Friday, May 5, 2017

Notes on Bail, Hearsay and Search Warrant review

Justification for detention

In Canada, there are only three grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.

Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court.] Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.

Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.]

Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider are:

  • the apparent strength of the prosecutor's case,
  • the seriousness of the offence,
  • the circumstances surrounding the offence, including whether a firearm was used, and
  • if found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail.
  1. v.St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328
  2. v. Hall, 2002 SCC 64



Hearsay evidence is generally inadmissible in Canada unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan 1990] 2 S.C.R. 531 and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted where established that such evidence is both "necessary and reliable". Additionally, hearsay evidence that would otherwise be admissible as an exception can nonetheless be excluded if it is not necessary and reliable, as in R. v. Starr [2000] 2 S.C.R. 144.


Search Warrants – Issuing and Review

Issuing of Warrant: Reasonable and Probable Grounds

The Charter requires that for all warrants police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search"[1] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure"[2]

In more recent times the standard is called "reasonable grounds to believe". [3]

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.[4] It is a standard of reasonable probability and is credibility based. It must be more than mere possiblity or suspicion.[5] It is a standard of "credibly-based probability" [6]

The key elements to credibility-based probability includes:[7]

  1. The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place[8]
  2. The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage."[9]
  3. The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.

The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.[10]

The Justice of the Peace may draw reasonable inferences from the information found in the ITO.[11]

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.[12]

The Information to Obtain the search warrant (ITO) does not need to state every step a police officer takes in obtaining information.[13]

An ITO can be read in a practical, non-technical, common-sense fashion.[14]

The officer's are not held to the same drafting quality as counsel.[15]

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation". [16]

The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state.

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.[17] Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater". [18]

Generally, an approving justice should be satisfied that:[19]

  1. that the items specified exist;
  2. that the items specified will be found in the place to be searched at the time of the search;
  3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
  4. that the items specified will afford evidence of the offence alleged; and
  5. that the place to be searched is the location where the items will be located.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation" [20]

  1. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168
    See also R. v. Vella (1984) 14 CCC 513
    R. v. Harris, 1987 CanLII 181 (ON CA)
  2. Hunter v Southam at p. 168
  3.  Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40[1] at para. 114
  4.  ibid.; R. v. Le 2006 BCCA 2982006 BCCA 463
  5.  Hunter et al v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145
    Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416)
  6.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 11; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 167
  7.  R. v. Morris 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para. 31
  8.  R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365
  9.  Sanchez, supra, at 364
  10.  R v. MacKenzie 2011 SKCA 64 at para. 27, see also R v. Navales 2011 ABQB 404
    R. v. Sanchez (1994), 93 C.C.C. (3d) 537 (Ont.Gen. Div.)
  11.  See R. v. Durling, 2006 NSCA 124 (CanLII) at paras. 27-28; R. v. Vu at para. 40
  12.  R. v. Turcotte 1987 CanLII 984 (SK CA), (1987), 39 C.C.C. (3d) 193 (Sask.C.A)
  13.  R. v. Sanchez, [1994] OJ No. 2260 at para. 20
  14.  R. v. Whitaker, 2008 BCCA 174 at 41-42
  15.  Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190;
    R. v. Durling 2006 NSCA 124 , (2006), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19;
    R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
    Re Chapman and the Queen, (1983), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
  16.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65, (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
    R. v. Ling 2009 BCCA 70, (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
  17.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 12
    See R. v. Debot 1989 CanLII 13 (SCC), 1989 CanLII 13 (SCC), (1989), 52 C.C.C. (3d) 193 at page 215 (S.C.C.)
  18.  R v Debot, at page 218
  19.  R v Adams 2004 CanLII 12093 (NL PC) at para. 24
  20.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65 (CanLII), (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470
    R. v. Ling 2009 BCCA 70 (CanLII), (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)

Standard of Review: The Garofoli Application

A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant.

Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. [1] This presumption applies not only to the warrant but the ITO as well.[2]

Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection. [3] Rather the judge must look at whether there is sufficient evidence for the warrant.[4]

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.[5]

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."[6]

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".[7]

Quality of Drafting
Flaws are to be expected. [8]Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.[9]

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."[10]

The ITO is examined as a whole and not one piece of evidence at a time. [11]

Excised Portions of ITO
Inaccurate or omitted information in an ITO does not necessarily render it invalid.

Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.[12]

Amplification Evidence
Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence.

This form of evidence can be adduced to correct innocent, minor or technical errors.

  1.  R. v. Campbell, 2010 ONCA 558, at para. 45. (aff'd, 2011 SCC 32)
    R v Shier, [1998] OJ No 5751 at para. 48
    Quebec (Attorney General) v. Laroche, 2002 SCC 72 (CanLII), [2002] 3 S.C.R. 708
  2.  R v Collins (1989) 48 CCC (3d) 343 at p. 356
  3.  R. v. Grant 1999 CanLII 3694 (ON CA), (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.)
    R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 at para. 15-18
    Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79.
  4.  R. v. Nguyen, 2011 ONCA 465 at 57
  5.  R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para. 54
    See also R. v. Witaker 2008 BCCA 174
    R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para. 56
    R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223 at para. 49
    R v. Veinot (1995), 144 N.S.R. (2d) 388 (C.A.) at p. 391, 1995 CanLII 4262
    R v Morelli, 2010 SCC 8 at para. 40
  6.  R v Garofoli 1990 CanLII 52 (SCC)
  7.  R. v. B.(J.E.), (1989), 52 C.C.C. (3d) 224 (N.S.C.A.)
  8.  Nguyen, at 58
  9.  R v Pires 2005 SCC 66 at 30
  10.  R. v. Bisson, 1994 CanLII 46 (S.C.C.), [1994] 3 S.C.R. 1097; (1995), 94 C.C.C. (3d) 94 at p. 1098
  11.  R. v. Whitaker, 2008 BCCA 174
    R. v. Brachi, 2005 BCCA 461
    Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 C.C.C. (3d) 449 (Ont. C.A.))
  12.  See R v Bisson 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, (1994) 94 CCC (3d) 94 at pp. 95-96
    R. v. Budd, 2000 CanLII 17014 (ON CA) at para. 20-23
    R. v. Agensys International Inc., 2004 CanLII 17920 (ON CA) at para. 32

Thursday, April 27, 2017

Pre-Charge delay

The Supreme Court today (R. v. Hunt 2017 SCC 25) upheld a lower court decision (R. v. Hunt, 2016 NLCA 61) which limited the effect of pre-charge delay to rare cases of prejudice.  The Court below, cited by , stated:

[81]        Subject to a few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods (Rourke).  (See also R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701.)  Limitation periods in criminal law are the province of parliament, subject to judicial scrutiny only for constitutional compliance and the ability of courts to control their own processes to protect accused persons through the doctrine of abuse of process.  The invocation of section 7 of the Charter to assist an accused person whose regularly constituted charges involve significant pre-charge delay has been carefully confined to few and unusual circumstances where demonstrated prejudice to his or her fair trial rights or abuse of process is found.

Wednesday, April 26, 2017

Limitation does not run against tortfeasor who caused damages while tortfeasor is trying to fix problem

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325:

[20]        First, the cases suggest that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional's alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

Of the Law Societies of Upper Canada and Nunavut 

Wednesday, April 12, 2017

Damages for bad faith in terminating a partnership

Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292:

[68]        Keays holds that, because employers have an implied contractual obligation of good faith in the manner of dismissal, damages for bad faith in the manner of dismissal are within the contemplation of the parties when they enter into the contract. Given the duty of utmost good faith owed between partners, confirmed in Rochwerg, the reasoning in Keays should apply in the partnerships context: damages flowing from bad faith in the manner of a partner's expulsion are within the reasonable contemplation of the parties when they enter into the partnership agreement. Such damages can be awarded on the Hadley v. Baxendale principle.

Of the Law Societies of Upper Canada and Nunavut 

Monday, April 10, 2017

Medical Malpractice

Incompetent treatment by medical practitioners is quite rare. That's why, when it does happen, incompetent medical care is a big news story. It's a bit like the example of how safe airplanes are – a plane crash is so unusual that it gets front page coverage.

All that said, sometimes errors are made and incompetent medical care is given. What does the law say about compensation for such mistakes? Put otherwise when can you sue for damages for medical malpractice?

Put simply all medical practitioners must act in accordance with the reasonable standard of the profession and damages will follow if that standard is not met and the failure to meet the standard leads to damages.

All medical practitioners must live up to the standard of care of a reasonably prudent practitioner. That standard is no one of perfection but rather the standard of the profession. What do other doctors or nurse practitioners or medical professionals do? Even the best doctor will make a mistake – nothing in this life is perfect. A mistake does not necessarily mean malpractice has occurred.

The way the standard of care is proven in court is to have other medical professionals explain what would normally be done. Often doctors disagree as to what appropriate care should be and that can lead to lengthy trials with different doctors taking different views.

Let us suppose, however, the medical practitioner failed to live up to the standard of the reasonably prudent practitioner – does that mean a lawsuit against the practitioner will certainly succeed? No – for a claim to succeed you have to show that there was a failure to meet the required standard of care and that failure led to damages.

A nurse practitioner may make a serious mistake but cause no harm.

Suppose a cold is misdiagnosed as the flu and the patient is told to stay home and rest. The patient recovers anyway – no harm is done. I had a more tragic example in a case I did many years ago. A young man came to an emergency room with a terrible headache. The doctor totally misdiagnosed the young man and sent him home telling him to take some Tylenol. The young man died shortly thereafter. The doctor had made a serious mistake and had fallen well below the standard of the reasonably prudent practitioner but sadly there was no treatment that could have saved the young man. A proper diagnosis would not have done the young man any good – he would have died anyway. As a result the error was not one to lead to a valid claim.

When someone dies or doesn't fully recover from an illness or injury the temptation to blame the medical practitioners can be very strong. That temptation is natural but often misguided.

Sunday, April 9, 2017

Expert Evidence Voir Dire Primer

A trial judge must determine on a voir dire whether the individual is qualified as an expert, and if so, what the "nature and scope of the proposed expert evidence" will be. The qualification process is one of delineating the boundaries of the evidence and the language used.
The judge cannot permit the expert to give an opinion on common matters or matters that the expert has no special skills, knowledge, or training.
To qualify a person as an expert, the evidence must still meet the Mohan requirements:
1. the opinion must be relevant;
2. the opinion must be necessary to assist the trier-of-fact to draw the correct inference;
3. the absence of any other exclusionary rule;
4. the required qualifications of the proposed expert.
Additionally, under White Burgess the value of the evidence to be adduced must be such as to outweigh any confusion admitting the evidence might cause. That is:
1. the evidence would tend to usurp the duty of the trier of fact
2. the prejudicial effect outweighs the probative value
3. the time required outweighs its probative value
4. the cost required outweighs the probative value
5. the influence of the evidence outweighs the evidence's reliability.
Expert evidence must be impartial to be admissible. There must not be any bias or appearance of bias.

Mechanically before the evidence is heard the party seeking to adduce the evidence must "qualify" the expert. That is the voir dire – and the justice must say "now we are going into a voir dire". The evidence on the voir dire must show the expert fulfills the test above in which case the expert is allowed to testify.

The justice makes the ruling on admissibility – "I find XY is qualified to give evidence on AB". The voir dire is now complete and the trial continues.

The expert is called and testifies only on the matters allowed. None of the evidence on the voir dire is part of the trial so whatever is sought to be adduced must be adduced in the trial. The expert reports are not in evidence and most properly ought not to be put in evidence except on the express consent of all parties.

Of the Law Societies of Upper Canada and Nunavut