Category Archives: News in Criminal Law

Criminal Law News

Appeal Court Finds Right to Be Present at Trial Was Breached

May 16, 2012 – The Ontario Court of Appeal ordered a new trial after it concluded that the accused person’s right to be present during a mid-trial conference had been violated. In R. v. Schofield, [2012] O.J. No. 777, February 22, 2012, Schofield had been found guilty and sentenced to 3½ years in prison. This case involved criminal code offences alleging that Schofield had indecently assaulted two young girls in the early 1970s. After he had testified during his trial, the judge met with defence counsel and the Crown in his chambers to discuss the case. Schofield was not invited to the judge’s chambers.

During the meeting, the judge inappropriately gave an opinion on the weaknesses the judge saw in the Crown’s case and the weaknesses of Schofield’s testimony. The negative comments about his testimony seriously compromised the trial judge’s impartiality, particularly since this was a judge-alone trial (no jury).

Schofield appealed on the basis that his rights were violated and that the imposition of a 3½ year sentence was unreasonable. Section 650(1) of the Criminal Code states that “an accused … shall be present in court during the whole of his or her trial.” The Ontario Court of Appeal concluded that Schofield should have been present during the mid-trial conference because aspects of his case were being discussed and judged in his absence.

A meeting in the judge’s chambers is a common occurrence at other stages of the criminal court process. During the Judicial Pre-Trial stage of a criminal court proceeding, the judge will sometimes meet with Crown counsel, the police officer in charge and defence counsel to discuss the case and possible resolutions. The judge may at this stage offer his/her opinion on the merits of the case; however, the matter is not at the trial stage during this pre-trial conference and the judge does not make any decision as to the outcome of the case. The judge who conducts a judicial pre-trial is not usually the judge who presides over the case at trial. The judicial pre-trial meeting is distinct from a mid-trial conference in chambers, especially in a judge only trial, because a mid-trial conference might reveal bias on the part of the presiding judge. This was in fact what occurred here, where the judge showed bias towards Schofield off-record and in his absence. The Ontario Court of Appeal found it to have been enough of a significant breach of the accused person’s right to a fair trial to overturn the conviction and order a new trial.

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Police Illegally Obtained Computer Password

May 12, 2012 – The police are limited in their powers to access an accused person’s password protected computer when the police obtain the password in violation of a suspect’s rights under section 9 and 10(b) of the Charter of Rights and Freedoms. In R. v. Stemberger, [2012] O.J. No. 221, January 23, 2012, the police obtained a warrant to search the residence of Mr. Stemberger. The police suspected that somebody in Mr. Stemberger’s residence, where he lived with his parents and twin brother, had accessed child pornography. Upon initiation of a search warrant, which they were given the power to seize computers they suspected of containing child pornography, the police spent an excessive amount of time detaining Mr. Stemberger and his parents in the Stembergers’ home. During the detention, the police questioned Mr. Stemberger about the password to his computer. Mr. Stemberger gave police the password to his computer and the police then proceeded to search the contents of Mr. Stemberger’s computer hard-drive, discovering 70 child pornography images.

Section 9 of the Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned.” Section 10(b) states that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” The Crown in this case conceded that Mr. Stemberger’s Charter rights had been violated and the statement that he made to police when he gave them his password should be excluded. However the Crown contested that the child pornography images should not be excluded because the police had a warrant to seize computers they suspected of containing child pornography images. The court did not agree with the Crown. The Court stated that the search of Mr. Stemberger’s computer “was conducted in an unreasonable manner and in flagrant disregard of his rights.” The court went on to state that Mr. Stemberger’s right to counsel and his right not to be arbitrarily detained was “wilfully and brazenly violated” by the investigating officer. Mr. Stemberger “was also detained unlawfully beyond the initial period required in order to facilitate that questioning. During that questioning, the police obtained his password. The officers believed that a password protected computer could defeat their ability to search the computer so they violated his rights, obtained his password and found evidence therein which they intend to use to prosecute him.”

This case illustrates the importance of a person’s rights under the Charter, especially in the context of a police investigation involving arbitrary detention and the right to instruct counsel. The Charter protected Mr. Stemberger, who essentially incriminated himself without first obtaining advice from counsel not to do so before he was placed under arrest, but while he was arbitrarily detained by police. The police in this case had an opportunity to seize Mr. Stemberger’s computer and conduct a search at the station. However they chose to violate Mr. Stemberger’s Charter rights in order to obtain the evidence they believed they would find.

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Mandatory Minimum Sentence May Be Unconstitutional

May 8, 2012 – Under section 95(2) of the Criminal Code of Canada, it is mandatory that any person who is convicted of the offence of possession of a restricted firearm under section 95(1) is to be sentenced to 3 years imprisonment. However, in R. v. Smickle, [2012] O.J. No. 612, February 13, 2012, the sentencing judge ruled that the statutory requirement is unconstitutional and sentenced the convicted Mr. Smickle to a 12-month conditional sentence, less seven months’ credit. A conditional sentence is comprised of a component of house arrest and probabtion.

The judge in this case did not follow the statutory scheme for sentencing because, in her view, the 3-year minimum sentence did not fit the crime. Mr. Smickle had a major lapse in judgement when he used a loaded handgun to pose for a facebook picture while lounging on a chair in front of a laptop. When the police burst into the apartment where he was posing, he immediately dropped the gun and fully cooperated with police. Justice Molloy reasoned that “the offender was a youthful, first-time offender who was employed and had a close relationship with his daughter. There was no indication of criminal involvement or danger to the community. His conduct on bail was exemplary.” The judge went on in her reasoning that, under the facts of the case and the totality of the circumstances, a 12-month conditional sentence was an appropriate sanction. At paragraph 9 of her decision, Justice Molloy stated:

“I find the minimum sentence imposed by s. 95(2) to be unconstitutional. The appropriate sentence for the type of conduct engaged in by Mr. Smickle does not approach three years in a federal penitentiary. To impose such a sentence on him in these circumstances, particularly in light of his unblemished past, constitutes cruel and unusual punishment and would breach s.12 of the Charter. Further, in my view, the structure of the hybrid scheme for prosecution of this offence is irrational and arbitrary and breaches s.7 of the Charter. The proper constitutional remedy is to strike down section 95(2) of the Criminal Code. This will take effect immediately. I consider one year to be an appropriate sentence for Mr. Smickle and I see no reason why that should not be served in the community as a conditional sentence.”

Justice Molloy’s decision is currently under appeal.

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New Trial Ordered After Identification Evidence Excluded

January 13, 2012 – In a recent Ontario Court of Appeal case, a new trial was ordered because the identity of the accused person was not properly established. In R. v. James, [2011] O.J. No. 6275, December 28, 2011, James was charged with two Criminal Code offences: first degree murder and robbery while using a firearm. It was alleged that two men, one black and one white, robbed two other men at gunpoint. During the robbery, one of the robbers shot and killed one of the victims. The surviving victim could not identify either robber except for the fact that one of the robbers was a white male and the other was a black male.

The lower court found James guilty of manslaughter and robbery while using a firearm. The accused was identified by a witness, Diedrick, from a photograph taken of her, James and Whyte. Diedrick identified the accused as being James during the earlier trial of Whyte. However, during James’s trial, Diedrick had a total loss of memory and could not remember who James was, other than knowing who he was because he was on trial. She was therefore not cross-examined at trial because she had already told the court she had a major lapse in memory. The Ontario Court of Appeal in this case noted that it would have been pointless for defence counsel to cross-examine her after her admission of unreliability.

The Crown nevertheless presented evidence from Whyte’s trial that Diedrick had identified James as the black man in the photograph. This identification of James was considered by the Ontario Court of Appeal as hearsay evidence which should have been excluded.

Evidence, such as a photograph, can be admitted if the content can be identified by a credible source. However, the identification of James in the photograph was made by Diedrick during Whyte’s trial and was therefore hearsay evidence at James’ trial. The Ontario Court of Appeal ruled that the Crown failed to prove the reliability of Diedrick’s prior testimony and, therefore, the identification of James should have been excluded at trial. For this reason, the conviction was overturned and a new trial was ordered.

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