Volume 17, No. 2 - February/Février 2008 Printer-friendly Upcoming Program(s) Publications Multimedia Products Section Executive Law Day OBA at a Glance Editor: M. Amy Shoemaker OBA News Editor: Vickie Rose Legislative Update By Suran Bhattacharyya A consideration of recent changes to conditional sentences and DNA orders. Singh By Ngai On Young Case comment on the Detainee's right to silence — A discussion of the impact on police investigations and interrogations. Browne v. Dunn  By Suran Bhattacharyya The rule in Browne v. Dunn:  Where does it stand now? A Note from the Editor By Amy Shoemaker   Criminal Justice is published by the Criminal Justice Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.

Legislative Update Conditional Sentences and DNA Orders Suran Bhattacharyya* Conditional Sentences An Act to amend the Criminal Code (conditional sentence of imprisonment) received Royal Assent on May 31, 2007 and came into force on December 1, 2007. This bill makes extensive changes to s. 742.1 of the Criminal Code. Section 742.1 has been amended to preclude conditional sentences for certain designated offences punishable by a maximum sentence of imprisonment of 10 years or more, where the Crown elects to proceed by way of indictment. The designated offences are: i) “serious personal injury offences” ii) terrorism offences iii) criminal organization offences Given the potential sentencing implications, counsel should keep this in mind both at the screening (election) and plea negotiation stage. The legislation adopts the definition of a “serious personal injury offence” as outlined in s. 752. Essentially, this definition encompasses certain sexual offences (ss. 271-3), and all offences that by definition involve or likely involve violence, endanger an individual’s life or safety, or are likely to cause severe psychological damage. DNA Orders Bill C-18 “An Act to amend certain Acts in relation to DNA identification” came into force on January 1, 2008 along with portions of Bill C-13 “An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act”. Bill C-18 also amends certain portions of Bill C-13 and must be read in conjunction. You should not rely on the gray sections in your 2007/ 2008 Criminal Codes as those refer to amendments made only by Bill C-13 - many of which have been further amended by Bill C-18, until you receive the appropriate supplement to your Code. Bills C-13 and C-18 significantly expand the number of offences that are eligible for a DNA Data Bank order, reclassify certain offences from secondary to primary, as well as introduce a new class of compulsory primary offences. The bills also make important changes to the procedures associated with the making and execution and enforcement of DNA Data Bank orders. Here’s a quick summary of key changes counsel should keep in mind: • No more retrospective orders/test: It is now irrelevant when an offence was committed. For instance, where an offender was convicted on February 1, 2008 of a primary designated offence that was committed in 1990, the test the court must apply is the current test for primary designated offences. • New sub-category (Compulsory Primary Offences): There is a new sub-category of 16 offences for which a DNA order is mandatory. • Re-designation and newly eligible offences: Some offences have been re-designated from secondary to primary. Other offences have been newly designated as being eligible for DNA orders. A few examples include: New Primaries:                          Luring                                         Procuring offences  Juvenile Prostitution  Indecent Assault & Gross Indecency Criminal Organization offences Some Terrorism offences Child Pornography offences Break and Enter Dwelling New Secondaries: Criminal Harassment Uttering Threats Escape and Being at Large without Excuse • Wider range of indictable offences now eligible as secondary designated offences: There is a new sub-category of secondary designated offences that includes any offence for which the maximum is imprisonment for five years or more AND that is prosecuted by indictment, either because it is straight indictable or if hybrid, the Crown proceeds by indictment. (For DNA warrants, it is enough that the offence has a maximum penalty of five years or more and can be prosecuted by indictment.) • NCR Cases: DNA orders are available for persons found NCR for a DNA designated offence, but regardless of the offence designation category, the test the court must apply is the discretionary test for secondary designated offences. • An order should be made in every eligible case for every eligible case and for every eligible count regardless of whether offender’s DNA is already in data bank: Crown counsel no longer have to inquire whether offender is in the data bank before asking the court to make an order. The police are required to check after an order has been made, but before a sample is taken. If an offender’s DNA is already in the data bank, another sample will not be taken, but a copy of the order will be sent to the data bank. • 90 day window post-sentence to catch missed cases: if the court fails to consider the issue of whether a DNA order ought to have been made at the time of the sentence, it must, within 90 days, set a date for a hearing to do so. • New enforcement provisions: If an offender does not report at the specified time and place for a Court ordered DNA sample, then an arrest warrant may be issued and the offender could be charged with an offence under s. 487.0552. * Suran Bhattacharyya, Assistant Crown Attorney. The views expressed in this article are solely those of the author and are not necessarily the view of the Ontario Ministry of the Attorney General. Back to top >>

Singh The Scope of the Detainee’s Right to Silence Ngai On Young In R. v. Singh, [2007] S.C.R. No. 48, the Supreme Court of Canada clarified the scope of a detainee’s right to silence under section 7 of the Charter in a narrow 5-4 decision. In short, the majority (McLachlin, Bastarache, Deschamps, Charron and, Rothstein) narrowed (some would argue eliminated) the section 7 right to silence to the confines of the voluntariness rule. Essentially, if a statement is voluntary, there can be no infringement of that person’s right to silence. This decision will have a profound impact on police investigations and specifically the interrogation of suspects in custody. Effectively, an accused person can declare their desire to remain silent ad infinitum and as long as the police do not threaten, induce or create an environment of oppression – any statement the accused person makes will be admissible in court. In many respects, the split between the majority and the dissent (Binnie, LeBel, Fish and, Abella) represents the dichotomy in principle the courts have encountered in trying to define the contents of rights in general. On the one hand, Charter rights can be defined using a normative approach, that is, as a given norm with respect to acceptable police conduct with respect to the citizenry. Put in other words, this is like drawing a line on acceptable police conduct. If the police cross this line, then they have infringed an accused person’s rights. As an example, under s. 10(b) – the right to counsel, the imposition of informational and implementation duties on the police is an example of a normative approach where there is a clear denotation of acceptable police conduct. The alternative approach is to take a more pragmatic view and assess potential infringements of the right in terms of their impact on the administration of justice. Remedies are only warranted when the repute of the administration of justice is at stake. The majority in confining the right to silence to the boundaries of the voluntariness rule, has basically said that repeated questioning of a detained person in light of their wish to remain silent, per se, does not impact on the administration of justice and does not warrant a remedy. The facts in Singh were straightforward. An argument broke out between three Indo-Canadian men and the employees of a club. One of them pulled out a gun and started shooting. An innocent bystander was killed. Identification was the issue. Mr. Singh was identified by a doorman in a photo line-up as the shooter. Another witness identified, through videotape footage, a person wearing a baseball cap backwards, inside the club, as the person with the gun. The person in the footage (according to the police) shows a resemblance to a picture of Mr. Singh that the police had in their possession. Mr. Singh was arrested. In a police interview, he talked freely about his life generally to the police, but when the questioning turned to the incident, he denied any involvement and asserted his right to silence. His mantra was: he had nothing to say; knew nothing about the shooting and wanted to return to his cell. He repeated this 18 times. To gain Mr. Singh’s confidence, the interrogating officer employed a ruse. The officer made up and told an elaborate story that he had driven under the influence of alcohol, that he had been involved in an accident and that his girlfriend suffered a miscarriage in the accident. The officer later testified that this was to show his supposed empathy with Mr. Singh. The officer started placing the police evidence before Mr. Singh, including a photo from the video footage. Mr. Singh ultimately admitted to being in the bar on the night of the shooting and identified himself as the person with the baseball cap on backwards.[i] In Mr. Singh’s case, there were few concerns with respect to the reliability of his statement. He sought a broad interpretation of the right to silence that puts a duty on the police to stop questioning the accused at a certain point and he sought to exclude an otherwise legitimate confession. As Justice Fish pointed out (para. 97), this is ultimately a question of preference with respect to the type of system of justice one desires. Part of the problem here was that there is no clear jurisprudence that highlights at what point the police cross the line of reasonable persuasion and infringe a detained person’s right to silence. For example, are 18 expressions of the desire to remain silent the limit? Do you need more? Is time the delimiting factor? Do we need some measure of coercion? Is the state of mind of the accused a relevant consideration? Progressing from R. v. Hebert, [1990] 2 S.C.R. 151, in which the Supreme Court clearly stated that the police can continue to question a suspect after they have exercised their right to counsel, there were a series of trial authorities that suggested there was a nascent independent right to silence (See R. v. Morrison, [2000] O.J. 5733, R. v. C.K., [2005] O.J. No. 4853 (Crt. of Justice), R. v. LaFrance, [2004] O.J. No. 4833 (Crt. of Justice)). However, these judgments lacked a principled approach to the problem and failed to articulate the underlying principles and policies which would favour a broad interpretation of this right. Many of these authorities expressed concern with police tactics employed to overcome a person’s desire to remain silent, but fall short of being oppressive. In the United States, this issue is guided by the seminal case of Miranda v. Arizona. The holding in Miranda was simple: if the individual in any manner, at any time prior to or during questioning, indicates that he wished to remain silent, the interrogation must cease. In fairness, one must also keep in mind that Miranda only prevents the state from entering an impugned confession into evidence as part of the prosecution’s case; it does not prevent the state from using it to cross-examine an accused who takes the stand (Harris v. New York, 401 U.S. 222 (1971)). Furthermore, there is a recognized exigent circumstances exception to Miranda (New York v. Quarles, 467 U.S. 649 (1984)). Despite these shortcomings, as observed by Justice Fish, the United States Supreme Court recently affirmed Miranda (Dickerson v. United States, 530 U.S. 428 (2000)) and held that Congress could not circumvent or override Miranda by making voluntariness the sole criterion of admissibility of a detainee’s statement to the police. Dickerson was a direct challenge to Miranda by U.S. lawmakers. In the United Kingdom, there is legislation that controls the limits of police authority and conduct. The Police And Criminal Evidence Act (PACE) 1984 under section 76 stipulates that confessions obtained under oppression or confessions that are unreliable (arising from the circumstances) are excluded. This, in essence, mirrors the voluntariness rule regime under Oickle. In addition, under section 78 of PACE, there is an independent consideration for the trial judge to exclude evidence that would affect the fairness of the trial. This includes any breaches of the Codes of Practice under PACE. Code of Practice “C” (at paragraph 16.5) states that charged persons (there is a distinction between charged persons and suspects) are not to be questioned in relation to the offences they are charged with unless absolutely necessary. The enumerated purposes for further questioning include: preventing future harm (exigencies); clearing up an ambiguous prior statement; and giving an accused person an opportunity to comment on information concerning the offence. The existence of a separate discretion to exclude evidence from a fairness perspective in the UK highlights one of the key shortcomings of Singh. It removes any discretion for a trial judge to exclude evidence that does not quite meet the Oickle standard for voluntariness, but still brings about serious concerns regarding trial fairness. Given the fact that the Supreme Court has spoken on this issue, it is doubtful if this issue will be revisited anytime soon. It seems that the only practical progression at this point, in terms of rights to silence of detained persons, is to perhaps revisit the test in Oickle and incorporate more of the fairness concerns into the test. [i] As an aside, can one think of any worse facts to litigate this issue? You have murder, gun violence, an accused (if in fact the shooter) who showed a complete reckless disregard for human life, the form of coercion by police was relatively benign, compelling evidence that suggest guilt otherwise (two eyewitnesses) and zero concerns regarding the reliability of the statement. Back to top >>

Browne v. Dunn Where Does the Rule Stand Now? Suran Bhattacharyya* This paper briefly explores the rule in Browne v. Dunn and the remedy when the rule is contravened. The rule of Browne v. Dunn is that if opposing counsel is going to challenge the credibility of a witness by calling contradictory evidence, then the witness must be given the chance to address the contradicting evidence in cross-examination while s/he is still in the witness box. The rule was first articulated by Lord Herschell of the House of Lords in Browne v. Dunn (1893), 6 R. 67. In Browne v. Dunn, a defamation action was brought against a solicitor. At issue was a document, which the defendant had drawn whereby he was to be retained by a number of local residents to have the plaintiff bound over to keep the peace. Of the nine signatories to the document, six gave evidence that they had genuinely retained him as their solicitor and that the document was intended to be a retainer. This evidence was unchallenged in cross-examination by the plaintiff. On this basis, the defence reasoned that the authenticity of the document appeared to have been accepted. Alas, the plaintiff argued in his submission to the jury that the defence of qualified privilege relied upon by the solicitor was a sham. When the matter made its way to the House of Lords, Lord Herschell articulated the issue as follows: “Now, my lords, I cannot help saying that it seems to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in conduct of a case, but is essential to fair play and fair dealing with witnesses.” [emphasis added] Although, Lord Morris concurred entirely with Lord Herschell, he added the following gloss in Browne v. Dunn that has since created much ambiguity in the law: “I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit, that you should take him through the story which he had told, giving him notice by questions that you had impeached his credit.” The Supreme Court of Canada first adopted the rule in Peters v. Perras et al.[i] In that case, the Court applied the principle to buttress the allowance of an appeal from a judgment that had rejected the uncontradicted testimony of a witness examined abroad under commission “…[when] no opportunity was afforded to the witness of explaining or qualifying the facts or conduct on which the attack upon his veracity or honesty was based.” The Court next addressed the rule in R. v. Palmer.[ii] In Palmer, the defence objected to the prosecution’s failure to cross-examine the accused fully as to his defence prior to impeaching it. The defence was a flat denial by Palmer of any involvement with drugs or Ford, the key Crown witness. It was asserted that Ford’s evidence was completely fabricated with respect to various meetings he had with the accused. The trial judge found that Palmer was not a credible witness and indicated that he was not willing to accept his testimony on important matters. Palmer’s counsel objected to this on the basis that Palmer’s version of what occurred on these occasions stood uncontroverted. The Supreme Court dismissed this ground of appeal and agreed with Justice McFarlane of the Ontario Court of Appeal, who adopted Lord Morris’s gloss on the rule: “The second ground of appeal argued was that the trial Judge should have found that the evidence of Douglas Palmer raised at least a reasonable doubt of his guilt. With particular reference to the three occasions to which I have just referred, it was said that Palmer's evidence was not shaken in cross-examination and it is suggested he was not specifically questioned about one or two of them. Reference was made to Browne v. Dunn (1894) The Reports 67 and to Rex v. Hart (1932) 23 C.A.R. 202. I respectfully agree with the observation of Lord Morris in the former case at page 79: I therefore wish it to be understood that I would not concur in ruling that it was necessary in order to impeach a witness's credit, that you should take him through the story which he had told, giving him notice by questions that you impeached his credit. In my opinion the effect to be given to the absence or brevity of cross-examination depends upon the circumstances of each case. There can be no general or absolute rule. It is a matter of weight to be decided by the tribunal of fact, vide: Sam v. Canadian Pacific Limited (1976) 63 D.L.R. (3d) 294 and cases cited there by Robertson, J.A. at 315-7. In the present case Douglas Palmer was cross-examined extensively. It seems to me the circumstances are such that it must have been foreseen his credit would be attacked if he testified to his innocence. In any event, this was made plain when he was cross-examined. The trial Judge gave a careful explanation for his acceptance of the story of Ford and rejecting that of Douglas Palmer. I cannot give effect to this ground of appeal.” [emphasis added] In sum, Palmer established that there is no absolute rule and the remedy is weight is given to any evidence received in contravention of the principle. Has the rule and remedy since changed particularly given the Ontario Court of Appeal’s ruling in R. v. McNeill?[iii] The Ontario Court of Appeal offered the following two non-exhaustive remedies in R. v. McNeill, [2000] O.J. No. 1357 (Ont. C.A.) at paras 47 - 50: 1. The court suggests the first option is exploring whether the witness is available for recall. If so, assuming the trial judge is otherwise satisfied that recall is appropriate (after weighing the pros and cons of doing so), the aggrieved party can then either take up the opportunity to recall the witness or decline it. • If the opportunity is declined, then no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted. 2. In those cases where it is impossible or highly impracticable to have the witness recalled or where the trial judge otherwise determines that recall is inappropriate, it should be left to the trial judge to decide whether a special instruction should be given to the jury. • If one is warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. • The jury should also be told that they may take this into account in assessing the credibility of the opposing witness. Post-McNeill, the Ontario Court of Appeal appeared to limit the remedy of reduced weight to those situations where the aggrieved witness could not be recalled. Although, onerous for the court and parties to recall the aggrieved witness, the rules established in McNeill provided some much needed clarity. It made logical sense in that the aggrieved witness could directly address concerns subsequently raised about their evidence provided they were still available to testify. Where the aggrieved witness was no longer available, the trier of fact could be instructed to place weight on the evidence that had not been put to the aggrieved witness. But, most recently, the Ontario Court of Appeal appears to have backtracked from the stringent standards it established in R. v. McNeill. In R. v. Marshall[iv] and R. v. Giroux,[v] the court permitted the remedy though it was possible to recall the aggrieved witnesses in both cases. In Marshall, three witnesses (Vogel, Ramsay and Goobie) testified for the Crown. They were not cross-examined by defence counsel on any of the “facts” outlined by defence counsel for the first time in his opening address to the jury after the close of the Crown’s case. Crown counsel decided not to recall the witnesses and the trial judge did not opt to do so on his own initiative. The trial judge further instructed the jury that though the sins of counsel should not be visited upon the client, defence counsel’s failure to put Marshall’s version of events to the witnesses meant that Marshall’s testimony was unsupported. Although the Court of Appeal cautioned that the trial judge’s charge on the issue of the defence’s failure to cross-examine the Crown witnesses was not perfect, the Court held that it did not prejudice Marshall. In Giroux, the trial judge pointed out to the jury that not all of the details of Giroux’s testimony were put to the police officer when he was cross-examined, whereas when Giroux was cross-examined, all of the details of the officer’s account of the facts were put to him. This deprived the officer of an opportunity to say whether or not he agreed with the contradictory aspects of Giroux’s testimony, and why. On this basis, the trial judge instructed the jury that Giroux’s evidence was not held to the same level of scrutiny as the police officer’s, a factor which they could consider when assessing the weight to give their respective evidence. The Ontario Court of Appeal upheld the trial judge’s decision as to the Browne v. Dunn instruction. The Court noted that the rule from that case is that where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. These circumstances were present in the case of Giroux’s cross-examination of the police officer, with the result that the trial judge was entitled to bring these discrepancies to the jury’s attention. So, what can we take away from the Ontario Court of Appeal’s rulings in R. v. McNeill, Marshall, and Giroux? There is no absolute rule when the Browne v. Dunn principle is breached, but the remedy is generally an instruction that the trier of fact take into account the breach when weighing evidence on point regardless of the availability of the aggrieved witness. Another key point to keep in mind is that not every contrary detail needs to be put to a witness by opposing counsel for the rule to be satisfied.[vi] * Suran Bhattacharyya, Assistant Crown Attorney. The views expressed in this article are solely those of the author and are not necessarily the view of the Ontario Ministry of the Attorney General. [i] (1909), 42 S.C.R. 244. [ii] [1980] 1 S.C.R. 759 [Palmer]. [iii] [2000] O.J. No. 1357 (Ont. C.A.). [iv] [2005] O.J. No. 3549 (Ont. C.A.) [Marshall]. [v] [2006] O.J. No. 1375 (Ont. C.A.) [McNeill]. [vi] R. v. Verney, [1993] O.J. No. 2632 (Ont. C.A.) at para 28. Back to top >>

A Note from the Editor Amy Shoemaker* Greetings and Happy New Year from your Criminal Justice Executive. By the time you read this newsletter, Institute 2008 will have already taken place. “Five Shades of Cross-Examination” was presented by Peter West and Suhail Akhtar on February 2nd. It was a great program covering everything you ever wanted to know about cross-examination, but were afraid to ask. In this issue, from the Crown’s corner, Suran Bhattacharyya has written about recent legislative changes in relation to conditional sentences and DNA orders. Suran has also provided us with an analysis of the rule in Browne v. Dunn. For the defence, our colleague, Ngai On Young has provided a case comment on Singh, a recent Supreme Court decision that deals with the scope of a detainee’s right to silence. We also provide links to upcoming educational programs. The Section Executive hopes to see you there. These events are always informative. The Criminal Justice Executive would like to congratulate our Chair, Peter West, on his appointment to the Ontario Court of Justice.  Peter has been a great Chair and a fine colleague and we will certainly miss him.  We wish him every success in the future.  Our Vice-Chair, Suhail Akhtar has taken over the role of Chair for the Section. We welcome your submissions for upcoming editions of the newsletter. If you have an article or a suggestion for an article, please e-mail me at ashoe@rogers.com. From your newsletter editor, * Amy Shoemaker, Legal Aid Ontario.   Back to top >>