Who Cares for the Acquitted Accused

The recent acquittals of Jian Ghomeshi and Mike Duffy in highly-publicized criminal trials raise a question not addressed by any columnist or commentators- Does anyone care about an accused who is acquitted?

Some say that they weren’t found to be innocent, they won because the Crown couldn’t prove the charges beyond a reasonable doubt. In the court of public opinion, that often leaves little room for sympathy.

There can be no dispute that both men lived under significant stress for many months and were put to enormous expense to remain free of criminal stigma. Has a column yet been written or a commentator heard to mention this consideration?

Regrettably, that’s the experience of many who successfully defend themselves against criminal charges. The entire process, ranging from bail conditions placing significant restrictions on liberty, to disruption of personal and professional lives over many months, is extremely challenging. When the prosecution fails to establish guilt, has the accused any recourse? Aside from the accused and his or her family, does anyone care?

The short answer to both questions, in the vast majority of cases, is a simple no.

What’s available by way of remedy? The Supreme Court of Canada established the tort of negligent investigation by police. The court would have to consider how a reasonable officer in such circumstances would have acted, given the duty of care owed to a suspect. However, proof of negligence by police can be very difficult.

Nelles v. Ontario provided for the right to sue the Attorney-General and Crown Attorneys for malicious prosecution. To win, you’d have to show there were reasonable and probable grounds to commence or continue with proceedings but also proof of an improper purpose of motive by the Crown.

The decision to initiate or continue with a prosecution is one of the “core elements” of prosecutorial discretion. As such, there’s a high standard for liability. It limited to “only very serious conduct that undermines the integrity of the judicial process” so that courts won’t second-guess a Crown’s decision.

What about a breach of the accused’s rights under the Charter, as distinct from an acquittal? If the Crown intentionally fails to disclose evidence that the Crown knows, or is reasonably expected to have known, is material to the defence, a lawsuit against the Crown could potentially succeed but the accused must still show that “but for” the wrongful non-disclosure, he or she would not have suffered the harm experienced.

What about costs?

Our courts make costs awards in civil proceedings between private litigants to discourage unnecessary litigation and compensate the successful party. However, in criminal proceedings, the Crown acts in the public interest. Accordingly, our courts have said that its discretion should not be influenced or fettered by the threat of a costs award.

It is only when an accused can show “a marked and unacceptable departure from the reasonable standards expected by the prosecution” that costs may be awarded for a Charter breach by the Crown.

Our Court of Appeal recently set aside a costs award when failure to disclose material information led to a mistrial, notwithstanding many days of court time which were essentially wasted as a result of non-disclosure of material evidence.

The unfortunate reality is that many accused persons, may succeed at trial but still suffer profound personal loss for which they will never be compensated.

As noted by McCawley, J, of the Manitoba Court of Queen’s Bench, reluctantly concluding that the law didn’t permit her to make a costs award on a child homicide prosecution so flawed that she repeatedly, but unsuccessfully, urged the Crown to reconsider its position: “There is no doubt that, from time to time, innocent people will be charged with criminal offences. However, it behooves us all to bear in mind the serious and lifelong implications when that occurs.”

So who should care about the accused who’s acquitted? Perhaps the police, who may want to reflect on whether they met the duty of care owed to the suspect at the investigative level. The Crown might think again about whether it really was in the public interest to continue with the prosecution. Senior Justice officials shouldn’t conclude that the system worked just because someone was acquitted. And finally the public. No-one should ever overlook the plight of a fellow citizen who had to endure the experience of being prosecuted for a crime for which he or she was ultimately found not guilty.

If you have any questions, please email jmanishen@rossmcbride.com.

 

The Problem with Canada’s Bail System… And Donald Trump

A study completed last June by University of Ottawa criminologist Dr. Cheryl Webster, entitled “Broken Bail in Canada: How We Might Go About Fixing It”, was recently released by the Justice Department, as reported on in the Toronto Star and commented on in a Globe and Mail editorial.

Without question, the problem is serious.  More people are currently in custody awaiting trial than serving sentences, all at a time when they are presumed innocent and awaiting trial.

That the Prime Minister has directed the Justice Minister to reform the bail regime is certainly an admirable initiative.  It’s a welcome change from the Harper Government, which not only made it tougher for people to get bail, it passed legislation to give them less credit than they’d previously been given for time spent in custody prior to trial.

But it’s my view that changes won’t come about solely by amending the Criminal Code of Canada.

By way of a summary, it’s worth keeping in mind:

1. Someone charged with an offence who doesn’t have any other outstanding charges should be released on an undertaking without conditions (if not otherwise released by the police following arrest) unless the Crown meets the burden or onus of showing that detention is necessary on one or more of three grounds:

A) To ensure the accused attends court  for trial (the primary ground);

B) To protect any individual or the public having regard to any substantial likelihood that the person will commit an offence if released or will interfere with the administration of justice (the secondary ground);

C) The detention is necessary to maintain confidence in the administration of justice having regard to the strength of the Crown’s case, the seriousness of the offence and circumstances surrounding it and the potential for a long jail sentence on conviction (the tertiary ground).

2. For several offences ( a list that was lengthened by the Harper Government) or where the accused has been charged with an offence alleged to have been committed while at large facing other charges, the burden shifts to the accused to show why he or she should NOT be detained, having regard to the grounds listed above;
3. A justice may require someone to have a surety provide a financial guarantee and the agreement to supervise the accused who is released on a recognizance.  As well, conditions such as house arrest, a curfew, limitations on who the accused may not be allowed to communicate or associate with, prohibition of alcohol use or possession and other restrictions might be imposed as part of the bail order;
4. Bail courts can often be busy with backlogs of several days until someone can get his bail hearing heard.  Delays might also occur where there are problems in finding a suitable surety.

As difficult as it may be to consider how a justice could ever decide whether detention is really necessary to maintain confidence in the administration of justice, particularly for someone whom the Crown may not be able to show  wouldn’t appear or reoffend, the potential use of the tertiary ground to detain someone has actually been expanded by the Supreme Court of Canada in its 2015 decision in R. v. St-Cloud.  In finding that detention was necessary for a man charged with aggravated assault in the beating of a bus driver, the Court decided that the tertiary ground ought not to be limited to “exceptional circumstances” as had previously been the rule.

What’s more, the administration of criminal justice is a power constitutionally delegated to the provinces. Accordingly, one or more amendments to the Criminal Code will not deal with the approaches taken by provincial Crowns in deciding whether or not to oppose someone’s release and in decisions made by justices of the peace in denying bail, requiring substantial sureties or imposing long lists of conditions.

Changes to policy and training of Crowns and justices on the importance of the right not to be denied reasonable bail without just cause, a right provided by s.11 (e) of the Charter of Rights and Freedoms, are essential.  The enhanced awareness of the undesirability of denying people  bail, with consequences ranging from loss of employment, separation from families and limiting the effectiveness of preparation for the defence of the charges at trial, would probably be every bit as important as amendments to the Code to address this long-standing, serious problem.

If you have any questions, please email contact@jeffmanishen.com.

The Trials and Tribulations of the Jian Ghomeshi Case

While we await final submissions and the verdict on the Jian Ghomeshi trial, there are several features of the case that are worthy of comment:

1. When someone wants to make an allegation of sexual assault for conduct that occurred a long time ago, it’s not always a good idea to go to the media first. While public scrutiny might increase the likelihood of police authorities feeling pressured to initiate charges, the version given to the media might provide fodder for cross-examination by the defence at trial. And the more times the story is told, the greater the potential for inconsistencies;
2. The person making the allegations better “come clean”, and fully, at that, with the police and Crown about the full scope of the relationship with the accused, including subsequent contact and communications.  Failure to share the entirety of the picture can result in confrontation at trial with damning materials like emails, photos and letters, some or all of which might just be maintained for whatever reason by the other party;
3. Complainants regarding the same suspect should be cautious not to communicate with one another, whether prior to reports being made to the police or even afterwards.  Sharing the same counsel and publicist will undoubtedly give rise to the suspicion that they aren’t acting independently of one another, thereby seriously undermining any weight which a court might give to their evidence, particularly in the context of “similar fact” evidence which could otherwise be used to support the evidence of each;
4. If sufficient damage can be done to the credibility of one or more complainants, the accused might never have to take the stand. The court will have the option of rejecting the evidence of the witnesses, whether as unreliable or unbelievable, with the result that the Crown will not be able to prove guilt beyond a reasonable doubt;
5. It is the obligation of defence counsel to vigourously challenge the evidence of any and all Crown witnesses. No-one takes the witness stand with the presumption he or she should be believed, whatever the allegations, and everyone can be confronted under cross-examination.  The court will stop unfair conduct by counsel but short of that, it’s an essential element of the trial process for testimony to be “tested”;
6. No matter how much pretrial publicity might be given to a particular case, it’s only at the trial that the full picture will come out.  It’s never a good idea to jump to conclusions about someone’s guilt or innocence based on media accounts;
7. If it turns out that Mr. Ghomeshi is found not guilty, I doubt that anyone will turn his or her mind to the lack of any way in which he might be compensated for being wrongly (or, at the very least, unsuccessfully) prosecuted. How he might ever regain his reputation, recover from the stress of trial proceedings or be reimbursed for legal fees is unlikely to be the subject of comment. That, too, is a reality of the criminal justice system.

If you have any questions, please email contact@jeffmanishen.com.

The James Forcillo Trial Verdict Explained

Today’s verdict on the Forcillo case has undoubtedly raised several questions that the media may not be able to answer clearly.

Here’s my perspective:

1. The jury had a reasonable doubt about whether the force used by the officer in firing the first three shots, some or all of which killed Sammy Yatim, was unlawful.  Police officers are authorized under s.25 of the Criminal Code to use force that’s intended to cause death or grievous bodily harm to a person to be arrested subject to several limitations. The one that’s most relevant here is if the officer believes on reasonable grounds that it’s necessary to protect the officer or others. This is a specific defence, so the Crown would have to negative it to get a conviction on murder or manslaughter;
2. Self-defence was also raised on the trial but I don’t personally believe it was as strong a position as the “justified force” referred to above;
3. The conviction for attempted murder was based on the additional 6 shots the officer fired at Mr. Yatim after he was on the ground.  Mr. Yatim may well still have been alive at the time. The jury must’ve found that the officer intended to kill him at the time and that there were no reasonable grounds to justify the force he used.  The fact that the other shots actually did kill him didn’t prevent this finding as it was based on the act of firing the shots, the intent to kill and the lack of a valid defence;
4. Peter Brauti, the defence counsel, has indicated he’ll seek a stay of proceedings on the basis that the officer was only doing what he was trained to do and it would be an abuse of process to permit a conviction to be registered. This is a novel argument, particularly as a stay of proceedings is reserved only for the clearest of cases, but the judge will have to rule on it in the future;
5. Assuming the judge rejects the application for a stay, there’s a minimum jail sentence of 4 years for attempt murder when a firearm is used and a maximum sentence of life imprisonment. The judge won’t have the discretion to impose anything less, unless the defence could persuade him that the section providing the minimum is unconstitutional.  Several years ago, the Supreme Court of Canada ruled that a judge does not have the option of granting someone a “constitutional exemption” and thereby give him or her a sentence that’s less than the minimum;
6. The fact that the jury was out for several days indicates that there were some who took a different view than others until they arrived at something they could all agree to. We’ll have no way of knowing how many voted which way and who changed their views before the final decision as their deliberations have to be kept secret;
7. The defence have indicated they’re considering appealing the verdict. They’d have to satisfy an appellate court that there was a significant error in law, whether in ruling evidence admissible or inadmissible, in the trial judge’s instruction to the jury  or on some other basis. The fact that the jury acquitted the officer on the most serious charge could be taken to indicate, at least in terms of any defence argument, that they had a good enough basis on what was introduced at trial, to understand the issues and decide the case fairly.  The Crown also has the right to appeal against the acquittal.

While there’s a great deal more to think about as a result of this case as, for example, what kind of police conduct COULD result in a conviction for murder or manslaughter, what training should they get, how should a jury ever evaluate the officer’s belief in what he needed to do as distinct from what was actually and reasonably necessary and much more but that might be the subject for a future post.

If you have any questions, please email contact@jeffmanishen.com.

A Closer Look at the Marco Muzzo Trial

A great deal of public attention has recently been given to the case of Marco Muzzo, currently before the court  in Newmarket on charges of criminal negligence causing 4 deaths.  Media reports have indicated that he had failed to stop for a red light and had a blood-alcohol level above the legal limit.

Notwithstanding that he was arrested several months ago, he never sought to be released on bail. Rather, his counsel Brian Greenspan has revealed that he will be pleading guilty to certain charges in February and there will not  be a joint submission with the Crown on what the sentence should be.

To better understand what has gone on and what may be anticipated, here are some factors to be aware of:

1. When the Crown has a very strong case and a jail sentence is a certainty on conviction, it may well be worthwhile to work on resolving it at the earliest possible time without seeking to obtain the release of the accused on bail. When the case has as intense a degree of public scrutiny as this one, that strategy may be even more worthwhile.  While the accused might want some time to arrange his personal affairs if released, his return to the community might engender very real public hostility which might, in turn, colour the later proceedings even more dramatically against him than the facts of the offence will do on their own;
2. From a negotiating standpoint, when it could be said that an accused is inextricably caught, the Crown doesn’t have to offer much to encourage the accused to plead guilty and the defence has essentially no bargaining room.  The Crown can decide which charges to proceed on (in this case, there may be some duplication as, for example, charges of impaired causing death in addition to the criminal negligence charges) and can determine what position would be appropriate to take on sentencing without having to concede much, if anything, to the defence. The defence may be left in the position of emphasizing the fact that the accused has pled guilty at the earliest opportunity, has no record, has saved the family the stress of contested and protracted court proceedings and, accordingly, should get a sentence that would fall within the lower end of the range for such offences;
3. That latter aspect has been considered very recently by the Supreme Court of Canada in the case of R. v. Lacasse.  A young man in Quebec, with no criminal record, entered pleas of guilty to two counts of impaired operation of a motor vehicle causing death.  While intoxicated, he drove at a high rate of speed and lost control of his vehicle, causing the deaths of his two passengers.  The trial judge commented on the problems in the local community with drinking drivers and decided to impose a 6 ½ year sentence plus a lengthy driving prohibition.

The  sentence was appealed to the Quebec Court of Appeal, who reduced it to 4 years.  The Court commented that the trial judge hadn’t given enough weight to the young man’s lack of record and guilty plea.  Significantly, they said that the sentence was outside of the range normally imposed on other offenders in similar cases and, therefore, was disproportionate to the accused’s degree of culpability.

Their ruling was reversed by a majority of the Supreme Court of Canada on December 17^th, 2015.  In essence, the majority determined that sentencing is an individualized process with a very wide discretion being given to the trial judge who hears the evidence and knows the local conditions.  While sentencing ranges may be developed through a series of decisions of different courts, the specific sentence that’s considered to be proportionate,  in the sense that it is reflective of the degree of moral culpability of the particular offender for his or her conduct giving rise to the offence, is a matter generally best determined by the trial judge.  It may, in the appropriate circumstances, exceed the range of sentence without falling into reversible error.

Two of the Supreme Court judges dissented. They felt that the trial judge hadn’t given enough weight to the mitigating factors such as lack of record and youth of the offender but chose to focus heavily on the prevalence of the offence of drinking and driving in the community. He did so without evidence and without letting the defence know how much weight he was going to give to that single factor. The concept of proportionality, in the view of the dissenting judges, involved consideration of what sentences had been given to others in similar situations to that before the court on this occasion.  On that basis, they felt that the decision of the Quebec Court of Appeal was right, as appellate intervention was warranted.

As a side note, the driving prohibition imposed by the trial judge was reduced to give the accused credit for the time he’d spent on bail when he couldn’t drive.

Without predicting the sentence that Mr. Muzzo will get, I’m sure that the Crown, defence and judge will get considerable guidance from the decision in Lacasse. It certainly couldn’t have come in a more timely fashion.

If you have any questions, please email contact@jeffmanishen.com.