“Innocent until proven guilty” is a golden thread running through our criminal justice system. The detention of an accused person before trial runs counter to this principle but can be justified for serious offences where the defendant presents a danger to the public or where there is a real risk that the accused may not appear for trial. Section 11(e) of the Charter of Rights and Freedoms recognizes the competing interests. It provides that “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”

In order to give effect to this important constitutional right, it is necessary that bail hearings be heard on the merits in a timely manner. Lack of institutional resources, in the form of insufficient courts or judges, may prevent this from happening. In these circumstances, courts are faced with difficult decisions as to how to remedy the situation. These were the circumstances facing the Court of Appeal for Ontario in the April 19, 2010 decision in R. v. Zarinchang, 2010 ONCA 286.

Mr. Zarinchang had been arrested at the end of March, 2007 and was brought before a Justice of the Peace in the Newmarket Court for a bail hearing a day later. As a result of a combination of too many cases on the court list and insufficient judges to hear the matter, the bail hearing could not proceed on four separate hearing dates on which Mr. Zarinchang, his lawyer and proposed sureties were in attendance and ready to proceed. Close to a month after his arrest, he was ultimately detained, however before the trial judge Mr. Zarinchang brought a motion to stay the proceedings on the basis that his right to a timely bail hearing had been denied. The trial judge granted the stay, saying “When the breach of the applicant’s rights here are considered, it can only be described as serious and flagrant, those responsible have effectively ignored the impending reality and disaster that was afoot. Individuals have been allowed to languish in custody awaiting show cause hearings. The serious nature of this matter could only be remedied by the most significant remedy available, that being a stay of the charges.”

On the resulting appeal by the Crown, the Court of Appeal did not try and sugar coat the breach of constitutional rights. The Court was concerned, however, that the remedy of a stay of proceedings be reserved for those cases where continuing the proceedings would cause sufficient harm to the justice system to warrant refusing to hear the case on the merits. The Court held that the reasons of the trial judge did not disclose that he had engaged in this balancing exercise:

“In this case, it appears that the systemic failure of the bail system in York Region found by the trial judge would likely continue to affect others in the future unless some appropriate action was taken. However, the question that arises is whether continuing the prosecution against the respondent in this circumstance would create prejudice to the system of justice that warrants the use of a stay. In our view, there is an element of uncertainty about the answer to this question. That being the case, the third criterion articulated in the above cases comes into play – a court should then balance the interests served by the granting of a stay against the interest served by a trial on the merits.

Unfortunately, the reasons of the trial judge do not suggest that he undertook the balancing exercise. That failure in our view is critical and leads us to conclude that the stay must be set aside. In fairness to the trial judge, counsel on the application for a stay did not submit that he undertake such an exercise.

While it may be open to this court, in an appropriate case, to undertake the balancing exercise when none has been undertaken in the court below, we would not do so on the record before us. While we have the evidence concerning the systemic failure and the serious consequences it had for persons in custody awaiting bail in York Region, the record is unhelpful in respect of other interests that are relevant to the balancing exercise. Although the transcript of the bail hearing contains some information that would ordinarily be required for the balancing exercise, much of it was challenged by the respondent.

It may be that a stay of the charges against this respondent is an appropriate price for society to pay in order to correct a serious systemic failure in the bail system in York Region. However, it is only after a proper balancing of the appropriate interests is undertaken that a court could come to that conclusion. We observe in passing that the trial judge’s order appears to have caused the authorities in York Region to take some steps to address the problem. Counsel for the Crown in the court below conceded during the costs hearing that since the trial judge had ordered the stay of proceedings ‘we have now been running a second bail court here five days a week, which will obviously have significant benefit to other accused going forward.’”

Liability for criminal conduct requires an intent to cause harm. An important question in criminal law is the degree to which lesser states than actual knowledge can form the basis for a criminal conviction. In the decision of the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13 released today, the Court makes some important observations about the concept of wilful blindness:

“Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret at p. 586.)

Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, ‘deliberate ignorance’.”

On March 26, 2010, the jury in the Jordan Manners murder trial announced that they were unable to reach a verdict, prompting Justice Ian Nordheimer to declare a mistrial. The two accused will now have to be retried. Manners’ shocking murder at his Toronto high school caused great consternation and an official review of high school security procedures. The resulting trial was bound to be a high profile one. What made it especially noteworthy was the recantation by two students who had given statements to the police indicating that they had witnessed the murder. At trial, the two girls recanted their evidence, stating they had merely been repeating “rumours.” The Crown Attorney argued to the jury that the girls had a change of heart out of fear.

From their failure to agree on a verdict, it can be inferred that the jury was troubled by the evidence. So was the judge. At the conclusion of the evidence, while the jury was deliberating, Justice Nordheimer called upon the Attorney General to conduct a “full review” of the matter, presumably with a view to a possible prosecution for perjury. Given that a new trial will have to go forward with the evidence of the two girls, the Attorney General is in a difficult position. He would undoubtedly want to pay careful attention to the recommendation of a respected jurist, but the continued prosecution would not be helped by an outstanding indictment for perjury of important Crown witnesses. We have clearly not heard the last of this matter.

Former Attorney General of Ontario Michael Bryant has been charged with criminal negligence causing death and dangerous driving causing death as a result of an incident involving cyclist Darcy Allan Sheppard in downtown Toronto on August 31, 2009. Not surprisingly, the story has received massive attention in the press. The prospect of a former chief legal officer of the Province facing serious criminal charges makes for interesting reading. Much of the commentary thus far has of necessity been based upon unnamed sources and speculation. The information relevant to this case will come out in due course during the trial process. What is worth examining at this point is the legal standard necessary to obtain a conviction and the possible range of sentence in the event that Mr. Bryant were to be found guilty.

Section 219(1) of the Criminal Code sets out the offence of criminal negligence. It states: “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” Section 220 goes on to provide that a person who causes death by criminal negligence is “liable to imprisonment for life.” Section 249(1)(a) of the Criminal Code sets out the offence of dangerous driving. It states: “Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.” Section 249(4) goes on to provide that a person who causes death by dangerous driving is “liable to imprisonment for a term not exceeding fourteen years.”

What these statutory provisions indicate is that decisions about guilt or innocence in this area of the law are based upon all the circumstances of the case. The Courts have fleshed out the general language in the Criminal Code and have held that, in order to secure a conviction, it is necessary to show that the conduct in question represented a “marked departure” from the norm of what could reasonably be expected of a prudent driver. In applying that standard however, judges or juries must take into account the facts which existed at the time of the offence and the defendant’s perception of those facts. Applying this to what we know now and have read about in the press thus far, Mr. Bryant may argue that he was faced with a terrifying set of circumstances brought on by the conduct of Mr. Sheppard and that he acted, perhaps out of fear or in the heat of the moment, consistent with what a reasonable person would have done in the circumstances.

This line of thinking is clearly nothing more than speculation at this point. Whether there is sufficient evidence to support such an argument, or whether there is evidence in the form of witness testimony or video recordings which would contradict such an argument, must await the trial itself. What is unarguable is that these are very serious charges, as shown by the maximum sentences set out in the Criminal Code. It is fair to say that, in the event Mr. Bryant were to be convicted, given the absence of a criminal record and his public service, he would not be facing a sentence of anywhere close to the maximum. The range of sentence ultimately depends heavily on the evidence at trial and the findings made by the Court on the circumstances supporting a conviction, however a range of eighteen months to three years would not seem to be out of line. In the event of a conviction, there would also be a lengthy prohibition on Mr. Bryant’s use of a motor vehicle. As there is likely to be a preliminary hearing before trial and the trial itself will take time, we will have to await the determination of these important issues.

In an interesting decision, the Court of Appeal for Ontario took the unusual step of overturning an acquittal by a jury on a charge of first degree murder. The decision in R. v. Abbey, 2009 ONCA 624, is noteworthy for the extended analysis by Mr. Justice David Doherty on the scope of expert evidence, in this case the evidence of a sociologist knowledgeable in youth gang culture. Mr. Abbey was charged with the 2004 murder of a member of the Galloway Boys crew in Toronto. He was an admitted member of a rival gang, which was in the midst of a violent turf war with the Galloway Boys at the time of the murder. A few months after the murder, Mr. Abbey had a teardrop tattoo inscripted on his face. Based on interviews conducted with gang members over a 25 year practice, the expert witness was able to testify that inscription of the teardrop tattoo could mean that the person with the tattoo had killed a rival gang member. The trial judge had excluded the evidence from consideration by the jury as he considered it was not sufficiently reliable. The Court of Appeal overturned the decision and ordered a new trial. In the course of the decision, the Court made the following important comments.

“It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert’s opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities: Paciocco & Stuesser at pp. 184, 193; S. Casey Hill et al., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10.

The increased reliance on expert opinion evidence by both the Crown and defence in criminal matters is evident upon even a cursory review of the reported cases. Sometimes it seems that a deluge of experts has descended on the criminal courts ready to offer definitive opinions to explain almost anything. Expert evidence is particularly prevalent where inferences must be drawn from a wide variety of human behaviour: see, for example, R. v. McIntosh (1997), 35 O.R. (3d) 97 (C.A.), at pp. 101-103, leave to appeal to S.C.C. refused R. v. McCarthy, [1998] 1 S.C.R. xii [leave sought by second appellant in McIntosh, Mr. McCarthy]; David M. Paciocco, “Coping With Expert Evidence About Human Behaviour” (1999) 25 Queen’s L.J. 305, at pp. 307-308; S. Casey Hill et al. at para. 12:30.10; R. v. Olscamp (1994), 95 C.C.C. (3d) 466 (Ont. Ct. (Gen. Div.)), approved in R. v. Lance (1998), 130 C.C.C. (3d) 438 (Ont. C.A.), at para. 24; Ontario, The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (Toronto: Queen’s Printer, 1998), at pp. 311-24. As Moldaver J.A. put it in R. v. Clark (2004), 69 O.R. (3d) 321 (C.A.), at para. 107, a case involving the proposed expert evidence of a criminal profiler:

Combined, these two concerns [giving expert evidence more weight than it deserves and accepting expert evidence without subjecting it to the scrutiny it requires] raise the spectre of trial by expert as opposed to trial by jury. That is something that must be avoided at all costs. The problem is not a new one but in today’s day and age, with proliferation of expert evidence, it poses a constant threat. Vigilance is required to ensure that expert witnesses like Detective Inspector Lines are not allowed to hijack the trial and usurp the function of the jury. [Emphasis added.]

Despite justifiable misgivings, expert opinion evidence is, of necessity, a mainstay in the litigation process. Put bluntly, many cases, including very serious criminal cases, could not be tried without expert opinion evidence. The judicial challenge is to properly control the admissibility of expert opinion evidence, the manner in which it is presented to the jury and the use that the jury makes of that evidence…

“It is not surprising that Dr. Totten’s opinion could not pass scientific muster. While his research, and hence his opinion, could be regarded as scientific in the very broad sense of that word, as used in McIntosh, Dr. Totten did not pretend to employ the scientific method and did not depend on adherence to that methodology for the validity of his conclusions. As his opinion was not the product of scientific inquiry, its reliability did not rest on its scientific validity. Dr. Totten’s opinion flowed from his specialized knowledge gained through extensive research, years of clinical work and his familiarity with the relevant academic literature. It was unhelpful to assess Dr. Totten’s evidence against factors that were entirely foreign to his methodology. As Professors Sales and Shuman put it in their text, Experts in Court: Reconciling Law, Science, and Professional Knowledge, at pp. 74-75: ‘[f]or non-scientific expert testimony, scientific validity is an oxymoron.’

Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Most expert evidence routinely heard and acted upon in the courts cannot be scientifically validated. For example, psychiatrists testify to the existence of various mental states, doctors testify as to the cause of an injury or death, accident reconstructionists testify to the location or cause of an accident, economists or rehabilitation specialists testify to future employment prospects and future care costs, fire marshals testify about the cause of a fire, professionals from a wide variety of fields testify as to the operative standard of care in their profession or the cause of a particular event. Like Dr. Totten, these experts do not support their opinions by reference to error rates, random samplings or the replication of test results. Rather, they refer to specialized knowledge gained through experience and specialized training in the relevant field. To test the reliability of the opinion of these experts and Dr. Totten using reliability factors referable to scientific validity is to attempt to place the proverbial square peg into the round hole.”

As the decision of the Court of Appeal had the effect of overturning an acquittal, under the Criminal Code the accused now has the right to appeal directly to the Supreme Court of Canada. That Court will now be charged with the important responsibility of delineating the proper scope of expert evidence in the litigation process in Canada.

Clifton Williams of Will County, Illinois got alot more than he bargained for when he yawned at an inopportune time during a hearing into his cousin’s guilty plea to a felony drug charge. As reported in the American Bar Association Journal and Chicago Tribune, Judge Daniel Rozak sentenced Williams to six months in jail for criminal contempt for what the Prosecutor described as “a loud, boisterous attempt to disrupt the proceedings.” Williams’ father disagreed, saying “I was flabbergasted because I didn’t realize a judge could do that. It seems to me like a yawn is an involuntary action” and Williams’ cousin, the defendant in the case, weighed in and said that “it was not an outrageous yawn.”

The Chicago Tribune undertook a decades worth of contempt citations and found that Judge Rozak was responsible for issuing a third of them, usually for cell phones going off or shouting by spectators during the proceedings. As noted by the Tribune, criminal contempt in the face of the Court can occur where there are acts that embarrass, hinder or disrupt the Court in its administration of justice or lessen its dignity.

The situation was perhaps best summed up by Williams’ aunt, with whom he resides and cares for his 79 year old grandmother. “This is ridiculous – you’ve got all these people shooting up kids, and here this boy yawns in court [and gets six months]. It’s crazy. This could happen to any one of us.” Williams was eventually released by Judge Rozak after serving three weeks in jail.

On August 5, 2009, entertainment moguls Garth Drabinsky and Myron Gottlieb were sentenced to seven years and six years respectively for fraud in relation to their conduct of the business of Livent Corporation. The trial judge, Madam Justice Benotto of the Ontario Superior Court of Justice found them guilty of numerous manipulations of the accounting records and financial statements of the company, saying “Complex systems were in place at Livent to effect all these manipulations. Employees knew that entries in the books were being moved. One employee spent his entire time moving expenses from one place to another. He knew it was wrong but had a family to feed.”

The Crown asked Justice Benotto to impose a sentence of 8-10 years. The defence sought conditional sentences to be served in the community of two years less a day, which would include speaking tours by the Defendants with lectures “inspiring young people” and on “business ethics.” Justice Benotto correctly observed that in cases of large scale fraud, general deterrence must be a paramount sentencing goal. In summarizing the general principles of sentencing in such cases, she said:

“The business community must be put on notice that deception and dishonest dealing will be punished severely, whether the victims are the vulnerable and unsophisticated or well-resourced financial institutions driven themselves by a desire for profit. The members of the business community must understand that honesty is the currency in which they trade.”

In applying these important principles to the case before her, Justice Benotto concluded:

“Mr. Drabinsky and Mr. Gottlieb presided over a corporation whose corporate culture was one of dishonesty. Corporate fraud such as this results in tangible losses to employees, creditors and investors. It also results in less tangible, but equally significant loss to society. It fosters cynicism. It erodes public confidence in financial markets. The Court has a duty to strongly denounce such conduct. Those in business must know and the community must know that this will be the Court’s response to corporate fraud.”

The Youth known as M.T., who can now be identified as Melissa Todorovic, was sentenced to life in prison yesterday for her role in the callous murder of 14 year old Stefanie Rengel. The case was noteworthy for the instant messages introduced into evidence which demonstrated Todorovic’s complicity in directing her boyfriend to commit the offence.

The Youth Criminal Justice Act provides that an adult sentence may be imposed on a young offender if the Court is of the opinion that a Youth sentence would not be of sufficient length to “hold the young person accountable for his or her offending behaviour.” As the Act operates on the premise that young persons do not bear the same degree of responsibility as adults, the imposition of an adult sentence is very much the exception rather than the rule. This however was a particularly shocking offence, and the offender showed little remorse.

Faced with these circumstances, Mr. Justice Ian Nordheimer, an outstanding and careful judge, determined that an adult sentence was necessary for the protection of the public. In sentencing Todorovic, he said:

“I do not accept that Melissa has a reduced responsibility for this terrible act. A person who plans and orchestrates and directs another person to take the life of a human being is at least as morally culpable as the person who does the actual act. Put simply, the puppet master is not less blameworthy than the puppet. Indeed, I would suggest that the master is more culpable since he or she puts the wheels in motion and then stands back under a facade of disassociation while the scheme that they have created unfolds.”

The tragic death of Michael Jackson raises the question whether his physician Conrad Murray can be found criminally liable for Jackson’s death. It has been reported that, in interviews with the police, Dr. Murray has admitted to administering the drug Propofol to Jackson on the day of his death. Propofol is a powerful anaesthetic for use in a hospital setting. It is administered by way of an IV drip, and oxygen must be close at hand as the drug can depress breathing and lower the patient’s heart rate. It was given to Jackson at his home in order to help him sleep. In a carefully worded statement, Murray’s lawyer has said that his client did not administer anything to Jackson which “should have caused” Jackson’s death.

Liability for criminal conduct requires an intent to cause harm. No one would seriously argue that Jackson’s physician intended for his patient to pass away. The issue is the degree to which gross negligence or recklessness, if proven, rise to the necessary level to fix responsibility on Dr. Murray for Jackson’s death under the criminal law. This is not a simple question. Section 219(1) of the Criminal Code provides that “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” Section 222(5) states that “A person commits culpable homicide when he causes the death of a human being (a) by means of an unlawful act, (b) by criminal negligence.”

Dr. Murray is reportedly under investigation for manslaughter. If it can be shown that administration of the Propofol was so outside the realm of responsible medical practice, and had the effect of causing Michael Jackson’s death, Dr. Murray might be facing very serious consequences.

Section 11(b) of the Charter of Rights and Freedoms guarantees to any person charged with an offence the right “to be tried within a reasonable time.” What is reasonable is left to the Courts to decide in the circumstances of individual cases. There are guidelines. The Supreme Court of Canada has said that, for less serious cases tried in Provincial Courts, a time period of 8-10 months from arrest to trial is a reasonable time. For more serious cases where there is a preliminary hearing and trial in the Superior Court, an additional 6-8 months is reasonable. The Courts have been careful to point out however that delays beyond these guidelines do not, on their own, give rise to a violation of section 11(b). Each case must be looked at on its own facts, having regard to the length of the delay, whether any time periods have been waived and prejudice to the accused. The Courts have also stressed that there is a societal interest in having serious charges heard on their merits. In short, deciding whether the delay is unreasonable in a given case is a delicate exercise.

In its June 2009 decision in R. v. Godin, 2009 SCC 26, the Supreme Court of Canada reinstated a stay of proceedings where a charge of sexual assault had taken 30 months to get to trial and where the Crown had failed to provide an adequate explanation for the delay. The Court disagreed with the decision of the Ontario Court of Appeal that the accused had waived part of the delay by not being available for a date proposed for a preliminary hearing. The Court made the following important statements in that regard:

“Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”

“To hold that the delay clock stops as soon as a single available date is offered to the defence and is not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”