Records in sexual assault cases, forfeiture of bail money, and radar evidence


This week on Legally Speaking with Michael Mulligan:

The Supreme Court of Canada has granted the Crown leave to appeal a BC Supreme Court decision that found a new law that required people accused of various sexual offences to provide advance notice of records they wish to rely on to the complaint and Crown to be unconstitutional.

The law in question was passed following the Jian Ghomeshi case where the complainant’s credibility was undermined by email messages, they had sent that contradicted their evidence at trial.

The BC Supreme Court judge that found the advance notice law to be unconstitutional said the following: “The danger that the complainant’s evidence may be tailored, consciously or unconsciously, if not illusory. This is why witnesses are almost invariably excluded from the courtroom until they have given their evidence.”

Also discussed is a BC Provincial Court decision that deals with the process and test to be applied when an accused person provides a cash deposit to be released on bail and then breaches their conditions of release.

When this occurs, the Crown can make an application for forfeiture of the money and the accused person would be given an opportunity to show cause why this should not occur. There is a presumption that when bail conditions are breached, cash bail will be forfeited upon application by the Crown.

Finally, a BC Supreme Court decision is discussed which was concerned with the requirements for radar readings to be accepted on a prosecution for speeding.

Evidence of the following is required:

1.     That the particular equipment used was properly operated by a qualified person;

2.     That the equipment function and accuracy were tested with whatever tests were required or suggested for it;

3.     That the tests or procedures indicated the equipment was operating properly; and

4.     That those tests indicated that the equipment was capable of accurately registering the speed of an alleged offending vehicle.

In the particular case being considered the evidence on these points was very brief and general, however, it was not challenged at trial in any way and, as a result, was found to be sufficient to permit consideration of the radar speeding reading.


An automated transcript of the episode:


Legally Speaking Dec 31, 2020

Adam Stirling [00:00:00] It’s time for Legally Speaking here on CFAX 1070 joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. Happy New Year’s Eve.

Michael T. Mulligan [00:00:09] Thank you very much. Sadly, I’m not in St. Bart’s.

Adam Stirling [00:00:13] No, no. (Laughter)

Michael T. Mulligan [00:00:16] Although perhaps the former Minister of Finance in Ontario might be on a plane back there at the moment, given what just transpired.

Adam Stirling [00:00:24] I was just going to say, you know, you’re not supposed to let people go over the telephone, but it may have been more courteous in this particular set of circumstances. I suppose we’ll leave that to others to discuss over time. On our docket today, the Supreme Court of Canada, I’m reading here, granted leave to appeal this directly from a Supreme Court trial decision. It has to do with records and privacy; help us understand this, this issue, Michael.

Adam Stirling [00:00:47] Yes, there are a few things that are interesting about this case. First of all, the way in which this case is going to go to the Supreme Court of Canada is a bit different than how things would usually get there. And then the substance of it’s also interesting. First of all, in terms of how this case, the B.C. case, out of New Westminster is going to the Supreme Court of Canada. It skipped the Court of Appeal, which is interesting.

Adam Stirling [00:01:13] Hmm

Michael T. Mulligan [00:01:13] Typically, typically cases would, if they’re going to the Supreme Court of Canada, you’d have a trial decision and then there could be an appeal to the British Columbia Court of Appeal. And from there, if you could get leave or permission, you’d be able to go on to the Supreme Court of Canada. But this one skips the middle step, the Court of Appeal. And how can that be? Well, the answer to that is that the particular decision dealt with what would be called sort of an interlocutory issue, like a procedural issue in a case that didn’t necessarily determine the outcome of the case.

Adam Stirling [00:01:45] hmm.

Michael T. Mulligan [00:01:45] And so you can imagine let’s imagine a circumstance where, one side makes an application, succeeds on the application, but then loses on the trial itself. Right.

Adam Stirling [00:01:59] Yes.

Michael T. Mulligan [00:01:59] It would mean that the other side would have really no mechanism to appeal that earlier procedural decision because they won ultimately.

Adam Stirling [00:02:08] Okay.

Michael T. Mulligan [00:02:08] If the Crown gets a conviction for example, it couldn’t then go and say, well, I want to appeal the conviction. You got what you asked for. But, you know, you disagree with a procedural ruling. And so, the Supreme Court act allows for in usually rare circumstances, an appeal on that kind of an issue. And so that’s how it is of the case we are about to talk about is going to be heard by the Supreme Court of Canada, having never been considered by the Court of Appeal.

Adam Stirling [00:02:34] hmm.

Michael T. Mulligan [00:02:34] So that’s an interesting procedural wrinkle. Now, the issue in the case is also an interesting one. And it’s an issue that arose as a result of some relatively recent in December of 2018 amendments to the criminal code dealing with the prosecution of sexual assault and other related sexual offences.

Adam Stirling [00:02:53] Yes.

Michael T. Mulligan [00:02:54] And they were amendments which were precipitated by the Jian Ghomeshi case.

Adam Stirling [00:02:58] hmm

Michael T. Mulligan [00:02:59] And I think back to the Jian Ghomeshi case, one of the things that occurred there was that there were email messages that the complainants had sent to Mr. Ghomeshi, which the defence very effectively used to cross-examine the complainant and get them to acknowledge that they had intentionally misled the police and ultimately led the judge to conclude that the complainants in that case had effectively, essentially intentionally lied to the court when they gave their evidence in chief. And they were a large part of why Mr. Ghomeshi was acquitted. Judge said they can’t believe these people. They’ve lied to the police; they’ve lied to courts. And they can tell that because of contradictory things they said in these e-mail messages. That produced some controversy because people, some argued that, and the government at the time argued that, well, look, this might discourage sexual assault complainants from coming forward if they might be cross-examined on things they might think were private, like their email communications.

Adam Stirling [00:04:05] Yes.

Michael T. Mulligan [00:04:06] And so that led to a series of amendments, one of which was the subject of this procedural application. And the particular amendment purports to require that if the defence wishes to use any form of record that contains personal information for which there might be an expectation of privacy, the defence would need to ask the judge for permission to use it at least seven days in advance, subject to the judge deciding that less time could be allowed. But then the material would be provided to the complainant and their counsel and to crown for the judge to determine whether the material can be used. Now, when you think about that, the challenge that arises is one identified by the trial judge here, Madam Justice Duncan, and she concluded that the danger of the complainants’ evidence may be tailored consciously or unconsciously, if not illusionary. The this is why witnesses are almost inevitably excluded from the courtroom until they give their evidence.

Adam Stirling [00:05:08] Yes.

Michael T. Mulligan [00:05:09] Well, the problem the judge identified here is one that I think should be apparent to anyone, which is if you tell somebody in advance, hey, by the way, you said a bunch of contradictory things in your diary, e-mail messages, letters, whatever it might be. You know, you tell the person about that a week before they testify in court. Well guess what, their evidence is, whether consciously or unconsciously, very likely to change to conform with that information.

Adam Stirling [00:05:38] Yes.

Michael T. Mulligan [00:05:38] And so the problem there is that, you know, this case was a jury case. The jury would then have no idea that potentially that the complainant has told a, you know, a completely different version of events that contradicted what they had said in their letters, e-mails, diary records and various things. And one of the ways that we try to avoid wrongfully convicting people is to allow them to be confronted complainants or the that complainants with contradictory things. Hey, you see this happen, but you see something completely different in your diary, notes, records, whatever it might be.

Adam Stirling [00:06:14] Yes.

Michael T. Mulligan [00:06:15] And the trial judge said in her reasons, you’re finding that section to be unconstitutional, that privacy rights must yield to the need to avoid convicting the innocent as one of the things that she made reference to in her judgement.

Adam Stirling [00:06:30] hmm.

Michael T. Mulligan [00:06:30] The crown argued that, well, you know, even though that might, you might have that effect if you tell somebody about things in advance, they argued that, for example, people might find things that would in some other way. That, that argument didn’t carry the day, obviously at trial. The fact that there could be other things that would lead to a person being tipped off as to inconsistent things they might have said in the past wasn’t a justification for permitting this. So, what the trial judge did is she found that the requirement for seven days advance notice to the complainant was unconstitutional because it was interfering with the constitutional rights of the accused.

Adam Stirling [00:07:10] Mhmm

Michael T. Mulligan [00:07:11] And instead, she adopted a procedure by reading that 7-day requirement out that you could have the complainant testify without being tipped off about their inconsistent emails or diary entries or whatever it might be. And then you could have a judge assess whether that material can be properly used. And that way the complainant wouldn’t be tipped off and you wouldn’t have the risk of their evidence being changed. It would be too late in the sense that they’ve already committed themselves to whatever story they’ve told in chief. And so that’s what the trial judge did with it. And that’s what the crown is trying to reverse by going to the Supreme Court of Canada. Those particular provisions, interestingly, they were found to be constitutionally permissible in Ontario and Nova Scotia but were struck down or found to be unconstitutional in British Columbia, Alberta, Saskatchewan, and the Yukon.

Adam Stirling [00:08:08] huh.

Michael T. Mulligan [00:08:08] And so the fact that there are these inconsistent decisions about whether that requirement to give advanced notice to everyone before using a record of that kind of a case, would be one of the reasons why the Supreme Court of Canada granted leave or permission to go there,.

Adam Stirling [00:08:25] I see.

Michael T. Mulligan [00:08:25] To argue that point. And so that’s how it is that that procedural point that originated with the Jian Ghomeshi case, is going to go to the Supreme Court of Canada without having first travelled through the Court of Appeal.

Adam Stirling [00:08:39] How is it that inconsistent findings were made by courts in different provinces in the first place? Are not courts even at the lower levels bound by findings in other provinces on similar matters? Like wouldn’t they have to yield to that or what is it stare decisis?

Michael T. Mulligan [00:08:53] That’s a great question. The way it works is that courts are bound by decisions of higher courts, but only in the same hierarchy, basically. And so, in British Columbia, you would have the provincial court, then you’d have the BC supreme Court, and then you would have the Court of Appeal and judges of that above that, the Supreme Court of Canada sits above all of the provinces. But the let’s see, the British Columbia Supreme Court would not be bound by a decision of, let’s say, the Saskatchewan Court of Appeal.

Adam Stirling [00:09:22] hmm.

Michael T. Mulligan [00:09:22] They’re only bound by higher courts that are sort of above them in their own hierarchy. And so, I don’t know what a military example of that would be. But perhaps, you know, an order from a superior officer in the Army to an Army member of a lower rank would be binding, but not an order from somebody in the Navy.

Adam Stirling [00:09:43] Okay interesting

Michael T. Mulligan [00:09:44] So there’s simply somebody at the top of the pyramid. That’s the Supreme Court of Canada. And decisions from other provinces, of course, can be influential or persuasive.

Adam Stirling [00:09:53] Yes.

Michael T. Mulligan [00:09:54] You can say, look, you know, this other court or the same fact pattern came to this conclusion. Look, here’s how the judge did it. You know, please do the same thing here, often persuasive.

Adam Stirling [00:10:03] yes.

Michael T. Mulligan [00:10:03] But they’re nothing more than that. And so, you do wind up with circumstances in this case and others where you’ve got inconsistent decisions in different provinces. And that’s one of the reasons why the Supreme Court of Canada might decide to grant leave to sort out those inconsistent decisions.

Adam Stirling [00:10:23] Yeah

Michael T. Mulligan [00:10:24] And so that was one of the reasons why the Supreme Court of Canada allowed or granted leave to go there. And that’s an interesting thing, too. You can’t just go, except in rare circumstances, directly to go to the Supreme Court of Canada. As of right. You can’t just say I’m bound and determined and I’m really litigious. And so, I insist upon going there.

Adam Stirling [00:10:45] Indeed.

Adam Stirling [00:10:45] Ordinarily, you need to get their permission, or leave, to go there because they would otherwise be utterly and totally overwhelmed with cases from all across the country of various determined people that really, really want to go there.

Adam Stirling [00:10:57] Yeah.

Michael T. Mulligan [00:10:57] There’s an exception to that where you get a dissent from a Court of Appeal Judge. There can be limited circumstances where you can go to the Supreme Court of Canada as of right. But it would appear that they often don’t like those cases too much. And so, you often wind up with decisions on those kind of cases from them that say things like we dismiss the appeal for substantially the reasons of the majority of the court of appeal.

Adam Stirling [00:11:23] ahh.

Michael T. Mulligan [00:11:23] Right. We’re not really committing ourselves. We’re just saying we agree with that decision. So generally, you need to get permission. Here, it’s the unusual permission. Skipping a step.

Adam Stirling [00:11:33] Interesting. Let’s take our break, Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers continues right after this.

[00:11:39] COMMERCIAL.

Adam Stirling [00:11:39] Legally Speaking, continues on CFAX1070 Michael Mulligan with Mulligan Defence Lawyers taking us through the latest current affairs in the legal world where the wheels of justice never stop turning. Michael, what happens when someone is on a cash or I think it’s called a surety bail and they breach their conditions of release?

Michael T. Mulligan [00:11:58] Yeah, I mean, and this one of the important context for this is that unlike in the U.S., where you routinely hear of people being released on bail and various large amounts of money. Right. Which has the effect of essentially releasing the poor, releasing the rich on bail and keeping the poor in jail.

Adam Stirling [00:12:17] Indeed,.

Michael T. Mulligan [00:12:18] In Canada, happily, that’s not the norm. Ordinarily, judicial interim release in Canada doesn’t simply involve, you know, piling up a bunch of cash and going free. We do things like monitor people on release with Bail Supervisors is this kind of thing, rather than just letting rich people go home.

Adam Stirling [00:12:38] Yes.

Michael T. Mulligan [00:12:38] But in some circumstances, in Canada, release orders can include a financial component, either with the deposit of cash, which has traditionally been used, in particular where you have somebody whose doesn’t live in the area, or you can have circumstances where a person is released on what’s called surety bail. And the surety bail involves a responsible person in the community, who is ensuring the good conduct and the attendance of the accused person. And surety bail would ordinarily be set and used to have to be set, but now is optional in an amount of money. And the idea there is that if the person that you’re acting as a surety for doesn’t turn up, right, or doesn’t follow the conditions that they were released on.

Adam Stirling [00:13:27] Yes.

Michael T. Mulligan [00:13:27] You is the surety or on the hook for that amount of money. So, you’re kind of you’re incentivized to make sure you’re doing a good job supervising.

Adam Stirling [00:13:34] okay.

Michael T. Mulligan [00:13:34] so those are different ways in which money can be involved with bail in Canada. But then an issue arises, and it was considered in a recent B.C. Provincial Court decision from just a few days ago. What do you do when somebody deposits money? Right. Or have the surety sort of on the hook for the money and then breaches their bail conditions? How does that work?

Adam Stirling [00:13:57] Yeah.

Michael T. Mulligan [00:13:57] And the way that works is that it’s not automatic. The Crown needs to make an application to take the money. Right. If the money was deposited, they are applying to keep the money or if it was a surety, for example, they’re applying to force the surety to actually pony up and pay. Right. Because the person didn’t turn up or didn’t follow their conditions. And when that happens, when there’s that kind of an application, there is then what’s called a show cause hearing to determine what ought to happen with the money. And effectively, it creates a reverse onus, which requires the accused person or the surety to justify why the money ought not to be simply forfeited to the Crown. After all, the person breached their bail. Right.

Adam Stirling [00:14:48] mhmm.

Michael T. Mulligan [00:14:48] And so in the case of a surety, there would be considerations, including things like, you know, how diligent was the surety? You know, what was their means? Were they coerced? This kind of thing? Like, let’s say you had a, a person was acting as a surety who did everything they could to try to get the person to court, right, including phoning the police, checking on them and doing all sorts of things. But, you know, they just escaped,.

Adam Stirling [00:15:09] yes.

Michael T. Mulligan [00:15:09] And did not turn up. You would probably, in that case, be successful in persuading a judge that the amount of money set for the surety shouldn’t be paid if you had a very diligent person who was doing everything they could but just didn’t succeed in getting the person to the courthouse on time.

Adam Stirling [00:15:26] Yes.

Michael T. Mulligan [00:15:27] But the particular case that was just decided, it was one which involved a man who had 50 previous convictions. He had multiple charges, and he eventually persuaded a judge to release him on the deposit of $5,000 in cash. And then he allegedly went out and breached.

Adam Stirling [00:15:46] Yes.

Michael T. Mulligan [00:15:47] The conditions that he was generously released on. The judge, one of the judges involved described as Judge Blake, now retired, described the individual as somebody who breached the conditions in, quote, spectacular fashion (laugher) and paid no regard release order. Not, not heading the warnings of the judge who released them. And it was somebody who had a previous history of 50 previous convictions, including numerous breach of probation, breaches of recognizance. It was described as a pattern of disrespect for the administration of justice. And so, in that circumstance, even though there was evidence that keeping the $5,000 was would present a serious hardship for his family.

Adam Stirling [00:16:34] Yes.

Michael T. Mulligan [00:16:34] And the money represented joint savings of the accused person and his spouse. Nonetheless, with all of that context, the judge found that the accused had not shown cause why the money shouldn’t be forfeited and pointed out that in order for that kind of bail to be effective, you need to have an expectation that if you don’t do what’s required of you, you’re actually going to lose the money you deposited.

Adam Stirling [00:17:04] Indeed

Michael T. Mulligan [00:17:04] And that’s what that’s what happened there. No, no $5,000 back for the spectacular, spectacular fashion of breaching. (laughter).. keep the money.

Adam Stirling [00:17:14] I was just going to say I’m always struck when reading through these decisions with the, the restraint and the subtlety that is exercised with written reasons produced by the court. So, to see spectacular fashion spelled out in a in a court decision. Yeah, I could just imagine, I can just imagine.

Michael T. Mulligan [00:17:34] That will be you will not get your money back.

Adam Stirling [00:17:36] No, no. I’m seeing our next story is interesting. It’s an appeal of a speeding ticket considered by the BC supreme Court. And it reminds us of what the law is with respect to evidence collected by radar devices.

Michael T. Mulligan [00:17:50] Yes, indeed. And I thought this was worth mentioning because, frankly, speeding tickets are one of the ways in which if somebody is going to have any experience with the justice system, probably the sort of way that an ordinary person might wind up in that position, right?

Adam Stirling [00:18:05] Yes.

Michael T. Mulligan [00:18:06] And so this case was also unusual because it was an appeal to the BC Supreme Court. The fellow was convicted of speeding and then decided to appeal it on to the BC Supreme Court. And so, we wound up with this brand-new reasoned decision, just came out on the 29th, setting out some of the law concerning the use of evidence about radar devices. And this was the case involved a police officer using a radar device. And I must say, I always get a kick out of the names given to law enforcement devices. They never name something like, you know, the traffic safety device or something. Right. This was the police officer using the Stalker Dual DSR (laughter) So police officers got the Stalker Dual DSR, much better than the Stalker Singular DSR, one can only assume. And the officer was using that to check the speed of cars driving past him.

Adam Stirling [00:19:03] As one does.

Michael T. Mulligan [00:19:06] As one does, and then he came to court and he gave some very general evidence about the use of the radar device. He said that he was operating the radar device that was a Stalker Dual DSR. He said he tested it at the start of his shift and was satisfied that it was working properly. That was really the extent of it. And the Supreme Court Judge, and the I should say the appeal, was in part challenging whether that was sufficient to establish that this radar Dual Stalker DSR was functioning properly to determine the speed of the accused. And so, the Supreme Court Judge reviewed some of the law concerning what evidence is required for the admissibility of radar evidence and pointed out, that from previous decisions that evidence should include evidence that the person was properly qualified to operate the radar device, that it was functioning properly, that is, accuracy with accuracy was tested using whatever tests are required for it. The testing procedures indicated the equipment was working properly and that the tests indicated the equipment was capable of registering the speed of an alleged offending vehicle. So various elements to what should be proven if you’re going to rely upon a radar device to prove somebody was speeding. Now, in this case, the evidence on those points was pretty brief, right? And that’s what I’ve indicated previously. It didn’t meticulously go through those points.

Adam Stirling [00:20:33] Yes,.

Michael T. Mulligan [00:20:34] But the Supreme Court judge found that the, the judicial justice that convicted the man of speeding the that could be upheld. And the judge pointed to the fact that, that evidence, although brief, about the way the thing worked and the qualifications of the person who operated it, wasn’t challenged. Right. So, he gave, the police officer gave very brief evidence about being qualified to use it and that the thing worked and he did some testing on it, without necessarily getting into all of the elements about, you know, what was the procedure for that and what was recommended. You know, was the thing capable of doing those things. But because they weren’t that wasn’t challenged in any way at the trial, the Supreme Court Judge found that that was sufficient. So, I think the takeaway from the case is that there is a regime of the kind of evidence that should be led, to rely upon radar readings to prove speeding. But if you have some brief evidence about that and then you don’t do anything to challenge it or ask any questions about it, that’s likely to be found to be sufficient. So, it’s, I think, an interesting case because it’s one that, frankly, will probably affect many more people’s regular lives than some of the other, perhaps more serious allegations that we talk about from time to time.

Adam Stirling [00:21:55] Indeed, we’ve got 50 seconds left in the segment today. Michael, what would you like to leave with us for 2020?

Michael T. Mulligan [00:22:00] Yeah, I think the takeaway from the last 50 seconds would be a comparison of how the Canadian Justice System carefully considers things like even wrongful convictions for speeding, in contrast with what’s happening at the moment in China. And one of the things we just saw in China was a conviction of a journalist who’s also a lawyer.

Adam Stirling [00:22:19] Yes.

Michael T. Mulligan [00:22:20] For the offence of picking quarrels and provoking trouble.

Adam Stirling [00:22:24] hmm.

Michael T. Mulligan [00:22:24] And that was for her taking video and photos of the tragedy in Wuhan in the early days of the Covid-19 pandemic. She was just sentenced to four years in jail and to give some further context, I looked at some statistics about the rate of convictions in China. And if you’re charged with an offence in China, your probability of conviction is 99.93%. In 2014, they were one point 1.6million people charged with criminal offences in China, and all of them, bar 825, were convicted.

Adam Stirling [00:22:57] Wow.

Michael T. Mulligan [00:22:58] Quite a contrast with our criminal justice system in Canada. We are very lucky to live here even in a year like 2020.

Adam Stirling [00:23:05] Imagine the resolve required to be defence counsel in a system like that, knowing one will lose almost every time.

Michael T. Mulligan [00:23:11] 99.93%.

Adam Stirling [00:23:12] Michael Mulligan. Thank you as always, until next week.

Michael T. Mulligan [00:23:14] Thank you so much. Always a pleasure.

Automatically Transcribed on December 31, 2020 – MULLIGAN DEFENCE LAWYERS