Reasonable Expectation of Privacy in a Motor Vehicle

Not all private property, however, commands the same level of respect for privacy from a sec. 8 perspective. By that it is meant that the courts will determine the individual’s level of expectation of privacy based on the place that is searched or the property that is seized. The higher the expectation of privacy, the more rigorously the courts will enforce the rule of prior authorization. Generally speaking, an individual will have a greater expectation of privacy in their home than they will in their car, a greater expectation of privacy in their car than in their work-locker, etc… It is without a doubt, however, that individuals do have a reasonable expectation of privacy with regard to their own car, and the contents of therein.

However, the same expectation of privacy is not attributable to persons who are not the vehicle’s owner and who are passengers within it. As the Ontario Court of Appeal held in R v Alkins, the already lesser expectation of privacy in a car is further reduced when the vehicle belongs to someone other than you. To illustrate this point, consider for a moment that you are a passenger in a vehicle which is stopped by the police for speeding. After briefly speaking with the driver, the officer believes that a weak scent of marijuana is coming from within the car. Ordinarily, that would not amount to sufficient grounds to search the vehicle, but say for the sake of example that the officer conducts the search anyway and discovers an ounce of marijuana under the passenger’s seat, where you happen to be sitting. As a result, both you and the driver are arrested for constructive possession of a controlled substance. At his trial, the driver’s lawyer brings an application to exclude the marijuana because it was obtained through an unlawful search of his vehicle, and succeeds. At your trial, your lawyer tries to do the same, but the judge dismisses your application. Why? The reason is because you are deemed to have a lesser, or no expectation of privacy in the car of another, and thus, cannot rely on the sec. 8 right not to be unreasonably searched.

Now say that instead of finding the marijuana under the passenger’s seat, the officer searched through a briefcase that was located in the trunk of the car. After asking who it belonged to, you advised the officer that it was yours, and you were not consenting to a search of its contents. Despite your protests, the officer goes ahead and searches it anyway, discovering the marijuana within it and placing both you and the driver under arrest. The situation has now fundamentally changed from when the discovery of the marijuana was found under the passenger’s seat. This is because you are deemed to have an expectation of privacy in the contents of a briefcase, or an opaque bag of any kind. In R v. Mohamad, the Ontario Court of Appeal held that the owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases. The Court stated that briefcases can often have highly confidential personal and business information and, in a practical sense, can serve as possible portable offices or “keep-safes” for their owners. As a result, when your lawyer files an application to exclude the marijuana at your trial, you will be in a much stronger position and may be successful in having the evidence excluded. The word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.

Exceptions to the Rule of Prior Authorization

At the start, I mentioned that there existed a few exceptions to the rule requiring prior authorization for searches and seizures. One of the most common exceptions to the rule is what is known as the “search incident to arrest” power. A search incident to arrest occurs when the police search your person, objects on your person, your car, and/or the surrounding area as a result of your arrest for an alleged crime. For example, if the police see you engage in a drug transaction from within your motor vehicle, they will have the right to search you and your vehicle for any drugs. Any other unlawful objects, materials or supportive evidence that is found in the process of the search may also be seized.
However, police need to be careful how they use their power to search incident to arrest. A prerequisite to a search incident to arrest is that the arrest itself must be lawful. This means that if the police do not have reasonable and probable grounds to make the arrest in the first place, then the arrest is unlawful. As such, any incriminating evidence that they find on you, or in your car, may be excluded at your trial. Again, the word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
Moreover, even if the arrest itself is lawful, the search which the police conduct subsequent to your arrest must be connected to the crime you are being arrested for. For example, if you are arrested for driving while impaired, generally speaking, a search of your vehicle would not be connected with what you are being charged with. What reason would the police have to search your car? The crime of driving while impaired has to do with you being impaired by drugs or alcohol while operating a motor vehicle. A search of your car is not required to prove the elements of the crime, and does little to further the police’s investigation. Conversely, in the drug-transaction example above, the search of your car is logically connected to your arrest. Since the police saw you sell drugs out of your car, it is not illogical to believe that there may be more drugs within the car. What constitutes a logical connection between the arrest and the search will be determined by the specific context of each individual case.

Other, less known, exceptions to the rule requiring prior authorization are contained within the Criminal Code itself. The most notable of those exceptions, for present purposes, is located in sec. 487.11, which states the following:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant

In the case of R v. Grant, the Supreme Court held that exigent circumstances exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Generally speaking, whether exigent circumstances exist on the occasion in question will be a question of law for the judge to decide. The “exigent circumstances” exception is one that is rarely used, since in most cases the police will gain control of the location that they intend to search, and then apply for a search warrant to permit them to enter, if they haven’t already applied for one.

Contact Kostman & Pyzer, Barristers, for your best defence.

Reasons for Judgment of Backhouse, J. delivered October 25,2010

BACKHOUSE J.:

[1] Adenir De Oliveira is charged with 3 counts of attempt murder and three counts of

assault. The accused has admitted he committed the acts alleged. The issue that must be

determined in this case is whether the accused has proved on a balance of probabilities that he is

not criminally responsible for the acts committed because at the relevant time he was suffering

from a mental disorder which falls within Section 16 of the Criminal Code . For convenience, I

set this provision out:

16. ( I) No person is criminally responsible for an act committed or an omission made while suffering

from a mental disorder that rendered the person incapable of appreciating the nature and quality

of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal

responsibility by virtue of subsection (I). until the contrary is proved on the balance of

probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt

from criminal responsibility is on the party that raises the issue.

2

[2] On Friday, February 13, 2009, 5 friends in grade 9 at Toronto Northern Secondary

School were enjoying a professional development day. They entered the Toronto subway at

Dufferin and Bloor around rush hour at approximately 4:30 p.m. The accused entered right

behind the boys who went down the stairs to the subway platform where they stood more or less

in a line facing the track, waiting for the eastbound train. As the train approached, the accused

pushed two of the boys, Jacob Greenspon and Asaf Shargall, onto the track and attempted to

push a third boy, Antony Zalenka, onto the track. Asaf managed to roll off the track under the

ledge of the subway platform and pull Jacob after him. The train ran over Jacob’s foot. He spent

3 Y2 weeks at the Hospital for Sick Children. Antony was tall for his age and was able to regain

his balance from the accused’s pushes and stay on the platform.

[3] Jacob underwent a number of surgical operations including skin grafts to repair the

damage to the first, second and third toes on his left foot. Ultimately two of his toes required

amputation. He required extensive physiotherapy both in and out of hospital to relearn to walk

and fortunately made good progress. Asaf was examined at the Hospital for Sick Children, was

treated for a swollen right knee and released. u

[4] Many witnesses testified to the pandemonium that erupted at the platform level when

people who had seen what had happened began to scream and yell that the boys had been pushed

onto the track, pointing at the accused as the person responsible. Russell Cormier, then a TTC

gate operator, was in the collector’s booth with the collector, Joseph DeGabrielis, when he heard

the squeal of the train’s emergency brakes being applied and people screaming. He came out of

the booth to see what was happening. He saw the accused coming up the stairs in the midst of a

crowd of people pointing at him and screaming that he had pushed the boys onto the subway

platform. In an effort to stop the accused, Mr.Cormier grabbed at him, striking him a couple of

times. The accused flailed his arms, striking Mr. Cormier’s shoulder and the side of his head.

Mr. Cormier described the accused as looking very distraught with a blank expression on his

face. He testified that the accused took off at a brisk pace, travelling south on Dufferin Street.

Mr. Cormier called 911 on his cellphone as he followed the accused past Weir Public School to a

PizzaHut at the Dufferin Mall where the accused sat down on a rock. Pending the arrival of the

police, Mr. Cormier heard the accused mumble in a different language, cry and then say in

English that he had tried to get help, that he had gone to the doctor and to the hospital and that

nobody would help him.

[5] After locking the money into the safe and padlocking the collector’s booth, TTC collector

Joseph DeGabrielis also gave chase. He caught up with Mr. Cormier and the accused in front of

Weir School and tried to pass to get ahead of the accused to box him in. He instructed him to

stop. As he approached the accused, the accused took a swing at him but did not connect. He

also attempted to photograph the accused and called 911. He described the accused as looking

more scared than violent. His eyes seemed glazed. His face was expressionless. He had a

stagger in his step. He reminded Mr. DeGabrielis of Frankenstein.

f6] Ricardo Mateus was waiting for his girlfriend near the collector’s booth at the Dufferin

SUbway. After hearing people yelling that the accused had pushed the boys onto the platform,

he too chased the accused. The accused noticed Mr. Mateus following him and he seemed to Mr.

Mateus to get angry. He reached into his jacket, causing Mr. Mateus to be concerned that he

3

might have a weapon. When Mr. Mateus was approximately 4 or 5 feet from the accused, the

accused took a swing at him but was too far away to make impact. He described the accused as

walking slowly and looking confused and disoriented from beginning to end. His impression

was that there was something wrong with him mentally. He saw the accused sit down on the

rock at the PizzaHut and heard him say that he was sick, that he had been to the hospital and was

denied care.

[7] Michael Yng, one of the 5 boys waiting on the subway platform, after seeing his friends

pushed onto the track, initially gave chase before turning back out of concern for his friends. He

described the accused as running in an unnatural way wit~ his arm movements uncoordinated

with his leg movements. Antony Zelenka testified that after receiving two pushes on his left

shoulder strong enough to push him towards the edge of the platform, he turned around and

faced the accused before receiving another push. He also initially ran after the accused. He

described the accused as looking blankly through him, not at him and as showing no emotion in

his face. It gave him a creepy feeling. He testified that his impression was that the accused had

mental health issues, that he was uncoordinated and very unnatural in his movements. He

described the accused’s movements as a gallop-jog.

[8] Detecti ve Constable Brian testified that she first observed the accused after his arrest

sitting in the squad car and made a notation in her notebook of “EDP” (short for Emotionally

Disturbed Person.) She described him as staring blankly out of the car, not making eye contact,

looking dazed, seeming dishevelled, sweating and crying.

[9] At the police station, the accused was described by various officers as cooperative, to

have no problem following instructions, to be sombre, quiet, meek, and to cry occasionally. He

was described by Constable Martin, whose contact with hjm occurred early in the morning on

February 14, 2009 and who spoke to him in Portuguese, as being visibly upset, emotional and

crying. The booking video shows the accused with eyes downcast answering basic questions.

He stated that he was taking 3 different drugs and that he was having a problem with drugs.

When asked if he was having suicidal thoughts, he said, “somebody give me and a gun and I’ll

shoot myself.” When he was arrested, he had in his possession $882.00, 30 mg. of apotemazepan,

1 mg. of apo-Ioracepan and 75 mg. of venlafaxinexr. The videotape of the accused’s

police interview shows him answering basic questions but unable or unwilling to talk about what

had happened. He then kept his head down and did not answer any further questions.

fl 0] Teofila Prado testified that she met the accused in June or July, 2008 and a romantic

relationship began. She noticed that he seemed depressed around October, 2008 and although

there was no basis for him to be jealous, he questioned her about other men several times a week.

She gave him a key to her apartment to alleviate his concerns. When the accused returned from

Brazil in December, 2008, she noticed that he was always looking down. On January 7,2009, he

was again questioning her about other men and his whole body was shaking. She called an

ambulance to take him to emergency. From that date until! the date of the offences, there was a

major change in his behaviour. He ate only small amounts, he was very depressed and when she

was talking to him or the television was on, he was looking down, closing his eyes and not

paying attention or watching.

4

Preliminary Evaluation of the accused on February 19,2009

[11] Dr. Julian Gojer, the accused’s expert witness, saw the accused at the Don Jail 6 days

following the offences. Dr. Gojer first attended in the afternoon and was unable to see the

accused who was reported to be unsettled and very disruptive. Dr. Gojer had to return later in

the day on February 19, 2009 and see him across a glass barrier with the use of a telephone. He

described the accused as unshaved, unkempt, anxious and at times looking fearful.

[12] The accused told him that he had been suffering from panic attacks since January, 2009

and that he had been started on antipsychotic medication. As soon as he began to take the

medication, he told Dr. Gojer that he began to experience auditory hallucinations which told

him to kill people. He denied any history of mental illness. He told Dr. Gojer that the guards

were arranging for him to be raped and after that his body would be incinerated. He stated that

he feared that at any moment he was going to be killed and believed that his conversations with

Dr. Gojer were being monitored, that there were people talking or making noises on the

telephone line and he could hear people talking in the distance. He appeared to Dr. Gojer to be

responding to auditory hallucinations while talking to him. When Dr. Gojer said that he did not

hear anyone, the accused became upset with him. The accused knew that he had been charged

with attempt murder for pushing young males onto the subway tracks.

0:.1

[13] Dr. Gojer’s opinion was that although a formal diagnosis was difficult to offer, the

accused was presenting as suffering from Acute Psychotic Episode, the etiology of which was

unclear.

[14] On February 20, 2009, the accused was admitted to the Assessment and Triage Unit at

the Centre of Addiction and Mental Health (“CAMH”) pursuant to a court-ordered psychiatric

assessment to determine whether he suffered from a mental disorder which would exempt him

from criminal responsibility under s.16 of the Criminal Code.

Forensic Assessments of the accused

[15] Dr. Gojer, the accused’s expert witness and Dr. Jonathon Rootenberg who performed the

court-ordered assessment at CAMH and was the Crown’s expert witness, each performed

forensic assessments of the accused. Each wrote a detailed report which was filed on consent.

Each testified and was cross-examined. Neither deviated from the conclusions reached in their

reports.

[16] Both psychiatrists are highly qualified. They agree that the accused is a very ill person.

They disagree on whether his illness meets the standard set out in s.16 of the Criminal Code.

Not every illness which may fairly be described as a mental disorder meets the Section 16

criteria. Dr. Gojer concluded that the accused is not criminally responsible. However, Dr.

Rootenberg, reached the opposite conclusion. The conclusion each psychiatrist reached is

summarized below.

lJ 5

Dr. Gojer

[1 7] The accused was suffering from a Major Depressive Illness with psychotic symptoms

prior to the alleged offences and these persisted subsequent to the alleged offenses when

Dr.Gojer saw him at the Don Jail and he was admitted to CAMH. The severity of his psychotic

symptoms was short lived and abated following admission and treatment with anti-psychotic

medication.

[18] The accused was experiencing very intense thoughts at the time the acts were committed

that were compelling him to kill himself or others. These thoughts can be understood to be

highly irrational. He said that he was unable to think of anything else at the time of the alleged

otTences- that he wanted to kill or push three innocent young boys who he had no knowledge of,

who had no relevance to him or his illness points to the sheer absurdity of his actions. That he

acted on his thoughts in the presence of the public with no <Jttempt to commit a crime and escape

detection also points to how irrational his thinking was at the time the acts were comniitted. He

has no significant history of aggression and as described by his family and his girlfriend, his

actions appear to be totally out of character for him. The thoughts that the accused had are akin

to severely depressed individuals who become quite irrational, believe their world is hopeless,

that there is nothing to live for and kill themselves, kill a loved one or even a child, believing that

it would be in the best interest of the loved one to die with them. The accused accepted the

thoughts in his mind, which he experienced as very intense and as if they were voices in his

head, that were directing him to kill himself or kill someone. He was not thinking of what the

consequences were. He was disconnected from all else at the moment he acted. His actions

were sudden and impulsive and in response to the irrational thoughts he had. His thinking was

severely clouded by the depressive illness he had. He clearly was unable to weigh the pros and

cons of his actions. While there are no indications that he was not able to appreciate the nature

and quality of his actions, or their legal wrongfulness, at the time of the alleged offences, he was

incapable of knowing that his actions were morally wrong. His severe depression with the

irrational thoughts of harming himself or others robbed him of the ability to exercise rational

choice. His actions were driven by irrational thinking and gerceptual experiences secondary to a

severe depressive illness that robbed him of the capacity to know that what he was doing was

morally wrong.

[19] In addition to the offences themselves, the accused’s demeanor described by all who saw

him at the time of the offences, his delusions about his girlfriend, his paranoid behaviour in jail,

his belief that the guards were going to rape and burn him and his bizarre behaviour in jail such

as dancing nude on the bed and toilet seat shortly after the offences support a finding of

psychotic episode.

[20] Rather than malingering, the accused tended to minimize the seriousness of what he was

experiencing at the time the acts were committed. His lack of cooperation with the psychological

testing performed by Dr. Wright at CAMH and his reporting of hallucinations upon being

admitted to CAMH were consistent with his severe depression at that time, agitation, paranoia

towards people and the medication that he was administered while at CAMH.

6

[) r. Rootenberg

[21] The accused’s self-reported symptoms, including prior beneficial response to

antidepressant medication and historical information obtained from collateral sources is most

consistent with Major Depression and an Anxiety Disorder with panic features. A Depressive

Disorder with psychotic features is a diagnostic possibility for consideration but due to the clear

pattern of malingering demonstrated by the accused during his assessment, this is a less likely

di agnostic possibility.

[22] During the time period encompassing the offences, it appears from collateral information

and from the accused’s self-report that he was acting impulsively and was quite upset and

concerned that his girlfriend may have been seeing another man, specifically her ex-boyfriend.

This contributed to lowering his already diminished self-esteem. He reacted to this by

proceeding to the Ossington subway station in early January 2009 where he lay on the tracks in

an apparent suicide attempt, claiming that nobody cared about him and there”fore he should die.

He did not do so in response to auditory hallucinations commanding him to act in this manner.

[23] Collateral information from family members, from Dr. Eid and from the accused’s

girlfriend does not support the presence of psychotic symptomatology historically or during the

period immediately prior to the events in question; his reported distress is more consistent with

abrupt discontinuation of Effexor, including irritability, agitation, sleep disruption and sweating.

[24] The accused was unable to explain why he ran from the subway platform after pushing

the victims onto the tracks on February 13, 2009, given hisi;;:;tatement that he had not engaged in

any wrongdoing, and was merely responding to either command hallucinations or thoughts that

directed him to carry out the actions in question. However he was quite vague and contradictory

wi th respect to when he first heard either auditory hallucinations or experienced these thoughts

directing him to harm any individuals. The fact that he ran conveys knowledge of the possible

consequences of his actions resulting from the circumstances in question indicating his

awareness of the wrongfulness of his conduct at that time.

[25] The accused blamed the antipsychotic agent Seroquel for having caused the

hallucinations that he reportedly experienced during the time period encompassing the offences.

This medication is used to treat psychotic symptoms and perceptual disturbances, including

auditory hallucinations and would not cause them.

[26] Given the above, his credibility and veracity of his self-report is highly suspect, including

his assertion that he was responding to command hallucinations that directed him to push the

victims onto the subway tracks.

[27] Upon arrival at CAMH on February 20, 2009, the accused was seen by Dr. Blumberger,

the admitting physician who noted under diagnostic impressions:

“‘jyIr. De Oliveira is a 48 year old male with a history of major depression, possible

generalized anxiety disorder and panic attacks, who discontinued his medication in April

:2008 and reportedly experienced a major depressive episode. It appears as if he

7

developed a severe worsening and psychosis associated with his depression. It is unlikely

that the medication caused the psychosis, but rather his symptoms became too severe and

treatment was instituted too late. Currently, he denigs all psychotic symptoms. This may

be related to him receiving a consistent dose of quetiapine while in jail, if in fact he

received it.”

Psychological Testing

[28] The Crown called Dr. Percy Wright, a psychologist who was part of the CAMH

multidisciplinary team. He first met with the accused to commence the psychological testing on

March 11, 2009, almost one month after the offences. By this time, the accused had been

receiving Effexor, Lorazepam and Olanzapine for some time. Dr. Wright thought it was 5 mg. of

Olanzapine the accused was receiving but did not pay close attention to what dosages of

medication he was receiving. He was not of the opinion that the medication the accused was

taking would affect the results of the psychological testing other than in quite subtle ways. He

did acknowledge that depression and sleeplessness could affect one’s energy to participate in

testing. He was of the opinion that even if extremely paranoid, one would very much want to

engage and explain one’s correct version of events. He 4Jld not kept notes of the amounts of

time he spent with the accused and estimated them. He made very few notes. His report referred

to “very brief interviews” with the accused.

[29] Of the 8 tests Dr. Wright wished to administer, the accused either declined to do them (in

the case of 3 tests-the Rey Complex Figure Test, PAl and ADS) or his effort was suspect (in

regard to 2 tests-the Bender and the WAIS III). The accused was administered the TOMM

which Dr. Wright found suggested malingering cognitive impairment, the M-FAST which Dr.

Wright found suggested malingering psychiatric symptoms and the SIMS which Dr. Wright

found suggested over reporting of neurological, affective, psychotic, low intelligence and

amnestic symptoms.

[30] Dr. Wright was cross-examined on why the psychological testing he performed did not

include the SIRS test. He accepted that the text “Clinical Assessment of Malingering and

Deception” by Richard Rogers was the most comprehensive text on the subject available to

psychologists and is viewed as scientifically valid in the scientific community. He agreed with

p.67 of the text wherein it states: t.t

“Vitacco and Rogers (2005) have recommended comprehensive three-stage model for

the detection of malingering in a correctional setting. Step 1 consists of an initial clinical

screening evalution. Step 2 involves a systematic screening using brief instruments such

as the MFast or SIMS. Step 3 calls for a comprehensive evaluation consisting of a

review of records, validating measures (SIRS, PAl or MMPI-2) and several interviews.

Although this approach is highly commendable, many correctional institutions will not

possess the resources needed to carry out the three stages on a regular basis.

The finding that an inmate patient has malingering one or more symptoms of

psychosis does not rule out the presence of true mental disorders … Kupers (2004) and

Knoll(2006) have suggested some clinical indicators that caution against classifications

ofmalingering(see Table 4.7). Inmates evidencing several of these indicators are likely

to have a genuine disorder, irrespective of response style issues.”

8

[31] Dr. Wright further agreed with p.330 of the text wherein it states:

“Finally, the SIMS should not be used beyond its stated purpose as a screen for

malingering. The definitive classification of malingering requires more comprehensive

measures (eg.SIRS) and multiple sources of data(e.g.psychiatric and medical history).”

[32J Dr. Wright disagreed with the statement at p.321 that the SIRS test has been widely

adopted as the gold standard and should be considered the strongest measure for feigned mental

disorders. He testified that there was a sensitivity problem With the SIRS by which he meant that

it was not sensitive enough. He testified that the SIRS test had been used at CAMH and his

experience was that this measure missed very clear cases of malingering. The psychological

testing performed in conjunction with Dr. Gojer's assessment by Dr. M.Kalia included the SIRS

test and did not indicate malingering.

[33] Dr. Wright conceded that a finding that an inmate patient has malingered one or more

symptoms of psychosis does not rule out the presence of true mental disorders. On crossexamination,

he testified if one does not observe bizarre behaviour during a 45 day assessment

period, that is important. He testified that had the accused exhibited behaviour such as dancing

nude on a toilet that absolutely could affect his opinion of malingering and that this was

potentially psychotic behaviour. He had not read the notes from the Don Jail and was not aware

that the accused was described as uncontrollable and had been observed dancing nude on the bed

and toilet seat on February 19, 2009.

[34] Dr. Wright testified that psychosis is not a typical trajectory of depression and is suspect.

He stated that he had seen it claimed many times but he had not actually seen it more than a few

times.

Dr.Eid

[35] The Crown called Dr. Karim Eid, the accused’s family doctor since 1995. Dr. Eid is an

extremely busy family physician. Nevertheless, he made time for the accused, even when he

showed up without an appointment. In addition to treating the accused for physical ailments, he

treated him for depression, sleeplessness and symptoms of anxiety. In December, 2001, he

prescribed an anti-depressant, Effexor, which the accused took when he was given free samples

and was less compliant when he had to pay for the prescription. He described the accused as

appearing less depressed when he was taking the Effexor and more significantly disturbed when

he was not taking it. He identified other factors which played a role in exacerbating the

accused’s diHiculties including relationship difficulties and financial strain. In 2007, Dr. Eid

reported in his notes that the accused described himself as “getting crazy” when facing financial

strain.

[36 J Dr. Eid recorded in his notes that in April, 2007, the accused went to the emergency

department and was hospitalized at Humber Weston, that he was hallucinating and had to be

9

strapped down in the hospital. Dr. Eid made an appointment for him to see a psychiatrist in

May, 2007 but the accused left a message at his office that he did not want to go. Dr. Eid

testified that he offered him a referral to a psychiatrist many times but the accused's response

was to say that he trusted him and that when Dr. Eid treated him, he got better.

[37] In October, 2007, Dr. Eid made a note that the accused was displaying agitated

behaviour, paranoia, making a threat and cursing other p~ople. He accused two women at

di fferent times of infidelity. Dr. Eid believed that he was paranoid and obsessive which he

recorded in his notes on January 5, 2009. On that date, Dr. Eid recorded in his notes that the

accused had stopped taking Effexor for 8 months because of erectile disfunction and that since

stopping it, he had no erectile problems and was reluctant to go back on it. Although his notes

do not reflect these facts, Dr. Eid asserted that he continued to advise the accused to seek a

psychiatric consultation and advised him to use Cialis.

[38] The day after seeing Dr. Eid on January 5, 2009 where Dr. Eid noted that he was

paranoid and obsessive and was not taking the Effexor, the accused lay on the subway tracks and

was taken by the police to Toronto Western Hospital. He reported to the emergency department

that he felt he was going to die, his mind was going crazy and he was unusually tight in his chest.

When he was followed up at the Urgent Care Clinic at the Toronto Western Hospital, he told

hospital authorities that he felt he was going to die and did not care, that he had knives in his

chest, that this was the strongest panic attack he had had and he felt that his brain was not

stopping.

[39] Dr. Mackenzie, a psychiatric resident, at the Urgent Care Clinic at Toronto Western

Hospital prepared a report dated January 9, 2009. The report referred to seeing the accused in

clinic after a serious, impulsive episode on January 6, 2009 where he lay on subway or streetcar

tracks in the context of a likely conflict with his current girlfriend. He was diagnosed as having

an adjustment disorder with anxiety, paranoid conduct, impulsive dramatic traits, relationship

issues and few friends and other support. The report noted that the accused was quite adamant

that he experiences no suicidal or homicidal ideation and that he has restarted his effexor which

he finds very helpful. The plan for his care which was discussed with Dr. Eid and forwarded to

him included:

1) referring him for an outpatient psychiatric assessment if Dr. Eid continued to have

concerns about his mental state in the days and weeks to come; and

2) sending him for a risk assessment through Forensic Psychiatry (available through

CAMH) if Dr. Eid had any concerns about his risk of violence toward himself or another

ego his girlfriend.

[40] Dr. Eid saw the accused on 2 further occasions following his laying on the subway tracks,

January 21, 2009 and February 2, 2009. The accused complained of panic attacks, sleeplessness,

great anxiety and agitation. On neither occasion did Dr. Eid observe any hallucinations or

psychosis and the accused denied feeling suicidal. On February 2, 2009, he prescribed the

:lccllsed the anti-psychotic medication, seroquel.

10

[41] There is no evidence that Dr. Eid at any time provided a prescription for Cialis or that he

arranged a psychiatric consultation or signed a referral for such a consultation (other than on the

one occasion in 2007 referred to above). Dr. Eid believed the accused was functioning under his

care and therefore a psychiatric referral was unnecessary nor did he think the accused would

agree to go. He took comfort from Dr. Mackenzie’s assessment which Dr. Eid felt was

consistent with his own opinion and treatment.

Submissions of the Parties

Defence Submissions

[42] The defence submits the following:

[ 43] The accused’s mental state at the time of the offences was so disordered by a disease of

the mind (either major depression or major depression with psychotic episode) that he was

unable to distinguish between moral right and wrong. Most evidence points in the direction of n

the accused meeting the Section16 criteria: the irrational nature of the crime, the observations by

the civilian witnesses, the police and the videos of the accused at the time of the offences, the

evidence of Ms. Prado of his increasing depression in January, 2009, the observation of the

accused’s brother in Brazil who spent 28 days with him in December, 2008 that he was getting

increasingly worse, the accused’s paranoia and obsession with unfaithfulness noted by Dr. Eid in

January, 2009, his panic attacks, his loss of almost 10% of his weight, his laying down on the

subway tracks and his bizarre behaviour as observed shortly after his arrest at the Don Jail and

by Dr. Gojer. The Crown’s suggestion that the accused attacked the victims because they were

young and happy and had everything to look forward to in their lives and he was angry is pure

speculation.

[44] Dr. Rootenberg’s analysis is flawed because: (i) he failed to consider significant

evidence; (ii) he relied upon flawed psychological testing; and (iii) early in the assessment, the

accused was prescribed anti-psychotic medication. Dr. Rootenberg completed his assessment

and concluded that the accused did not meet the Section 16 criteria without seeing the TTC

surveillance tape of the accused at the scene, the other ‘?:ideos of the accused walking down

Dufferin Street, the Don Jail records, the booking tape, the police interview tape, the tape of the

interview of the accused by the police, the police notes and the witness statements.

[45] The purpose of the Court-ordered assessment was to assess whether the accused suffered

from a mental disorder within Section 16, not to treat him by prescribing anti-psychotic

medication prior to forming an opinion and thereby polluting the assessment. The absence of

psychotic symptoms relied upon by Dr. Rootenberg is due to his failure to be thorough, to his

discounting the accused’s talk of guards wanting to rape and burn him as a realistic fear of

threats by the guards and by ignoring the observations of Dr.Gojer recorded in his February 19,

2009 report.

r46] Dr. Wright’s psychological testing is completely flawed because it did not begin until

:lIl11ost two weeks after the accused began to receive the anti-psychotic medication, Olanzapane,

Dr. Wright had available only the material Dr. Rootenberg had, the accused only completed 3

11

tests and Dr. Wright did not use the SIRS test, considered the gold standard test for feigned

mental disorders.

[47] It is inconsistent for Dr. Rootenberg to conclude that the accused was not experiencing a

psychotic episode and yet prescribe anti-psychotic medication and continue to prescribe it for the

accused on his discharge from CAMH.

[481 Foundational to Dr. Rootenberg's conclusion that the accused was malingering and that

he knew his conduct was wrong was the accused running from the scene yet Dr. Rootenberg did

not have the videos and witness statements that suggested that the accused may have been

running in response to the people screaming and pointing at"him.

[49] If the Court finds that the accused does not fall within Section 16, the Crown has not

established the specific intention necessary to prove attempt murder.

Crown Submissions

[50] The Crown submits the following:

[5 1] It is conceded that there is evidence the accused suffered from a mental disorder or

disease of the mind as defined in Section 16 but it did not impact on the accused to the extent

that it rendered him incapable of knowing that the acts he committed were morally wrong.

The accused told Dr. Gojer in an interview in August, 2010 that he knew that if he jumped, he

would be dead and that if he pushed the boys onto the tracks they could be hurt. Hence, the

accused was aware of the consequence of his actions and made a choice to save himself.

1~X

[52] Exhibits 5(A),(B) and (C) , being the still pictures of the TTC surveillance tape which

were taken within minutes of the offences, show the accused appearing to be of sound mind. In

one of the pictures he appears to be looking back, suggesting awareness that he had done

something wrong and was trying to get away. He waited until there was an oncoming train and

then gave at least 5 pushes to the victims, suggesting deliberate acts. His nmning from the scene

and his assaults on people chasing him show that he knew what he had done was wrong.

[53] Dr. Gojer agreed that a multi-disciplinary assessment at CAMH over a 45 day period was

the gold standard and the best venue within which to conduct an assessment.

[54 J The evidence supports that the accused was feigning: no reporting of auditory

hallucinations on any prior occasion on which the accused received medical attention; the

accused refusing to talk to Dr. Rootenberg about the acts he committed; the accused giving

contradictory answers about the reported auditory hallucinations; and the accused's readiness to

talk about his diiTiculties.

r55] Dr. Gojer was selective when he attempted to find consistency in the accused’s different

\’crsions of why he committed the offences and attempted to rationalize the inconsistent versions

by saying that the accused was a poor historian. The inconsistent versions cannot be rationalized

and the Crown does not rely on the accused’s various accounts of what occurred.

12

[56] To members of the public, the accused appeared to be crazy because of what he had done.

People do not want to think someone normal could do something so awful. Under section 16(2),

the accused is presumed to be sane until the contrary is proved. Dr. Gojer started from the

premise that the acts committed demonstrated mentally m:1behaviour and did not consider that

the acts were committed intentionally or purposively. Dr. Gojer’s February 19, 2009 report was

prepared at the request of the defence and is not objective. The accused’s own words for the

most part have been interpreted by Dr. Gojer. He assumes that the perpetrator of the acts is

psychotic as opposed to a starting assumption that the person is sane.

[57] The accused’s statements while he sat on the rock that he went to the doctor and the

hospital and could not get medication were not irrational-he was announcing his problem and

gi Vll1g excuses. He did not say he heard voices or had hallucinations. His behaviour and

demeanor was not consistent with a psychotic episode. His crying and intense sobbing in the

police car and at the police station can be explained by his being very upset that he had been

arrested for attempt murder. He was able to answer all sorts of questions when he was paraded.

His comment about suicide has to be understood in the context of how unlikely a venue it was

for this to occur. The observation of EDP (“Emotionally Disturbed Person”) in Officer Brian’s

police notes has to be considered in the context of a seasoned police officer working in a division

where there are a lot of mental health issues and her evidence that he was not on the severe end ,1

of EDP. The accused’s refusal to answer questions about the offences at his police interview is

consistent with his evasiveness with Dr.Rootenberg and Dr. Wright and suggests he is aware of

his dire legal predicament.

[58] The Crown called as witnesses Dr. Wright whose psychological testing and Dr. Eid

whose background as the accused’s family doctor were relied upon by Dr. Rootenberg in his

assessment. This reduces the frailty of relying on second hand evidence. In contrast, the

psychologist utilized by Dr. Gojer was not called as a witness and Dr. Gojer relied in large part

upon Dr. Rootenberg’s assessment and upon Ms. Prado. Ms. Prado knew nothing of the

accused’s suicide attempt or subsequent assessment by Dr. Mackenzie. This shows that the

accused can feign normalcy.

[59] Dr. Gojer concluded that the fact Dr. Eid prescribed the anti-psychotic drug Seroquel for

the accused was evidence that the accused was psychotic. Dr. Eid’s evidence, however, was that

he prescribed Seroquel to treat the accused’s depression. The accused did not want to take

ErTexor because of the side effect of impotence and did not ,want to take Cialis because it was too

expenSIve.

[60] Dr. Gojer challenged Dr. Rootenberg’s assessment on a number of grounds:

1) Anti-psychotic medication was prescribed for the accused which potentially masked

symptoms. However, the CAMH assessment had 2 fairly fulsome interviews with the

accused and opportunity to observe him prior to the commencement of the

Olanzapane and the accused was inconsistent in his reporting of hallucinations prior

to starting on Olanzapane.

13

2) Dr. Rootenberg should not have relied upon Dr. Wright’s opinion that the accused

was malingering. However, very little weight should be accorded to Dr. Kalia’s

psychological testing relied upon by Dr. Gojer based on Dr. Wright’s evidence that

the accused could have learned from the prior testing and his disagreement with Dr.

Kalia’s interpretation of one of his tests which overemphasized psychotic symptoms.

3) Dr. Rootenberg did not have all the records prior to rendering his opinion. However,

he has now viewed all the videos, audios, records and read the transcripts of the

witnesses’ evidence from the preliminary inquiry and his opinion remains the same.

Based on Dr. Rootenberg’s evidence, very little weight should be accorded to the

evidence of the civilians.

[61] The intention to murder does not require planning. While his acts may have been

impulsive, he intended to kill and the elements of attem1?,t murder have been made out. The

accused should be convicted of attempt murder. .t

Law

The Legal Question

[62] In R. v. Dammen (1994) 2 S.C.R.507, Justice McLaughlin cites the following passage

from “Insanity as a Defence” (1965-66), 8 Crim.L.Q.240 by G.Arthur Martin, Q.C.(later Martin

lA.) at p.246:

29 In considering whether an accused was, by reason of insanity, incapable of knowing the nature and

quality of the act committed by him, or that it was wrong, the legally relevant time is the time

when the act was committed. The accused may by a process of reconstruction after committing

some harmful act realize that he has committed the act and know that it was wrong, That is not

inconsistent with an inability to appreciate the nature and quality of the act or to know that it was

wrong at the moment of committing it.

,t

A person may have adequate intelligence to know that the commission of a certain act, e.g.

murder, is wrong but at the time of the commission of the act in question he may be so obsessed

with delusions or subject to impulses which are the product of insanity that he is incapable of

bringing his mind to bear on what he is doing and the considerations which to normal people

would make the act right or wrong. In such a situation the accused would be exempt from

criminal liability.

Justice McLaughlin states:

21 A review of the history of our insanity provisions and the cases indicates that the inquiry focuses

not on general capacity to know right from wrong, but rather on the ability to know that a

particular act was wrong in the circumstances. The accused must possess the intellectual ability to

know right from wrong in an abstract sense. But he or she must also possess the ability to apply

that knowledge in a rational way to the alleged criminal acts.

16 The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the

act is right or wrong and hence to make a rational choice about whether to do it or not. The

inability to make a rational choice may result from a variety of mental disfunctions; as the

following passages indicate these include at a minlh1um the states to which the psychiatrists

14

testified in this case-delusions which make the accused perceive an act which is wrong as right

or justifiable, and a disordered condition of the mind which deprives the accused of the ability to

rationally evaluate what he is doing.

[63]An accused will be abler to invoke the insanity defence successfully under Section 16(2) if

he can establish that he was incapable of knowing that the act in question was morally wrong in

the particular circumstances. (See R. v. Chaulk [1990] 3 S.C.R.1330, per Cory J. at paras.l11-

114).

I.t

Analvsis

[64J For reasons that I am about to elaborate, I have concluded that the accused has satisfied

me on the balance of probabilities that he is not criminally responsible. My reasons for reaching

this conclusion are these:

[65] Dr. Gojer provided what I found to be a compelling explanation for the accused’s

conduct. The commission of a crime with no motive on strangers in a public place is bizarre

conduct. He described a series of events with the accused cascading more and more out of

control, culminating in a psychotic episode during which the offences occurred. He testified to

the accused’s suffering from a lengthy history of depression, the symptoms of which resumed

and were exacerbated when he discontinued taking his anti-depressant medication, Effexor,

seven or eight months prior to the events on February 13, 2009. On the other hand, Dr.

Rootenberg was unable to provide any cogent explanation for the accused’s conduct.

[66J Both Dr. Gojer and Dr. Rootenberg agreed that the 'accused met the criteria for suffering

a major depressive episode at the time of the offences. In the months leading up to February 13,

2009, family members and his girlfriend observed his condition to deteriorate and his depression

to worsen. In the month preceding the February 13, 2009 offences, he became obsessive and

paranoid about his girlfriend cheating on him as noted by his family doctor. There was no basis

for the accllsed' s belief that Ms. Prado was cheating on him. He was unable to sleep, had panic

attacks and lost weight. His girlfriend testified that he was shaking all over on January 5, 2009

and was taken by ambulance to Humber Hospital for what was diagnosed as a panic attack. The

following day, he lay down on the subway tracks. When he was taken to the emergency

department, he reported that he felt he was going to die, his mind was going crazy and he was

unusually tight in his chest. When he was assessed at the Urgent Care Clinic at the Toronto

Western Hospital, he told hospital authorities that he felt he was going to die and did not care,

that he had knives in his chest, that this was the strongest panic attack he had had and he felt that

his brain was not stopping. In reaching his conclusions, Dr. Gojer was alive to the presumption

of sanity in Section 16. I am satisfied that he approached his assessment with an open mind, and

mindful of the presumption of sanity. He did not begin with a presumption of insanity in

explaining the accused's conduct. ',1

[67] Dr. Gojer and Dr. Blumberger, who saw the accused closest in time after the date of the

offences (6 days and 7 days after respectively), both formulated preliminary diagnoses of a

severe worsening of depression and psychosis associated with it. Dr, Rootenberg acknowledged

that Dr. Gojer’s observations of the accused on February 19,2009 were accurately reported.

15

[68J I have concluded, with respect, that Dr. Rootenberg's approach to analyzing the accused

was f1awed. The accused was treated with anti-psychotic medication 6 days after he was

admitted to CAMH. The accused was assessed while under the ameliorating effects of this

medication, the dosage of which was doubled 4 days later. Dr. Rootenberg acknowledged on

cross-examination that Olanzapane had the potential to alleviate psychotic symptoms. In fact,

after the accused began to receive anti-psychotic medication, he ceased to maintain that he was

hearing voices or auditory commands and his bizarre behaviour ended. I accept as valid the

criticism of Dr. Gojer that the assessment should have been carried out before he was medicated

if one were seeking to understand his condition at the time of the commission of the events.

[69] I also find it inconsistent to assert that the accused was not experiencing a psychotic

episode when the decision was made to treat him with anti-psychotic medication. Dr.

Rootenberg testified that he would not prescribe anti-psychotic medication unless there were

overt psychotic symptoms. On 3 of the 7 occasions Dr. Rootenberg saw the accused, he

prescribed anti-psychotic medication. On February 26, 2009, he saw the accused who talked of

seeing dead people and of the guards and inmates wanting to rape and bum him.

Notwithstanding that he prescribed him 5 mg. of Olanzapine daily at this time, Dr. Rootenberg in

his testimony dismissed this as evidence of paranoia or delusions, stating that guards commonly ,1

threaten inmates. Although in general there may be cases where there are threats of violence by

guards against prisoners, it is much more likely on the facts of this case, in the absence of any

evidence of any actual threats, and considering the accused’s behaviour while in the Don Jail,

that these were paranoid delusions. Four days after starting the accused on anti-psychotic

medication and just before Dr. Rootenberg left for a 2 week period required by other

commitments, he upgraded the dosage to 10 mg. daily. On March 19, 2009, there was a Code

White at CAMH (used where there are staff or patient safety issues) as a result of the accused

becoming very agitated, climbing up and banging his head on the windowsill and stating that he

wanted to die. At that time, Dr. Rootenberg issued instructions for the accused to receive

additional anti-psychotic medication of 5 mg. of Olanzapine every 4 hours on an as needed basis.

On March 31, 2009 Dr. Rootenberg completed his assessment and concluded that the accused

was malingering and should continue to receive antidepressant and anxiety reducing medication

but not anti-psychotic medication. Yet, on his cross-examination, it was disclosed that when the

accused was discharged from CAMH around the same time, Dr. Rootenberg recommended that

the accused continue to receive 10 mg. of Olanzapine daily. The accused did in fact continue to

receive 10 mg. of Olanzapine in the Don Jail until the daily”posage was increased to 12.5 mg. on

July 5, 2009 and to 15 mg. on August 13, 2009. If the view was not seriously held that he had

psychotic symptoms, it seems to me that he would not have been treated with anti-psychotic

medication and he would not have been prescribed an increase in the dosage.

[70] Dr. Rootenbcrg accepted as a diagnostic possibility that the accused was suffering from a

Vfajor Depressive Illness with psychotic features and then rejected it as less likely because of

what he concluded was a clear pattern of malingering demonstrated by the accused during his

~lssessment. FIe testified that he only came to the diagnosis of malingering after Dr. Wright did

the psychological testing later in March, 2009. By the time Dr. Wright met with the accused for

the tirst time, he had been on anti-psychotic medication for approximately 2 weeks.

16

[71) Dr. Rottenberg's reasons for concluding that the accused was malingering can be

summarized as:

1. Upon being admitted to CAMH, the accused reported having hallucinations or hearing

voices telling him to kill himself or kill someone else. He had not reported this

previously to anyone, including his family doctor or Toronto Western Hospital. He was

evasive and gave contradictory answers about the reported auditory hallucinations.

2. The accused was found to be task avoidant in completing the psychological testing.

3. The accused was unable to explain why he ran from the subway platform after pushing

the victims onto the tracks which was inconsistent with responding to hallucinatory

~1 voices.

[72] I found Dr. Gojer’s evidence on the issue of the accused’s malingering and his conclusion

to the contrary to be compelling. He posited reasonable alternate explanations for what Dr.

Rootenberg concluded was malingering by the accused. For example, Dr. Gojer testified that by

the time Dr. Wright performed the psychological testing, the accused had been started for the

first time on Olanzapine, an antipsychotic drug which tends to cause sleepiness and lethargy and

he was re-started on Effexor which he had been off for many months. These facts and the fact

that he was suffering from a major depressive illness could also explain why he did not fully

engage in or complete the psychological testing. Dr. Gojer testified that the fact that the accused

first said he had hallucinations and later described it as thoughts rather than voices can be

attributed to a number of factors other than malingering: his lack of sophistication, lack of

education, language difficulty, inability to describe what was happening to him and to the

masking of symptoms by the drugs he was prescribed during the CAMH assessment. He

testified that it would have been difficult for the accused to feign his behaviour as described by

the various observers at the time the acts were committed. ,1

[73] I find the conclusion that the accused was malingering to defy common sense. The

various witnesses to the offences described the accused as having a blank expression on his face,

eyes glazed, having something wrong with him mentally, mumbling, crying, looking blankly

through the person, showing no emotion, uncoordinated and very unnatural in his movements.

Detective Brian made a notation in her notebook of “EDP”, short for Emotionally Disturbed

Person. Although she attempted to minimize this in her testimony by saying that the accused

was at the low end of the scale, this was not reflected in her notes. The booking video and

interview video show the accused with eyes downcast. Upon admission to the Don Jail

following the offences, he was put on suicide watch. The evidence of those who observed the

accused during and after the attack is relevant to the assessment of his mental state. (R. v. Wade

(1994) 0.1.543 (OnLC.A.) at para.79). I find the witnesses’ impressions are reliable and the

T.T.C. still pictures are not inconsistent with the witnesses’ evidence. It would be mere

speculation to interpret the still pictures in the fashion contended for by the Crown. Dr.

Rootenberg did not take into account the description of the accused’s appearance at the time of

the offences which supports the conclusion of Dr. Gojer. ,Dr. Rootenberg did not factor in the

n.:actions and impressions of the witnesses and the police. These are relevant not only to whether

17

the Section 16 criteria are satisfied but also to the issue of the accused’s feigning. The failure to

consider this evidence militates against the reliability of Dr. Rootenberg’s conclusion.

[74J One might have expected the accused if he was malingering to continue to say he heard

voices. He did not. After initially saying that he heard command voices which told him to

commit the offences, he later denied that he heard voices then or later. When he was first

interviewed by Dr. Gojer, he denied any history of ment&l illness although he had a lengthy

history of depression. When he was interviewed by Dr. Blumberger, he denied any family

history of psychiatric illnesses although he had several family members who suffered from

mental illness including a sister who was institutionalized for schizophrenia and despite using

Olanzapane, showed "auditive delusions and primary delirium". When he was tested by Dr.

Wright and asked the question: "People can put thoughts in my mind against my will", he

answered "False".

[75] I tlnd that the accused’s behaviour leading up to, during and shortly after the February

13, 2009 incident is consistent with the accused suffering from a major depressive illness with a

psychotic episode and is inconsistent with and not explained by a conclusion that the accused

was malingering. Dr. Rootenberg’s conclusion does not explain or account for the accused’s

lengthy history of depression, his family history of schizophrenia and psychosis with its genetic

predisposition, the well-known side-effects of going off anti-depressant medication, the change

in his behaviour described by his significant other, Ms. Prado, his paranoia about her infidelity,

his increased attendances to seek medical help in January and February, 2009, his laying down

on the subway tracks in January, 2009 and his statement to the medical authorities at Toronto

Western Hospital where he was subsequently taken that he “had knives in his chest” and he “felt

desperate for help. My brain is not stopping.”

[76] Dr. Rootenberg chose to infer that the accused’s leaving the scene as awareness of guilt

i.e. he knew what he was doing was morally wrong. However, the other inference that arises is

that the crowd was screaming and pointing at him and he ran away in response to the crowd’s

behaviour which is consistent with witnesses describing him as walking at a normal pace down

the street and sitting on the rock outside the PizzaHut, waiting for the police to arrive. This latter

inference is a rational one. At the time Dr. Rootenberg completed his assessment, he had no

information with respect to the reaction of the crowd or the people screaming. The failure to

consider these facts casts doubt on his conclusion. Additionally, in preparing his assessment, Dr.

Rootenberg did not have relevant and material evidence of the accused’s behaviour in the Don

Jail such as his being uncontrollable and dancing nude on his bed and toilet. Those notes were

available to the Crown and were highly relevant to the accused’s behaviour shortly after the

offence occurred. Dr. Rootenberg chose to render his opinion prior to receiving and reviewing

the notes. I do not give any weight to his testimony that this evidence would not have changed

his opinion when he did not consider it at the appropriate time.

[77] In my respectful opinion, Dr. Eid was shocked by what the accused did and was anxious

to detlect any criticism of his role as his physician. Hence his evidence with respect to

recommending Cialis and offering many times to refer the accused to a psychiatrist. I do not

bel icve this evidence. It is not cOIToborated by his notes which should have reflected a

prescription or a referral. Moreover, it does not seem likely that Cialis would be prescribed to a

18

patient who cannot afford Effexor. It is to be regretted that after the incident in January, 2009

when the accused lay on the subway tracks and the assessment at Toronto Western Hospital, that

he was not referred to a psychiatrist for ongoing monitoring and treatment. Nevertheless, Dr. Eid

did his best. He is not a psychiatrist and as I have noted he was very busy. He did not fully

understand the accused’s condition which was complicated and confusing because of its

multifaceted aspect: adjustment disorder; depression; anger; paranoia; hallucinations, psychosis,

dc. He had no reason to anticipate that the accused would commit these acts and what happened

is not his fault. Dr. Eid’s evidence does not detract from the conclusions of Dr. Gojer.

[78] I formed the impression in listening to Dr. Wright’s evidence that he approached his task

with a bias, namely that he believed that most people who presented with major depression with

a psychotic episode were feigning. His rejection of the standard test for determining malingering

was based on his view that too many malingerers escape. This reasoning is circular. Section 16

issues are extremely important both to the accused and the public. A fact specific inquiry is

necessary. All relevant facts must be considered. In this case, Dr. Wright did not consider all

relevant facts. His refusal to recognize the impact of the medication and of the accused’s illness

on his ability to perform the tests seemed to me to flow frdin his bias that persons with a major

depressive illness and a psychotic episode are malingering. Those facts which militate against

his preconceived view are ignored. For example, he concluded that the CAMH staff had

overreacted to the accused’s behaviour in calling a Code White. He refused to acknowledge that

anti-psychotic medication which was being administered to the accused is designed to relieve the

symptoms of psychosis, an uncontrovertible fact. While conceding that bizarre behaviour

observed during the assessment period would have been important and could have affected his

opinion of malingering, he did not take into account the accused’s bizarre behaviour at the Don

Jail because he was completely unaware of it.

[79] Dr. Wright also fastened on the accused’s conclusion that the anti-psychotic medication,

Seroquel, had caused the voices. Dr. Wright’s opinion was that because Seroquel did not cause

the voices, therefore the accused is malingering. This reasoning is flawed. The fact that the

accused drew an inaccurate connection about the cause of the voices does not mean that these

voices did not exist. It is not uncommon for people to search to explain phenomena such as their

medical conditions. For the accused to conclude that the,yoices were caused by the Seroquel

because the voices occurred after he took it is typical human reasoning which is often mistaken.

j’\ conclusion 0 f malingering from a mistaken self-diagnosis of causation is plainly wrong. All in

all, I was left with the impression that Dr. Wright did not have an open mind and that his

conclusions about malingering were not reliable.

Conclusion

[801 I find that at the time he committed these acts, the accused's mind was devoid of any

thoughts other than pushing the victims or killing himself. His thought processes were impacted

at that time to such an extent that he was unable to weigh the pros and cons of his actions and

was incapable of appreciating that what he was doing was morally wrong.

181] In the result, although the accused committed the acts alleged against him, he has

satisfied me on a balance of probabilities that he was at the time suffering from a mental disorder

19

so as to be exempt from criminal responsibility on all charges pursuant to section 16(1) of the

Criminal Code.

Released: October 25,2010

20

CITATION: R. v. De Oliveira, 2010 ONSC 5847

COURT FILE NO.: 0491

DATE: 2010110/25

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

-and-

ADENIR De OLIVEIRA

Accused

Reasons for Judgment of Backhouse, J. delivered October 25,2010

Released: October 25,2010

1. Defense of mental disorder – No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

2. Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

3. Burden of Proof – The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

In 1992, Bill C-30 came into force which reformed (at least partially) the law at it relates to the defence of “not criminally responsible on account of mental disorder”. The underlying premise of the Bill was to modernize the psychiatric terminology used in the old bill, and to reform the powers of the Mental Health Review Board in deciding how long the accused should be detained. This, in effect, amounted to indeterminate detention times at the discretion of mental health authorities. Under this Bill, the authority to detain was transferred to the Provincial Review Boards who were subject to new capping provisions (such as life for 1st degree murder, etc…). However, the capping provisions are yet to be proclaimed (meaning, brought into effect), and thus, the old regime of indeterminate sentences still prevails. Additionally, the Bill emphasizes that “every person is presumed not to suffer from a mental disorder, until the contrary is proved on the balance of probabilities” – which is commonly known as the civil standard of proof, as opposed to the criminal standard of beyond a reasonable doubt. Therefore, the burden of proof is on the party who raises the issue. In the case of R v. Chaulk, the presumption of sanity was held to be constitutional, in spite of the fact that the evidentiary burden shifts to the defence. Where the defence was not raised during the course of the trial, or was rejected, the trial judge only has normal sentencing options available to him. In other words, he has no power to order psychiatric treatment in a prison facility. 

In the case of Cooper v. R, one of the leading cases on the NCR defense, the following legal issues were resolved by the Supreme Court of Canada: In Cooper, the Court considered the meaning to be given to the phrase “disease of the mind”, and the interpretation to be given to the words “incapable of appreciating the nature and quality of an act”.  

The Court found that the term “disease of the mind” was a legal concept, to be determined by the trier of fact (judge or jury), and not a medical term. It is the function of the psychiatrist to describe the accused’s mental condition and how it is considered from a medical point of view, but it is for the judge to decide whether the condition described constitutes a “disease of the mind”. As a general guide, “disease of the mind” means any illness, disorder or abnormal condition which impairs the human mind and its functioning (excluding self-induced states caused by alcohol or drugs). The disease must manifest itself with such intensity as to render the accused incapable of appreciating the nature and quality of the offence or of knowing that it is wrong. Once the judge has determined that there is any evidence that the accused did suffer from such a disease (in legal terms), the question of fact as to whether section 16 has been established (on the balance of probabilities) must be left with the jury. The jury must determine whether the accused was suffering from a disease of the mind at the time the criminal act was committed. They jury must also be satisfied that at the relevant time, either the accused was incapable of appreciating the nature and quality of the act, or that he did not know the act was wrong.

In regards to the second issue, a fundamental difference arises between “knowing” the nature and quality of the act, and “appreciating” the nature and quality of the act. The former denotes only an awareness of the physical act, while the latter requires a level of understanding of the act which is more than mere knowledge that it’s taking place. In other words, there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the conduct. This formulation is unique to Canada. In refining this issue somewhat, the Supreme Court in R v. Abbey held that the requirement that the accused be able to perceive the consequences of a physical act is a restatement, specific to the defense of insanity, of the principle of mens rea, or intention as to the consequences of an act, as a required element in the commission of a crime. In other words, the accused who suffers from a disease of the mind which renders him unable to appreciate the nature and quality of his act cannot be said to have the requisite mens rea (or guilty mind) for the underlying offence. 

Prior to the Supreme Court of Canada decision in Chaulk, the word “wrong”, as it appears in sec. 16(1), had been interpreted to mean “legally” wrong. In Chaulk, the Court reconsidered its earlier position and decided that the term means “morally” wrong. The Court was of the view that the term should allow for an accused person who believed his actions were morally justifiable under the circumstances, but did know that they were illegal. The Court justified its position by stating that a person may well be aware that an act is contrary to law, but by some reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. As an example, the Court considered the example of an individual who kills in the belief that it is in response to a divine order, and therefore, not morally wrong.

One should remember that a successful “insanity defence” does not result in an individual being freed immediately. An individual who is found “not criminally responsible” will be the subject of Review Board hearings where their mental health status is reviewed on an ongoing basis to determine the seriousness of the threat that they constitute to the public if released.

Contact Kostman and Pyzer, Barristers, for all your criminal defence needs.

The arguments against the admissibility of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth, then surely the person who disputes its validity should have an opportunity to “question” the person in respect to his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, spontaneous utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” to hearsay statements allows the Court to consider the issue of admissibility through an assessment of the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliability.

In domestic assault cases, the prosecution will often find itself in a situation in which the Complainant is uncooperative and recants their original version of the event in issue. The principled exception to the hearsay rule allows the prosecution to adduce the Complainant’s original version of events if the prosecution can establish that it is necessary (the witness is absent or recants) and that the original vrepeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement ersion is reliable.

Though members of the public often interpret the word “wiretap” is referring only to listening devices used to intercept telephone calls, criminal defence lawyers and other legal practitioners use the word “wiretap” to refer to any concealed listening or recording device used to intercept private communications. Police use wiretaps to monitor private communications in hopes of obtaining evidence as part of an ongoing criminal investigation.

It is both illegal and unconstitutional for the police to intercept private communications using a wiretap without first obtaining a wiretap warrant. The police can only act in so far as their conduct is empowered by law. There is no law which allows the police to set up a wiretap without prior judicial authorization in the form of a warrant. Thus, any warrantless wiretap is illegal. Moreover, section 8 of the Canadian Charter of Rights and Freedoms guarantees that every person has a right to be free from unreasonable search and seizure. “Search” is defined very widely to include a wiretap. The Supreme Court has ruled that an illegal search is automatically considered unreasonable under section 8. When the police infringe Charter rights, the court has the power to grant the individual infringed upon a remedy. The primary remedy for a breach of section 8 is exclusion of evidence. This means that if the police obtain evidence against an individual using a warrantless wiretap, that individual’s criminal defence lawyer will argue that the wiretap violated the individual’s constitutional rights and that any evidence obtained through the wiretap should be ruled inadmissible at the individual’s trial.

Sections 186 and following of the Criminal Code of Canada govern the procedure for requesting, granting and executing a wiretap. Section 186 of the Code allows a Judge in the Superior Court of Justice to grant a wiretap warrant (unlike almost all other warrants which may be granted by a Justice of the Peace or a Judge in the Ontario Court of Justice).

The police must request a wiretap warrant before using any type of technology that intercepts private communications. Generally speaking this includes: a phone tap, a room probe (“bug”), and a body pack (“wearing a wire”).  However, this may also include video surveillance that also records sound. It is important to note that in private communications between two civilians, any conversation can be monitored or recorded with the consent of one of the parties. For this reason it is legal for an individual to tape all of his or her private telephone calls. However, it is not legal for the police to record or monitor private communications even with the permission of one of the parties involved, usually an undercover officer or confidential informant . Section 184 of the Criminal Code makes it clear that the police cannot rely on the consent to collect evidence using a body pack. Rather, a wiretap warrant must be obtained before the police may legally use a body pack. Thus, while a private individuals is free to record their communications with others, the police may not rely on the consent of one member of a conversation to legally record that conversation; they must obtain a wiretap warrant.

The method of applying for a wiretap warrant differs from the method of applying for every other type of warrants. While most other warrants require that the police swear a document called an information in front of a justice of the peace or judge in the Ontario Court of Justice, to apply for a wiretap warrant the police must prepare a special affidavit request. The affidavit must be written by a senior officer and a representative of the Crown Attorney’s office must approve and sign the request. Wiretaps are the only investigative technique that must be requested jointly by the Police and the Crown. Once the affidavit is prepared an officer must swear that its contents are true, under oath, before a judge of the Superior Court of Justice. The judge will then determine whether or not to grant the request. This is done ex parte, which means that it is done without the knowledge of the person to be tapped. This makes sense as notification to the suspect would undermine the very purpose of the investigation; however, as a result the validity of the application is determined without any opportunity for objection by a criminal defence lawyer.

Section 186 sets out criteria that the judge must consider when deciding whether or not to grant a wiretap warrant. The criteria to obtain a warrant under s. 186 are (i) reasonable and probable grounds and (ii) investigative necessity. Thus, first the police must prove that they have reasonable and probable grounds to believe that the wiretap will reveal evidence to further a specific on-going investigation. The police must demonstrate in the affidavit that they have reason to suspect that the individual to be tapped is involved in a specific type of criminal activity and that the tap will reveal a particular type of evidence. Second, the police must show in the affidavit that there is no other investigative technique by which they could obtain the evidence they are seeking. This means that by the time the police request a wiretap affidavit they have usually exhausted other means of collecting evidence such as an ordinary home search, a covert search, a confidential informant, and police surveillance. The wiretap affidavit must explain why these methods failed where the wiretap can succeed.

If the judge chooses to grant the warrant, the warrant will last sixty days and may be renewed at the end of that period. It is not unusual for a tap to continue for over a year through the use of multiple successive renewals. The wiretap warrant is very expansive and once granted it bestows the police with a number of powers. For example, generally speaking, the warrant will allow the police to use any form of technology – phone tap, room probe, or body pack – to further their investigation at their discretion. Moreover, most wiretap warrants will authorize the police to enter the suspect’s home without his or her knowledge in order to place a room probe.

Every warrant contains an identification clause which specifies which persons and which places may be monitored pursuant to the warrant. The identification clause will generally name: specific persons, specific places, unidentified persons, and unidentified places. The unidentified person’s clause allows the police to monitor conversations between the suspect and individuals who are not known to the police and who may, or may not, be involved in criminal activity with the suspect. The unidentified places clause is also often known as the “resorts to” clause. This allows the police to tap locations that the accused frequents where he or she may use the phone. These places need not be identified in the original affidavit; thus, once the police receive information suggesting that the suspect may engage in private communications in a new untapped location, they may tap that location. This could include, among other locations, the home of the suspect’s friends and family, a telephone booth near the suspect’s home, a hotel room the suspect purchases, and the suspect’s office and office phone. The only limitation to the power to add individuals and locations to the wiretap unidentified at the time of the affidavit is the rule that the warrant cannot authorize the police to tap an unidentified person at an unidentified location. Thus, if the police are tapping Jones and they intercept communications between Jones and Person X which are of interest, they cannot obtain then obtain the phone number from which person X is calling and tap that phone without obtaining a separate warrant for X.

A wiretap may be shown to be illegal and therefore unconstitutional if the warrant which authorized the tap is somehow deficient. Before the Charter, wiretap affidavits were automatically sealed. This created a huge problem from criminal defence lawyers; the only way to have the court unseal the warrant was to show that the officer lied to the court in the affidavit, but it was nearly impossible to argue that the officer lied in the affidavit without having access to the information in the affidavit! This changed in R. v. Dersch, where the Supreme Court of Canada ruled that the defendant was constitutionally entitled to a copy of the affidavit. However, around this time, the government also revised section 189 of the Criminal Code which dealt with the exclusion of evidence collected pursuant to a wiretap in the event that the wiretap warrant was found by the court to be illegal. In the old section 189, the Crown had the burden of proving to the court, beyond a reasonable doubt, that the wiretap warrant was legal. If the criminal defence lawyer could point to any instance of illegality (officer lied, warrant was not specific enough, the proper procedure was not followed, etc.), any evidence obtained pursuant to the warrant would be automatically inadmissible. Now, any application to exclude evidence obtained pursuant to a wiretap must follow the general procedure for excluding evidence under the Charter. This means that the individual raising the issue, the criminal defence lawyer, bears the burden of proving that the warrant violates section 8 of the Charter. In addition, a breach of section 8 no longer leads to automatic exclusion of evidence, so, if the criminal defence lawyer is successful in proving a breach, he or she must subsequently prove that the breach is so significant to warrant exclusion under the Charter. The new procedure makes it much more difficult for criminal defence lawyers to exclude evidence obtained pursuant to an illegal wiretap warrant.

In practice, wiretap warrants are easy to get and quite common in Canada. Canadian police tap more per capita than their counterparts in the United States. Moreover, the wiretap powers in Canada are much more expansive than those granted to police in the United States. In the US, there is a statutory obligation on police in the to minimize the interception of innocent calls. Thus, in the USA all wiretaps are monitored by a human being; he or she is obliged to turn off the tape recorder when the person is speaking to an individual about matters irrelevant to the police. This means that in the US, police are obliged to stop listening when the suspect is speaking to about personal matters unrelated to crime. In Canada there is no such obligation. Usually, the police simply record everything that is said on the tap and review it later to look for evidence. This is problematic for two reasons. Firstly, it means that it is much easier for Canadian police to execute a wiretap. Since the man-power required is negligible (someone simply sets up the tap and everything else happens mechanically) the police do not need to expend a lot of resources to set up a tap. In the US, the monitoring requirement necessitates the use of a lot of officer time and police resources to monitor the tap, providing a disincentive to tap in situations where a tap is not absolutely necessary. Without this disincentive, Canadian police are much more likely to use wiretaps.  Secondly, continuous recording is incredibly invasive. In Canada, if your phone is tapped, the police are listening to everything you say: conversations with your mother, conversations with your significant other, conversations with your doctor or psychiatrist, etc. These conversations are taped and stored at the police station in a file with your name on it. Such a significant invasion of privacy should be used sparingly in our system. Unfortunately, wiretaps have become accepted frequent practice in Canada. Criminal defence lawyers continue to fight against the proliferation of wiretaps using every legal avenue available to limit their use and protect the privacy rights of individual Canadians.

]]> http://blog.torontodefencelawyers.com/2010/10/wiretaps/feed/ 0 http://blog.torontodefencelawyers.com/2010/10/remedies-pursuant-to-the-canadian-charter-of-rights-and-freedoms-ss-24-and-52/ http://blog.torontodefencelawyers.com/2010/10/remedies-pursuant-to-the-canadian-charter-of-rights-and-freedoms-ss-24-and-52/#comments Tue, 05 Oct 2010 10:53:14 +0000 TDL http://blog.torontodefencelawyers.com/?p=140 It is very important for every Canadian to understand, not only his or her rights under the Canadian Charter of Rights and Freedoms, but also how those rights can be enforced in a court of law. Once the court has determined that your rights under the Charter have been infringed, what remedies are available to redress the wrong you have suffered? Criminal defence lawyers and other legal professionals refer to the legal results of enforcing a Charter right as “remedies”. Under law, judges have the power to prescribe certain remedies when an individual’s rights have been breached.

There are a wide variety of remedies available under the law (declarations, damage awards, restitution, specific performance, etc.) Sometimes a Charter remedy could be as simple as a declaration that the government did in fact breach the individual’s Charter rights. In rare cases, the court may order the government to pay the individual damages. However, remedies like this are rarely available in criminal trials. When criminal defence lawyers argue the Charter in the context of a criminal trial, they have a very specific goal: to exclude evidence or obtain a stay of proceedings. Criminal defence lawyers will argue that specific rights have been infringed and apply for a remedy that will advance their client’s position.

There are two main ways a criminal defence lawyer may use the Charter in the context of a criminal trial: (1) to argue that the law his or her client has been charged with breaking is unconstitutional or (2) to argue that the investigation or arrest of his or her client was carried out in an unconstitutional manner. There are various remedies available to the Court that respond to these two lines of argument, and further the defence lawyer’s ultimate goal avoiding a client’s conviction. These remedies can be found in sections 52, 24(1), and 24(2) of the Constitution Act of 1982 (which contains the Charter).

In situations where the criminal defence lawyer is arguing that his or her client was charged with breaking a law that is itself unconstitutional, he or she will seek a remedy under s. 52 of the Constitution Act of 1982. Section 52 states that “the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” If a law is declared “… of no force or effect” by the court, the law is no longer operational and the offence it created no longer exists in Canadian law. Naturally, a court cannot find an individual guilty of an offence that does not exist. Thus, if the criminal defence lawyer successfully convinces the court that the law is unconstitutional and it chooses to render the law inoperable under s. 52, the accused must be acquitted.

The s. 52 remedy is uncommon in criminal proceedings and criminal defence lawyers will only seek it in exceptional circumstances. That said, it has been used successfully in the past. When a remedy is granted under s. 52, it not only ensures that the accused individual goes free, it also changes the state of Canadian law. One famous example is the decision in R. v. Morgantaler. Henry Morgentaler is a Canadian doctor and pro-abortion activist. He was arrested in 1983 for performing illegal abortions. During the course of his trial he argued that the law against performing abortions violated the Charter. In 1988, the Supreme Court of Canada agreed, declaring the law of no force and effect and acquitting Mr. Morgentaler. The decision of the Supreme Court effectively prevented the government from creating any statutory restrictions on abortion in Canadian law. This controversial ruling had a strong and lasting effect on Canadian society.

Generally speaking, criminal cases that deal with s. 52 remedies are lengthy and complicated. Often, if a defendant wishes to pursue a remedy under s. 52, they do so because they feel that more than just their own liberty is at stake. Defendants in these cases are often crusaders who want to change what they perceive to be an unjust law. Other examples of s. 52 cases include R v. Malmo-Lavine where the defendant, a self-proclaimed “marijuana/freedom activist”, successfully argued that the laws against possession of marijuana for medical purposes were unconstitutional, and R. v. Zundel where infamous holocaust denier, Ernst Zundel, successfully argued that the law against “spreading false news” in the Criminal Code was unconstitutional. In both cases the defendants were facing criminal charges (possession of marijuana and “spreading false news” respectively) and were able to avoid criminal conviction by invoking the protection provided in s. 52 of the Charter. However, they also had political motivations for pursuing a s. 52 remedy. Finally, they were accused with crimes which dealt with morally and politically controversial issues  (abortion, legalization of marijuana, freedom of speech). Recently. the prostitution laws have been challenged under the same provision. This recent challenge deconstructs the present anomoly that while it is illegal to solicit sex in a public place it is perfectly legally to advertise escort agencies that offer sexual services.

Unlike the remedy in s. 52, which is available where the defendant seeks to challenge a statute or law, the remedies in s. 24 are available where a defendant seeks to challenge an action taken by the government during the course of an investigation or prosecution. Section 24 creates specific remedies for defendants whose rights have been infringed by a specific act that can be attributed to the state. It is far more common for criminal defence lawyers to apply for a remedy pursuant to s. 24 than attacking the constitutionality of a law. Section 24 of the Charter applies to situations where the investigation or prosecution is manifestly unreasonable or unfair. Section 24 contains two remedies. Under s. 24(1), the defendant can apply to the court for any remedy the judge considers appropriate if his or her Charter rights have been breached. Under s. 24(2) an individual whose rights have been breached can apply to the court to have evidence excluded from his or her trial. Both of these remedies are key tools to aid defence lawyers in securing a successful result for their client.

According to s. 24(1), “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. This provision gives the judge a lot of discretion in deciding what remedy to use. However, for an individual facing criminal charges the most advantageous remedy ordered under s. 24(1) is a “stay in proceedings”. The s. 24(1) “stay” remedy effectively puts an end to the trial against the defendant. Although, technically the prosecution may be reinstituted within a one year period, generally speaking, it rarely is.  The Crown would only reinstate the proceedings if the police found new and extremely compelling evidence against the accused. Otherwise, a stay effectively ends the trial. Though the accused is not technically acquitted, the Supreme Court of Canada stated in R. v. C.I.P. that a stay of proceeding is “for all intents and purposes, an acquittal”. A “stay of proceedings” does not constitute a criminal record and is viewed by  defence lawyers as a successful ending to the prosecution.

A remedy may be granted under s. 24(1) for a breach of the accused’s legal rights found in ss. 7 through 14 of the Charter. Practically speaking, the remedy is only really applicable to breaches of ss. 7, 8, 9, 10 or 11.

If any of these rights have been interfered with to such a degree that the administration of justice would be brought into disrepute if the court were to continue in the proceedings against the defendant, the court will impose a stay of proceedings under s.24(1). Such behaviour on the part of the state constitutes an abuse of process and the courts will not allow the trial against the accused person to continue.

There are several alternate remedies the court may apply under s. 24(1) if the abuse of process does not meet the threshold required for a stay. The nature of the remedy is left to the trial judge to determine. The judge must consider the following factors when crafting an appropriate remedy.

The judge must fashion a remedy that promotes both the purpose of the right being protected and the purpose of s. 24(1).

Section 24(2) follows some of the same principles as s. 24(1); however, it applies specifically to Charter breaches that occur during the collection of evidence. If evidence is collected in a manner that infringes the Charter, the defendant can apply to the court to have that evidence excluded from the trial under this section. Section 24(2) does not contain an automatic exclusionary rule corresponding to every Charter breach. The court will only exclude evidence under s. 24(2) where, to do otherwise, would bring the administration of justice into disrepute. When evidence is excluded from trial, it cannot be used by the Crown to prove the accused guilty. It will not be shown to the jury (if there is one) and the trial judge cannot consider it when making his or her decision.

Generally speaking, there is no need for a causal connection between the Charter infringing conduct and the discovery of the evidence. In other words, the defence does not have to prove that the Crown could not have obtained the evidence without breaching the Charter. It is sufficient for the defence to prove that there is a temporal connection between the collecting of the evidence and the Charter breach.

Section 24(2) states that “where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.  Once the defence has established that the Charter was breached and that the breach was temporally connected to the piece of evidence in question, the defence lawyer must argue that the evidence ought to be excluded under s. 24(2). Generally speaking, the court must be satisfied that admitting the evidence at trial would undermine the reputation of the justice system in the mind of a reasonable member of the community who is dispassionate and fully apprised of all the circumstances.

Recently, in R. v. Grant, the Supreme Court of Canada set out a test to determine whether to admit the evidence at trial. According to the court, when a judge is faced with a Charter application for exclusion under s. 24(2) the court must consider and balance the following factors:

1. The seriousness of the Charter-infringing state conduct

2. The impact of the breach on the Charter-protected interests of the accused, and

3. Society’s interest in the adjudication of the case on its merits.

At the first stage, the court must ensure that the admission of the evidence does not send the message that the justice system condones serious state misconduct. At stage two, the court must be sure not to admit the evidence if it will send the message that the court will countenance police conduct which deliberately ignores individual rights and liberties. At the final stage the court is asked to consider society’s interest in having the trier of fact consider all of the evidence in determining an individual’s culpability.

The section 24(2) remedy is often used to exclude physical evidence, confessions, and bodily samples (DNA, fingerprints). The purpose of the remedy is to maintain the reputation of the administration of justice in the eyes of the Canadian community. It is imperative that the justice system actually upholds the principles underlying the Charter and protects the specific rights enshrined in the Charter. Through application of the s. 24(2) remedy, the court ensures that individuals are not convicted of a crime in a situation where the government or their agents has deliberately ignored the principles enshrined in the Charter.

At Kostman and Pyzer, Barristers we have made successful applications for Charter remedies available pursuant to sections 24(1) and (2). Proceedings have been stayed and evidence excluded on the basis that our client’s rights have been infringed.

Section 23 of the Criminal Code creates the offence of being an accessory after the fact. It states that “an accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.”

There are two aspects to every offence in the Criminal Code of Canada: the act element (the acts or omissions which make up the crime) and the mental or fault element (the “guilty mind” requirement). In order to establish that an individual is guilty of being an accessory after the fact, the Crown must prove that the requirements of the both the act element and the mental element for being an accessory after the fact are satisfied based on the evidence.

In R. v. Camponi, the court established some guidelines for determining whether the the act element required to establish an individual acted as an accessory after the fact have been satisfied in a given case. The legislative requirement is that the accused provided assistance to a third person and that his or her conduct had the effect of receiving, comforting or assisting the third person. The definition of assisting is very broad and catches most form of aid a person is capable of rendering. However, according to R. v. Dumont, mere failure to inform the authorities of the principal’s whereabouts is not sufficient to satisfy the act requirement.

The act element for the offence of accessory after the fact does not require that the third party have been tried and convicted to the offence. Under section 23.1, the accessory may be convicted even if the principal is not convicted. This rule was affirdmed in R. v. S.(F. J.).  This provision is meant to prevent acquittals of accessories after the fact where the principle is acquitted based on a Charter application or successful defence. Moreover, based on the ruling the R. v. McAvoy, the principal need not even ever have been tried for the alleged crime. This rule is meant to prevent accessories who are successful in helping the principle offender flee the jurisdiction from escaping liability simply because the principal cannot be found or cannot be tried. However, if the principle is tried and convicted, s. 657.2(2) indicates that his or her conviction will provide presumptive proof of the offence, thus relieving the Crown of the obligation of proving that the person aided by the accessory may have committed a crime.

The mental element for the offence of being an accessory after the fact is intent to conduct the acts that are alleged to have helped the principle offender. According to R. v. Duong, the accused must have knowledge or be willfully blind to the fact that the person committed the offence. Willful blindness refers to the situation where a person suspects that he or she is lacking important knowledge but chooses to remain ignorant. Moreover, the accused must also know the person was party to a particular offence; general knowledge of criminal activity will not suffice.

The alleged accessory’s assistance must be provided for the purpose of helping the person to escape justice. Thus, not every person who helps the principle offender following the commission of his or her alleged crime will attract liability as an accessory. The accused, to be an accessory, must have helped the principle with the aim of helping him or her escape criminal responsibility for his or her crime. We call this a specific intent crime. The accused must not only have intended the actions of assistance but must also have had the specific intention that those act of assistance help him elude or escape the authorities. The specific intent to aid the principle in fleeing the jurisdiction need not be the accused’s sole purpose for aiding the principle. However, according to R. v. Morris, it is not sufficient that acts merely had the effect of assisting the principal or were undertaken in order for the accessory to avoid arrest for the primary offence. It is the accused’s purpose in acting that is of interest to the court and not the effect of his or her actions.

Section 463 of the Criminal Code of Canada lists the sentences available o the court when a person found guilty of being an accessory after the fact. The available sentences vary in severity according to the crime committed by the principle whom the accessory was found guilty of assisting. For example, if the principle offender was accused of committing a crime that carried a possible life sentence, the accessory may be given a sentence of up to fourteen years. At the other extreme, if the principle committed a summary offence the accessory may only receive a sentence appropriate for a summary offence. There is no minimum sentence for the offence of accessory after the fact and judges retain discretion as to exact duration of every offender’s sentence. There are a number of mitigating factors which the accused’s criminal defence lawyer can raise during sentencing to procure a shorter sentence, such as the defendant’s lack of criminal record, his or her age, his or her relationship with the principle and the degree of assistance he or she provided.

There are three levels of airport security. Primary inspection occurs at customs. A custom officer will ask an individual questions about his or her travel plans. The individual has no constitutional rights in this context. He or she cannot legally refuse to answer the question. If he or she does so, the airport has a right to detain the individual.

Secondary inspection consists of a search of any luggage the individual is carrying. The officer need not demonstrate any reasonable ground for suspicion to search an individual’s belongings. It is perfectly legal for airport officers to conduct random and arbitrary bag searches. In fact, random searches are seen as a prudent technique airport officers may use to discover evidence, prevent smuggling, and deter smuggling.

A skin search or body search is also considered to be a form of secondary search. Te only criteria preceding such a search is that it be approved by a senior airport officer. Individuals facing such a search are protected by one constitutional right: the s. 10 right to counsel. This protection is available so that a criminal defence lawyer can advise you that the strip search cannot legally be conducted without the permission of a senior airport officer. Beyond that, there is very little a criminal defence lawyer can do to help you protect your privacy when you face a search of this kind. Moreover, ndividuals in this situation are not awarded protection by the other Charter rights such as the s. 8 right to be free from unreasonable search and seizure. Body searches, like bag searches, may be conducted at random by airport officers. In any other context an officer would have to meet the criteria set out in R. v. Golden before exercising his or her discretion to conduct a body search. However, in the airport context no such justification is necessary.

Finally, tertiary search consists of a body cavity search. Among other things the officer conducting the search must show that he or she has a “high level of justification” for conducting the search. Though the Supreme Court of Canada is not clear about the meaning of the term “high level of justification”, most criminal defence lawyers, Crown Attorneys and judges in the lower court agree that this translates to reasonable and probable grounds approaching certainty that the search will reveal evidence.  For more information on the legal requirements the police must meet before exercising their discretion to conduct a body cavity search see out blog Searching the Person. In lieu of conducting a body cavity search, airport officers may detain the individual until natural circumstances force them to expel the bags from their body. Based on the ruling in R. v. Monney, the airport can hold an individual for at least seven hours in a detention cell, known as a “drug-loo room”, to wait for him or her to expel the evidence. However, the maximum amount of time airport officials may hold an individual is unclear in the current case law.

Only approximately 15% of individuals who are strip or cavity searched in the airport are found to be carrying contraband. This means that 85% of people are unnecessarily degraded under the current system. Criminal defence lawyers are using every option available to them to try to change the law so that it better protects your privacy. However, given the rationale behind the lack of constitutional protection at the airport, it is unlikely that the rules regarding search at the airport will be relaxed in the near future.

This guest post is contributed by Stephanie DiGiuseppe. She can be reached at stephaniedigiuseppe@gmail.com.

The arguments against the adduction of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth then surely the person who disputes its validity should have an opportunity to depose or “question” the person on his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, excited utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from repeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” is to said to assess the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliable. This is a contextual analysis which the trial judge will be charged with determining, and will vary depending on the facts of each case.

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