Three Ds to Reduce Delay in the Criminal Courts

(This article was originally published April 20, 2017 by Marion Lane on The Effervescent Bubble.)

Federal Minister of Justice Wilson-Raybould is meeting with her provincial counterparts next week to discuss delay in the criminal courts. I am a fully retired judge of the Ontario Court of Justice, appointed in the wake of a similar Supreme Court induced crisis on the same issue over twenty-five years ago (in the case of R. v. Askov). During my twenty-year career on the bench, I spent most of my volunteer time as a judge on the issue of delay. And still the problem remains. I have three systemic suggestions to throw into the discussion.

1. Download more “hybrid” criminal offences from the Superior Court to the provincial courts. During the 1990s, the federal government amended the Criminal Code to increase the maximum sentence possible for summary conviction on “hybrid” offences. These are offences where the crown has a choice to proceed by the more complex indictable route or by the simpler summary conviction procedure. Before, the highest sentence on summary conviction was six months in custody. When the amendment “supersized” the cap on sentence for these hybrid offences to a potential eighteen months in custody, crown attorneys assessed the facts of particular cases in light of the higher penalty and, if appropriate, often elected to go ahead by a summary trial in the provincial court. That meant that trials were held more quickly, and the accused had no right to a preliminary hearing. The result was that thousands of cases were downloaded from the Superior Court to the provincial courts, even high-profile criminal trials like those of Jian Ghomeshi and Mike Duffy. That downloading was successful. If the maximum sentence for summary conviction “hybrid” offences were raised again so that it could incorporate more aggravating facts, I suspect that many more cases would proceed in the lower courts.

2. Divert simple drinking and driving cases to an administrative enforcement procedure such as British Columbia implemented in 2010, which was upheld, with some changes, by the Supreme Court of Canada in 2015. When I sat in the Ontario Court of Justice in Brampton, post-Askov, drinking and driving offences made up 45% of our caseload. Even today, drinking and driving cases are the most hotly litigated of charges, and take months to process through the criminal courts. In British Columbia, the Automatic Roadside Prohibition (ARP) scheme provides that drivers who register a “fail” on a roadside breath test can have their licenses suspended immediately for up to 90 days, those who register a “warn” can have shorter suspensions of between three and 30 days, their cars can be impounded, a fine and mandatory remedial education imposed. Apparently, deaths caused by drinking and driving in B.C. have decreased since the administrative enforcement scheme was put in place, and criminal prosecutions of simple drinking and driving charges are down by about 85%. Where there are aggravating factors, a high roadside breath test reading, a prior record of administrative suspensions or criminal convictions, driving while disqualified, or any injury to persons or property, the criminal process should be invoked and sanctions increased. Apparently even MADD Canada is in favour of the B.C. model and has been lobbying the Ontario government to implement it. Now that driving while impaired by marijuana is being added to the Code, a rethink on how enforcement is to be made effective without swamping the criminal courts is imperative.

3. Give the Chief Justice of the provincial courts direct access to the Court of Appeal by enacting a power to “state a case.” Prior to the mid-1990s, Ontario judges had statutory authority to put a factual case to the Court of Appeal for an expedited decision on a legal issue. That power was taken away, a change which in my view has proven dysfunctional. New laws come first to lower trial court judges who have a duty to apply them to the fact situations before them. Sometimes those fact situations are clear and uncontested. The only issue is whether the fact situation involves a breach of the Charter, or some narrow legal issue which needs a definitive resolution by the highest court authority, as speedily as possible.

I had such a case in 2000. It was a simple police stop on the street, a conversation between two officers and a young man, a delay while the police did a computer check on his identity, and then an arrest on unrelated charges. When the charges came before me for trial, both counsel agreed on the facts and the only issue was whether or not the stop amounted to “a detention” which had Charter consequences. As a lower court decision, my written judgment, although published in the national criminal reports and argued repeatedly, had no value as a precedent within the hierarchical structure of our court system.. But my case crystallized the issue as a systemic matter. With no power to state a case for an expedited definitive decision from the Ontario Court of Appeal, the issue of what constitutes a detention on the street churned around the lower courts until finally, nine years later, the Supreme Court of Canada decided the issue. Nine years is a long time. Too long.

That case had to do with detention on the streets. There were other issues: whether a new drinking and driving law had retrospective application to cases currently before the courts? whether the crown had a Charter duty to disclose repair records of Intoxilyzer machines? Both technical legal issues which, in my view, caused what I can only consider constipation in the lower courts. The enema of an expedited Court of Appeal decision was needed.

The existing criminal appellate process in Canada proceeds in a non-systemic, random manner, totally dependent on whether the crown or a defendant has any interest in an appeal. For many pragmatic reasons, neither may want to appeal a particular case, and the issue churns on, wasting endless hours of redundant argument in the lower trial courts. This ad hoc, leisurely and languid appeal process contributes considerably to delay in the courts. If speedy justice is in the public interest, then the Chief Justice of the provincial court has a systemic interest in cutting through the verbiage and getting some authoritative direction on these types of issues on an expedited basis. For this reason, the Chief Justice should be able to “state a case” for a definitive decision from the Court of Appeal. The faster the provincial Courts of Appeal deal with the issues, the faster they will reach the Supreme Court of Canada if necessary, and the faster the lower courts will know how to deal with the trials before them. What’s the downside?

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A Response to Sean Fine and the Supreme Court of Canada on “Justice Delays”

(This article was originally published March 14, 2017 by Marion Lane on The Effervescent Bubble.)

It was gratifying to read Sean Fine’s overview of how Canada’s criminal “Courts [are] shaken by search for solutions to delays” in Saturday’s Globe and Mail. In an intelligent and engaging analysis, he set out the essential message of last July’s Supreme Court of Canada 5:4 decision in R. v. Jordan: that criminal charges are to be tried within 18 months in provincial courts, and within 30 months in Superior Courts, and delays beyond those time periods shall be presumed to be unreasonable. He described the differences of opinion between the different Supreme Court justices, the reaction of the criminal justice system across the country to the new timelines, and the context of this particular decision over time. I commend his report to you.

This is not the first such crisis in the criminal courts. In R. v. Askov (1990), when the Supreme Court also defined what constituted “a reasonable time to trial,” the Ontario crown withdrew thousands of charges because of obvious delay, and thousands more came before the courts when accused persons made their own applications for a stay because of delay. In Ontario, I was one of 36 new judges, and at least two dozen new crown attorneys, appointed by the provincial government to help deal with the existing backlog in the criminal courts, and avoid the situation from recurring. Over 25 years later, Jordan is another SCC decision on the same subject, and another “kick in the pants” from the Supreme Court to all the courts across the country bound to apply their ruling. Equally if not more important, the Supreme Court decision is a clarion call to the federal government responsible for defining the criminal law and to the provincial governments charged with the administration of criminal justice. The Supremes are saying that delay in criminal courts must become a priority.

Sean Fine points out that the Supreme Court agreed on the facts of the particular case before them (that 49.5 months to trial on a charge of possession for the purpose of trafficking is unreasonable), but disagreed on almost everything else. In the fall-out from Jordan, all sorts of questions are being discussed. Some say there is a need to change “a culture of complacency” which exists in the court system; others deny that any complacency exists. Do away with preliminary hearings, implement a triage system, divert less important cases out of the system, require crown attorneys to lay charges and not the police, inject more resources into the system, speed up appointing judges; all are bandied about as obvious “solutions” to the problem.

Finding enduring solutions, however, requires appropriate empirical data about the different ways the system is actually working across each province and across the country. As Professor of Criminology Tony Doob noted in a recent Globe and Mail article with respect to preliminary hearings, such data is non-existent.

Throughout my 20 years on the Ontario Court of Justice, the 1990 Askov “kick in the pants” was a continuing incentive to reform within the Ontario criminal court system. The provincial government appointed more judges and crowns; the provincial bench became more diversified. In 1991, the Supremes mandated full disclosure of the crown’s case to the defence. For a variety of systemic reasons, making that aspiration real took more time and effort than would ever have been anticipated, and still sometimes falls short in particular cases. Thousands of charges were downloaded from the Superior Courts to the provincial courts, eliminating the possibility of a preliminary hearing and inherently ensuring a more speedy trial. This was done by the simple statutory expedient of “supersizing” the possible penalties available for “hybrid” charges (such as assault and sexual assault) where the crown can elect to proceed by summary conviction.

Numerous scheduling changes were attempted to reduce delay. We tried two tiers of courts: one in the morning and another in the afternoon; that didn’t work. Special plea courts with judges known to be lenient on sentencing were set up; that helped. Plea courts for early resolution of cases are now the norm. We implemented an intake cycle system where a single judge and crown took ownership of blocks of cases coming into the system with the expectation that they would be resolved or adjudicated within four months. That system was abandoned after several years without any formal outside evaluation. The administration monitored “time to trial” statistics and, routinely, assigned temporary judges to run “blitz courts” to clear local backlogs of cases in overworked or understaffed courts. “Shadow courts” were established with “shadow” dockets of cases which were fed into the trial courts offering help after their regularly assigned cases were completed. Experienced crowns were placed into intake courts to “take ownership” of cases, encourage early resolutions and ensure that multiple adjournments did not bog down the set date process.

Numerous task forces and commissions (both local and province-wide) were set up and recommendations made for changes in practices: early vetting of cases by experienced crowns, early resolution discussions, diversion of simple cases out of the system and to special programs, mandatory judicial pretrials to narrow the issues and encourage resolutions, rules requiring notice about witnesses and issues to be addressed on prelims, prelims moved out of courtrooms and witnesses examined on the record without a judge being present, special training and procedures for complex cases and for dealing with unrepresented accused, the use of trial coordinators to set dates outside of court, specialized crowns handling specialized courts with specialized procedures (e.g.: domestic courts, courts for children, drug courts, mental health courts, courts for Indigenous people), dealing with impaired driving administratively rather than through the courts.

There has been no shortage of problems identified nor recommendations made about how the system could be improved. The problem has been making reforms happen, and the systemic failure to evaluate the effects.

The criminal justice system, like the health care system, is a very complex institution with multiple ever-changing stakeholders, little routine outside evaluation, and, in my time, a woeful lack of institutional memory. The federal government defines the criminal law but it is not responsible for the administration of justice. Our constitution makes provinces responsible for the operation of the courts. The actions of one affect the other, and vice-versa. One obvious example: When the federal government cut its financial contribution to the Ontario Legal Aid Plan, the number of defendants able to obtain counsel through Legal Aid went down, and the number of accused persons representing themselves went up. Without counsel, there were fewer pre-trial resolutions and the time taken for trial, even for simple matters, increased. What else would one expect? Defence counsel are essential players in the system. Apart from the detriment to individual rights, cutting them back removed the grease that makes the legal system work.

Don’t get me started…. It’s a big issue. How the time limitations imposed by the Supreme Court of Canada will withstand the reality of fact situations coming before Canadian courts in the immediate future, only time will tell. Maybe, as in 1991, the jurisprudence will become nuanced. In my view, it is a very good thing that the Supreme Court has put on the pressure to make “speedy justice” a priority. We’re finally talking about delay, the real issue which has faced our courts for decades. Maybe this time, there will be a major rethink.

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Preliminary Hearings: Prohibition or Reform of Practice?

(This article was originally published March 04, 2017 by Marion Lane on The Effervescent Bubble.)

The media has been full in recent weeks of proposals to do away with preliminary hearings (called prelims for short) and so, reduce delay in the criminal courts. The 5:4 Supreme Court of Canada decision in R. v. Jordan in July set presumptive deadlines of 18 months for trials to be concluded in provincial courts, and 30 months in Superior Courts. Several high-profile cases have occurred where judges applying the new guidelines have stayed very serious charges because the time taken to get to trial was so long. When accused persons are not tried on the merits of their charges, the public is understandably upset.

The Ontario Attorney General is apparently encouraging more “direct indictments” whereby the crown refers serious matters directly for trial in the Superior Court (without a prior prelim in the lower court) and making demands to do away with most prelims. Manitoba’s three Chief Justices and its Attorney-General are proposing to eliminate all prelims. Minister of Justice Wilson-Raybould is saying that “Preliminary inquiry reform is a divisive issue…” and that committees in both the House of Commons and the Senate are looking at the issue.

What is a preliminary hearing? The Criminal Code provides that any person charged with an indictable offence (typically a serious charge to which a more elaborate procedure applies) has a choice: 1) trial by judge alone in the provincial court, 2) trial by judge alone in the Superior Court, or 3) trial by judge and jury in the Superior Court. If the accused elects trial in the Superior Court, he or she may request that a prelim be held. This means that a judge of the provincial court will conduct a hearing to decide if the crown has enough evidence for the defendant to be committed to stand trial. The “test for committal” is low: whether there is any evidence upon which a reasonable jury properly instructed could convict the accused of the charge or charges before the court. The prelim judge cannot assess the credibility of witnesses, nor can he or she hear any application for any potential Charter breach.

The limited jurisdiction of the prelim judge does not mean that prelims cannot be useful. Although the defendant will have received full written disclosure of the crown’s case well in advance, there may be much relevant information that defence counsel (and crown counsel for that matter) will not have. Neither will know, for example, how the complainant will appear as a witness and how he or she will respond to cross-examination. Neither will know information from the arresting officer or other crown witnesses that the defence might use to support a later application for exclusion of evidence under the Charter or otherwise. A prelim provides a chance to examine and cross-examine witnesses on essential points and get their responses on the record. Should they later testify differently at trial, the inconsistencies would go to their credibility. After hearing the evidence on a prelim, some judges offer the parties an opportunity to resolve the matter there and then without the need for any further trial. Resolutions at this stage are not uncommon.

It was also my experience, sitting as a judge in various courts in and around Toronto, that the use of prelims as a delay tactic has almost entirely disappeared. In the 1980s and early 1990s, defendants routinely elected prelims and then consented to committal at the prelim “without hearing any evidence.” The practice clogged court dockets and was then a primary cause of delay. In the 1990s, the Criminal Code was amended to allow higher penalties for certain offences (e.g.: sexual assault) where the crown could choose to proceed by the simpler summary conviction procedure. Thereafter, thousands of cases were downloaded to the provincial courts for trial and the defendant had no right to a prelim. Still later, court rules were put in place requiring a judicial pretrial where anyone seeking a prelim had to show precisely what witnesses he or she needed to hear and what issues were in play. If committal on the very low test were not contested, the crown might not need to call any of its case. Where multiple defendants were joined together and there may be little evidence relevant to one or two, the only evidence heard at the prelim would be with respect to those defendants. The prelim weeded out many problematic charges and focused the issues, both measures that would save time and resources down the road in the Superior Court.

The most intelligent piece I have read yet is the article by criminology professor Anthony Doob in the Globe and Mail on February 27th entitled “Preliminary inquiries: a debate that needs better data.” His essential point is that practice on prelims varies widely across the country and that what little data exists (reported in 2005) shows that prelims are often used instead of trials, and involve very few court appearances. He says that it is not clear why prelims “are seen as the Achilles heel of the court system” with respect to delay. He concludes that “data such as those provided by Statistics Canada in 2005 are no longer available. For explicable but stunningly short-sighted reasons, Statistics Canada has made it almost impossible to get a good picture of the use of the preliminary inquiry in Canada… (so that we know) less now than we did in 2005. … Those… on all sides of the debate can all claim that they are correct. They can make their arguments without even being forced to resort to the use of alternative facts, since the alternative—real up-to-date facts—don’t exist.” Someone is finally calling for “evidence-based” policy development with respect to delay in the courts. It’s about time.

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Ten Take-Aways from the Jian Ghomeshi Affair

(This article is an expanded version of one originally published May 17, 2016 by Marion Lane on The Effervescent Bubble)

1. The offence of sexual assault is broadly defined. It extends to any non-consensual touching of any part of the body which interferes with the sexual integrity of the individual. The genital area, the breasts, the mouth, the buttocks are presumed to be sexual, but any violence to other areas of the body could come within the definition if the touching occurs in the context of sexual activity.

2. What used to be called rape (non-consensual sexual intercourse) is only the ‘most serious’ on the spectrum of sexual assaults. Although not arising in the Ghomeshi case, note that even consensual intercourse may become ‘sexual assault’ if one party unilaterally removes a condom, or engages in the activity without informing his/her partner that he or she is HIV positive.

3. Reporting a sexual assault does not necessarily mean a complainant will testify in court. Most criminal charges are resolved by plea negotiations. Defendants may agree to plead to some lesser offence, or take responsibility for some measure of harm, without admitting guilt on the charge before the court. The crown attorney has a duty to discuss a proposed resolution with the complainant.

4. A Peace Bond is often used to resolve criminal charges where the accused has no earlier criminal record. Such a resolution is usually a win-win for everyone. An accused agrees to have no contact with the complainant, avoids the costs of a trial (to his or her pocketbook, psyche and reputation), has no criminal record, and can get on with his or her life. The complainant avoids the need to testify and face cross-examination in court. He or she will get the protection of a court order against any contact from the accused for one year, and may get the satisfaction of a public apology. The crown attorney resolves a case which may have been difficult to prove and frees up scarce crown resources. The court vacates scheduled trial days which can be allocated to other trials and help reduce delay.

5. ‘Believing complainants’ is only a useful concept for the purpose of laying charges. A complainant who suppresses evidence from the police in a first interview and/or maintains deceptions under oath will undermine his or her credibility at trial. Complainants lack the ability or knowledge to know what information is relevant. Those are decisions for the police and the crown attorney.

6. “Navigating… [a sexual assault proceeding] is really quite simple: tell the truth, the whole truth and nothing but the truth.” (Justice Horkins in R. v. Ghomeshi, March 2016, para 119) The same advice could well apply to ‘navigating’ the criminal justice system, generally.

7. Judges are not swayed by street demonstrations, chanting crowds, or media publicity. They base their decisions only on the evidence they hear in court. Judges use their written reasons to educate the litigants, the public and the media about how and why they came to the decisions they did.

8. Publication of written judicial decisions in full (through links on platforms such as cbc.ca) can be a powerful tool for public legal education about individual cases, the law, and how the legal system works. Written decisions of the Ontario Court of Justice can be found at the website of the court.

9. The presumption of innocence exists only in criminal courts. The court of public opinion is alive and well, and ready to convict at the slightest opportunity. Courts may save an accused from jail and a criminal record. Public opinion is harsh and unforgiving. Celebrity, power, high place or a public trust may add to the risk.

10. The management of the CBC is shameful and owes the public an apology, and Kathryn Borel, probably much more. The legal principle that employers must ensure a safe environment, free of oppression, for all their employees, was established many years ago. Employers have long had a duty to respond to complaints of sexual harassment and do something about them right away. Failure to do so is seen as condoning the impugned behaviour. Where has the CBC been all this time? Is the Ghomeshi affair at the CBC a wake up call for other employers tone-deaf to the issue? If not, it should be.

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The Mike Duffy Decision: Index to the Judgment

***** This is an unofficial index to the Decision and was not prepared by the Ontario Court of Justice or the legal publishers. Numbers refer to the paragraph numbers in the written decision of Mr. Justice Charles Vaillancourt available on the internet.

  1. Introduction and Fundamental principles:
    a) Presumption of innocence. 3-30.
    b) Principles re: Reasonable Doubt, Burden of Proof and Credibility. 9-11.
  2. Approaches taken by counsel: 12.
  3. Credibility issues relating to Senator Duffy. 15-69.
  4. General Background of Senator Duffy. 70-71.
  5. Appointment to the Senate. 72-75. Legality of his appointment not what trial about.
  6. The Senate as an Institution. 76. Reform of Senate not what trial about.
  7. Primary Residency Claim (Counts 1 and 2. 77-224.
    a) charges against Mr. Duffy. 77.
    b) crown’s position. 78-84.
    c) what do we know about “residency”? 85-94.
    d) what do we know about the property in Cavendish? 95-129.
    e) defence position. 130.
    f) Duffy’s connection to PEI. 131-135.
    g) Duffy’s reliance on representations of key authoritative officials intro. 136.
    h) Prime Minister Stephen Harper. 137-141.
    i) Senate officials. 142-144.
    j) Prime Minister’s Office. 145.
    k) Senator LeBreton, Senate Leader. 146.
    l) Primary Residence Declaration. 147.
    m) Application of Advice. 148-150.
    n) Senator Tkachuk. 151-152.
    o) Duffy’s Conclusion re: Primary Residency. 153.
    p) Duffy’s Efforts to upgrade PEI dwelling. 154-156.
    q) The Duffys’ Financial State. 157-168.
    r) Additional evidence negating any criminal mens rea. 169-182.
    s) No proof the Actus Reus. 183-211.
    t) The Constitution Act 1867. 184.
    u) SARS provisions. 185-187.
    v) The Declaration/designation form. 188.
    w) The 22nd Report of the Standing Committee on Internal Economy. 189.
    x) Mark Audcent. 190-192.
    y) Other Senate Guideline Documents. 193-195.
    z) Nicole Proulx. 196-197.
    aa) Paul Belisle. 198.
    bb) Speaker George Furey. 199-204.
    cc) Other statutory provisions relating to definition of residence. 205.
    dd) Income Tax Act. 206.
    ee) Significance of Definitions or Lack of Same. 207.
    ff) Subsequent change in policy and forms. 208-209.
    gg) No evidence of departure from conduct of other Senators. 210-211.
    hh) Justice Vaillancourt’s Conclusion. 212-224.
  8. Travel Expense Claims (Counts 3-20). 225-571.
    a) Crown’s Position. 225-268.
    b) Senate Administration Principles. 226-228.
    c) Use of pre-signed forms. 229-242.
    d) Proof that Duffy directly responsible for expense claims. 243-245.
    e) Crown’s overview of first eight travel claims (Counts 3-18). 246.
    f) Expenses re: non-Parliamentary partisan activities (Counts 3-6). 247-264.
    g) Introduction to Counts 7-18 re: personal business. 265-268.
    h) Defence overview re: Counts 3-18 and Counts 19-20. 269-272.
    i) The SARS Travel Provisions. 273-277.
    j) Additional Senate Instruments and Documents. 278-280.
    k) No Proof of mens rea. 281.
    l) No Evidence of Communication of New Travel Policy. 282
    m) The Senators’ Travel Policy. 283
    n) The 11th Report of the Internal Economy Committee. 284.
    o) Lack of Clear Policy. 285.
    p) Additional evidence of no criminal mens rea. 286.
    q) Pre-Signing of expense claims not proof of crime. 287—288.
    r) Evidence of Senate witnesses (Duffy, Audcent, Proulx, Furey, Belisle, Bourgeau, Pugliese, Vos/Mercer, Scharf) re: expense claims. 290-312.
    s) Individual Fact Situations
    i) Peterborough and Cambray, Ontario (Counts 3 and 4). 313-330.
    ii) Conclusion- dismissed. 326-330.
    iii) Western Canada trip (Counts 5 and 6). 331-356.
    iv) Conclusion – dismissed. 354-356.
    v) Saanich Fair (Counts 7 and 8) 357-397.
    vi) Conclusion – dismissed. 388-397.
    vii) Peterborough (Counts 9 and 10). 398-425.
    viii) Conclusion – dismissed. 419-425.
    ix) Cockrell House, (Counts 11 and 12). 426-454.
    x) Conclusion – dismissed. 451-454.
    xi) Vancouver Boat Club Meeting. (Counts 13 and 14) 455-487.
    xii) Conclusion – dismissed. 482-487.
    xiii) Trip PEI to Ottawa for Medical Appointment (Counts 15 and 16) 488-506.
    ——xiv) Conclusion – dismissed. 503-506.
    ——xv) Trip PEI to Ottawa for Speech (Counts 17 and 18). 507-530.
    ——xvi) Conclusion – dismissed. 503-505.
    ——xvi) Attendance at Funerals etc in PEI. (Counts 19 and 20) 531-571.
    xvii) Conclusion – dismissed. 568-571.
  9. Expense Claims Made for Personal Services (Counts 21-28). 572-888.
    a) Background of Maple Ridge Media, Ottawa ICF and Gerald Donohue. 573-594.
    b) Overview of Crown’s Position. 595-633.
    c) Chart of payments made by Maple Ridge Media and Ottawa ICF. 61.
    d) Overview of Defence Position re: all service contracts at issue. 634-636.
    e) Evidence of Sonia Makhlouf. 637.
    f) The Senate Administration Rules. 638.
    g) Other Senate Provisions. 639.
    h) 36th Report of Internal Economy Committee research allowance. 640.
    i) Evidence of Nicole Proulx. 641.
    j) Evidence of Gerald Donohue. 642-654.
    k) Evidence of Senator Duffy. 655 – 661.
    l) Individual Service Providers – all paid under “common practice” general services contract with Maple Ridge Media and Ottawa ICF rendered Senate-related services. 662-695.
    m) Monies Paid for “Illegitimate Expenses” (Counts 23-28). 696-888.
    i) Intern Ashley Cain ($500 honorarium). 696-704.
    ii) Make-Up Services to Jacqueline Lambert ($300 Makeup). 707-720.
    iii) Exercise Consultant Mike Croskery (+$10,000). 721-740.
    iv) Comments of Justice Vaillancourt on Exercise Consultant. 736-740.
    n) The Law. 741-836.
    i) Fraud. 742-758.
    ii) Breach of Trust. 759-823.
    iii) Wilful Blindness. 824-836.
    o) Distinguish criminal trial v. administrative or disciplinary hearing 838
    p) Media coverage. 839-840.
    q) Conclusion. 841-888.
    i) General recap. 841-850.
    ii) Counts 21 and 22 dismissed – all proper Senate expenses or used for Senate. 
    ——iii) Counts 23 and 24 dismissed – honest mistake, no criminal intent. 886.
    iv) Counts 25 and 26 dismissed – not criminal conduct. 887.
    v) Counts 27 and 28 dismissed – material change of relationship. 888.
  10. Charges Pertaining to $90,172.24 Payment from Nigel Wright (Counts 29-31). 889-1241.
    a) The Nature of the PMO. 890-892.
    b) Emails: the Facts Behind the Payment. 893-1028.
    c) “Peering Through the Looking Glass.” Justice Vaillancourt’s assessment of what he had learned from the emails about how the PMO operated. 1029-1039.
    d) “Examination of whether Senator Duffy’s conduct amounted to criminality or whether he was just another piece on the chessboard… ” 1040-1241.
    i) Crown’s general position: his solicitation and acceptance of funds elevated conduct to criminal offence. 1040-1054..
    ii) Crown re: bribery charge (Count 29). 1055-1085.
    iii) Defence position re: bribery charge (Count 29). 1086-1091.
    iv) Conclusion on Count 29. 1092-1115 – dismissed.
    v) “Bayne’s cross-examination provided many thought-provoking points… the evidence of Senator Duffy was most compelling..” 1095.
    vi) Do not accept that Duffy’s comments about not having the funds amounts to a demand for reimbursement of his living expenses. 1097.
    vii) “I find there is an overwhelming amount of evidence from the Crown witnesses, the emails and Senator Duffy that the (mistake-repay) “Scenario” theory put forward by the Defence was alive and well throughout this drama.” 1098.
    viii) “I have included the emails earlier in this judgment to highlight the unbelievable lengths that Mr. Wright and his crew went to in order to deal with the ‘Duffy Problem.’ Could Hollywood match such creativity?” 1099.
    ix) The beginning of the payment goes back to the “murky uncertainty” regarding Duffy’s primary residence and the claims resulting from that designation. Nigel Wright agreed that he “probably didn’t owe any money”(as Duffy insisted) but “the political fallout” made Senator Duffy “a major problem” that wouldn’t go away. 1101-1106.
    x) Duffy was not buying into the mistake-repay scenario, so “the PMO employed a two-pronged approach to deal with (him).” “The primary approach involved the use of a steady stream of threats and pressure being applied from all quarters… well documented throughout this judgment. The other approach involved using the ‘do the right thing’ message…. I find that had only one meaning. Senator Duffy was to do the politically right thing by admitting ‘his mistake’ and repaying back the accused living expenses…. “1106-1109.
    xi) “The PMO was also very active working behind the scenes to get all their ducks in a row….” 1110.
    xii) ” I find on all the evidence that Senator Duffy was forced into accepting Nigel Wright’s funds so that the government could rid itself of an embarrassing political fiasco that just was not going away.” 1111.
    xiii) “I find that Senator Duffy did not demonstrate a true acceptance of the funds and did not accept them voluntarily.” …(and) “that there was no corrupt acceptance of the funds by Senator Duffy….no elevated mental culpability or mens rea required….” 1112-1113.
    xiv) “I agree that this entire ‘Scenario’ was not for the benefit of Senator Duffy but rather, it was for the benefit of the government and then PMO. This was damage control at its finest.” – Count 29 dismissed. 1114-1115.
    e) Applicability of Officially Induced Error and a Judicial Stay in the circumstances of this case. 1116-1163.
    i) Agree that legal elements of “officially induced error” made out. Justice Vaillancourt would have stayed Ct. 29 if he had not dismissed it on its merits. 1117, 1161-1163.
    ii) Agree that “the state cannot now turn around and prosecute Senator Duffy to conviction for what senior Government of Canada officials assured him was “the right thing to do.” 1118.
    iii) Duffy’s evidence re: his reliance on the representations of the PMO and Senate leaders and his lawyer unchallenged in cross-examination. 1126.
    iv) Senator Duffy’s evidence re: “the Scenario” and the pressure put on him by the PMO to go ahead whether he wanted to or not. Includes his evidence that on February 13th, the Prime Minister told Senator Duffy “I know it’s unfair Duff. I know it seems unfair. I know you didn’t break the rules, but the rules are inexplicable to our base, and therefore you’re going to have to pay the money back. Nigel will make the arrangements.” All of this evidence was unchallenged in by the Crown in cross-examination. 1127.
    v) Evidence of Nigel Wright. 1128-1136.
    vi) Evidence of Chris Woodcock. 1137-1141.
    vii) Jurisprudence on Officially-Induced Error. 1142-1160.
    f) Fraud on the government (Count 30). 1164-1212.
    i) Nature of the charge. 1165-1166.
    ii) Crown’s argument. 1167-1176.
    iii) Defence submissions. 1177-1206.
    iv) Conclusions. 1207-1212. Finds that Duffy had the consent of the Prime Minister through the PMO and the Senate leadership to go along with the “Scenario.” 1208. Finds that Duffy did not receive a true advantage or benefit and that “the true recipients of any benefit (the disappearance of a political embarrassment) are Nigel Wright, the PMO, the Prime Minister and the Conservative Party of Canada. 1209. Finds no true acceptance of any benefit. 1210.
    v) Count 30 dismissed. In the alternative, would have stayed the charge.
    g) Breach of trust by a public officer. (Count 31)
    i) Nature of the charge. 1213-1214.
    ii) Crown submissions. 1215-1224.
    iii) Defence submissions. 1225-1234.
    iv) Conclusion: Do not view Duffy’s comments that he did not have the funds to repay a request or demand for funds. 1236. Do not find that Duffy was trying to avoid cooperating with third party auditors. 1237. His eligibility for appointment as senator is not before the court for good reason. “The Prime Minister of Canada appoints Senators. If there are issues regarding eligibility, those concerns are addressed by the Senate and not the courts.” 1238. “Mr. Neubauer stated that Senator Duffy’s actions were driven by deceit, manipulation and carried out in a clandestine manner representing a serious and marked (departure from the) standard expected of a person in Senator Duffy’s position of trust. I find that if one were to substitute then PMO, Nigel Wright and others for Senator Duffy in the aforementioned sentence that you would have a more accurate statement.” Adopts Mr Bayne’s approach. Count 31 dismissed. In the alternative would have stayed on the basis of officially induced error. 1239-1241.

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Summary of the Jian Ghomeshi Judgment

Justice William Horkins’ recent decision in the high-profile sexual assault and choking case of R. v. Ghomeshi is well worth a read. It is available on the internet. The Supreme Court of Canada requires that all judges give reasons for their decisions that are clear and comprehensible to the litigants, the public and to any potential appeal courts. As I said in my post at effervescentbubble.ca, I consider Justice Horkins’ decision masterful, and a model of its kind. He is clear in his analysis, comprehensive in his review of all the relevant issues, and unusually eloquent in his language.

He comes down unusually hard on the complainants in this particular case, not because of their after-the-fact actions with Mr. Ghomeshi, but because they were shown as dishonest and manipulative in hiding this evidence from the police, Crown counsel, and the Court. In my view, R. v Ghomeshi is a case study in what complainants in these types of cases should NOT do before and at trial. Advocates who miss that message do women no favours.

Anyone wanting to know how the criminal justice system works will learn much from reviewing this decision. What follows is a summary of Justice Horkins decision.

  • An outline of the charges (paragraphs 1-4)
  • The elements of the offences of “sexual assault” and of “choking with intent to overcome resistance” (paras 5-7)
  • The background context of the case (paras 8-11). Justice Horkins notes that as each charge is based entirely on the evidence of each complainant, his judgment depends on an assessment of the credibility and reliability of each complainant as a witness.
  • The complaints of L.R. as related in her evidence-in-chief (paras 12-24), one describing his grabbing her hair while they were kissing in his car, the second at his home with him suddenly grabbing her hair, punching her in the head several times, and pulling her to her knees, “such that she felt like walking into a pole or hitting her head on the pavement,” and she “thought she might pass out.” She went home in a cab and she said she never saw him again after this incident.
  • Justice Horkins then sets out several areas of concern in L.R.’s evidence, identified in cross-examination (paras 26-44):
    • a) “evolving facts” which changed from her three media interviews, to the police statement, and then at trial
    • b) her changed position on whether she was wearing hair extensions, which she falsely said she had disclosed to the crown
    • c) her inconsistencies on whether he smashed her head against the car window, and her conclusion that she was simply “throwing thoughts” at the investigators
    • d) changing renditions of what happened at the house
    • e) her “clear memory” of the bright yellow car he drove, which Justice Horkins found “is simply wrong.” Justice Horkins writes (para 36) that “this demonstrably false memory weighs in the balance against the general reliability of [her] evidence as a whole.”
    • f) Although “firm in her evidence that… she chose never to have any further contact with Mr. Ghomeshi,” she later sent him two flirtatious emails which she never disclosed to the police or the Crown. (paras 37-44). As Justice Horkins wrote (para 43), “the expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models.” Nevertheless, he found her behaviour “at the very least, odd.” Justice Horkins concluded that the “… inconsistencies, and [her]… deceptive conduct…as a witness willing to withhold relevant information from the police… the Crown and… the Court…[made] it clear that she deliberately breached her oath to tell the truth” and that “her value as a reliable witness is diminished accordingly.”
  • The complaint of Lucy DeCoutere (paras 45-55) sets out the history of interactions between her and Mr. Ghomeshi and the “out of the blue… kissing… and choking and slapping her in the face,” which occurred at his home one weekend.
  • Again, Justice Horkins discussed the problems in her evidence. (paras 56-94):
    • a) He describes her inconsistencies in recounting the alleged assault in many media interviews, her police statement and at trial, all of which “suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.”
    • b) Her late disclosure of material information to the police and the Crown “despite having the assistance of her own counsel” and “a well-established… line of communication with the investigating officers and Crown counsel” in the months leading up to the trial
    • c) Her other evidence of a continued relationship with Mr. Ghomeshi which was only revealed in cross-examination led to Justice Horkins’ concluding that, despite direct questions from the police and giving a statement to them after a caution and under oath, she had engaged in “a manipulative course of conduct,” “the suppression of evidence,” and “deceptions maintained under oath” which “drive my concerns about the reliability of this witness.”
    • d) Sending flowers and a thank you note to Mr. Ghomeshi after the alleged choking “might be part of her effort to normalize the situation… (whether unusual or not) this was very clearly relevant and material information in the context of a sexual assault allegation” and “the deliberate withholding of the information reflects very poorly on… [her] trustworthiness as a witness.”
    • e) Her multiple emails sent to Ghomeshi and a hand-written love letter, five days after the alleged choking, showed that her testimony in court (which she gave under oath as her “guarantee” that she had no romantic feelings for Mr. Ghomeshi afterwards) was “simply not true” and was “out of harmony with her evidence-in-chief and her multiple pre-trial statements to the media and the police.” Justice Horkins questioned whether her conduct in suppressing evidence may have motivated by “her role as an advocate for the cause of victims of sexual violence.”
  • The evidence of Ms. Dunsworth that Lucy DeCoutere spoke to her about the choking incident about ten years ago was admitted to offset any implied allegation of “recent fabrication.” This evidence addressed a concern Justice Horkins had, and was not one raised by defence counsel. (paras 95-99)
  • The complaint of S.D. tells of them kissing on a park bench after a dinner date when “she felt his hands and his teeth on and around her neck… [which was] rough… unwelcome… ’not right’… and… caused her difficulty in breathing.’ She said nothing about it at the time and socialized with him two or three times thereafter. (paras 100-104)
  • Assessing her testimony (paras 106-119), Justice Horkins observed that, although “some lack of precision is to be expected of any report of conduct from over a decade earlier… it is reasonable to expect that a true account… will not vary too dramatically from time to time in the telling” such that there is “sufficient clarity in the evidence to allow a confident acceptance of the essential facts” (the standard of proof in a criminal trial). Her evidence was too imprecise to meet that standard (e.g.: para 106). The judge was also concerned about possible collusion with Ms. DeCoutere (paras 107-110). He also noted that she met with Crown counsel five times in the year prior to the trial, was reminded each time of the need to be completely honest and accurate, and only at trial did she reveal she had a sexual encounter with Mr. Ghomeshi at her own home, after the incident. Justice Horkins wrote that her “decision to suppress this information until the last minute, prior to trial, greatly undermined the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to her reliability as a direct lie under oath.” (para 114). He went on to write, “I accept [defence lawyer, Marie] Ms. Henein’s characterization of this behaviour…. S.D. was clearly ‘playing chicken’ with the justice system. She was prepared to tell half the truth for as long as she thought she could get away with it.” (para 118)
  • In a key admonition to all witnesses (para 119), Justice Horkins writes that “S.D. offered an excuse for hiding this information… that this was her ‘first kick at the can,’ and that she did not know ‘how to navigate’ this sort of proceeding. He replies that ‘navigating’ this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.”
  • The Framework of his Analysis is stated clearly as “it plays the central role in the determination of this matter.” (para 120) It starts with the presumption of innocence (para 121), “which is the fundamental right of every person accused of criminal conduct.” Interwoven is the standard of “proof beyond a reasonable doubt” imposed on the Crown (paras 122-124), which is the highest standard of a spectrum of degrees of proof used in the legal system and is defined by the Supreme Court of Canada in R. v. Lifchus [1997] 3 S.C.R. 320. Horkins recognizes the challenges posed by the historical nature of the complaints and states the clear law that “there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events.” Similarly, the law recognizes that “there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse.” He notes that “each case must be assessed individually in light of its own unique… circumstances.” (paras 125 and 126) He indicates that similar fact evidence of propensity to commit a particular type of crime is generally inadmissible and that, in this case, the Crown had expressly agreed that each complaint must be determined on its own merits. (para 127)
  • Conclusions (paras 128-141) Although he notes the similarities between the three complaints, he indicates that he “very deliberately considered the evidence relating to each of the charges separately.” (paras 128-130) He says that there is “no legal bar to convicting on the uncorroborated evidence of a single witness….” (para 131) In this case, he found that “The cross-examination dramatically demonstrated that each complainant was less than full, frank and forthcoming in the information they provided to the media…the police… Crown counsel and… this Court.” (para 132) His role was to assess the reliability and credibility of the complainant, when measured against the Crown’s burden of proof, and to ask: Does the evidence have sufficient quality and force to establish the accused’s guilt beyond a reasonable doubt? (para 133). No adverse inference can arise from the decision of an accused to remain silent and put the Crown to the strict proof of the charges. (para 134) Courts must be “very cautious in assessing the evidence of complainants in sexual assault and abuse cases;” “must guard against applying false stereotypes concerning the expected conduct of complainants,” and “… need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.” (para 135)
  • The after-the-fact conduct of each complainant seems “out of harmony with the assaultive behaviour ascribed to him” and caused the judge “considerable difficulty when asked to accept their evidence at face value.” (para 136)
  • Most troubling to the Court was his finding that “each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion.” (para 137) The Court was unable “to accept each complainant as a sincere, honest and accurate witness“ because “the evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.” (para 138) “The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth…. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.” This conclusion “is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts.” Where “the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth… the evidence fails to prove the allegations beyond a reasonable doubt” and there will be a finding of not guilty on all charges. (paras 140-142)

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The Mike Duffy Trial #1: Why in the Ontario Court of Justice?

Suspended Senator Mike Duffy faces thirty-one charges under the Criminal Code; multiple counts of fraud over $5000, fraud under $5000, breach of trust, and one count each of fraud on the government, and bribery. These charges relate to residency expense claims, expense claims unrelated to Senate business, awarding of consulting contracts, and accepting $90,000 from Prime Minister Harper’s Chief of Staff, Nigel Wright.

These charges were laid on July 17, 2014, and the trial began on April 6, 2015, with a total of 41 days set aside in April, May and June to hear the evidence. Clearly this is a complex matter, of high public interest and scheduled for trial on an expedited basis. That it has come to trial so quickly reflects the efforts of both parties and the criminal procedure context in which they are operating.

How it is that a trial considered “one of the most important in our history” is being heard in the Ontario Court of Justice?  Most “high profile” trials which attract national media attention are heard in a Superior Court, the Ontario Superior Court or a Court of Queen’s Bench in other provinces. These superior courts (called s. 96 courts because that section of our 1867 constitution  establishes them) have judges appointed by the federal government, and are the only courts with authority to hear jury trials. All jury trials, and many important “judge alone” trials, are heard in this court.

Mike Duffy, by contrast, is being tried in the Ontario Court of Justice, the lower court in the judicial hierarchy, where the judges are appointed by the provincial government. Mr. Justice Charles Vaillancourt is a seasoned veteran of that court. So why is Mr. Duffy before Justice Vaillancourt and not some judge of the Superior Court?

Although lower in the hierarchy than the Superior Court, the Ontario Court of Justice does the majority of the criminal court work in the province. All criminal cases start there. Depending on the nature of the charge, and on the choices (called “elections”) made by the crown and the defence, the matter may stay in the Ontario Court for trial or “go upstairs” to the Superior Court.

Most of the charges facing Mr. Duffy are straight “indictable” offences, serious charges where the maximum penalty ranges from a potential of five years custody to fourteen years. Where the charge is an indictable offence, Mr. Duffy would have been able to “elect” how he wanted to be tried. By a judge alone, in the Ontario Court of Justice? By a judge and jury, in the Superior Court? Or by a judge alone, in the Superior Court?

If he had opted for the Superior Court, he could have had a prior preliminary hearing in the Ontario Court. Preliminary hearings are held, at the request of the defence, to see if the crown has a prima facie case on each charge, and for the purposes of disclosure. When I was first appointed to the Bench, preliminary hearings were commonplace in the provincial court, and often used as a tool for delay. If a defendant chose “a prelim” (as they are called), it would be many months before it could be heard and, when it was, the defendant would frequently “waive the prelim” and consent to committal to the Superior Court without hearing any of the evidence. Then it would be many more months before a trial date could be set in the Superior Court. Since the 1990s, prelims have been streamlined. Usually the crown presents only enough evidence to satisfy the basic test for committal, and the defence presents no evidence at all. Defendants are now required to indicate what evidence they need to hear on a prelim, and the specific issues to be addressed. Disclosure is less of an issue than previously, as the Supreme Court of Canada decision in R. v. Stinchcombe (1991) compels all crown attorneys to disclose all they have about the case to the defence well before the trial.

As the Duffy case involves the relationship between Mr. Duffy and the Prime Minister’s Office, and the nature of the Canadian Senate, getting the matter to trial as soon as possible would have been a priority for both parties. The delay inherent in scheduling a preliminary hearing, and the publication ban typically imposed on evidence heard at a prelim, would have served the interests of neither party.

Another reason for the trial to go ahead in the lower court is that the seven counts of “fraud under $5000” charges against Mr. Duffy are “hybrid offences” where the crown can elect to proceed “by indictment” or “by summary conviction.” If “by indictment,” the Criminal Code mandates that fraud under charges must remain in the provincial court and the maximum penalty is two years in jail. That all the charges against Mr. Duffy should be heard together favours having the trial in the provincial court.

Just to complete the analysis, note that provincial criminal courts have exclusive jurisdiction to hear and decide all “summary conviction” offences. There are “straight” summary conviction offences defined in the Criminal Code, such as unlawful assembly, trespassing by night, indecent acts. There are also “hybrid” summary conviction offences where the crown has the choice of proceeding summarily or by indictment. Crowns generally choose to go summarily where the charges are alleged to have taken place within the past six months, are less important on their facts, and where the right maximum sentence on conviction would be six months or, in the case of certain offences like sexual assault or sexual interference, eighteen months.

Amendments to the Criminal Code in the 1990s increased the maximum sentence for conviction on more serious summary conviction offences to eighteen months. That this longer prison term was now available had a major impact on the workload of the Ontario Court of Justice. Now crown attorneys could secure an appropriate sentence without the need for a preliminary hearing or going “upstairs.” The effect has been to make the Ontario Court of Justice the principal criminal court in the province, doing more than 95% of the criminal and youth court work, attracting judges very skilled in criminal law, and also more “high profile” cases. Now, whether at the choice of the crown or the defence, the overwhelming majority of all criminal trials occur in the Ontario Court of Justice.

People concerned about having so important a matter decided by a single judge rather than a jury can be reassured that trial by judge alone is the most accountable of all proceedings. Juries do not have to give reasons for their verdicts and, in Canada unlike the United States, it is unlawful to ask about or reveal the nature of jury deliberations. A judge alone, by contrast, is required to give reasons for his or her findings. These reasons must deal with all the issues before the court and must be comprehensible to the litigants and to the public. A litigant unhappy with the result can appeal.

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