Through The Judicial Lens: The Supreme Court of Canada and Unreasonable Verdicts

On January 21, 2013, the Supreme Court of Canada heard the W.H. appeal from the Newfoundland Court of Appeal on the issue of unreasonable jury verdicts where credibility is the sole issue. In W.H., the Court of Appeal quashed the conviction for sexual assault on the basis the finding of guilt by the jury was an unreasonable verdict due to the “inconsistencies and improbabilities” of the complainant’s evidence.

The case was a classic “he-said, she-said,” with error free” trial and jury instructions. In the Court of Appeal’s opinion, the jury, as trier of fact, failed “to act judicially in assessing credibility” and therefore it was incumbent on the appellate court to re-assess the evidence. The Court, after reviewing the evidence through “the lens of judicial experience,” found the verdict was unreasonable and the conviction was quashed with an acquittal entered.

The Supreme Court of Canada after hearing arguments and reading the factums, reserved their decision. Hopefully, the SCC will re-clarify the grounds for an unreasonable verdict finding by an appellate court where credibility is an issue. Hopefully too, there will be some discussion of the requirement that the review be done through the “lens of judicial experience.”

This concept of reviewing the record from a judge’s perspective is not new. Indeed, for unreasonable verdict cases, the requirement the reviewing court be satisfied that the jury was “acting judicially,” presupposes such a perspective.

However, the standard of “acting judicially,” may be too high a standard for a jury, which is composed of the accused’s peers, to attain. For one, the jury is not steeped in legal knowledge. Of course, this omission is to be overcome by the trial judge, who as arbiter of the law must instruct the jury on the law and the proper application of the law to the facts as they find them. Whether or not such an instruction is sufficient to fill the legal gaps is a better subject for a future blog. In any event, even if we accept such instructions assist the jury in “acting judicially,” in many unreasonable verdict cases, such as in the W.H. case, the instructions to the jury were “error free” and thus correct.

So, “acting judicially” is not really based on legal knowledge and instruction, but on the application of that knowledge. This is where “judicial experience” comes into play. As stated thirteen years ago by Justice Arbour in Biniaris, sometimes

the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced.

There again is our standard of assessment, the “experienced jurist,” applying her perfect knowledge in a perfect world. Justice Arbour further articulated her understanding of “acting judicially” as:

not only acting dispassionately in applying the law and adjudicating on the basis of the law and nothing else.  It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience.  The reviewing court’s assessment must, in other words, proceed through “the lens of judicial experience” to identify and articulate, as precisely as possible, those features of the case which suggest that the verdict was unreasonable.

Thus, not only must the jury act judicially, but the decision, which they render, must be consistent with “judicial experience.”

The reviewing court must therefore not only use the judicial “lens” in assessing how the jury came to their decision, but must also use the judicial “bifocals” in ensuring that the determination accords with their judicial experience. This requires a broader analysis of precedent to confirm such a consistency. Therefore, in entering into an unreasonable verdict analysis, the reviewing court must not only look to the totality of the evidence at bar but also at the weight of case law on the particular issue. Thus, in W.H., not only must the specific inconsistencies and improbabilities of the complaint’s evidence be assessed judicially, but the court must also consider through the “lens of judicial experience” as reflected through case law, whether or not the jury’s decision makes “judicial” sense. We look to the SCC’s decision on this case to make this analysis “crystal-clear.”

The Pham Decision And The Human Face of Sentencing

Mr. Justice Doherty of the Court of Appeal for Ontario reminds us, in his decisions, that there is a human factor at play in the criminal law. It is not just concerned with legal maxims and the “golden thread,” but also with the real individuals who are affected by the criminal justice system. In learning and discussing criminal law issues, it is vitally important to be aware that the law works in a human environment.

For example, in a previous posting, I discussed the N.S. Ontario Court of Appeal decision on testifying behind the veil, which Justice Doherty authored on behalf of the court. In that decision, he remarked on the devastating effect the sexual assault trial will have on both the victim and the accused: for the victim, the humiliating prospect of describing her most intimate details and, for the accused, the prospect of a long period of incarceration if convicted and, if acquitted, the taint of being suspected of such a horrific crime.

The spectre of humanity raises itself yet again in the Pham case, a sentencing decision from the Alberta Court of Appeal, to be heard by the Supreme Court of Canada this Friday on January 18, 2013. In this case, the issue is whether or not the extraordinary effects of a sentence imposed in a deportation context should be considered when a trial judge sentences an accused to, what would be otherwise, an appropriate sentence. Specifically at issue is the length of the sentence to be imposed considering the accused was subject to the Immigration and Refugee Protection Act, which extinguishes an applicant’s right of appeal under the Act should that person be subject to a term of imprisonment of “at least” two years. Pham was indeed sentenced to a term of two years incarceration for his participation in drug offences for which he already had a criminal record.

Outside of immigration issues, there is a significant difference between a sentence of two years and a sentence of two years less a day: two years signifies time to be spent in the Federal prison system, while two years less a day permits the sentence to be served in provincial institutions. Because of the significance, there is more than just twenty-four hours at risk: Federal time, viewed as “harder” than Provincial time, means that some crimes require the denunciation which Federal time can provide. Therefore, in sentencing the accused to an appropriate period of time, the significance of federal vs. provincial imprisonment is taken into account. The trial judge would ask; does this crime warrant time in a Federal institution? Is Federal time an appropriate sentence in light of known sentencing principles?

To add into this discussion the issue of immigration seems to distort the process or so the majority of the Alberta Court of Appeal seemed to find. In their view, if the sentence imposed is appropriate, the appellate courts should not tamper with the sentence for the sole reason of preserving an immigration right. Considering all factors relating to the sentencing of Pham, the majority found the two year sentence to be fit in the circumstances.

The dissent or what I call loosely “the dissent,” as Justice Martin starts on the same premise as the majority, found that:

those with a criminal record who are sentenced to imprisonment for two years or more should not usually have their sentence reduced, even by a day, simply to enable them the right to appeal a deportation order.” However, the Crown consented to the appeal, agreeing that the sentence could be reduced by a day for immigration purposes, as the trial Crown presented just such a sentence on a joint submission before the trial judge.

So, the end result is that the SCC will have to decide whether or not immigration issues matter and if so, to what extent and in what circumstances. They will also need to consider the fitness of a sentence in relation to two years or two years less a day – are these sentences truly significantly different? The decision may also impact other sentencing considerations, such as granting a discharge as opposed to entering a conviction where the accused’s employment requires cross-border movement. A conviction, in those circumstances, may bar an accused from entry into the USA. As seen in the Bertuzzi case, such allowances for hockey players is not uncommon.

Now let us go back to Justice Doherty’s human factor as his on point decision in 2004 Hamilton case was referred to in the Pham majority decision. In that case, the accused were, what is commonly known as “drug mules,” women who due to extreme circumstances are induced into breaking the law by being cross-border drug couriers. It must be noted that both women in the case did not have prior drug convictions as in Pham. Justice Doherty made the following comments:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy. These two cases fall within that category of cases.” And later stated “would not characterize the loss of a potential remedy against a deportation order that might be made a mitigating factor on sentence. I do think, however, that in a case like Ms. Mason’s there is room for consideration of the potentially added risk of deportation should the sentence be two years or more. If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for Ms. Mason, the trial judge could look at the deportation consequences for Ms. Mason of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender in the circumstances of Ms. Mason can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to someone like Ms. Mason by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence.

Hopefully, this “human face of sentencing” will be recalled when the SCC comes to their final decision on this case.

Is “Reasonable Suspicion” Going to the Dogs?

What do Levi, Boris, and Max have in common? They are both “single-profile narcotic detector dogs,” commonly known as “sniffer” dogs. These highly trained canines are able to detect controlled substances in bus station lockers, luggage at airports, and in motor vehicles travelling west to east across the drug courier “pipeline,” which we call the Trans Canada Highway. Although typically part of the investigation of drug offences, these investigators do not make it onto the witness list, however, they too will soon have their day in court when the Supreme Court of Canada hears two “sniffer” cases – the MacKenzie case from Saskatchewan Court of Appeal and the Chehil case from the Nova Scotia Court of Appeal – on January 22. 2013.

At issue is the standard of “reasonable suspicion” required before using the dogs for a warrantless search. Although, previous case law has discussed the differences between “reasonable suspicion” and "reasonable and probable grounds,” the discussion has failed to provide the needed direction to trial judges when faced with the issue. When does an “educated guess” become “reasonable suspicion?” Although, trial judges list the evidence in support or lacking on the issue, the subjectiveness of such a finding has left any precedent in this area ephemeral at best. Of course, one difficulty is the requirement for the trial judge to subjectively assess the evidence on an objective basis. For example, in the MacKenzie case, the trial judge was decidedly unimpressed with the police officer’s evidence that the accused’s eyes were of a “pinkish hue” and therefore consistent with someone using marijuana. In the trial judge’s view, this evidence seemed more consistent with hindsight than providing reasonable grounds for a sniffer search.

The other difficulty with “reasonable suspicion” is also highlighted by both Court of Appeal cases – not in a legal sense, but in a practical one. Both Appeal Courts, allowed Crown appeals against acquittals, meaning that these appellate courts disagreed with the findings of the trial judges and substituted their opinion for the trial decision. Instead of deference, these cases exemplify the difficulty in assessing factors with no real guideline on the appropriate legal application. As every law student understands, to know the law is one thing but to apply it to a set of facts is another. Certainly, this is an issue which calls out for a clear SCC decision. My “educated guess” would be that help will be forthcoming and such a decision will most likely be written by Justice Moldaver, the purveyor of common sense decisions, or by Justice Fish, who was a member of the majority decision in the previous sniffer dog case R v Kang-Brown.

The one area that I hope the Supreme Court of Canada will touch upon is an interesting comment made by Saskatchewan Court of Appeal Justice Caldwell in the MacKenzie decision. In that case, the accused was pulled over for speeding 2 km over the posted speed limit, although the accused had rapidly slowed down his vehicle when he realized the police were at the roadside. Although the police officers maintained they were on traffic duty at the time and therefore had a legitimate reason for pulling over the accused, they also just happened to be trained drug officers from a different part of Saskatchewan with their sniffer dog, Levi.

Coincidence? I think not said the wily trial judge. This “innocent” explanation for their presence was not accepted by the trial judge who was therefore concerned that in fact the targeting of the vehicle was really for

the purpose of conducting random traffic stops for the sole purpose of checking for drugs being transported from west to east which, according to Cst. Sperle, is a common occurrence. It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.

Conversely, on appeal, Justice Caldwell quickly dismissed this concern as, in his view, whether “reasonable suspicion existed does not involve a search for motive.” The trial judge thereby erred by not placing enough emphasis on the police officers’ training as the objective assessment must be done in the context of the officer’s background, knowledge, and training. If the SCC accepts this, the concept of an “objective” assessment would be diminished. In my view, such an assessment would be more akin to a “modified’ objective assessment as seen in the assessment of defences such as necessity and duress.

In the end, the days of sniffers may be at a close as Harper’s government has already reduced the sniffer force by nineteen with fifty-three dogs remaining across Canada. According to the dog handlers, this reduction has nothing to do with effectiveness but everything to do with money as it costs about one hundred thousand dollars to start up a sniffer team. Despite this, the cases will go far, hopefully, in crystallizing the meaning of “reasonable suspicion,” an area which impacts not just sniffer dogs but other investigative searches and arrests as well. For further information on the appeals read the factums for MacKenzie and for Chehil.

Searches, Verdicts, and Sentences

The Supreme Court of Canada will be hearing the appeals on four criminal matters this month. Two of the four raise the same issue and will be heard together. Each of these three issues differ dramatically – highlighting the amazing breadth of the criminal law and why practicing in the area of criminal law is so engaging and interesting.

The first case to be argued is the Pham case from Alberta raising the issue of the appropriateness of sentencing an accused to a reduced length of imprisonment on the basis of deportation consequences.  The second case from Newfoundland, R v W.H., will be argued on January 21 and is concerned with an unreasonable jury verdict where credibility is the sole issue at trial. Finally, the two remaining cases, the Mackenzie case from Saskatchewan and the Chehil case from Nova Scotia, are vitally important cases on the use of sniffer dogs in searching for drugs.

Over the course of the next ten days, I will post an analysis of these cases as a primer for these hearings.  So be posted for searches, verdicts, and sentences.

Is the Supreme Court of Canada "Kicking It Old School"?

When I practiced as appellate counsel in the Court of Appeal for Ontario, I came to know the differing approaches of the Justices of Appeal very well. Just prior to the hearing date, I would call the Registrar's office seeking the one piece of information which could make or break a favourable hearing: the panel list. Would there be a Justice on the panel familiar with and sympathetic to criminal law issues? Or would the panel be stacked with Justices more concerned with commercial liens and the division of property?

In truth, the best panel was not filled with Justices learned in the law but those hardened by the trial courts: those Justices who had spent the prime of their career sitting in the lower level courts presiding over murders, robberies, and drug conspiracies. Judges like Justice John Brooke, Justice Allan Goodman, and Justice Horace Krever were the best draw in a criminal appeal as they exercised their judgment and common sense in a manner made for a criminal appeal. True they were no stranger to case law, indeed, they made case law. But their legal acumen was enhanced by their uncanny ability to seize upon the heart of an issue and render a fair and equitable decision. For this panel, the law was known, and the advocate's challenge was to adroitly respond to the comments made by these wily and nimble judges, who could see the play of a trial in their mind's eye, like an intricate chess game, and thus appreciate the dynamics of the case before them.

In contrast, the Supreme Court of Canada seemed to be more lofty, requiring a sublime understanding of the case law. Only Chief Justice Lamer, as he then was, (and yes, I just dated myself) offered a refreshing glimpse of one who was, like Leo Bloom in Ulysses, a journeyman accustomed to the realities of the trial courts. 

This nostalgic foray was brought about by the recent decisions of the Supreme Court of Canada, some of which I have written about in prior postings here, here, and here, culminating in the last effort when the SCC released the jury vetting trilogy. The trilogy decision seemed effortless, straight forward, almost easy and uneventful. On the second reading, it dawned on me why this was so: the decision was based on a common sense and practical approach to criminal law. The decision was pure trial judge.

Essentially, the decision approves of background criminal record checks of jurors, where legislation permits, as long as the information is subsequently shared with the defence. By extension, should the police or the Crown come across other pertinent information relating to the potential juror through other investigative techniques, then that too can be used in choosing a jury, but again with the concomitant obligation to disclose the material.

However, this disclosure is not limitless in its aspect. Often experience and intuition are invaluable tools, producing invaluable information. Such irreplaceable information gleaned through years of practice, need not be shared and cannot be reproduced to form part of a disclosure package. How true. Common sense cannot be packaged and this decision, together with the other recent SCC decisions I blogged about show that common sense can make precedents. As an aside, these decisions were all written by Justice Moldaver, a recent SCC appointment from Ontario, who not only sat as a Trial judge but was also a defence lawyer. It seems as though the SCC is truly kicking it old school!