Thursday, October 8, 2015
Wednesday, October 7, 2015
"Try to shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime. That is, develop themes containing reasons that will justify or excuse the crime. Themes may be developed or changed to find one to which the accused is most responsive."
The Reid Technique is problematic even to the extent of causing false confessions. That said a decision of the Court of Appeal for Ontario released today implicitly upholds and approves the use of the technique. Some might question whether the Court was fully aware of the implications of the decision?
Blake, 2015 ONCA 684 holds:
 The appellant submits that by raising child abuse allegations, Detective McLean created an atmosphere of oppression. The also appellant submits that the trial judge erred by failing to conclude that the appellant's confession was unreliable because it flowed from Detective McLean's disingenuous description of the legal consequences of consensual sex with a minor.
 I do not accept that raising a child abuse allegation created an atmosphere of oppression. That line of questioning lasted for less than five minutes. It did not create oppressive conditions or cause him to confess. His will was not overborne.
 There is no doubt that Detective McLean introduced, and even pressed, the issue of consensual sex during his interview with the appellant: DCM: So that's what I'm talking about, consent, you understand all that. And … that explains a lot to me if that is the case…. … DCM: I'm saying if you … had consent then you had consent and I'm going home. … DCM: But my whole thing is if this is consent… JB: Yeah. DCM: … it's consent and that would explain everything, then I can go back and talk to them. JB: You know what? DCM: And I'll be back and let them know my update.
 In my view, this line of questioning did not cross the line into improper police inducement. Detective McLean testified, and the trial judge accepted in his ruling, that his intention in adopting this approach was to reduce the moral blameworthiness of the appellant's acts, making it easier for him to tell the truth about what had happened.
 Importantly, Detective McLean did not tell the appellant that the charges would be dropped if the sex with the complainant was consensual. Indeed, when the appellant asked him a question about consensual sex, Detective McLean replied: "When… two people, two adults have consensual sex there's no charge."
 Finally, I note that the appellant testified at his trial. During cross-examination, this exchange occurred: Q. I'm going to suggest to you that you admitted that you did it when you thought it wasn't a crime. A. No. Q. That's the only reason you broke down… A. No. Q. …because you believed that it wasn't illegal to have sex with a 15 year old so you thought you were off the hook. A. I know it's illegal to have sex with a 15 year old and I never had sex with a 15 year old. [Emphasis added.]
 In summary, I do not think that Detective McLean's language during the consent component of the interview amounted to an improper inducement.
Tuesday, October 6, 2015
Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670:
 The test under rule 59.06(2)(a) to re-open a trial that applies after the judgment or other order has been issued and entered was set out by Doherty J.A., speaking for the court, in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257,  O.J. No. 3516, at paras. 41 and 44. As he noted, the onus is on the moving party to show that all the circumstances "justify making an exception to the fundamental rule that final judgments are exactly that, final." In particular, the moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings. The court will go on to evaluate "other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment."
 In my view, the appellant has met the test under rule 59.06(2)(a) as articulated in Baetz. It is plain that the proposed new evidence was not available at the time of the first trial or the first appeal. The appellant did not delay in seeking relief. The new evidence is cogent, in that it is apparently credible and. if accepted, would probably have affected the result at trial; the new evidence could serve to undermine the evidence given by the respondents and bolster that of the appellant. That is because the video shows representatives of Job Success apparently making the same or similar promises to others that the trial judge found to be "unrealistic and unreasonable" with respect to the appellant. Finally, I see no prejudice to the respondents if the trial were re-opened.
 Amicus submits that the motion judge erred in applying the test for re-opening a trial described by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59,  2 S.C.R. 983. The Sagaz test was articulated in a case in which the judgment at issue had not yet been issued and entered. In the present case, while no formal judgment was taken out, the trial decision had been appealed. Amicus asserts that the motion judge ought to have applied the Baetz test, which includes the consideration of a number of different factors, including balancing fairness against the interest in finality.
 In Sagaz, the Supreme Court accepted, at paras. 20 and 64, the motion judge's application of the two-part test for re-opening a trial described by the High Court in Scott v. Cook,  2 O.R. 769:
First, would the evidence, if presented at trial, probably have changed the result? Second, could the evidence have been obtained before trial by the exercise of reasonable diligence?
 Courts citing Sagaz often seem to boil the test down to these two questions (see, for example, 1057854 Ontario Inc. v. Kara Holdings Inc.,  O.J. No. 1144, at para. 40; Wesbell Networks Inc. (Receiver of) v. Bell Canada, 2013 ONSC 814; Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 5089, at para. 57; Madock v. Grauer, 2010 BCSC 1709). However, the Supreme Court, at para. 60, added this important direction: "Appellate courts should defer to the trial judge who is in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened." Plainly then, fairness is also an important factor, including prejudice to others who have acted in reliance on the judgment, as Baetz notes.
 I further note that in Sagaz, the Supreme Court, at para. 63, approved the following comments by Lord Denning in Ladd v. Marshall,  1 W.L.R. 1489 (C.A.), at p. 1491:
It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. [Emphasis added.]
 In my view, properly understood, the test in Sagaz goes beyond the two questions of whether the new evidence, if presented at trial, would probably have changed the result, and whether the evidence could have been obtained before trial by the exercise of reasonable diligence. It includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice, factors that were articulated by this court in its decision in Baetz. The error in this case was not in the motion judge's decision to apply Sagaz rather than Baetz, but in his application of the test, as I have already described. In this case, the new evidence meets both the Baetz and the Sagaz tests for re-opening a trial assuming there is any real distinction between the two.
This means that a Crown is not there to "win" a case but rather is there to see cases with merit are fairly and properly tried. If the Crown concludes a case has no real merit or should not go ahead as contrary to the public interest the Crown should stop the prosecution.
In 1981 a Royal Commission in the United Kingdom wrote:
"The proper objective of a fair prosecution system is not therefore simply to prosecute the guilty and avoid prosecuting the innocent. It is rather to ensure that prosecutions are initiated only in those cases in which there is adequate evidence and where prosecution is justified in the public interest."
The role of a Crown is different from a defence lawyer's role. If an accused says to a defence lawyer "I am not pleading guilty and want a trial" the defence lawyer is to do a trial even if the case is pretty well hopeless and not a good idea for the community. Now the defence lawyer must give the best legal opinion to the accused but the accused decides what to do.
The Crown, by contrast, has discretion. The Crown decides whether to go ahead or not - and this happens all the time.
But the Crown's decision is not based on a whim. The Crown considers two factors in deciding whether to proceed: an evidentiary consideration, which requires there be a substantial likelihood of conviction, and a public interest test.
The evidentiary test is met when Crown counsel is satisfied there is a strong, solid case of substance to present to the court. If there is not the Crown will discontinue the prosecution.
If the Crown is satisfied that the evidentiary test is met, the Crown considers whether the public interest requires a prosecution. This is a complex question and very fact driven. The Alberta Department of Justice suggests the factors to consider include:
It is generally in the public interest to proceed with a prosecution where the following factors exist or are alleged.
the conduct was serious, because, for example:
weapons were used
violence was used or threatened
the conduct was planned, premeditated and/or motivated
there was significant harm, loss or injury caused to the complainant and/or the community
the victim was vulnerable (e.g., a child, a senior, a spouse, a person who was dependent upon the accused, a person who serves the public)
the offence involved an abuse of a position of authority or trust
the offence was directed at the administration of justice;
the accused's degree of culpability and responsibility was significant (especially if in relation to any other parties who were involved in the conduct);
the offence was motivated by discrimination against the complainant's ethnic or national origin, sex, religious beliefs, political views or sexual orientation;
owing to a previous related record or other antecedents, it is likely that, absent a prosecution, the accused will continue or repeat the conduct (i.e., there is a need for individual deterrence); and/or
there exists a need to denounce the conduct and deter others.
The following are some of the public interest factors that may militate against commencing or continuing a prosecution.
the offence is of a trivial or technical nature;
a conviction is likely to result in a very small or insignificant penalty;
the consequences of a prosecution or conviction would be unduly harsh or oppressive for the accused;
the accused has remedied the loss or harm (although accused persons must not avoid prosecution solely because they make restitution);
the accused has demonstrated genuine remorse and has steps taken towards rehabilitation (the significance of which must be assessed in the context of the seriousness of the offence);
the desired result could be achieved through an alternative to prosecution (e.g., the matter could be effectively addressed through the Alberta Adult Alternative Measures Program (see the guideline Adult Alternative Measures Program) when dealing with adult offenders, or the Youth Criminal Justice Act Extra-judicial Sanctions Program (see the guideline Youth Extrajudicial Sanctions Program) when in dealing with young persons);
the law that is alleged to have been breached is obsolete or obscure; and/or
a prosecution could publicize information that that could harm confidential informants, ongoing investigation, international relations or national security, or other important local and national interests.
The following are additional factors that may be considered in respect of the public interest criterion.
the circumstances of the accused, including his or her age, maturity, mental health, criminal antecedents (including other outstanding charges or extant court orders) and background;
the likely effect of a prosecution on public morale and the public's confidence in the justice system;
the length and expense of the trial when considered in relation to the seriousness or triviality of the offence, the likely sentence that would result from a conviction, and the attendant public benefit(s);
the degree of past or anticipated cooperation of the accused in the investigation, apprehension or prosecution of others (see also, the guidelines and practice memoranda pertaining to Informants);
the willingness and ability of witnesses, including – where necessary – the complainant, to testify in the proceedings;
the time which has elapsed since the offence was committed;
the availability of compensation, restitution, or reparation to any person or body upon a successful prosecution, including any entitlement criminal compensation, reparation or forfeiture if a prosecution action is taken; and/or
whether, due to the passage of time, the alleged offence is triable only on indictment.