Wednesday, July 23, 2014
Tuesday, July 22, 2014
R. v. Hubrich, 2004 CanLII 11370:
 The appellant argued that the admission of post-arrest evidence is per seimproper. Mr. Coughlan relied in particular upon R. v. Sodhi (2003), 66 O.R. (3d) 640 (C.A.) at 662-4; R. v. Levert 2001 CanLII 8606 (ON CA), (2001), 159 C.C.C. (3d) 71 (Ont. C.A.) at 80-2; R. v. Baltrusaitis 2002 CanLII 36440 (ON CA), (2002), 162 C.C.C. (3d) 539 (Ont. C.A.) at 560-2;R. v. Bennett,  O.J. No. 3810 (C.A.) at para. 120-123, 143-5, 147;The Report of The Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, pages 1142-50.
 In R. v. Levert, supra, a prosecution witness who was permitted at trial to express an opinion as to the accused's reaction when confronted with the complainant's allegations of sexual misconduct testified that he appeared "very, very calm" and "not on the defensive at all". At page 81, on the subject of evidence, Rosenberg J.A. observed:
The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused's was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.
 Other authorities too express the need for caution in reliance on evidence: R. v. Valentini et al. 1999 CanLII 1885 (ON CA), (1999), 132 C.C.C. (3d) 262 (Ont. C.A.) at 283-5; R. v. Clark,  O.J. No. 195 (C.A.) at para. 58-71.
 The authorities, for the most part, view with suspicion "perceptions of guilt based on " – a subjective interpretive process which can easily misassign meaning, often guilty responsibility, to equivocal conduct. This is the classic overreach of much after-the-fact conduct proffered in criminal trials.
Monday, July 21, 2014
Saturday, July 19, 2014
R. v. Taylor, 2014 SCC 50:
 The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
 This means that to give effect to the right to counsel, the police must inform detainees of their s. 10 (b) rights andfacilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen,  S.C.R. 926, at pp. 952-53).
 Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross,  1 S.C.R. 3, at p. 12; R. v. Prosper,  3 S.C.R. 236, at p. 269).
 The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have provided his own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10 (b). The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.
 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10 (b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the firstreasonable opportunity.