Supreme Court of Canada Series: R. v. Oland (Bail Pending Appeal)

March 24, 2017 Michael Dyck

Michael Dyck R. v. Oland Supreme Court of Canada

On March 23, 2017, the Supreme Court of Canada released its unanimous decision in R. v. Oland, 2017 SCC 17.

This case dealt with the issue of bail pending appeal. Basically, if a person is convicted and sentenced to serve custody (a jail sentence), he or she has the right to apply for bail and be released into the community instead of remaining in custody while the appeal is being decided. Appeals can take months or sometimes years to be completed and if the appeal is successful and the custodial sentence is set aside, it would be unfair that the person would have had to spend that whole time waiting in jail.

In this case, Mr. Oland was convicted for second degree murder. He applied for bail pending his appeal before a single judge of the Court of Appeal and it was denied on the basis of public interest - the judge was not satisfied that public confidence would be maintained in the administration of justice if Mr. Oland was released on bail. Even though the judge found that Mr. Oland posed no danger to the public at large. Mr. Oland appealed that decision to a review panel but the panel of judges decided the bail judge's decision was not unreasonable and there were not any material error of facts, law, or mixed facts and law. Mr. Oland then appealed that decision to the Supreme Court.

Before the Supreme Court heard this appeal about his bail, Mr. Oland's appeal of his conviction was successful and a new trial was ordered. He was then granted bail pending his re-trial. But the Supreme Court proceeded anyway to address this issue because it was an important legal issue and held at para. 28:

Appellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases like the present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.

The Court also wanted to make it clear about what public confidence means, specifically, who is the public at para 47:

This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.

The Court commented on how the review panel should act under s. 680(1):

First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

Ultimately, the Supreme Court determined that Mr. Oland ought to have been released on bail pending appeal.

Supreme Court of Canada Series: R. v. Bingley (DRE Experts) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Anthony-Cook (Joint Recommendations)(MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Supreme Court of Canada Series: R. v. Bingley (DRE Experts)

February 24, 2017 Michael Dyck

Michael Dyck R. v. Bingley Supreme Court of Canada

On February 23, 2017, the Supreme Court of Canada released its 5-2 majority decision in R. v. Bingley, 2017 SCC 12.

This is a case about impaired driving by a drug, specifically marijuana and a prescription drug Xanax. First, you will need a bit of a background about drive impaired by drug cases and law in order to understand the issue the Supreme Court addressed.

If the police pull you over while driving or find you in the driver's seat of a motor vehicle and the police reasonably suspect you have a drug or alcohol in your body, then they can demand and force you to complete either a Standardized Field Sobriety Test or to provide a sample into a roadside alcohol screening device called an Approved Screening Device (ASD). If you fail either of these tests, the officer will then place you under arrest for impaired operation and then demand you complete either a Drug Recognition Evaluation or a breathalyzer sample back at the police detachment. But, if the office has reasonable grounds to believe your ability to operate a motor vehicle is impaired, even to a slight degree, because of the effects of a drug or alcohol or both, then the officer will place you under arrest immediately and take you to the police detachment for the Drug Recognition Evaluation or a breathalyzer sample.

Police officers need to take special training to complete Standardized Field Sobriety Tests, ASD tests, Drug Recognition Evaluation tests, or a breathalyzer test so some officers may have training to do some or none of these types of tests. If police officers complete special training for drug evaluations, they can call themselves a "Drug Recognition Expert" (DRE) because that is the term the Criminal Code uses for them.

In court, most of the time, witnesses testify about things that they said, they saw, and they did. In other words, their direct observations. Additionally, opinion evidence can also be provided by witnesses. Some opinion evidence is consider lay opinion, which means anyone can give opinion evidence about these areas. Anyone can testify in court about how old they think someone appeared or how intoxicated they thought someone appeared (these things are not facts but opinions based on observations). Special witnesses can be qualified as expert witnesses and then the expert witness can give expert opinion evidence. For example, if a witness can show they have special training, knowledge, and experience in the area of forensic pathology, then the witness can testify in court about the cause of death in a homocide case.

The case of R. v. Bingley was to determine whether or not a police officer who has training and is a Drug Recognition Expert can testify in court as an expert witness and provide expert opinion evidence or if the court would have to decide whether or not the officer can provide this expert opinion evidence. In other words, is the police officer an actual expert or was that just the name or word used to describe them.

The Supreme Court confirmed that a DRE's opinion is not automatically admissible at trial (at para 11-12). They then turned to whether a DRE could be qualified as an expert using the leading cases in this area: R. v. Mohan, [1994] 2 SCR 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. And at para. 14 the Court summarized:

The expert evidence analysis is divided into two stages. First, the evidence must meet the four Mohan factors: (1) relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) special expertise. Second, the trial judge must weigh potential risks against the benefits of admitting the evidence: White Burgess, at para. 24.

The issue in this case is whether or not a DRE meets the 4th part of the Mohan test, which is special expertise. Mr. Carson Bingley agreed with the other 3 parts of the Mohan test as well as the admissibility analysis as part of the second stage.

The Supreme Court concluded that a DRE does have special expertise and a voir dire (a trial within a trial) is not necessary to determine if the DRE has special expertise or not, in fact, it would be a waste of time (at para. 27-28). But the Court wanted to ensure that evidence beyond the scope of the DRE testing that the witness provides can be scrutinized at para. 29:

It is important to reiterate a DRE’s s. 254(3.1) determination is a result of administering the prescribed evaluation. That is the only expertise conferred on a DRE. The trial judge has an “ongoing duty to ensure that expert evidence remains within its proper scope”: Sekhon, at para. 46. If opinions beyond the expertise of a DRE are solicited, a Mohan voir dire to establish further expertise may be required.

At the same point, the DRE's evidence does not determine guilt or innocence, but it is "merely one piece of the picture for the judge or jury to consider" (at para. 31).

Supreme Court of Canada Series: R. v. Anthony-Cook (Joint Recommendations) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)
Is Marijuana Use Impaired Driving? (MichaelDyck.ca)
Maclean's Article Tackles Impaired Driving by Drug Issue (MichaelDyck.ca)

About the author

Supreme Court of Canada Series: R. v. Anthony-Cook (Joint Recommendations)

October 24, 2016 Michael Dyck

On October 21, 2016, the Supreme Court of Canada released its unanimous decision R. v. Anthony-Cook, 2016 SCC 43.

The issue in the case was whether or not it was appropriate for the sentencing judge to impose a different sentence than was being recommended by both the Crown Attorney and the defence lawyer. When both lawyer agree on what the punishment should be, it is called a joint recommendation. Joint recommendations help the justice system work more efficiently because an accused person is prepared to plead guilty and save the Crown Attorney the burden of proving the offence at a trial (even if they have a strong case) and in exchange, the accused person gets some sense of certainty about what punishment they will receive. Having said that, there are no guarantees at sentencing, and the sentencing judge always has discretion to impose any fit and appropriate sentence he/she deems.

The Supreme Court outlined what the previous tests used called the fitness test or the public interest test before outlining what the proper test should now be at paragraph 32:

Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Court then outlined some principles for judges to consider when they have concerns about a joint recommendation:

"trial judges should approach the joint submission on an “as-is” basis" (para. 51). So if the joint recommendation did not include a probation order, the judge should not decide to add it. But mandatory orders (like DNA or a weapons ban) can be added even if counsel failed to address them. They are, after all, mandatory.
"trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission" (para. 52). The same test should apply if the judge is considering imposing a sentence that is higher or something that is lower than the joint recommendation.
"when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused" (para. 53). Judges should accept joint recommendations even if they think the sentence may be too light if the Crown Attorney gained more or if the accused lost more.
"the judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case" (para. 58). if the judge is not satisfied with the joint recommendation, he/she must allow both counsel to make further submissions to address the judge's concerns before deciding on the sentence.
"if the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea" (para. 59). This is especially appropriate where both counsel have proposed an illegal or improper sentence.
"trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission" (para. 60). Clear and articulated reasons will help counsel determine how to proceed in future cases that are similar and is valuable if the case is appealed for the appeal court to review.

Ultimately, the Supreme Court imposed the sentence that was the joint recommendation of the two lawyers after concluding it passed the test for joint recommendations: it would not bring the administration of justice into disrepute and it was not contrary to the public interest.

Manitoba's previous leading case on joint recommendations was R. v. Sinclair, 2004 MBCA 48. Many of the same principles the Supreme Court have laid out are similar to what we had already. But it is interesting to note how the sentencing judge should consider allowing the accused to withdraw a guilty plea if the joint recommendation is not going to be followed. Also, approaching joint recommendations on an "as-is" basis is a slight change, perhaps. Overall, the Supreme Court emphasized the value of joint recommendations to the justice system and how sentencing judges should be careful about when and exactly how to impose a different sentence.

Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

About the author

Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay)

July 8, 2016 Michael Dyck

On July 8, 2016, the Supreme Court of Canada Released its decision R. v. Jordan, 2016 SCC 27. It was a close decision with a 5-4 majority written by Justices Moldaver, Karakatsanis and Brown.

The issue in the case was whether or not there was too much delay in the criminal proceedings against the accused. The Charter of Rights and Freedoms gives everyone the right to be tried within a reasonable time under section 11(b). This is a critical right in a fair justice system to prevent the government from intentionally dragging a case along while an accused is detained in custody. For Mr. Jordan, his case took 49.5 months (just over 4 years) to finish from the time when he was charged. The lower courts determined the delay was not unreasonable and denied Mr. Jordan's earlier applications for unreasonable delay.

Part of the problem with unreasonable delay is that the only remedy or the only way to fix/address it is by a judge entering a stay of proceedings. In other words, the judge decides to drop the charges. The judge cannot decide to, instead, reduce a sentence for unreasonable delay. That would be an improper and illegal remedy. In other situations, where your right to counsel or your right to be free from unreasonable search and seizure are violated, the judge must decide what evidence, if any, ought to be excluded from a trial. Even if evidence is obtained illegally, the judge may determine to still allow the evidence in. There is another Supreme Court of Canada case that deals with that issue called R. v. Grant, 2009 SCC 32. So, judges may feel that the burden for unreasonable delay should be very high because there is only one remedy and it is a significant one.

The Supreme Court of Canada concluded that courts have become complacent with delay, which may render the right to be free from unreasonable delay toothless. In the introduction at paragraph 4, the Court wrote:

Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11 (b). These difficulties have fostered a culture of complacency within the system towards delay.

The Supreme Court had problems with the previously existing approach and framework laid out in R. v. Morin, [1992] 1 S.C.R. 771. The Court outlined the framework from R. v. Morin at paragraph 30 and commented it was too unpredictable, too confusing, and too complex.

The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay.

The Court introduced the new and governing approach at paragraph 46-47:

[46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

However, any delays that are caused by the defence are subtracted from the delay period. It only makes sense that the defence does not work to intentionally delay the matter and then argue there has been excessive delay. At the same time, circumstances that lie outside the control of the Crown Attorney can also be subtracted from the delay period. If the total delay is below these ceilings, defence can still make an application for excessive delay if they meet two criteria:

it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
the case took markedly longer than it reasonably should have.

So, we have a new framework for looking at institutional and systemic delay in the criminal justice system in Canada. In Manitoba, there was a recent decision (that was before R. v. Jordan) that dealt with this exact issue of unreasonable delay. In R. v. Vandermeulen (M), 2015 MBCA 84, the Manitoba Court of Appeal heard a motion for delay after the accused was convicted after a trial. The Court agreed the delay was excessive and entered a stay of proceedings. Manitoba Justice appealed the decision but leave to the Supreme Court of Canada was denied.

Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

About the author

Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit)

April 16, 2016 Michael Dyck

On April 15, 2016, the Supreme Court of Canada released a decision on credit that judges can give when a person has spent time in custody before he/she has plead guilty in R. v. Safarzadeh-Markhali, 2016 SCC 14. Most people would agree that if you spend time in jail before you plead guilty, that the time spent could be used towards a sentence when you plead guilty. In most cases, sentencing judges do give credit for time already served or time in custody, commonly called "TIC" by defence lawyers. However, the Criminal Code does not requires judges to give credit for time served:

Section 719(1): A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

Where this issue becomes controversial is what amount of credit should a person get for the time in custody. A day for a day? Double credit? A day and a half for a day? A few years ago, it was fairly common for judges to give people double credit for the time spent in custody. That changed when the government enacted the Truth in Sentencing Act in 2009. The new law limited the amount of credit a judge could give a person for time served to a day for a day but enhanced credit of a day and a half for a day could be given "if the circumstances justify it."

The Truth in Sentencing Act has been challenged at the Supreme Court before. In 2014, it released its decision in R. v. Summers, 2014 SCC 26 which held that losing out on earned remission or parole was a circumstance that could justify enhanced credit. The logic is that once a sentence is imposed, prisoners are entitled to earned remission in provincial jail (early release for good behaviour) and parole in federal prisons (reintegration to the community).

For example, Aaron and Brock are both charged with theft under $5,000, both are detained in custody, and both want to plead guilty. Aaron pleads guilty at his first appearance in bail court and receives a sentence of 30 days custody. As long as he of good behaviour in custody, he would be released after he serves two thirds of his sentence, or 20 days. Brock's defence lawyer arranges the earliest sentencing date he can, but they can only book a time 30 days later. At that point, Brock is sentenced to 30 days of time served. On paper, both Aaron and Brock's sentences indicate 30 days of custody, but Aaron only spent 20 days in jail whereas Brock spent 30. Enhanced credit of a day and a half for a day is designed to level the playing field to take into account that while you are waiting to be sentenced in custody you are not eligible for earned remission or parole.

The Truth in Sentencing Act also prevented some individuals from EVER getting enhanced credit. If you were on a previous form of release for another charge or if a judge denied you bail primarily because of your criminal record, you were then disentitled to receive enhanced credit. Once again, this part of the act created unfairness. If you were charged with robbery and released on bail and then re-arrested for a second robbery, you were disentitled to enhanced credit, even if the second robbery charge was dropped because you were not actually involved at all.

Very recently, the Manitoba Court of Appeal heard two cases together from Manitoba about these two scenarios where a person could be denied enhanced credit in R. v. Kovich (GW), 2016 MBCA 19. You can check out the previous decisions in these cases as well:

R. v. Kovich, 2013 MBPC 68
R. v. Kovich, 2014 MBPC 15
Her Majesty the Queen v. Courtney Nadine Bittern, 2014 MBPC 51

The court decided that this section of the Truth in Sentencing Act is unconstitutional and deleted those portions from the law at paragraph 162:

Viewed in that manner, I have concluded that the two exemptions constitute an unjustifiable infringement of section 7 of the Charter for two reasons. First, the exemptions subject identically-placed offenders to different periods of imprisonment (depending on whether they are able to obtain bail) for reasons that are not relevant to the determination of a proportionate sentence, thereby interfering with the principle of proportionality in the sentencing process, which is a principle of fundamental justice. Second, the exemptions go too far in that they overreach in their effect; they target those who commit crimes while out on bail or violent offenders but in reality, they capture offenders who are unable to get bail because of socio-economic reasons, not because of their conduct.

However, the Manitoba Court of Appeal only has jurisdiction over this province. The Supreme Court has jurisdiction over the entire country and it decided in R. v. Safarzadeh-Markhali that one of these exceptions was unconstitutional - individuals who are denied bail because of their record. This case is also important because it is just another example of how the Stephen Harper Conservative Government created laws that the Supreme Court later determined to be unconstitutional. The rest of the Canada will have to wait to see if either Parliament changes the law or if another case makes it to the Supreme Court of Canada that deals with the second reason to deny enhanced credit though.

Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)

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