Watt s Criminal Law and Evidence Newsletter Issue No. 18

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1 Watt s Criminal Law and Evidence Newsletter Case Law Highlights 2012 Issue No. 18 The Reasonable Grounds to Believe Standard The principles governing the legal standard of reasonable grounds to believe include the following: i. an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be objectively justifiable; ii. an arresting officer need not establish the commission of an indictable offence on a balance of probabilities or a prima facie case, but must act on something more than reasonable suspicion or a hunch; iii. an arresting officer must consider all incriminatory and exonerating information that the circumstances reasonably permit, but may disregard information that the officer has reason to believe may be unreliable; iv. a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal manner; and v. the standard must be interpreted contextually, having regard to the circumstances in their entirety including the timing involved, the events leading up to the arrest, both immediate and over time, the dynamics at play in the arrest, and the experience and training of the arresting officer. R. v. Shinkewski, June 14, (Sask. C.A. CACR2017) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 495 Reasonable Grounds

2 2 Inconsistent Verdicts in Alcohol-Driving Cases Impaired operation and operation with a prohibited alcohol-blood concentration are separate offences. The latter is not included in the former. Thus, an acquittal of the prohibited concentration offence and a conviction of the impaired operation offence are not inconsistent verdicts. R. v. Best, June 15, (Ont. C.A. #C53522) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 253 s. 662 Included Offences: Specific Crimes s. 686 Unreasonable Verdict: Inconsistent Verdicts Previous Convictions as Sentencing Factors The dominant principle of sentencing is proportionality. Courts must be circumspect about using a prior conviction in determining a fit sentence, at least in the absence of a second offence provision to the contrary. However, the extent and content of a prior criminal record may be relevant to the degree of an offender s responsibility. R. v. St. Germain, June 22, (Alta. C.A. # A) See, Tremeear s Annotated Criminal Code, Criminal Code, s The Principle of Proportionality

3 3 The Scope of s. 540(7) Section 540(7) provides P with an alternative method of presenting its case at the preliminary inquiry: by filing information that would not previously have been admissible, but which the presiding judge considers credible or trustworthy. The provision does not i. displace P s right to call viva voce evidence; or ii. require P to proceed on paper It is open to D to request the attendance of those whose evidence is to be tendered under s. 540(7) for cross-examination under s. 540(9). R. v. Rao, June 21, (B.C. C.A. CA039148) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 540 Jury Instructions, Rhetorical and Other Questions In jury charges, trial judges should avoid including rhetorical questions that might be taken to unfairly denigrate the defence. Posing questions that arise naturally on the evidence and are a way to analyze and understand the evidence are permissible. R. v. Ferrari, June 12, (Ont. C.A. #C50463; C50374) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 647 Instructions of Trial Judge: General Principles Instructions of Trial Judge: Comments on Evidence

4 4 *Issue Estoppel and Jury Verdicts In applying the doctrine of issue estoppel where prior criminal proceedings were before a jury, the issue is whether a finding in D s favour is logically necessary to the verdict of acquittal. Factors such as i. questions asked by the jury; ii. the timing of the jury s verdict; or iii. findings made by the sentencing judge under s. 724(2)(b) of the Criminal Code. can be used only to reinforce a conclusion based on logical necessity. Where, in light of the record and the parties allegations, there is more than one logical explanation for the jury s verdict, and if one of those explanations does not depend on resolving the relevant issues in favour of D, the verdict cannot be successfully relied upon in support of issue estoppel. R. v. Punko, July 20, (S.C.C. #34135; 34193) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 8 Res Judicata Issue Estoppel DNA Orders and Summary Conviction Appeals A summary conviction appeal court judge may assume jurisdiction and make a DNA order under s (3)(b) to remedy any error made at first instance where the initial order was made in D s absence. R. v. Ayangma, July 4, (P.E.I. C.A. S1-CA-1242) See, Tremeear s Annotated Criminal Code, Criminal Code, s General Principles Rights of Appeal

5 5 Paper Preliminaries and the Right of Cross-Examination P s right to tender its initial case by paper under s. 540(7) does not detract from D s right to apply under s.540(9) to examine or cross-examine anyone whom the justice considers appropriate. R. v. Rao, June 21, (B.C. C.A. #CA039148) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 540 Multiple Accused and Constructive First Degree Murder Where the evidence shows that two or more people were involved in a murder, proof of liability for first degree murder will depend on the manner of their participation as co-perpetrators or parties under s. 21. To establish D s guilt of first degree murder under s. 231(5)(e), P must prove that D caused death in the manner described in R. v. Harbottle, not simply that the killing occurred in the course of an unlawful confinement. R. v. Ferrari, June 12, (Ont. C.A. #C50463; C50374) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 231 The Essential Elements of Constructive First Degree Murder: Unlawful Confinement Murder under s. 231(5)(e)

6 6 Age-Appropriate Criteria in Credibility Assessment Assessing the reliability of a mature adults evidence about events that occurred at various ages when the witness was a child, requires the trial judge to use different age-appropriate criteria depending on the age at which the offences were allegedly committed. R. v. M. (J.M.), July 6, (N.S. C.A. CAC354084) See, Watt s Manual of Criminal Evidence, 1.02 General Principles of Evidence of Children Credibility: General Principles Conditional Sentences Served Elsewhere A sentencing judge in Alberta has no jurisdiction to order that D serve a conditional sentence in Texas. Nor does the Code provide any mechanism to transfer a conditional sentence to a foreign jurisdiction. R. v. Goett, July 6, (Alta. C.A A) See, Tremeear s Annotated Criminal Code, Criminal Code, s General Principles Governing Conditional Sentences

7 7 The Discovery Function and Calling Witnesses at the Preliminary Inquiry Section 541(5), which incorporates the provisions of s. 540, does not preclude defence counsel from calling witnesses to further the discovery function of the preliminary inquiry. R. v. Rao, June 21, (B.C. C.A. #CA039148) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 541 Opportunity to Call Witnesses: ss. 541(3), (4) Section 21(2) and Constructive First Degree Murder? D may be convicted of first degree murder through a combination of ss. 21(2) and 231(5). Provided D s conduct was a substantial cause of death and the other elements of s. 231(5) are proven, including liability for murder and the underlying crime, D may be convicted of first degree murder. R. v. Ferrari, June 12, (Ont. C.A. #C50463; C50374) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 231 Parties to Constructive First Degree Murder: Participants in Common Unlawful Purpose

8 8 Exculpatory Evidence and W. (D.) Where, on a vital issue, there are credibility findings to be made between conflicting evidence adduced by D or arising out of evidence favourable to D in P s case, the trial judge must relate the principle of reasonable doubt to those findings. R. v. M. (J.M.), July 6, (N.S. C.A. CAC354084) See, Watt s Manual of Criminal Evidence, Jury Instructions on Reasonable Doubt and Credibility