Weinstein Law Blog

Topic: Standards of Proof

Note: This is a “Topic” post, in which I will briefly cover a legal concept using a few leading cases. Topics will be found in their own category and may be updated in the future if necessary.

Introduction

It is common knowledge by this point that in order to convict someone in criminal court, the prosecution must prove its case “beyond a reasonable doubt.” These words are echoed in endless cases, news articles, and even popular courtroom dramas such as Law and Order.

Slightly less well-known is the civil standard of proof, in which the plaintiff (the party that initiated the case) must prove their case on a “balance of probabilities.” This is a lower standard of proof than beyond a reasonable doubt, which is appropriate given the potential outcomes of a civil trial versus a criminal trial.

The civil standard is used in a wide range of litigation, from Charter challenges, to personal injury cases, to tribunal hearings.

“Beyond a Reasonable Doubt”

The meaning of “beyond a reasonable doubt” in the context of the criminal law is best understood through jury instructions, since these are meant to be understood by the layperson. It also mirrors what the judge must consider when arriving at a decision on their own. The case in which the Supreme Court of Canada provided guidance on how to instruct a jury on the burden of proof was R v Lifchus, [1997] 3 SCR 320. The case was appealed because the judge told the jury that in order to find the defendant guilty, they had to find proof that he committed fraud beyond a reasonable doubt, stating “proof beyond a reasonable doubt” had its ordinary, natural, every day meaning. She said “doubt” and “reasonable” are “ordinary, every day words that…you understand.”

The Supreme Court said this instruction was unacceptable. The jury must clearly understand the meaning of the term “reasonable doubt.” It is of fundamental importance to the criminal justice system, and is closely linked to the presumption of innocence. It is one of the principal safeguards to ensure no innocent person is convicted. If jurors do not clearly understand the concept of the standard of proof that the Crown must meet to obtain a conviction, there cannot be a fair trial.

How should “reasonable doubt” be explained? We know already that saying the words mean nothing more than the “everyday sense” of the words is a mistake. The court provides further guidance on what the definition should and should not contain. As a non-exhaustive list about what should be said about proof beyond a reasonable doubt:

The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
The burden of proof rests on the prosecution throughout the trial and the accused never has to prove they didn’t commit the offence [Note: the burden is on the accused to prove certain defences, such as self-defence or automatism, but this is another topic];
A reasonable doubt is not a doubt based upon sympathy or prejudice;
Rather, it is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence.
It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit.

Certain other descriptions of the standard of proof must be avoided, for example:

Describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;
Inviting jurors to apply the same standard of proof that they apply to important, or even the most important decisions in their own lives;
Equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;
Qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious,” “substantial” or “haunting”, which may mislead the jury; and
Instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.

A charge consistent with these principles will be sufficient, according to the court, regardless of the particular words used by the trial judge.

“Balance of Probabilities”

In civil court cases the Canadian system uses the “balance of probabilities” standard to indicate when the plaintiff has proven their case. “Balance of probabilities” means the alleged events are more likely to have occurred than not, with 51 percent or greater certainty in the mind of the decision maker. The trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

In FH v McDougall, 2008 SCC 53, the Supreme Court discussed how various approaches in civil cases have been used in different jurisdictions, particularly where “criminal or morally blameworthy” conduct is alleged to have occurred. It has been proposed, in these situations, that the criminal standard of proof should be used, or an intermediate standard of proof between a balance of probabilities and beyond a reasonable doubt.

The Supreme Court endorsed the approach that only one civil standard of proof exists at common law and that is proof on a balance of probabilities. Any alternatives should be rejected. They go on to explain why.

In civil cases, there is no presumption of innocence. As was said by Justice Sopinka et al. in The Law of Evidence in Canada (2nd ed. 1999): “Since society is indifferent to whether the plaintiff or the defendant wins a particular civil suit, it is unnecessary to protect against an erroneous result by requiring a standard of proof higher than a balance of probabilities.” There may be serious consequences to a finding of liability in a civil case, but the difference is that a civil case does not involve the government’s power to penalize or take away the liberty of the individual.

An intermediate standard of proof poses problems. The concept of “51 percent probability” is easy to understand for decision makers, but the concept of 60 percent or 70 percent probability is not. Findings of fact in court cases are binary – one or zero, true or false. The fact is either true or it is not. The only practical way to reach a factual conclusion in a civil case, according to the court, is to decide if it is more likely than not that the event occurred.

The court also states that no matter how serious the allegations, there is a consistent legal rule in all cases that the evidence must be scrutinized with care by the trial judge. Evidence must also always be sufficiently “clear, convincing and cogent” to satisfy the balance of probabilities test. There is no objective standard to measure sufficiency. This means the judge must use the best evidence available to make a decision. For example, when dealing with events that took place in the distant past with only testimony of the plaintiff and defendant, the judge still has the difficult task using this evidence to decide the outcome of the case.

June 28: Uber Technologies v Heller 2020 SCC 16

Key Takeaway: Forced arbitration clauses in standard form contracts are unconscionable and therefore unenforceable when they prevent the weaker party to an agreement from meaningfully pursuing a dispute against the stronger party.

Overview

H is a food delivery driver using Uber Eats. To become an Uber driver, H had to accept the terms of Uber’s standard form services agreement. Under the terms, H has to resolve any dispute with Uber through mediation and arbitration in the Netherlands. This carried hefty up-front fees of US $14,500 plus legal fees and other costs. These costs represent most of H’s annual income earned working for Uber.

In 2017, H started a class action against Uber in Ontario for violations of employment standards legislation. Uber countered by bringing a motion to stay the action in favour of arbitration in the Netherlands, relying on their own arbitration clause in the agreement.

Verdict: The Supreme Court found in favour of H, deeming the arbitration clause to be “unconscionable,” refusing Uber’s motion to stay the proceedings and allowing the class action to move forward in an Ontario Court.

Sidebar: Unconscionability

The doctrine of unconscionability comes from the court of equity in England and it is used to set aside unfair agreements that resulted from an inequality of bargaining power. The purpose of unconscionability is to protect those who are vulnerable in the contracting process from loss resulting from the unfair bargain that was made.

The doctrine requires both an inequality of bargaining power and a resulting “improvident” bargain. A bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable.

Sidebar: Majority, Concurring and Dissenting Decisions

Whenever a judgement is written by an appellate court with multiple judges on the bench (typically convened in panels of 3, 5, 7 or 9 judges) you may have multiple decisions that are issued by the court.

The “majority” decision is just that: the set of reasons endorsed by the majority of judges on the bench. These reasons carry the ruling verdict and the legal reasoning has the strongest authority when cited in future cases.

“Concurring” decisions agree with the majority in the result of the case but uses different legal reasoning to reach their conclusion. Concurring judgements may disagree with the majority’s interpretation of the law as they see it, and may even offer sharp critiques of their legal reasoning while still arriving at the same result.

“Dissenting” decisions disagree with majority’s result and offers a different verdict that has no force in law. Dissenting reasons may disagree with the majority’s interpretation of the law and therefore arrived at a different result, agree with their interpretation yet still arrived at a different result, or some combination of the two.

Analysis

Majority Decision: Wagner, Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ

The arbitration clause in Uber’s standard form contract was unconscionable. Unconscionability does not require that the transaction was grossly unfair that the imbalance of bargaining power was overwhelming or that the stronger party intended to take advantage of a vulnerable party.

The doctrine has particular implications for standard form contracts. These contracts have great potential for creating an inequality of bargaining power, and potentially enhances the advantage of the stronger party at the expense of a the more vulnerable party. In particular, clauses that enforce choice of law, forum selection, and forced arbitration clauses violate a party’s reasonable expectations by depriving them of possible remedies.

In this case, there was clearly inequality of bargaining power between Uber and H. The arbitration agreement was part of a standard form contract and H could not have anticipated the $14,500 fees existed as a hurdle to resolving a dispute. These fees were close to H’s annual income and disproportionate to the size of an arbitration award he could have reasonably foreseen.

Based on both the financial and logistic disadvantages faced by H in his ability to protect his bargaining interests and the unfair terms that resulted, the arbitration clause is unconscionable and therefore invalid.

Concurring Decision: Brown J

Justice Brown agrees with the majority that the arbitration clause should be struck out but does not agree that the doctrine of unconscionability should be used to reach this conclusion.

Arbitration agreements are invalid and unenforceable not because of unconscionability but rather because they undermine the rule of law by denying access to justice. They are therefore contrary to public policy.

The majority vastly expands the scope of the doctrine of unconscionability through their ruling. This is not necessary because other legal principles exist which operate to prevent contracting parties from insulating their disputes from independent adjudication. Expanding the scope of unconscionability will increase the uncertainty that already exists within the doctrine, and also introduce uncertainty into the enforcement of contracts generally.

The public policy doctrine provides grounds for setting aside specific types of contractual provisions including those that harm the integrity of the justice system. It applies when a provision penalizes or prohibits one party from enforcing the terms of their agreement, which serves to uphold the rule of law. The rule of law is undermined without access to an independent judiciary that can vindicate legal rights.

Here, the arbitration agreement effectively bars any claim that H might have against Uber and is disproportionate in the context of the parties’ relationship. This form of limitation on legally determined dispute resolution undermines the rule of law and is contrary to public policy.

Dissent: Côté J

Justice Côté disagrees with the other judges and would allow Uber’s stay of proceedings, but only on the condition that Uber advances the funds required to initiate the arbitration proceedings.

The strongest emphasis is placed here on the freedom of contract and party autonomy. The Court’s own past jurisprudence supports respecting the parties’ commitment to submit disputes to arbitration.

In light of H’s evidence that he cannot afford the arbitration fees, Uber should be required to advance the filing fees to enable him to initiate arbitration. Additionally, if the arbitration clauses were unconscionable or contrary to public policy, the rules selection and place of arbitration clauses could be severed from the contract. The other judges do not explain why they have chosen not to address severance in their reasons.

Approaching the enforceability of arbitration agreements in the fashion taken by the majority, using a hypothetical case with an undetermined reward, compromises the certainty upon which commercial entities rely on in structuring their operations. The arbitration clause should therefore be upheld.

Flashback Summary: Starson v Swayze 2003 SCC 32

[Note: Occasionally I will post summaries of landmark cases from the past that are of general or specific interest. These posts will be categorized as “Flashback” in addition to their regular categories.]

CONTENT WARNING: This post contains discussions of psychiatric hospitals, involuntary detention, forced treatment, bipolar disorder and schizophrenia.

Background.

Professor Starson (born Scott Jeffery Schutzman) was, by all accounts, a brilliant self-taught physicist. He had frequently been in and out of mental institutions in the US and Canada since 1985. He has been diagnosed with different mental disorders but most often with bipolar disorder. At the time of this case, he had most recently been admitted to hospital after being found not criminally responsible for making death threats and the Ontario Review Board ordered his detention for 12 months. Starson’s physicians proposed a treatment including multiple types of medication. He refused to take it.

The attending physician found him not capable of deciding whether to reject or accept the proposed medical treatment. The Ontario Health Care Consent Act (“HCCA”) permits a person to be treated without consent if they lack capacity. Starson appealed to the Ontario Consent and Capacity Board for a review of the physician’s decision. The Board confirmed the physician’s decision, but was overturned by the Superior Court of Justice on Judicial Review. The supervising physician appealed up to the appeal to the Supreme Court.

Verdict: Appeal dismissed. The findings of the Superior Court were upheld. The Board misapplied the statutory test for capacity and improperly substituted its own opinion of Starson’s best interests. Starson had the capacity to make his own decisions regarding his healthcare.

Why was this case important?

This case was a landmark decision because it affirmed, in the highest court in Canada, the right of an individual to refuse medical treatment even if a medical professional thinks it is not in their best interest to do so. The only thing that matters is if they have the capacity to appreciate the consequences of their refusal.

The Consent and Capacity Board’s mandate is to judge individuals solely on their capacity to accept or reject treatment. In this case, not only did they stray from this mandate by deciding to act in Starson’s best interests, they also misinterpreted the test for capacity in the HCCA.

Capacity to consent to or refuse treatment.

Capacity is narrowly defined in section 4(1) of the HCCA. A person is presumed capable to decide to accept or reject medical treatment. The attending physician must prove the patient is incapable. This must be done on a balance of probabilities, meaning they must convince the judicial actor that it is more likely true than not. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions.

Capacity involves two criteria:

A person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information.
A person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

To satisfy these criteria, a patient does not need to agree with the diagnosis of their physician in order to apply the relevant information. Psychiatry is not an exact science and differences in opinion are possible and expected. A patient needs to only demonstrate that they have a mental “condition” and be able to recognize the possibility he is affected by that condition. They do not need to agree this condition is an “illness” or otherwise view it in negative terms.

The patient also needs to have the ability to appreciate the consequences of a decision. That does not mean they need actual appreciation of those consequences. They only need to understand the nature of the proposed treatment, the benefits and risks, alternative courses of action, and the expected consequences of not having the treatment. If they appreciate these parameters, regardless of how their evaluation of the information might vary from the physician’s, they have the ability to appreciate the decision.

Impact and aftermath.

According to CanLII, Starson v Swayze has been cited by over 1600 court and tribunal cases, including 208 courts and 47 appeal courts. The majority of the remaining cases took place at provincial Consent and Capacity Boards.

The decision was viewed by many in the legal community as a victory for Starson and other psychiatric patients, but by May 2005 Professor Starson had been continuously held against his will in Ontario psychiatric hospitals for nearly seven years without treatment. Starson’s psychiatrists could involuntarily detain him but were unable to administer medication until the Supreme Court resolved the capacity issue.

The BC Schizophrenic Society (BCSS) questions whether the decision really was a victory for Starson. Starson’s mental health deteriorated without treatment after 2003. He developed paranoid delusions and his weight plummeted to 118 pounds. Fearing Starson’s death was imminent, his psychiatrist once again assessed him as incapable of consenting to treatment. The Ontario Consent and Capacity Board confirmed this and Starson was administered antipsychotic medication. At this point he began to recover.

You can read more of the BCSS’ analysis of the case, and the laws surrounding it, here.

June 19th: R v Zora, 2020 SCC 14

Overview

Z was charged with drug offences and was granted bail with conditions, including curfew and a requirement that he present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm his compliance with the curfew. Z failed twice to present himself at the door when police attended, and was charged under s. 145(3) of the Criminal Code (“Code”) with two counts of breaching his curfew and two counts of breaching his condition to answer the door.

The trial judge convicted Z on the two counts of failing to answer the door. Both the summary conviction appeal judge and the Court of Appeal dismissed his appeal, concluding that objective mens rea is sufficient for a conviction under s. 145(3) and that Z’s behaviour was a marked departure from what a reasonable person would do to ensure they complied with their bail conditions.

Verdict: Appeal allowed. The lower courts made an error in finding that s. 145(3) is an objective fault offence. Z’s convictions were quashed and a new trial ordered on the two counts of failing to attend at the door.

Judgement written by Justice Martin, for a unanimous (9 – 0) court.

What’s Changed?

Subjective fault is now required for a conviction under s. 145(3) of the Criminal Code. The components of the new mens rea under s. 145(3) are:

The accused had knowledge of the conditions of their bail order, or were willfully blind to those conditions; and
The accused either
- knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were willfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or
- recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.

Key Facts

Mr. Zora was charged with three counts of possession for the purpose of trafficking.
He received twelve bail conditions including a curfew and a requirement to present himself at the door when requested.
On two evenings over thanksgiving weekend, 2015, he failed to present himself at his door when police came to check on him.
He did not even notice he had missed the check-ins until two weeks later when he was charged.
Zora, his mother, and his girlfriend all testified he was home that weekend. He testified that it would have been difficult to hear the door from within his bedroom.

What is Section 145(3) of the Criminal Code?

The section reads:

145(3) Every person who is named in an appearance notice that has been confirmed by a justice under section 508 or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of

An indictable offence and liable to imprisonment for a term of not more than two years; or
An offence punishable on summary conviction.

In practice, this section is used to criminally charge individuals who fail to comply with their bail conditions.

Section 145(3), like the rest of the Code sections that outline the bail system, must be consistent with the presumption of innocence and the right not to be denied reasonable bail under s. 11(e) of the Charter.

This section works in conjunction with s. 515 of the Code. Section 515 governs how judicial officials grant bail, establishes legal forms of bail, and requires that the conditions of bail are only as onerous as necessary to address the following risks:

The risk of the accused not attending court
Harm to public protection and safety
Loss of confidence in the administration of justice

You can learn more about s. 515 and the “ladder principle” of restraint in bail by reading R v Antic.

Sidebar: Subjective and Objective Mens Rea

The Crown must prove both the mens rea (“guilty mind”) and actus reus (“guilty act”) of a criminal offence beyond a reasonable doubt to secure a conviction. The mens rea component of a charge can be either subjective or objective.

A subjective fault standard directs a court to consider whether the accused actually intended, knew or foresaw the consequences of their actions.

An objective fault standard is based on what a reasonable person would know, do, or have foreseen in the circumstances.

In this case, if s. 145(3) carried an objective standard, the accused could be convicted even if they did not know they were breaching their condition, so long as a “reasonable person” ought to have known.

There is a starting presumption that crimes are meant to have subjective fault unless Parliament indicates otherwise. It will only be overridden by text written into the law that demonstrates “clear expressions of a different legislative intent.” (see R v A.D.H)

Analysis

The Mens Rea of Section 145(3)

In the Court’s view, there is no reason in the text or context of the offence to suggest there was an intention by Parliament to give s. 145(3) a subjective fault requirement. Subjective intent is required for the similar offence of breach of probation. The text of s. 145(3) is neutral, not indicating whether they intended to impose subjective fault or objective fault.

It also does not create a duty-based offence as the Court of Appeal found. Duty based offences, failing to provide the necessaries of life (s. 215 of the Code) or undertaking dangerous medical procedures (s. 216) for example, are offences based on a failure to perform specific “legal duties arising out of defined relationships.” Duty based offences are a category of offence where there are policy reasons for an objective fault standard.

Furthermore, legal duties tend to impose a positive obligation to act in certain identifiable relationships, address a duty of a more powerful party towards a weaker party, and involve a direct risk to life or health if a uniform community standard of behaviour is not met. The obligation to not breach a bail condition is not comparable to the circumstances described in other duty based offences.

Finally, a subjective fault requirement is consistent with the overall legislative framework in the Code for reviewing and enforcing bail conditions. Specifically, it is consistent with:

The penalties and consequences from conviction under s. 145(3);
The role of s. 145(3) within the framework; and
The restrained and individualized approach to granting bail and imposing bail conditions.

Restraint and Review: Necessary and Reasonable Bail Conditions and Section 145(3)

R v Antic set out the proper approach to the Code bail provisions, addressing the overuse of cash bail and sureties. The Court takes the opportunity here to provide further guidance on non-monetary conditions of bail and the serious consequences that follow their breach.

Section 145(3) illustrates how bail conditions become criminal offences. Each condition added to a release order limits the freedom of someone presumed innocent. If that weren’t enough, it also creates a new risk of criminal liability that could lead further to bail revocation or imprisonment.

The default position on bail outlined in the Code is simply bail without conditions. Restraint and the ladder principle require any additional bail conditions to be imposed only if they speak to the risks outlined in s. 515(10). Only conditions that speak to these risks are necessary, and must be tailored individually to the risk(s) being addressed.

Bail conditions must be reasonable, and cannot contravene legislation or the Charter. Conditions must be clear, minimally intrusive, and proportionate to any risk. They must also be realistically met by the accused.

The court lists several questions that may be helpful for judicial officers to ensure that the principles of restraint and review are followed:

If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions?
Is this condition necessary?
Is this condition reasonable?
Is this condition sufficiently linked to the grounds of detention under s. 515(1)(c)? Does it address the specific risks posed by the accused’s release?
What is the cumulative effect of all the conditions taken together?

Taken together with the criminal offence created by s. 145(3) and the possibility of bail revocation, judges must also consider the following:

When considering whether a proposed condition meets a demonstrated and specific risk, is it proportionate that a breach of this condition would be a criminal offence or become a reason to revoke the bail?

How to Treat Specific Bail Conditions

The court takes the time to address certain problematic conditions habitually included in release orders.

First, conditions that may be directed to symptoms of mental illness. This includes alcohol and drug abstinence conditions for accused with addiction issues. For accused who cannot possibly abide by such a condition, it is not reasonable. It is also unreasonable to subject them to mandatory rehabilitation – unless it is necessary to address the accused’s specific risks.

Second, other behavioral conditions meant to rehabilitate such as attending classes will not be appropriate unless, again, they are necessary to address the risks posed by the accused.

Third, the condition to “keep the peace and be of good behaviour” is a required condition in probation orders, peace bonds, etc. but not for bail. It should be rigorously reviewed when proposed as a condition of bail. This condition adds a new layer of sanction to everything, from violating speed limits to dog leashing by-laws. It is not consistent with the presumption of innocence and is not sufficiently linked to risks posed by the accused.

Fourth, broad conditions requiring an accused to follow or be amenable to the “rules of the house” or follow the lawful instructions of staff at a residence may be problematic especially for accused youth. This condition is improperly vague, being based on the whims of whoever sets the rules. It also an improper delegation of the judicial function to a surety or anyone else, bypassing the obligation of the judicial officer that set the bail.

Finally, bail conditions that impact additional Charter rights of the accused, such as the requirement to submit to on the spot searches of their person or vehicles without warrant, should be subject to rigorous review, and are constitutionally suspect.

R v Kuzmich, 2020 ONCA 359

CONTENT WARNING: This summary concerns a sexual assault. It contains explicit details of a sexual assault, and discussions about the law of sexual assault.

Key Takeaways

1. The full scope of s. 276 protections apply during preliminary inquiries. Furthermore, a s. 276 application is fundamentally flawed when it is based on answers to improper questions at a preliminary inquiry.
2. Section 715 allows for evidence that would otherwise have been lost to be admitted. It does not allow counsel to second-guess earlier tactical decisions. If the defence declined to pursue certain questions due to tactical considerations in the preliminary inquiry, this does not mean the evidence should be excluded now that cross-examination is unavailable.

Overview

The appellant, Kuzmich, was charged with a single count of sexual assault under s. 271 of the Criminal Code. It was alleged that, during consensual sexual intercourse, the complainant told him to stop. He did so briefly, then continued without her consent.

At the preliminary inquiry, defence counsel asked the complainant, E.S., whether she previously had sex with the appellant. She said she had not. The Crown and preliminary inquiry judge did not object. The appellant was ultimately committed to stand trial.

The trial judge heard two interrelated pre-trial applications. First, the defence applied under s. 276 of the Criminal Code to adduce evidence of other sexual activity between the appellant and E.S.

Second, the Crown applied under s. 715 of the Criminal Code to admit E.S.’s preliminary inquiry testimony because she had passed away before the trial. The appellant opposed, claiming he did not have a full opportunity to cross-examine E.S. at the preliminary inquiry, particularly on several incidents of alleged prior sexual activity.

The trial judge dismissed the s. 276 application but admitted ES’s prior testimony under s. 715. The appellant was found guilty and sentenced to 15 months of imprisonment.

The appellant appealed his conviction. He submits that the trial judge erred in how she decided both pre-trial applications, and in how she assessed the evidence.

Verdict: Appeal dismissed. The trial judge’s ruling on both applications were correct.

Definition: Preliminary Inquiries

Preliminary inquiries are allowed by Part XVIII of the Criminal Code. It is a hearing before a main trial action presided over by a different judge.

The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court. It is available to accused who are charged with an indictable offence punishable by 14 years or more of imprisonment.

Definition: The “Rape Shield” Laws and Section 276 Applications

Section 276 of the Criminal Code prohibits the admission of evidence that a sexual assault complainant engaged in sexual activity with the accused or any other person, to support the inference that the complainant is more likely to have consented, or is less worthy of belief.

However, under s. 276(2), evidence of sexual activity other than the subject matter of the charge is admissible if three conditions are met:

The evidence must be of specific instances of sexual activity.
The evidence must be relevant to an issue at trial, other than to make either of the prohibited inferences.
The evidence must be more probative than it is prejudicial to the proper administration of justice.[1]

In assessing its probative or prejudicial value, the application judge must consider the rights of the accused to a fair trial, balanced against the complainant’s equality, dignity, and privacy interests.

Definition: Section 715 Applications

Section 715(1) of the Criminal Code allows evidence taken during a preliminary inquiry to be read into the trial in certain cases if the person who originally gave the evidence is unavailable (for e.g., because they have died in the intervening time period).

If the evidence was taken in the presence of the accused, it may be admitted as evidence into the trial proceedings without any further proof. The exception is where the accused proves that they did not have a full opportunity to cross-examine the witness.

Key Facts

E.S. went to the appellant’s rooming house to buy marijuana. When she attempted to leave, the appellant blocked her.
E.S. and the appellant both testified that they had intercourse. At one point E.S. felt pain and told the appellant to stop.
The appellant stopped for a few minutes, then resumed despite her continued refusal and resistance.
E.S. told a friend who was present, “Seppo,” what had happened and she was taken to a hospital, accompanied by a police officer.

The central factual issue in the case was framed as follows by the trial judge

“If I find the accused stopped when asked, the he would be found not guilty of sexual assault. If I find that he did not stop when he was asked to stop, then he will be found guilty of sexual assault.”

Issue 1: Prior Sexual History Evidence

The Court of Appeal agreed that evidence of prior sexual history between the appellant and E.S. was inadmissible under s. 276 of the Criminal Code. The proposed evidence had minimal to no probative value, but significantly impacted E.S.’s equality, privacy and security interests.

Evidence at the Preliminary Inquiry

At the preliminary inquiry, the Crown asked E.S. if she had a romantic relationship with the appellant. She said no. On cross-examination, the defence asked if she had ever had sex with the appellant. She again said no. Neither the Crown nor the judge intervened.

The Section 276 Application at Trial

The appellant filed an application under s. 276. In his affidavit, he said he engaged in consensual sexual activity with E.S. five times before the events leading to the sexual assault charge.

The Crown submitted that her question about a “romantic relationship” did not engage considerations of sexual activity, nor was it intended to do so. The Crown further submitted that the evidence was irrelevant. Even if the evidence impacted E.S.’s credibility, this was an insufficient bases for admission under s. 276.

The Trial Judge’s Reasons

The trial judge ruled that, if she allowed the s. 276 application, the Crown’s case would be at an end because E.S. was not available for cross-examination on her prior sexual history. Furthermore, it would prejudice E.S.’s personal dignity and right of privacy. She also ruled that the evidence was irrelevant to the central issue and not sufficiently helpful in assessing her credibility.

The application was rejected for two main reasons: it was based on improper questions asked at the preliminary inquiry, and the Crown did not “open the door” to this line of questioning as the appellant submitted.

The s. 276 application rested solely on E.S.’s answers to questions about previously having sex with the appellant. Section 276 applies at a preliminary inquiry. The plain meaning of the words “proceedings in respect of” does not restrict its use to trial proceedings alone. It may include others, including preliminary inquiries, or bail proceedings. The interests protected by s. 276 – “the equality, privacy and security rights of complainants” are no less important at these earlier stages of a criminal trial.

Since s. 276 was active at the preliminary inquiry, the issue becomes whether the appellant can rely on the improper questions made during the inquiry in his s. 276 application. There are two reasons to prevent this.

First, counsel should not be permitted to benefit by ignoring provisions designed to protect complainants in sexual assault prosecutions. Second, to rely on the preliminary inquiry evidence would make E.S. a compellable witness in the s. 276 application brought at trial, which is explicitly prohibited by what was then s. 276.2(2).[2]

The Crown’s question about a “romantic relationship” was not a request for information about sexual activity. The Crown never intended to “open the door.” She asserted in her submissions that she would gain no advantage whatsoever by doing so. It did not suspend the operation of s. 276 throughout the preliminary inquiry. The inaction of the Crown and the preliminary inquiry judge during cross-examination when the improper questions were asked similarly did not negate s. 276 protection.

Issue 2: The Section 715 Application

If the trial judge allowed the appellant’s s. 276 application, it would have ended the trial because E.S. was unavailable to be cross-examined on the alleged instances of prior sexual history. However, because E.S. was unavailable to testify for the Crown at trial, the trial judge was then required to determine whether E.S.’s preliminary inquiry testimony was admissible at trial under s. 715 of the Criminal Code.

The court stated that the purpose of s. 715 is to preserve valuable evidence that would otherwise be lost; it is not designed to permit counsel to second guess tactical decisions made earlier in the proceedings. The fact that defence counsel declined to pursue certain lines of inquiry during the preliminary hearing does not mean the evidence should be excluded now that cross-examination is unavailable.

The Court concluded from the trial record that admission of ES’s preliminary inquiry testimony did not adversely on the fairness of the trial. There was therefore no reason for the trial judge to exercise her discretion to exclude it.

Issue 3: Misapprehension of the Evidence

The Court found that the trial judge did not misapprehend the evidence or rely on any stereotypical reasoning in how she assessed ES’s credibility. Her reasoning throughout was sound and strongly supported her conclusion on the core factual issue described above. This ground of appeal was also dismissed, and the appellant’s conviction was upheld.

[1] Explanation taken from http://www.thecourt.ca/r-v-goldfinch-scc/

[2] This section has now been replaced by s. 278.94(2), which provides: “The complainant is not a compellable witness at the hearing but may appear and make submissions.”

R v Just, 2020 ONCA 362

Today’s summary is hosted at https://www.littlelegalsummaries.com/legalsummaries/r-v-just-2020-onca-362.

R v Sullivan, 2020 ONCA 333

Overview

Section 33.1 of the Code legislated that a person is guilty of a violent offence even if they were so intoxicated that they did not know what they were doing, so long as that intoxication was self-induced. For 25 years this provision was active in Canadian Law. No longer in Ontario. It has been declared of no force or effect by the Ontario Court of Appeal, meaning it is no longer active in this province.

The Ontario Crown has announced it intends to appeal the decision to the Supreme Court.

What’s Changed?

With s. 33.1 struck down, the defence of non-mental disorder automatism is now open to be used by defendants accused of violent crimes committed while in an automatic state as a result of self-induced intoxication.

While there is concern that this ruling will cause perpetrators to use the non-mental disorder automatism defence to evade responsibility for sexual assaults and other violent crimes, this defence is very difficult to access. It requires expert evidence, medical testimony, and the onus is on the accused to prove the defence to a judge or jury on a balance of probabilities. It is very rarely advanced and even more rarely successful, despite the large amount of attention it gets in the press and in law schools.

Falling short of this standard, intoxication, even a high degree of intoxication, is still absolutely no defence to any criminal offence.

This judgement took place at the Ontario Court of Appeal, meaning is must be followed by all lower courts in Ontario, and can be “persuasive” in courts of other provinces.

Facts

R v Sullivan is in fact two cases heard jointly. Two accused, Sullivan and a young man named Chan were tried and convicted of assault among other charges. Each was in an automatic state due to self-induced intoxication, but could not use that as a defence due to the operation of section 33.1.

The summary of the facts are:

Chan voluntarily consumed magic mushrooms. After not feeling the effects, he consumed more. He then began to have a bad trip. Thinking his father was the devil, he stabbed him. His father died from his injuries.
Sullivan attempted suicide by self-inflicted overdose of his prescription medication, Wellbutrin, which he had been taking to attempt to quit smoking. He experienced a psychotic episode and, thinking his mother was an alien, stabbed her.

Sidebar: What is Automatism?

Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: see R v Stone, [1999] 2 SCR 290 at para 156. Involuntariness, as Appeal Justice Paciocco says, “is the essence of automatism.”

People in a state of automatism may have the benefit of a defence when they commit a criminal act. The burden is always on the accused to establish automatism.

The defence of automatism has two branches. The mental disorder defence, codified in s. 16 of the Criminal Code, applies where involuntariness is caused by a “disease of the mind.” If successful, a mental disorder automatism defence will result in a not criminally responsible verdict. A not criminally responsible verdict means a referral to the Ontario review board, detention or extensive community supervision may follow an asessment.

The other branch, known as the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind. The same principles of mental disorder automatism apply. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.

Legal Analysis Part 1: The Charter Violations

Section 33.1 was declared unconstitutional for violating two sections of the Charter: the right to life, liberty and security of the person (s. 7), and the right to the presumption of innocence (s. 11(d)).

The court found that s. 7 and 11(d) breaches occurred under three categories: the “voluntariness breach,” the “improper substitution breach” and the “mens rea breach.”

The Voluntariness Breach

Section 33.1 violates sections 7 and 11(d) of the Charter because it allows people to be convicted and imprisoned for something they did involuntarily. The principles of fundamental justice require that voluntariness is an element of every criminal offence. To remove the voluntariness element from an offence is therefore contrary to fundamental justice.

The counterargument that the Crown advanced was that the required voluntariness still exists in the voluntary consumption of an intoxicating substance. The court rejects this, stating that the voluntariness must attach to the offence charged, not some other action.

The Improper Substitution Breach

The improper substitution breach refers to the fact that s. 33.1 allows a person to be found guilty of an offence for which the essential elements are not proven. This violates s. 11(d) of the Charter.

In Criminal Law, every offence requires proof of the actus reus and the mens rea, the physical and mental element of the illegal act, respectively. These elements are specific to each offence.

Section 33.1 runs afoul of this rule because it replaces the burden to prove the actus reus and mens rea requirements of violent offences with proof off another action: which is the consumption of intoxicating substances.

The Mens Rea Breach

Section 33.1 breaches s. 7 of the Charter because people can be imprisoned for an act even when they do not not have the minimum mens rea that reflects the nature of the crime.

There are various levels of criminal fault in the law. A person does not always need to desire and intend the outcome of their actions to be held criminally responsible. There are lots of offences, known as general intent offences, where someone can be held criminally responsible for their behaviour where their behaviour is so poor that it rises to the level of penal negligence, the minimal level of criminal fault.

Penal negligence occurs where a person’s intentional behaviour is so poor that it departs markedly from what a person would normally do. A simple example is dangerous driving causing death. For example, someone who drives recklessly by going 50km above the speed limit not intending to kill someone. Because driving that fast substantially deviates from the level of care expected of a reasonable person, that satisfies the mens rea component of the offence should death result from this action. The guilt comes from the fact that someone’s death was an objectively foreseeable consequence of going 100 km/h in a 50 km/h speed zone.

Section 33.1 imposes a fault level that does not even meet the minimal level of penal negligence. It creates a scenario where a person can be found guilty without any link to foreseeability. To be found guilty, the prosecution only needs to prove you (a) became intoxicated by voluntarily consuming a substance and (b) interfered with the bodily integrity of another person. The law does not require any level of subjective or objective foresight of the consequences. There is no link between the voluntary act of consumption and the involuntary act of violence.

Second, even if section 33.1 required a link, the violent behaviour is not an inevitable foreseeable risk of voluntary intoxication. Nonetheless, s. 33.1 will enable a conviction. Chan is a perfect example of this point. A reasonable person in Mr. Chan’s position could not have foreseen that consuming mushrooms may lead to a knife attack on his father and step-mother.

Third, the element of penal negligence that is normative – that the negligent conduct is a marked departure from the standards of a reasonable person – is missing. The voluntary intoxication required by s. 33.1 does not require an accused person to intend to become intoxicated to the point of automatism, or even to become extremely intoxicated. It is enough to meet the fault requirements of s. 33.1 that a person takes a substance intending to become even a little bit intoxicated. Anyone who intends to get a little bit high from mushrooms, or a little bit tipsy from alcohol, does not rise to the level of a “marked departure” from reasonable behaviour.

Lastly, even if we can ascribe moral fault to voluntary intoxication, it is not irresponsible enough to substitute the more culpable mental states required for manslaughter or sexual assault.

Legal Analysis Part 2: Section 1 Justification

Even if a Charter violation is found, the government still has a chance to “save” the law under section 1 by setting out a valid justification for the violation. This requires demonstrating (1) that the law was enacted for a “pressing and substantial purpose” and (2) that the law imposed is proportional to the objective being sought.

The Ontario Court of Appeal defines two objectives for the law, the “accountability” purpose and the “protection” purpose:

“Accountability”: To hold assailants self-intoxicated to the point of automatism accountable for their actions.
“Protection”: To protect victims from assailants self-intoxicated to the point of automatism.

The court found that the second purpose is “pressing and substantial” but the former is not. The reason for this is a complex bit of legal reasoning where they state that trying to hold people accountable in direct conflict with core Charter principles is not a valid purpose. In this case, Parliament’s stated objective is to hold people accountable despite the mens rea and actus reus of an offence not being proven.

Put this way, the court’s conclusion is that the purpose of the law is to deliberately undermine Charter rights.

The court then moves on to the “protective” purpose, which is still valid. However, it is dismissed as having no rational connection to the law being imposed.

A law must have a deterrent effect to have any protective power. However, the court reasoned that a person would never actually be deterred from having a drink on the off-chance that they later would enter in an autonomous state and lead them to violence.

It’s well known that, tragically, violence often follows a decision to get drunk, since drinking lowers inhibitions and leads to behaviour that one might not otherwise engage in when in total sober control. In the vast majority of cases, the decision to drink is absolutely no defence to the violence that arises. This does not deter people from drinking, so it is irrational to think that barring the defence associated with more extreme, automaton level of intoxication will affect people’s behaviour.

The court also finds that the law is not minimally impairing on Charter rights. Its objectives could have been achieved by a number of other means, including doing nothing and leaving the law as it was.

Why I Started This Blog

In the first week of June, 2020, R v Sullivan and R v Chan were decided by the Ontario Court of Appeal. The judgement impacted a very narrow yet important area of the criminal law. The press coverage subsequently blew its impact out of proportion and created a panic on social media.

I myself wrote a short summary on Facebook that summarized the facts of the case and clarified what the judgement did, and why the news coverage was dangerously inaccurate.

Within two days the post had been shared over 900 times. Another, longer explanatory post by a law student had been shared nearly 10,000 times. After this I realized that there was a serious appetite for timely explanations of court cases that are accessible to the average person. Not only that, the media could not always be trusted to do so because in today’s world there is always an incentive to sensationalize headlines for shares and clicks.

Also, as Elsa Ascencio said so well on twitter, it is on us, the legal community, to step up and reach out to the community and explain when a case might be controversial or confusing. Furthermore, we must do so in a way that is sensitive and accessible. That is what I hope to accomplish with this blog, to become a trustworthy source that acts as a gateway into the legal world written for all communities, not just the legal community. I’d like to thank other major source of inspiration including Sara Little’s Little Legal Summaries, as well as the Café Bioethics initiative founded by bioethicist Nipa Chauhan, who are both also doing great work in delivering public education.

You can find my own summary of R v Sullivan, and the inaugural post of this blog, here.