Watt’s Criminal Law and Evidence Newsletter, Crim. L. Nws. 2015-11

CRIMLNWS 2015-11 Criminal Law Newsletters

May 25, 2015

— Watt’s Criminal Law and Evidence Newsletter

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.

Contents

• Case Law Highlights

[CL 1] The Meaning of “Information” in s. 724(1)

[CL 2] Accident and Murder under s. 229(c)

[CL 3] Jury Instructions on Causation and Homicide Cases

[CL 4] Rowbotham Orders and Spending Priorities

[CL 5] Cross-examination on B. (K.G.) Statements

[CL 6] The Constitutionality of s. 95(2)(a) of the Code

[CL 7] An Approach to Hearsay

[CL 8] Appellate Deference on Adult vs. Youth Sentences

[CL 9] The Basis for the Rule in Browne v. Dunn

[CL 10] The Standard of Proof for Facts Underlying Expert Opinions

[CL 11] Challenging Minimum Sentencing Provisions under s. 12 of the Charter

[CL 12] The Standard of Review for Ministerial Decisions under s. 696.1

[CL 13] Recanting Witnesses and Agreed Statements of Fact

[CL 14] Section 12 Challenges Based on Reasonable Hypotheticals

Case Law Highlights

[CL 1] — The Meaning of “Information” in s. 724(1)

Section 724(1) authorizes a sentencing court to accept as proven any “information” disclosed at the trial or at the sentencing proceedings in determining a fit sentence. The term “information” bears its common meaning and thus the nature and type of “information” that a sentencing court may consider is broad: R. v. Phinn (March 13, 2015), Doc. CAC 421417, 2015 CarswellNS 187 (N.S. C.A.)

Watt’s Criminal Law and Evidence Newsletter, Crim. L. Nws. 2015-11

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 724, “Evidence on Sentence: General Principles”.

[CL 2] — Accident and Murder under s. 229(c)

Terms such as “accident” should be avoided in instructions on the definition of murder in s. 229(c). Instructions under that section should ensure that the jury understands the process by which it is supposed to draw the inference that D had a culpable state of mind: R. v. Belcourt (March 20, 2015), Doc. CA 040473, 2015 CarswellBC 709 (B.C. C.A.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 229, “Unlawful Object Murder under s. 229(c): Essential Elements”.

See, Watt’s Manual of Criminal Jury Instructions, Final 229-C, “Second Degree Murder (Unlawful Object)”.

[CL 3] — Jury Instructions on Causation and Homicide Cases

A jury should be instructed to consider all the evidence relevant to the issue to causation in a prosecution for unlawful homicide. In many cases the relevant evidence will include expert medical opinion as well as non-medical evidence: R. v. Pocock (March 31, 2015), Doc. C57464, 2015 CarswellOnt 4225 (Ont. C.A.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 222, “Causation”, s. 229, “Causation”.

See, Watt’s Manual of Criminal Jury Instructions, Final 229-A, “Second Degree Murder”.

[CL 4] — Rowbotham Orders and Spending Priorities

An inquiry into D’s financial circumstances begins when D reasonably knew a lawyer would be required to defend criminal charges, and at the latest, when charges are laid. Persons who divest themselves of assets or assign priority in their spending to things other than the necessities of life and thus make a consumer choice not to retain counsel will be unable to avail themselves of the taxpayers’ purse to fund their lawyer: R. v. Crichton (2015), 319 C.C.C. (3d) 504, 2015 CarswellBC 798 (B.C. C.A.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 650, “Right to Counsel”.

[CL 5] — Cross-examination on B. (K.G.) Statements

D has the right to cross-examine a witness on the witness’ B. (K.G.) statement after its introduction into evidence at trial: R. v. Alexander (March 16, 2015), Doc. C57079, C57493, 2015 CarswellOnt 4224 (Ont. C.A.)

See, Watt’s Manual of Criminal Evidence, §20.03, “Right of Cross-examination”.

[CL 6] — The Constitutionality of s. 95(2)(a) of the Code

The mandatory minimum sentences imposed by s. 95(2)(a) of the Code where P proceeds by indictment on a charge of possession of a loaded prohibited firearm violates s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982: R. v. Nur (April 14, 2015), Doc. 35678, 35684, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 95, “Charter Considerations”; Charter, s. CA 12, “General Principles”.

[CL 7] — An Approach to Hearsay

Watt’s Criminal Law and Evidence Newsletter, Crim. L. Nws. 2015-11

The applicable approach to evidence challenged as inadmissible hearsay should involve three questions:

i. Is the evidence hearsay and thus presumptively inadmissible?

ii. Does any traditional hearsay exception apply? If so, can the traditional hearsay exception be challenged on the basis of necessity/reliability?

iii. If no traditional exception applies, can the evidence be admitted as necessary and reliable under the principled approach?

R. v. Nataucappo (April 2, 2015), Doc. CACR 2207, 2015 CarswellSask 185 (Sask. C.A.)

See, Watt’s Manual of Criminal Evidence, §28.01, “Relationship Between Principled Approach and Existing Exceptions”.

[CL 8] — Appellate Deference on Adult vs. Youth Sentences

The decision to impose an adult sentence on a young person rather than a youth sentence is subject to great deference on appellate review, the same standard of review applicable on sentence appeals by adult: R. v. Anderson (April 2, 2015), Doc. AY 14-30-08119, 2015 CarswellMan 153 (Man. C.A.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 687, “The Standard of Appellate Review: The Role of Judicial Deference”; YCJA, s. YCJA 64, “The Role of Judicial Deference”, YCJA, s. YCJA 72, “Adult Sentences: General Principles”.

[CL 9] — The Basis for the Rule in Browne v. Dunn

The rule in Browne v. Dunn is rooted in considerations of fairness:

i. to the witness whose credibility is affected, who is alerted to the intended impeachment and offered a chance to provide an explanation about why the contradiction should not be accepted;

ii. to the party whose witness is impeached, who has notice of the fact and particulars of the impeachment and thus can decide whether or what confirmatory evidence to call; and

iii. to the trier of fact, who would otherwise be deprived of information that might show the impeachment to be unfounded and thus compromise the accuracy of the verdict.

R. v. Quansah (April 10, 2015), Doc. C47082, 2015 CarswellOnt 4940 (Ont. C.A.)

See, Watt’s Manual of Criminal Evidence, §20.01, “Effect of Failure to Cross-examine: The Rule in Browne v. Dunn”.

See, Watt’s Manual of Criminal Jury Instructions, Final 47, “Instructions on the Rule in Browne v. Dunn”.

[CL 10] — The Standard of Proof for Facts Underlying Expert Opinions

The standard of proof of an underlying assumption upon which an expert’s opinion is based requires some or sufficient admissible evidence. The more the assumption is borne out by the evidence, the greater the weight a trier of fact will assign to the opinion: R. v. Saul (April 14, 2015), Doc. CA 041578, 2015 CarswellBC 905 (B.C. C.A.)

Watt’s Criminal Law and Evidence Newsletter, Crim. L. Nws. 2015-11

See, Watt’s Manual of Criminal Evidence, §29.01, “The Principles Governing Admissibility”, “Jury Instructions: Factors Affecting Weigh of Expert Testimony”, §29.04, “The General Principles Concerning Evidentiary Value”.

See, Watt’s Manual of Criminal Jury Instructions, Final 19-A, “Expert Opinion Evidence (General Instructions)”.

[CL 11] — Challenging Minimum Sentencing Provisions under s. 12 of the Charter

Two questions arise when a mandatory sentencing provision is challenged under the Charter.

The first question is whether the provision imposes a cruel and unusual punishment, that is to say, a grossly disproportionate sentence on D.

If the answer to the first question is “no”, the second question is whether the provisions reasonably foreseeable applications would impose cruel and unusual punishment on other offenders: R. v. Nur (April 14, 2015), Doc. 35678, 35684, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Charter, s. CA 12, “General Principles”.

[CL 12] — The Standard of Review for Ministerial Decisions under s. 696.1

The standard of review to be applied to the Minister’s decision as a whole is reasonableness: Walchuk v. Canada (Minister of Justice) (April 7, 2015), Doc. A-351-13, 2015 CarswellNat 807 (F.C.A.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 696.1, s. 696.3.

[CL 13] — Recanting Witnesses and Agreed Statements of Fact

When a witness recants, an agreed statements of facts filed in a prior proceeding against the witness may be admissible for its truth as an out-of-court prior inconsistent statement if threshold reliability can be established by “the presence of adequate substitutes for testing truth and accuracy (procedural reliability)”: R. v. Alexander (March 16, 2015), Doc. C57079, C57493, 2015 CarswellOnt 4224 (Ont. C.A.)

See, Watt’s Manual of Criminal Evidence, §19.07, “The Principled Hearsay Exception for Prior Statements”, §28.01, “Necessity and Reliability: Prior Statements”, §28.03, “General Principles Concerning Reliability”.

[CL 14] — Section 12 Challenges Based on Reasonable Hypotheticals

Section 12 challenges to mandatory minimum sentences based on their reasonably foreseeable application to others consider what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law. Only remote or far-fetched situations are excluded from the analysis: R. v. Nur (April 14, 2015), Doc. 35678, 35684, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Charter, s. CA 12, “General Principles”.

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