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.”

The British Columbia Court of Appeal today released its decision on the appeal of Robert Pickton’s conviction in the gruesome mass murder case involving six women. At trial, the Crown Attorney had argued strenuously that Pickton was solely responsible for the murders, but after six days of deliberations the jury asked the judge to answer the following question: “When considering Element 3 [that Mr. Pickton was the person who killed the victim] on one or more of the counts, are we able to say ‘yes’ if we infer that the accused acted indirectly?” By its question, the jury seemed to be considering the possibility that others had been involved in the murders.

The trial judge had earlier instructed the jury that, to convict him of murder, the jury must find that Pickton “actively participated in the killing of the victim” but that it was “not necessary that you find that Mr. Pickton acted alone.” Faced with the question from the jury, the trial judge reiterated these instructions and corrected another part of his instructions to clarify that Pickton had to have “actively participated in the killings.” The Crown, sensing that its theory had not been accepted, was happy to go along with this.

In a 2-1 decision, a majority of the Court of Appeal agreed with the trial judge’s approach and dismissed the appeal. The dissenting judge said the trial judge failed to properly instruct the jury on alternative theories of liability, resulting in a miscarriage of justice warranting a new trial.

Without question, the prospect of a second trial to relive these terrible events was not relished by anyone. The dissenting judge acknowledged this. However, if a serious error of law was made which compromised the fairness of the trial, a new trial would be the inevitable result. Under the Criminal Code, where a judge of a Court of Appeal dissents on an issue of law, an appeal may be presented to the Supreme Court of Canada as of right. That is what happened here. The Pickton appeal will soon be dealt with by our nation’s highest Court.

There is an interesting decision reported in the most recent edition of the Ontario Reports, a weekly journal with important decisions from Ontario Courts. The case involved a conviction for money laundering by a lawyer and an appeal of the conviction and three year sentence. The lawyer, Simon Rosenfeld, was caught red handed when he agreed to launder funds for what he thought was a Columbian drug cartel. In fact, his contact was an RCMP agent posing as a front man for the organization. Lured by the prospect of enormous financial returns, Rosenfeld could be heard on intercepted communications bragging about his ability to launder large amounts of dirty money.

The Court of Appeal had no difficulty dismissing Rosenfeld’s appeal of the conviction. The interesting comments related to his status as a lawyer on the sentence appeal brought by the Crown.

“Those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system.”

“Lawyers, for arguably valid reasons, are exempt from the reporting conditions applicable to other professions and financial institutions who deal in cash transactions. The communications between lawyers and their clients, also for valid reasons, are protected from disclosure by the client/solicitor privilege. This privilege attaches uniquely to lawyers and their clients. The wiretap interceptions and Majcher’s evidence demonstrate that the appellant appreciated the advantage to a money laundering operation of both the solicitor’s exemption from the reporting conditions and the client/solicitor privilege. He was ready and willing to abuse these specific privileges available to him because of his status as a lawyer to enhance his money laundering services. The appellant’s willingness to prostitute his legal services and abuse the special privileges associated with them are significant aggravating features of his conduct.”

Needless to say, the Court of Appeal did not look kindly on these circumstances. In delivering this important message, the Court increased the sentenced from three to five years.

Thirty three days into a murder trial in Windsor, Superior Court Justice Bruce Thomas declared a mistrial yesterday after it was revealed that police had searched databases and run background checks on potential jurors. The resulting information was then used by the Crown Attorney to assist in selecting the jury. Potential jury members suspected of being unfriendly to the police or those with young offender records, criminal charges without convictions or pardons were screened out, causing Justice Thomas to conclude that the practice was meant to provide the Crown with “an unfair advantage in selecting a jury favourable to the prosecution.”

The Canadian Charter of Rights and Freedoms provides in section 11(d) that “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Section 7 of the Charter of Rights provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

These ringing guarantees of the right to a fair trial are too precious to be jeopardized by the practices disclosed by Justice Thomas. It is to be hoped that a full accounting will soon be given by the Attorney General and that the improper vetting of jurors will now be brought to an end.