina v. Scopelleti, [1981] O.J. No. 3157 (QL) (see also Kitchen v. R., 2020 NBCA 69, [2020] N.B.J. No. 247 (QL), at para. 23; Rossignol v. R., 2005 NBCA 11, 280 N.B.R. (2d) 312). The judge’s error was two- fold: (1) defence counsel did not require the judge’s permission to cross-examine A.B. on her criminal record; and (2) the judge failed to recognize that A.B.’s prior violent conduct was relevant to a live issue at trial and thus admissible. The judge’s ruling is even more disturbing considering she was the trial judge in Kitchen v. R., wherein this Court ruled that the refusal to allow defence counsel to cross-examine the victim on his propensity for violence was an error in law.
[39] … Crown counsel concedes, and we agree, that the judge’s error is not minor. It interfered with Mr. Nagle’s ability to adduce admissible evidence with the potential of supporting and corroborating his defence….
V . Disposition
[62] For the reasons articulated above, at the close of the hearing of Mr. Nagle’s appeal, we allowed Mr. Nagle’s appeal, set aside the convictions relating to the incidents of March 20, 2022, under ss. 267(b) and 279(2) of the Code, and entered acquittals on those charges. The conviction under s. 733.1(1)(a) of the Code was undisturbed. In addition, the conviction under s. 267(b) of the Code, relating to the incident of August 24, 2020, was set aside and a new trial was ordered.
R v Haroon, 2023 MBCA 60
[June 16, 2023] Access to Police Evidence on Appeal for Fresh Evidence [Reasons by Christopher J. Mainella J.A. with Diana M. Cameron and Janice L. leMaistre JJ.A. concurring]
AUTHOR’S NOTE: This case outlines the test for applying to access to evidence still held by the police on appeal. In this case, the defence sought the production of an image of a cell phone that was never previously produced or sought by the Defence. The lesser standard is outlined and explained in the case. Of interest, the expert opinion provided in this case appears to cast doubt on the reliability of standard cell tower evidence as the basis for seeking the image of the cell phone. While it is not entirely clear from the decision why this might be the case, mark this case down as one of interest to follow once the fresh evidence application is actually adjudicated.
Introduction
[1] This is a disclosure motion by the accused in relation to his conviction appeal for first degree murder. After hearing the motion, we announced our decision that it was in the interests of justice to grant the order sought, subject to certain conditions, with reasons to follow. These are those reasons.
Background
[2] The allegation giving rise to this proceeding is that, on November 4, 2019, the accused and two co-accused, Javaid Wahabi and Abdullahi Abdulrehman Mohamed, participated in the shooting and killing of Rig Moulebou in revenge for him shooting and killing Jamshaid Wahabi at a Winnipeg nightclub on November 2, 2019.
[3] As part of their investigation, the police obtained a search warrant for the accused’s Samsung Galaxy mobile phone (the device) which was seized from him on his arrest. The search warrant prescribed limitations on the parameters of the search of the device. To preserve the integrity of the device, police created a mirror image of its contents in conformity with the restrictions set by the search warrant. Data was extracted and decrypted from the mirror image using a computer software. A report of the extraction and decryption of the data generated by the computer software was prepared and disclosed to the accused’s trial counsel prior to the trial.
[4] During the trial process, no objection was taken as to the sufficiency of the disclosure provided by the Crown to the accused in relation to the device or the data it contained. No request was made for further or better disclosure as to the device or the data it contained.
[5] The accused also received other disclosure…
…such as telephone records containing subscriber data and call logs and cell tower data regarding which cellular towers were communicating with the device at relevant times. No complaint was taken as to the sufficiency of this disclosure.
[6] During the murder trial, the Crown called a crime analyst with the Winnipeg Police Service, David Bowman, as an expert witness in the area of the analysis of telephone records and the analysis and mapping of cell tower data in relation to telephone records….
…No objection was taken as to Bowman’s qualifications or the admissibility of his evidence.
[7] During the course of his evidence, Bowman provided his opinion as to the approximate location of various mobile phones in Winnipeg at times relevant to the murder of Moulebou, including the device.
[8] Arnold Nduta was the key eyewitness to the murder of Moulebou. Nduta was given immunity from prosecution in exchange for his evidence against the accused and the co-accused. Bowman’s evidence, including his evidence about the approximate location of the device at various times, was part of the confirmatory evidence presented by the Crown as to Nduta’s narrative of events.
[9] In her charge to the jury, the trial judge identified Bowman’s evidence as potentially being one of several pieces of confirmatory evidence to support Nduta’s testimony (see Vetrovec v The Queen, [1982] 1 SCR 811).
[10] In his disclosure motion, the accused relies on two affidavits from Jason Conley, a digital forensics examiner in Mississauga, Ontario. Conley opines that the process followed in this case was flawed. He says that the accused, at a minimum, should have been provided with a copy of the raw data on the device to allow for independent testing and not simply the report generated by the computer software. He also critiques Bowman’s expert report and cell site analysis presentation (which was an exhibit before the jury). For example, he says Bowman made “[c]ardinal mistakes” in his technological assumptions. Conley goes so far as to describe Bowman’s understanding of the technology as “limited” and his cell site analysis as being “misleading”. He also claims that Bowman’s analysis deviated from accepted practices and displayed bias.
[11] The accused’s trial counsel also filed an affidavit on the disclosure motion. No allegation of ineffective assistance is made against him. Trial counsel deposed that he was unaware that examination of the raw data on the device by a third party could provide additional insight. Trial counsel said that he was satisfied that limitations in the materials disclosed to him by the Crown allowed for challenge to the location evidence adduced in relation to the device.
[13] In his motion, the accused seeks disclosure of not just the raw data on the device covered by the parameters set out in the search warrant, but a full image of all the data on the device. The accused concedes that, if the disclosure order is made, the police and the Crown should have access to and use of the same full image of all data on the device.
[14] This motion originally was to be heard by a judge of this Court in chambers. The Crown objected to her jurisdiction. The chambers judge referred the matter to a panel of the Court (see r 44 of the MB, Court of Appeal Rules, MR 555/88R (the Rules)).
Discussion
[15] Section 683(1)(a) of the Criminal Code (the Code) is the relevant provision regarding disclosure orders for the purposes of an appeal. The section provides:
Powers of court of appeal
683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,(a) order the production of any writing, exhibit or other thing connected with the proceedings . . .
[16] In our view, the chambers judge was correct to refer the accused’s disclosure motion to a panel of this Court to hear and decide. As was stated by Zuber JA in Regina v Church of Scientology (1986), 25 CCC (3d) 149 (Ont CA), “jurisdiction exercisable by the Court of Appeal is exercised only by the court, i.e., a panel of three or more. A single judge of the Court of Appeal does not constitute a court” (at p 151)….
[20] We would emphasize that the issue before us at this point is whether it is in the interests of justice to order disclosure of the data sought to allow the accused to prosecute his appeal, not whether it is in the interests of justice to admit further evidence on the appeal itself (see R v Hay, 2010 SCC 54 at para 9). The relevant inquiry at this stage are the principles set out in R v Trotta, 2004 CarswellOnt 4043 (CA), as opposed to those articulated in Palmer v The Queen, [1980] 1 SCR 759. It is important at this stage of the appeal process not to conflate the issue of disclosure with the issue of admissibility of further evidence, particularly when the Crown concedes that it cannot be said that a motion for further evidence from the accused, in the circumstances, would be manifestly frivolous.
[21] In terms of the first Trotta criterion—a connection between data on the device and the fresh evidence proposed to be adduced (i.e., the expert opinion of Conley)—despite the Crown pointing out that there are shortcomings to Conley’s affidavits, in his second affidavit, he states that “location-based artifacts that are associated with specific dates and times – which will be a more accurate indicator of where the [device] was located during the times in question” may exist in the data on the device. Conley is not in a position to say one way or the other if such evidence exists until the raw data on the device is produced. Conley says, if such evidence exists, it could be “far more accurate” location evidence of the device than interpretation of the cell tower data evidence that Bowman provided the jury. Conley goes on to state that, if the device contains “[u]ser-generated artifacts” that someone other than the accused had the device at a particular time, such evidence would cast a different light on the importance of the location evidence provided by Bowman as being potentially confirmatory of Nduta’s testimony. We are persuaded that the potential presence and relevance of such artifact evidence on the device is sufficient in the circumstances to satisfy the first Trotta criterion. [Emphasis by PJM]
[23] It strikes us that, like in Hay, it would be premature to delve too deeply into the Palmer analysis at this initial stage (see R v Tallio, 2018 BCCA 83 at para 42). A reasonable possibility of success simply means that the issue cannot be dismissed on a preliminary examination; a more thorough examination based on a complete record is required. Given that a disclosure order under section 683(1)(a) of the Code is “designed to maximize protection against wrongful convictions” (Trotta at para 24), in light of an accused’s broad rights of appeal, the power to receive fresh evidence and the Court’s wide remedial powers, we are of the view that, in a murder appeal such as this, the accused should be given a reasonable opportunity to explore and question all data on the device, particularly as this is a case of first-party disclosure and, according to Conley, artifact evidence is commonly found on mobile phones. The fact that such evidence may ultimately end up hurting, as opposed to helping, the accused’s appeal is understood and is accepted by his appellate counsel. This is a chance he is prepared to take.
[24] In our view, it is in the interests of justice that the accused has access to a copy of an image of all of the data on the device. However, the interests of justice mandate that the disclosure be subject to conditions—in particular, to ensure that the appeals of the accused and the co-accused proceed expeditiously and fairly for all parties, particularly as this matter has been outstanding for almost two years.
Disposition
[25] In the result, the motion is granted subject to the following conditions:
- The Crown is to supply an image of all documents and data as defined in section 487.011 of the Code, in whatever form or medium, from the device found in Winnipeg Police Service property bag P20010158 as soon as reasonably possible.
- The Crown is authorized to task any law enforcement agency or technical expert of its choice and to use whatever software or other methods to produce the said disclosure.
- The accused shall have eight weeks from receipt of the said disclosure to perfect his appeal and any motion for further evidence, subject to the Rules.
- The Crown shall notify the registrar and all parties in writing as to the date on which the said disclosure was provided to counsel for the accused.
- The Crown is to retain a copy of the said disclosure. It may share same with any law enforcement agency or technical expert of its choice and use of the said disclosure is authorized in any further litigation related to or arising from this matter, or as otherwise permitted by law.
- Case management in this matter is concluded. The parties are encouraged to agree to filing deadlines for the appeals and, failing that, any dispute is to be decided by the registrar in conformity with the Rules or, in the discretion of the registrar, by a written motion to this panel.
- The hearing date of August 30, 2023 is cancelled and the appeals of the accused and the co-accused will be heard at another date in the fall 2023 term as determined by the registrar.
R v Basque, 2023 SCC 18
[June 30, 2023] Pre-trial Prohibitions on Driving can be Subtracted from Driving Prohibitions on Sentence [Reasons by Kasirer, Wagner C.J. and Karakatsanis J. with Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. concurring]
AUTHOR’S NOTE: The bottom line: pre-trial bail prohibitions on driving can be subtracted from mandatory minimum sentences with driving prohibitions on a 1 for 1 basis. The case delves into an interesting discussion of the definitions of punishment and sentence and the French word peine (used for both). Ultimately, the common law rule that allows subtraction of pre-trial punishment from a sentence imposed cannot be undermined except by clear legislative intent. Here, the provisions of the code that impose mandatory driving prohibitions do not impose a mandatory “sentence” (only imposable at the sentencing stage) but rather a mandatory “punishment”. Judges are permitted to take into account pre-sentence prohibition periods in meeting that mandatory minimum.
I. Overview
[1] After being charged with a summary conviction impaired driving offence in 2017, the appellant, Jennifer Basque, was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), required the court to make an “order prohibiting the offender from operating a motor vehicle . . . during a period of . . . not less than one year”.
[2] Could the sentencing judge credit Ms. Basque for the driving prohibition period already served, notwithstanding the combined effect of that one-year mandatory minimum prohibition and the direction — codified in s. 719(1) Cr. C. — that except where otherwise provided, a sentence commences when it is imposed?
[3] … in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 — a case that did not concern a mandatory minimum prohibition — this Court confirmed that there is a common law judicial discretion to grant credit for a pre-sentence driving prohibition. This discretion is a natural extension of the longstanding practice of crediting offenders for periods of pre-sentence custody.
[4] … The respondent Crown, relying on the majority reasons of the Court of Appeal, argues instead that granting credit in this case would conflict with the application of the one-year minimum prohibition, even though the relevant statutory provision is silent on crediting.
[5] Respectfully, I believe that the respondent is mistaken. In my view, granting credit based on the common law discretion recognized in Lacasse is perfectly consistent with the application of the minimum prohibition in s. 259(1)(a) Cr. C. and with the rule requiring that a sentence commence when it is imposed in s. 719(1) Cr. C. It was therefore open to the sentencing judge to take into account the period of 21 months already served by Ms. Basque, as this would not undermine Parliament’s intent.
[6] The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well-known distinction between the concepts of “punishment”, understood as a deprivation, and of “sentence”, understood as a judicial decision (in French, the distinction between “punition” and “sentence”, where the term “peine” can also be used to convey both meanings)….
… From this perspective, Arbour J. explained that while the term “peine” used in the sense of “punishment” refers to the total punishment imposed on an offender, the same word when used to mean “sentence” refers to the decision rendered by the court. It bears noting that a sentence is always prospective in order to prevent the judicial practice of backdating sentences (see s. 719(1) Cr. C.).
[7] As a general rule, the purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length. This is so because the objectives underlying a minimum punishment are achieved equally well whether the punishment is served before or after the offender is sentenced. In the instant case, the mandatory minimum provided for in s. 259(1)(a) is no exception to this rule.
[8] Properly interpreted, s. 259(1)(a) requires the court to impose a total punishment of one year to be served by the offender, not to hand down a sentence imposing a one-year prohibition that must necessarily be served prospectively….
[9] By the time the trial judgment was rendered in this case, it had been 21 months since Ms. Basque had essentially “begun serving [her] sentence” (see R. v. Sharma, [1992] 1 S.C.R. 814, at p. 818, cited with approval by Wagner J., as he then was, in Lacasse, at para. 113). When considered from this perspective, the objectives of the minimum punishment set out in s. 259(1)(a) had already been met — and even surpassed. In such a context, granting credit to “reduce” the length of the prohibition imposed on Ms. Basque does not conflict with s. 259(1)(a) because she has already served a driving prohibition period exceeding the one-year minimum required by that provision.
[10] In short, no conflict arises from the concurrent application of s. 259(1)(a) and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one-year mandatory minimum punishment, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the requirement set out in s. 719(1) Cr. C. because only the sentence has to commence when it is imposed, not the one-year minimum punishment served under s. 259(1)(a). These statutory provisions therefore do not displace the discretion of sentencing judges that was recognized in Lacasse….
[12] In light of the foregoing, and given that Ms. Basque has already been prohibited from driving for 21 months, the imposition of an additional one-year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. Conscious of this fact, the sentencing judge ordered a one-year driving prohibition but found that Ms. Basque had already satisfied this condition. However, he backdated Ms. Basque’s sentence to achieve this result. With respect, this was an error. He could quite properly have imposed the one-year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre-sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code.
[13] For the reasons that follow, I would allow the appeal and set aside the judgment of the New Brunswick Court of Appeal. I would restore the judgment of the summary conviction appeal court and reinstate the sentencing judge’s conclusions in part, for different reasons. I would specify that the appellant has already served the mandatory minimum prohibition provided for in s. 259(1)(a) Cr. C.
C. Analytical Framework: Coexistence of the Common Law and Legislation in Matters of Sentencing
[39] Both parties agree that sentencing judges have a discretion to grant credit for a pre-sentence driving prohibition period. However, contrary to the appellant, the Crown argues that Parliament limited or displaced this common law discretion when it enacted the mandatory minimum set out in s. 259(1)(a) Cr. C. This appeal therefore raises the question of whether, as the appellant maintains, the common law rule can coexist in harmony with the mandatory minimum laid down by the Criminal Code.
[40] This question requires the Court to consider the sometimes complex interactions that characterize the relationship between the common law and legislation. While legislation may prevail over the common law, the latter remains applicable insofar as it has not been displaced expressly or by necessary implication, a principle often justified by the importance of “stability in the law” (R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21, per Cromwell J.). In Lizotte, Gascon J., writing for a unanimous Court, reiterated the general principle that applies to legislative departures from common law rules: “This Court has held that it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect . . .” (para. 56). Professor Ruth Sullivan has written that this presumption “permits courts to insist on precise and explicit direction from the legislature before accepting any change. The common law is thus shielded from unclear or inadvertent legislative encroachment” (The Construction of Statutes (7th ed. 2022), at § 17.01.Pt1[2]; see also P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at Nos. 180-92).
[44] The granting of such credit is anchored in the common law; it is one example, in the context of a driving prohibition, of what Arbour J. called the “well-established practice of sentencing judges [giving] credit for time served” (Wust, at para. 31). In the words of Paciocco J., as he then was, this rule is part of the “central principles of sentencing not statutorily expressed but still vibrant as ‘general principles of sentencing’” (R. v. Pham, 2013 ONCJ 635, 296 C.R.R. (2d) 178, at para. 18). As Wagner J. later noted in Lacasse, this principle has not been codified. Although s. 719(3) Cr. C. does codify the principle that credit can be granted in the case of pre-sentence custody, that provision has no statutory equivalent relating to pre-sentence driving prohibitions. The respondent takes the position here that the principle to which the Court referred in Lacasse was displaced by Parliament’s enactment of the mandatory minimum, a consideration that did not arise on the facts of that case.
[45] The interaction between legislation and the common law in matters of sentencing and punishment is therefore at the heart of this appeal. The two-step framework used to analyze this interaction is well settled. The first step is “analysing, identifying and setting out the applicable common law”; and then, at the second step, “the statute law’s effect on the common law must be specified” (2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 97, per L’Heureux-Dubé J., citing Zaidan Group Ltd. v. London (City), [1991] 3 S.C.R. 593, and Frame v. Smith, [1987] 2 S.C.R. 99; see also Urban Mechanical Contracting Ltd. v. Zurich Insurance Co., 2022 ONCA 589, 163 O.R. (3d) 652, at para. 45). I therefore begin by determining the content of the common law rule that allows credit to be granted for a pre-sentence driving prohibition. I then turn to interpreting s. 259(1)(a) Cr. C., taking s. 719(3) into account, in order to determine whether s. 259(1)(a) either expressly or by necessary implication has the effect of limiting or displacing the common law rule.
(1) The Common Law Allows Credit To Be Granted for a Pre-sentence Driving Prohibition
[46] It is well settled that the common law allows courts to grant credit for a pre-sentence driving prohibition imposed on an offender (see, e.g., R. v. Goulding (1987), 81 N.S.R. (2d) 158 (S.C. (App. Div.)); R. v. Pellicore, [1997] O.J. No. 226 (QL), 1997 CarswellOnt 246 (WL) (C.A.); R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164; Bilodeau v. R., 2013 QCCA 980; Lacasse). This common law discretion is a natural extension of an analogous principle that applies in the context of pre-sentence custody. Courts have long recognized that they can “take into consideration, in imposing sentence, any period of incarceration which the accused has already undergone between the date of his arrest and the date of the sentence” (R. v. Sloan (1947), 87 C.C.C. 198 (Ont. C.A.), at pp. 198-99, citing R. v. Patterson (1946), 87 C.C.C. 86 (Ont. C.A.)).
[47] The principle that credit can be granted for pre-sentence custody serves to mitigate certain injustices arising from the application of the principle that a sentence may not be backdated, now codified in s. 719(1). While Canadian law does not permit courts to backdate a sentence in order to reduce it, courts may nevertheless consider the time spent in pre-sentence custody in determining the period that must be served prospectively by an offender (Sloan, at pp. 198-99; see also Patterson; R. v. Wells (1969), 4 C.C.C. 25 (B.C.C.A.), at pp. 36-37, per Bull J.A., dissenting; A. Manson, “Pre-Sentence Custody and the Determination of a Sentence (Or How to Make a Mole Hill out of a Mountain)” (2004), 49 C.L.Q. 292). The application of this common law rule allowing credit to be granted is therefore not equivalent to backdating a sentence.
[48] While it is true that the rule allowing credit for pre-sentence custody has now been codified, there is no statutory provision equivalent to s. 719(3) for pre-sentence driving prohibitions. The respondent argues that the fact that Parliament did not enact a provision equivalent to s. 719(3) for pre-sentence driving prohibitions was deliberate and reflects its intention to displace the common law rule allowing for credit in this context….
… With respect, I do not share the respondent’s view. The absence of a statutory provision equivalent to s. 719(3) for pre-sentence prohibitions does not have the effect of displacing or limiting the common law rule allowing credit to be granted in such a context.
[49] … Accordingly, Cromwell J. wrote that “[a]bsent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law” (D.L.W., at para. 21). This recalls the principle stated by Professor C. K. Allen: “. . . the Courts will not, if they can help it, allow any enactment to overrule existing Common Law by inference merely”, but “[i]t is quite otherwise when the provision of the statute is express, or when there is a general clear intention to change the law” (Law in the Making (1992), at pp. 258-59 (emphasis in original)).
[50] Here, s. 719(3) was enacted in the specific context of pre-sentence custody. The legislative debates suggest that Parliament’s intention in enacting this provision was to ensure that credit could still be granted when a mandatory minimum term of imprisonment was imposed (Wust, at para. 31, quoting House of Commons Debates, vol. 3, 3rd Sess., 28th Parl., February 5, 1971, at p. 3118). There is no indication that Parliament considered whether credit could be given for a pre-sentence driving prohibition….
(2) Section 259(1)(a) Cr. C. Does Not Limit the Scope of the Common Law Rule That Allows Credit To Be Granted for a Pre-sentence Driving Prohibition
(a) Distinction Between the Concepts of Punishment and Sentence
[54] The question before the Court in Wust was whether an offender could be credited for pre-sentence custody if doing so meant that the sentence imposed would be shorter in length than the mandatory minimum provided for in the former s. 344(a) (now s. 344(1)(a)). Writing for a unanimous Court, Arbour J. answered that question in the affirmative. She noted at the outset that s. 719(3) had been enacted for the specific purpose of authorizing such credit in the context of a mandatory minimum. In addition, and importantly, she stated that no conflict resulted from the concurrent application of ss. 719(3) and 344(a). She explained that this absence of conflict flowed from the conceptual distinction between a punishment and a sentence.
[55] This distinction was considered from the perspective of the English-language terms “punishment” and “sentence” in McDonald by Rosenberg J.A., who relied on the work of the Canadian Sentencing Commission. The Commission clarified that the term “punishment” refers to “the imposition of severe deprivation on a person guilty of wrongdoing” (Sentencing Reform: A Canadian Approach (1987), at p. 109). It then stated that the word “sentence” — which comes from the Latin sententia, meaning “opinion or the expression of an opinion” — refers to a judicial statement ordering the imposition of a sanction and determining what it should be (p. 111).
[56] It can therefore be said that the concept of punishment is fundamentally different from that of sentence, since the former reflects the global punishment imposed on an offender whereas the latter concerns only the portion of the punishment that the offender must serve after judgment is rendered. Nothing in the jurisprudence precludes this distinction from being applied in this case….
[60] With this distinction in mind, I observe that the appellant’s position as set out in her factum could be a source of confusion. She suggests that granting credit results in the imposition of a prohibition period that is less than the statutory minimum. This approach reflects a line of cases, exemplified by R. v. Sohal, 2019 ABCA 293, 91 Alta. L.R. (6th) 48, in which courts appear not to distinguish between the concepts of punishment and sentence. This approach suggests, mistakenly in my respectful view, that the enactment of a mandatory minimum by Parliament requires a court to hand down a minimum sentence (see also R. v. Fox, 2022 ABQB 132, 89 M.V.R. (7th) 23; R. v. Froese, 2020 MBQB 11, 461 C.R.R. (2d) 1; R. v. Osnach, 2019 MBPC 1, 38 M.V.R. (7th) 257; R. v. Bryden, 2007 NBQB 316, 323 N.B.R. (2d) 119). According to this approach, there is no legal basis for reducing a mandatory minimum sentence because “[t]he inherent discretion of the court must yield to statutory language” (Sohal, at para. 15).
[61] However, when the appellant clarified her position at the hearing, she rightly recognized — as did the dissenting judge in this case — that a court has no choice but to impose the mandatory minimum prohibition expressly provided for in s. 259(1)(a). But the imposition of that minimum does not prevent the court, under the common law rule, from taking into account the pre-sentence prohibition period….
[62] In this appeal, in light of the distinction reiterated by Arbour J. in Wust, it is therefore important to determine whether s. 259(1)(a) requires that a minimum punishment be imposed or that a minimum sentence be handed down….
(b) Section 259(1)(a) Provides for a Minimum Punishment, Not a Minimum Sentence
[64] First of all, the text of s. 259(1)(a) is silent about whether a pre-sentence driving prohibition period can be taken into account (Bland, at para. 22). It also does not clearly indicate whether the minimum driving prohibition it provides for is a punishment or a sentence. In this regard, I note that the word “order” used in s. 259(1) is defined as a “decision of a court or judge” (Oxford English Dictionary (online)). A priori, this distinction may seem to link the word “order” to the concept of “sentence” (Pham, at para. 9).
[65] However, I would point out that the word “punishment” appears in s. 259(1), which provides that “the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle”. It may be noted that the French version uses the word “peine” as the parallel term for “punishment” in this context. The wording of the provision in both languages thus suggests the view that the order to be made under s. 259(1)(a) is a punishment and not a sentence.
[66] In any event, the modern approach to interpretation cannot be focused solely on the words of the provision (Rizzo, at para. 21; Bell ExpressVu, at para. 26). As Professors Côté and Devinat say, the text [TRANSLATION] “must be construed in the light of the other indicia relevant to interpretation” (No. 167). I now turn to an analysis of the context and purpose of s. 259(1)(a).
[67] With regard to the context of this provision, I note that Parliament used different language in s. 109(2)(a) Cr. C., which deals with a prohibition against the possession of firearms. This latter provision states that “[a]n order made under subsection (1) shall . . . prohibit the person from possessing . . . any firearm . . . during the period that (i) begins on the day on which the order is made, and (ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence” (emphasis added). In enacting s. 109(2)(a), Parliament chose to specify the date on which the order ends in the plainest of terms, thereby limiting the court’s discretion to “reduce” the prohibition period going forward to less than the minimum period referred to in s. 109(2)(a). Moreover, the underlined passage shows that when Parliament wishes to impose a prospective prohibition for a specific length of time, it expresses this intention in clear language. However, there is nothing of the sort in s. 259(1)(a), which sets out neither a start date nor an end date for the one-year minimum driving prohibition.
[70] These observations echo what Lamer C.J. said in Sharma, namely that the pre-sentence driving prohibition imposed on the offender had interfered with his liberty, such that he had essentially already begun serving his sentence (pp. 817-18; see also Lacasse, at para. 113). In reality, in Ms. Basque’s case, the pre-sentence driving prohibition had the same punitive and deterrent effects as if it had been served after she was sentenced. Accordingly, viewing s. 259(1)(a) Cr. C. as requiring the imposition of a one-year punishment — that is, a global punishment, including the pre-sentence period — is perfectly in keeping with the objectives of deterrence and punishment that underlie this provision (on this point, see Pham, at paras. 10 and 28). I note, moreover, that Parliament uses the word “punishment” in s. 718.3(2) Cr. C. in delineating the court’s discretion.
(c) Section 259(1)(a) Does Not Limit the Common Law Rule That Allows Credit To Be Granted for a Pre-Sentence Driving Prohibition
[74] There is every indication that s. 259(1)(a) provides for a minimum punishment, not a minimum sentence. There is no ambiguity in this provision, which is silent with respect to credit….
[75] Not only does this interpretation of s. 259(1)(a) Cr. C. leave room for the exercise of the court’s discretion to grant credit, but it is also in line with the recommendation made by Arbour J. in Wust that “it is important to interpret legislation which deals . . . with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system” (para. 22).
VI. Disposition
[78] I would allow the appeal and set aside the judgment of the Court of Appeal. I would restore the judgment of the summary conviction appeal court and reinstate the Provincial Court’s conclusions in part, while specifying that Ms. Basque’s sentence should not be backdated. By the time she was sentenced, she had already served, on a pre-sentence basis, the minimum driving prohibition set out in s. 259(1)(a). As a result, no further prohibition is needed in this case.
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