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Posts from the ‘Criminal Code’ Category

Canadian Police College Library

Last week I was in Ottawa for a conference. I stayed at the Canadian Police College and I had a chance to visit their library.

If you like police hats, this is the place to be:

Canadian Police College Library in Ottawa

Canadian Police College Library in Ottawa

The library had all the Criminal Codes, dating back almost 40 years. Look at how things have changed between 1979 to 2017.  The page count of Martin’s Annual Criminal Code has doubled.  And the text is more dense.  Today the law is more complex and there is more case law:

Criminal Code from 2017 vs 1979

Criminal Code from 2017 vs 1979

The Criminal Code has doubled in size over the past 38 years

The Criminal Code has doubled in size over the past 38 years

Before leaving Ottawa I paid my respects at the RCMP National Memorial Cemetery:

RCMP National Memorial Cemetery

RCMP National Memorial Cemetery

Using 810.1 and 810.2 peace bonds to reduce violence in Canada

The document Handbook for High-Risk Offenders – A Handbook for Criminal Justice Professionals was published in 2001 by Public Safety Canada. Although dated, it provides a basic description of 810.1 and 810.2 peace bonds:

On August 1, 1997, Bill C-55 came into effect and created the section 810.2 order. The 810.2 order focuses on violent offenders, including sexual offenders. Both of these sections are designed to be preventative and not punitive, hence, it is not necessary for an offender to have a previous criminal record in order to qualify for one of these orders.

These orders can be made for a maximum of one year [this has since been extended, in some circumstances, to two years]. Conditions can be attached to these orders and a breach of an 810 order constitutes an offence. These orders are quite broad in their application, as a crime need not have been committed and the potential victim need not be named. Should a defendant refuse to enter into an 810 order they can be imprisoned for up to one year.

Two of these orders, 810.01, (When fear of a criminal organization offence); and 810.2, (Where fear of a serious personal injury offence) require the consent of the Attorney General of the province, or if in the territories the consent of the Attorney General Canada, to proceed. Each of the 810 orders has standard conditions set out in the Code. In each case the court will consider whether to impose these conditions based on the interests of society and the interests of the safety of the potential victims. The court also has the discretion to impose any additional conditions it sees fit as long as these conditions meet the test of reasonableness. Additional conditions are commonly applied to 810.1 orders (Where Fear of a Sexual Offence) and to 810.2 orders (Where Fear of a Serious Personal Injury Offence).

The British Columbia Supreme Court ruled in R. v. Baker (1999) [B.C.J No. 681 (B.C.S.C.)] that it is not necessary for the informant (the person who has the fear) to have had contact with the defendant in order to lay an information under section 810.2.

Generally, while the conditions associated with 810 orders do impose some restrictions on the defendant, they should not prevent the defendant from leading a reasonably normal life. See R. v. Budreo (1996), 104 C.C.C. (3d) 245, 45 C.R. (4th) 133 (Ont. Ct. (Gen. Div.)), affd (unreported, January 19, 2000, Ont. C.A., Court File No. C23785).

In my view, these peace bonds are an important tool. Used properly, they can reduce violence and keep potential offenders out of jail.

Here are some of the more important cases I’ve been able to find about 810.1 and 810.2 orders:

R v. Boone, 2007 MBPC 15
This case is useful for its examination of various conditions that can be applied under 810.1 and 810.2 orders.

R. v. J. S. H., 2017 BCPC 12
The Court declined to order an 810.2 for the defendant. Most of the Defendant’s criminal record was as a youth, and his last criminal conviction was five years ago. He spent 14 months on a recognizance of bail pending the 810.2 hearing, and his conduct during that time was upstanding. Of note, at para 21, there is a list of examples in case law where orders have been made under section 810.2 even though the Defendants had similar periods of compliance with their bail orders.

R. v. Nikal, 2016 BCSC 29
This was a provincial court decision appealed to the BC Supreme Court. The BC Supreme Court found that the original judge did not have to articulate imminent harm (para 42). All that was necessary was for the evidence to show that apprehension of the risk is reasonably grounded and is neither speculative nor remote (para 40).

R. v. Fendley, 2013 BCPC 194
The Court granted an 810.1 order even though the Defendant had no criminal record for sexual offences (para 5). The Court also found there was no requirement for the Informant to prove “serious and imminent danger” (paras 20 – 28). The reason this language is important is that a much earlier court decision from another province suggested that “serious and imminent danger” was required (even though this language was not present in the Criminal Code).

R. v. Baker, 1999 CanLII 15135 (BC SC)
The hearing judge need only find on the balance of probabilities that there are reasonable grounds that the appellant will commit a personal injury offence (para 44).

R. v. R.H.G.M., 2010 BCPC 434
This case resulted in a peace bond with comprehensive conditions, including a curfew, a red zone and a no alcohol condition (paras 31 – 34). The Defendant had a criminal record dating back to 1988. He had amassed approximately 30 convictions, including a three year federal sentence for aggravated assault.

R. v. Penunsi, 2015 CanLII 64020 (NL SCTD)
Section 515 of the Criminal Code (judicial interim release) applies to proceedings on an Information laid pursuant to s. 810.2 of the Criminal Code.

R. v. Burton, 2013 ONSC 4531
This case resulted in a substantial sentence for breaching an 810.2 order. In addition to a lengthy jail sentence, the offender also received a probation order with a comprehensive and innovative list of conditions.

Testifying by video conference

This is a post that I’m going to try to update over time with new case law.

I saw this article on the Toronto Star – Prosecutor blames Toronto police vacation plans as impaired driving case collapses:

She explained in court that a trial notification for next month’s trial had been sent to Toronto police on June 23, 2016, but it was only in January that the officer in charge of the case emailed Kromm to say he didn’t believe many of the officers requested to testify were necessary.

“I told him there was a charter application before the court and it was my opinion that those officers were necessary and I required them to be here for trial,” Kromm told Horkins, according to a court recording obtained by the Star.

She said she then received a further email informing her that two of the officers were “unavailable for trial because they were going on vacation to Florida.”

One point that could have saved these charges from being stayed was Section 714.2(1) of the Criminal Code:

714.2 (1) A court shall receive evidence given by a witness outside Canada by means of technology that permits the witness to testify in the virtual presence of the parties and the court unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

This section mandates the Court to receive testimony from an out-of-country witness, unless Defence or Crown can show it is contrary to the principles of fundamental justice (ie. unfair). This appears to have been an option for the prosecutor and the judge in the case above. Or, if you give 714.2(1) a strict interpretation, it was not an option but a requirement.

Here are some cases where the witness was permitted to testify pursuant to 714.2(1) of the Criminal Code. It’s worth noting that, in every case I could find, out of country witnesses were  allowed to testify pursuant to 714.2(1) of the Code:

Witness allowed – R. v. Galandie, 2008 BCPC 6

Witness allowed – R. v. D’Entremont, 2009 ABPC 374

Witness allowed – R. v. Turner, 2002 BCSC 1135

Witness allowed – R. v Al-Enzi, 2017 ONSC 304

Witness allowed – R. v. Schertzer, 2010 ONSC 6686

Witness allowed – R v Nguyen, 2015 SKQB 382

Witness allowed – R v Singh, 2015 ONSC 6823

Witness allowed – R. v. M.M., 2012 ABPC 73

Witness allowed – R. v. Stevenson, 2012 BCSC 800

If the witness is located inside Canada, but away from the location of where court proceedings are being held, then 714.1 of the Criminal Code allows for a witness to testify by video conference:

714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present; and

(c) the nature of the witness’ anticipated evidence.

Under this section, the courts have been generally open to some witnesses testifying by video conference, where there is a good reason for it. But they have not been inclined to allow police officers or correctional officers inside Canada to testify remotely. Here are a few cases. I hope to update these over time:

Officer denied – R. v. Munro, 2009 YKTC 125 (CanLII)

Officer denied – R. v. Fleury, 2004 SKPC 53 (CanLII)

Officer denied – R. v. Ross, 2007 BCPC 244 (CanLII)

Officer denied – R. v. Munro, 2009 YKTC 125 (CanLII)

Officers allowed – R. v. Kim MacNearney and Craig MacNearney, 2010 NWTSC 77 (CanLII)

Videoconference capabilities have improved since these sections of the Criminal Code were introduced in 1999. It is likely they will get even better in the future.