Issue #159
This
issue of the Defence Brief was written by Salma Jaffer, one of our illustrious
summer
students currently employed with Skurka & Pringle
R. v. Tran (Ontario
Court of Appeal, August 1, 2001)
This is an appeal by the accused, Mr. Tran who was
convicted of impaired driving causing death, impaired driving causing bodily
harm and impaired driving, contrary to sections 255(3), 255(2) and 255(1)
respectively of the Criminal Code.
These convictions came about after a long and tumultuous journey through
the justice system, which included several court appearances so that the matter
could be spoken to, or for the purpose of setting trial dates. On two occasions the appellant's counsel was
removed as counsel of record. On June
18, 1999, the presiding Judge set September 27, 1999 as the start date for a
seven-day jury trial which would proceed "with or without
counsel". Upon the arrival of this
final trial date, Mr. Tran was present and ready to proceed to trial as an
unrepresented accused. Following a
trial which lasted only one and a half days instead of the seven which were set
aside for it, Mr. Tran was found guilty on all counts and sentenced to two
years imprisonment.
On appeal, Mr. Tran submitted that that
his convictions should be set aside and a new trial ordered. The appeal rested on a number of grounds. First, the appellant argued that the Trial Judge
failed to provide him with any substantial assistance or guidance throughout
the trial proceedings; and second, that the Trial Judge failed to conduct an
inquiry into the admissibility of evidence of his impairment and that evidence
of Mr. Tran's blood/alcohol concentration was obtained in violation of his
rights under section 8 of The Charter
which protect him from an unreasonable search or seizure. The appellant argued that the evidence
should therefore have been excluded under section 24(2) of The Charter, and that its admission in the face of this violation
resulted in an unfair trial.
Overview of the facts
In the early morning hours of October 21, 1996 the
appellant, while driving his motor vehicle in downtown Toronto, collided with a
taxi, injuring both himself and the taxi driver and killing a passenger seated
in the taxi. The appellant was
transported to St. Michael's Hospital where he then consented to providing
blood samples for "medical reasons".
There was no demand made of him to provide a blood sample under s.254(3)
of the Criminal Code so that it could be analyzed to determine the
concentration of alcohol in his blood.
Nor was a warrant obtained to seize a sample of Mr. Tran's blood under
s.256(1) of the Criminal Code. Hence,
the presumption of impairment based on his blood/alcohol concentration at the
time of the offence that would have formed an important part of the Crown's
case was displaced. Instead of relying
on this presumption under s.258(1)(d), the Crown would now have to prove the
appellant's blood/alcohol concentration by adducing evidence to this effect at
trial.
Did the Trial Judge fail to
provide sufficient assistance and guidance to Mr. Tran in light of his status
as an unrepresented accused?
The Ontario Court of Appeal found that there
were several occasions upon which the Trial Judge ought to have extended
himself in an effort to guide and assist the appellant. The first of these occasions came about as
early as at the time of the arraignment when the appellant expressed confusion
as to what his course of action ought to be.
He appeared not to sufficiently understand the process which was
unfolding. Justice Borins notes in the
judgment that the appellant's reaction at the onset of the trial should have
alerted the Trial Judge that the appellant was ignorant of the most basic stage
of his trial and would require a significant degree of instruction and
vigilance both at the initial stage as well as when the trial progressed. At this early stage, the Trial Judge should
have explained to the appellant the course which the trial was to take,
beginning with his arraignment, followed by the Crown calling her witnesses,
his right to cross examine the witnesses and to object to irrelevant evidence,
his right to call witnesses and to testify, the risks inherent in testifying
and not testifying, and finally, the right to make closing argument. In addition, the Trial Judge should have
been alert and responsive to the need for guidance seeing as how the appellant
required the assistance of an interpreter to participate in his trial. The Court of Appeal not only found that the
assistance provided to Mr. Tran fell short of meeting a threshold of
sufficiency, but went as far as to say that the Trial Judge "appeared
insensitive to the appellant's right to a fair trial and failed to fulfill his
duty to ensure that the appellant received a fair trial".
It was further held that there is a minimum level of
assistance required in order to ensure that the defendant obtains a fair trial,
and that the conduct of the learned trial judge during the course of trial did
not meet this threshold. The Trial
Judge's conduct at various stages of the trial contributed to this
characterization. His explanation of
the appellant's right to testify was deemed to consist of "perfunctory
comments" as opposed to being a thorough explanation which would include
an explanation of the consequences of choosing to testify or not to testify,
the procedures which would follow each choice, and the fact that he could be
asked about his criminal record should he choose to take the stand in his
defence. The Trial Judge failed to take
these explanatory measures.
In addition to these oversights,
Justice Borins also expressed concern over an endorsement that was made on the
indictment on the appellant's court appearance on June 14, 1999. At that time, the appellant's counsel was
removed from the record and the trial was adjourned. The presiding Judge (who happened to be the same Judge who
eventually presided over Mr. Tran’s trial) wrote, "matter to be a
plea" on the indictment. The Court
of Appeal frowned upon this conduct, as it was inappropriate to place such
information on the indictment since it may prove to be prejudicial to a
defendant who subsequently asserted his or her right to a trial. It was further characterized as information
which was irrelevant to whether the defendant committed the crime.
Did
the Trial Judge’s conduct with respect to evidence adduced by the Crown
constitute a failure to sufficiently inquire into admissibility issues, and did
this consequently compromise the fairness of the appellant’s trial?
Since the blood sample taken from Mr. Tran at the
hospital was not taken pursuant to a demand or search warrant with the consent
of the appellant, the Crown carried the burden of proving his blood/alcohol
concentration at the time of the offence.
In a somewhat “roundabout” way, the Crown adduced expert evidence as to
the progressive absorption of alcohol into the bloodstream. This expert evidence consisted in part, of
two experts, a clinical biochemist and a toxicologist. The testimony of the experts posited that
Mr. Tran’s blood/alcohol concentration at the time of the accident was over the
legal limit and that his ability to operate a motor vehicle at that
concentration level would be impaired.
The term “roundabout” is employed because the experts’ evidence was
based on the content of Mr. Tran’s hospital records which were obtained via two
search warrants both of which were issued in the absence of a sworn information
by the applicant.
The appellant gave his consent to the taking of
blood samples for medical purposes, not for the purpose of determining his
blood/alcohol determination at the time of the incident. The Crown could not rely upon the
presumption of concentration, and thus sought to demonstrate this concentration
using the very blood samples which were deemed to be outside the ambit of the
Crown’s accessibility by virtue of the displacement of this presumption. Justice Borins cites the principle espoused
by the Supreme Court of Canada that a hospital patient undergoing treatment for
injuries sustained in an automobile accident has a reasonable expectation of
privacy, as well as a reasonable expectation that the results of a blood
analysis undertaken for medical reasons will not be shared with non-medical
personnel without his or her consent.
Whether or not an argument to exclude this evidence would have been
successful in this case was held to be both unknown and irrelevant at this
stage; the Court instead focused on the fact that there was clearly an admissibility
issue at play to which the Trial Judge should have both been alive to and paid
special regard to the imbalance of expertise between the Crown and the
unrepresented accused.
The Court also took issue with the questionable
manner in which the Trial Judge conducted the voir dires concerning the
qualification of expert witnesses. When
the Crown sought to introduce an Accident Reconstructionist as an expert, the
Trial Judge indicated that he was satisfied with his expertise following a few
short questions and answers. He failed
to explain to the appellant the purpose of expert testimony or afford him an
opportunity to participate in a voir dire concerning the qualification
of the witness as an expert. The Trial
Judge dealt with the qualification of the other expert witnesses in the same
manner.
Did
the Trial Judge weigh the evidence of the appellant?
Justice Borins expressed further concern with the
manner in which the Trial Judge dealt with the appellant’s evidence. Mr. Tran expressed that he was not impaired
because he had only consumed one and a half beer. The Trial Judge neither accepted nor rejected this evidence, nor
did he consider whether it raised a reasonable doubt. Given that the Crown bore the burden of having to prove his
blood/alcohol concentration, the court was of the view that the Trial Judge
ought to have given consideration to the appellant’s evidence of his alcohol
consumption. Justice Borins held that
it appeared as if the Trial Judge dismissed the appellant’s evidence on the
basis of his own knowledge that one and a half beer would not have given the
reading alleged by the Crown. A
conclusion drawn from his own experience was not something of which the Trial
Judge was entitled to take judicial notice.
For these reasons, Justice Borins on behalf of a
unanimous court allowed the appeal and ordered a new trial for the appellant. He added that in exercising its discretion
as to whether to proceed with a new trial, the Crown ought to take into account
the problems surrounding the admissibility of the evidence of impairment, as
well as the fact that the appellant has already served his two year
sentence.
This decision not only highlights the
problems in failing to challenge and appropriately qualify expert evidence, but
more importantly, it demonstrates the significance of taking reasonable steps
to provide an unrepresented accused with a fair trial. Clearly, the court is of the view that the
Trial Judge bears a level of responsibility that goes beyond basic instruction,
to ensure that imbalance of expertise does not compromise the fairness of the
trial and thereby the integrity of the process. While the Judge is not to cross the line of impartiality to the
point of becoming an advocate for the accused person, there is still an
expectation that the Judge will be alert to the unrepresented accused person’s
lack of familiarity and knowledge of the system, and that he or she will assist
the accused person to a greater extent than he or she would were the accused
represented by counsel. The fact that
the appellant’s trial was marked to proceed “with or without counsel”, appears
not to have detracted from the degree of his entitlement to a fair trial.
R. v. Mason (Ontario
Court of Appeal, August 1, 2001)
In July 1991, the appellant broke into a
home and raped a woman at knifepoint.
In October 1991, he pleaded guilty to sexual assault with a weapon and
was sentenced to seven years’ imprisonment.
While he was serving his sentence, the police were able to link him to a
similar incident that occurred in October 1990 wherein he was alleged to have
broken into a home and stolen some money from the complainant after raping her
at gunpoint. The appellant pleaded
guilty to sexual assault with a weapon and robbery. It was these two offences which formed the grounds for an
application being brought forth to declare him a dangerous offender. On December 12, 1995 the appellant was
declared to be a dangerous offender and an indeterminate sentence was
imposed.
There are two issues which formed the
grounds for this appeal. First, that
the Trial Judge erred in admitting and relying upon evidence of an escape plan
in which the appellant was a participant.
The appellant argued that the Crown failed to prove the plan beyond a
reasonable doubt and that even if the plan was proven, the evidence was still
inadmissible because it was irrelevant to the psychiatrists’ expert
assessments. The second issue on appeal
is whether the fresh evidence adduced provides a basis upon which the court
should set aside the dangerous offender finding and the indeterminate sentence
which followed from it, and designate the appellant as a long-term offender
instead, as per section 759(3)(a)(i) of the Criminal Code. Alternatively, the appellant submitted that
a new hearing ought to be ordered under section 759(3)(a)(iii) at which the
judge could consider whether a long-term offender order should be made.
With respect to whether the Crown
proved the existence of an escape plan beyond a reasonable doubt, the appellant
submitted that the evidence of the patient informer did not constitute proof
beyond a reasonable doubt. However,
Justice Rosenberg for the Court of Appeal did not find that the Trial Judge
erred in that finding. Despite his
reservations about the credibility of the informer, the Trial Judge was
satisfied beyond a reasonable doubt that there was such a plan, that the
appellant was a participant, and that the plan envisaged the use of violence
towards staff members. Moreover, the
informant’s testimony was corroborated by independent evidence. In the Trial Judge’s words, “Mason’s escape
plan required at least threats of violence and confinement in order to be
viable”.
The appellant also argued that the
evidence of the escape plot was irrelevant, in law, to the assessments provided
by the expert psychiatrists. The
appellant relied on the ruling handed down by the Supreme Court of Canada, in R.
v. Howard (1989), 48 C.C.C. (3d) 38 wherein the accused was on
trial for first degree murder. Prior to
that trial, his alleged accomplice pleaded guilty to second degree murder, at
which time he admitted that footprints found at the scene were his footprints. The accused proposed to call an expert
witness who would testify that the footprints could not have been made by the
co-accused (his defence was that the two of them were together the entire
evening and were not involved with the alleged crime) but refrained from
calling this witness when the Trial Judge ruled that the Crown would be
permitted to cross examine the witness on whether or not he had taken into
account the fact that this accomplice had admitted that the footprints were
his. The accused was subsequently convicted. The Supreme Court held that the Trial Judge
erred in allowing Crown counsel to lead questions in cross-examination with
respect to the admissions of the co-accused at the time of his guilty
plea. Justice Lamer held that the
admission of the accomplice was not a fact adduced in evidence (at the trial of
the accused), nor was it a fact that could fairly be inferred from the facts in
evidence. It was hearsay and should not
have played the role it did at Mr. Howard’s trial. Justice Rosenberg distinguished this from the case at bar. With respect to the escape plot evidence,
this was evidence of the appellant’s background and character, which is
admissible under s.757 of the Criminal Code. Unlike the admissions of the accomplice in Howard which
were hearsay, the evidence of the escape plot was evidence of the appellant’s
own conduct and relevant to the issues on the dangerous offender
application. Moreover, the
psychiatrists held the appropriate expertise to evaluate the relevance of the
appellant’s involvement in an escape plot to his state of mind for the purpose
of assessing his status as a dangerous offender. The expert skilled in comparing footprints could not be deemed an
“expert” in evaluating the validity of a guilty plea and the facts read in to
support that plea. Hence, the reasoning
in Howard did not apply to the circumstances of the appellant.
The appellant submitted that the fresh
evidence tendered by the parties provided a basis upon which the Court should
set aside the dangerous offender finding and designate the appellant as a long-term
offender with a fixed sentence. Of
significance was the fact that while the long-term offender provisions of the Criminal
Code came into effect in 1997, the appellant’s hearing during which he was
declared a dangerous offender, was conducted two years prior to this in
1995. The question to arise then was
whether the provisions could be given retrospective effect. Unfortunately however, this issue was not
addressed by our Court of Appeal because the Court was satisfied that the fresh
evidence in this case did not provide a basis for the finding that the
appellant should be declared a long-term offender, nor did it warrant the
ordering of a new hearing.
With respect to the appellant’s
submissions regarding being declared a long-term offender, the Court turned to
section 759(3)(a)(i) which provides that a court may “find that the offender is
not a dangerous offender, find that the offender is a long-term
offender…”. In other words, to declare
an individual a long-term offender, the court must also be in a position to
find that the individual is not a dangerous offender. Because the Court could not make this determination about Mr.
Mason, it was precluded from making a determination as to his qualifying as a
long-term offender. An interesting question
of interpretation that arises from this is whether the provisions grant the
Court discretion not to make a finding that the accused is a dangerous offender
when the Court is satisfied that the pre-requisites of being a long-term
offender have been met. However,
because Justice Rosenberg concluded that there was insufficient evidence to
create a realistic prospect that the appellant would not pose an unmanageable
risk to the community should he be released, a determinate custodial sentence
was inappropriate. The interpretive
issue was therefore left unexplored.
Justice Rosenberg on behalf of the
Court dismissed the appeal, but with the caveat that with time and the
appropriate treatment the appellant might one day be released into the
community. He added that this decision,
however, will best be made by the Parole Board.
This article appeared in The
New York Times, dated Saturday, July 21, 2001.
New Way to Insure
Eyewitnesses Can ID The Right Bad Guy
By Gina Kolata and Iver
Peterson
Prompted
by new insights into the psychology of eyewitnesses to crimes, New Jersey is
changing the way it uses witnesses to identify suspects.
Starting
in October, the state will become the first in the nation to give up the
familiar books of mug shots and to adopt a simple new technique called a
sequential photo lineup, said John J. Farmer Jr., New Jersey’s attorney
general. Sequential viewing of
photographs has been shown to cut down on the number of false identifications
made by eyewitnesses without reducing the number of correct ones.
The
difference between the old and new systems is subtle but highly significant,
according to researchers who have studied the psychology of witness
identification. At present,
eyewitnesses browse through photographs of suspects, comparing, contrasting and
re-studying them at will.
Under
the new system, victims and other eyewitnesses would be shown pictures one
after the other. They would not be
allowed to browse. If they wanted a
second look, they would have to view all the photos a second time, in a new
sequence. Also, the pictures would
usually be shown by a person who would not know who the real suspect was.
“It’s
just a reality that eyewitness identifications are made under situations of
incredible duress, when people are trying to recall what someone looked like,
and they can be more or less accurate,” Mr. Farmer said. “So what we’re trying to do with these
guidelines is to give law enforcement a way in which we think we can at least
narrow the risk that a mistake will be made.”
The
new rules also change the way physical lineups, called showups, will be done,
although the use of suspects and stand-ins is so rare in New Jersey these days
that some prosecutors cannot remember the last time they were used. As in photo lineups, the new rules require
that in showups, individuals must be presented to the witness one at a time,
usually through a one-way mirror.
The
New Jersey program, which is already being used in Camden and Hunterdon
Counties, grows out of a quarter-century of psychological research and is
supported by recommendations published two years ago by the United States
Department of Justice for police forces nationally.
The
federal recommendations were the result of a 1998 study by the National
Institute of Justice, a research arm of the Justice Department, which asked
police officials, defense lawyers, prosecutors and researchers to review 28
criminal convictions that had been overturned by DNA evidence. The study found that in most of the cases,
the strongest evidence had been eyewitness identification.
The
Justice Department published a guide titled “Convicted by Juries, Exonerated by
Science” in 1999, summarizing its recommendations for change, saying, among
other things, that sequential lineups were an acceptable option.
New
Jersey, working with a pioneer in the field, Gary Wells, a psychologist and
researcher at Iowa State University, soon began drawing up its own guidelines.
New
Jersey’s program was developed by Debra L. Stone, deputy director of operations
and chief of staff in the state’s Division of Criminal Justice. Ms. Stone said that the plan elicited howls
of protest when it was introduced to county prosecutors, and local police
departments and prosecutors, who feared that the new procedures would make it harder
to win convictions because fewer suspects would be identified.
They
also expressed concern that the procedures would impose additional burdens on
short-handed police departments.
“But
we had a program for them where we had Professor Wells come in to tell them
some of his horror stories about misidentifications, and about the way people’s
memories work, and in the end they were very supportive,” Ms. Stone said.
Chief
John Miliano of the Linden, N.J., Police Department said: “Every time you see something coming along
that makes your job a little harder, you kind of cringe a little. It’s going to take extra time and personnel,
but if it’s going to make a case a little more solid or if it’s going to
eliminate a bad identification or a situation where an officer may try to
influence an identification, then it’s beneficial.”
Both
Mr. Farmer and Mr. Wells said they believed that New Jersey will become the
first state in the nation to use the new photo lineup technique.
Over
the years, researchers like Mr. Wells, and Rod Lindsay, a psychology professor
at Queen’s University in Kingston, Ontario, have demonstrated that sequential
lineups made a huge difference.
Professor
Lindsay would stage a mock crime – like s purse-snatching – in front of a group
of people who had agreed to participate in a study. He would then show the witnesses a traditional lineup of
suspects, like a group of photographs or a number of people standing in a row,
but he would not put the “purse-snatcher” in the lineup. About 20 percent to 40 percent of the
witnesses mistakenly identified someone as the criminal.
When
the same suspects were put in a sequential lineup, and the eyewitnesses were
shown photographs one at a time, and only once, the rate of false
identifications dropped to less than 10 percent.
Other
experiments showed that witnesses who did remember the criminal were just as
likely to pick that person out of sequential lineups as they were from
traditional simultaneous lineups.
The
reason that sequential lineups work is rather simple. In simultaneous lineups, Professor Lindsay said, witnesses are
able to compare individuals, choosing one from the group who looks the most
like the person they think they saw commit the crime. But a sequential lineup limits the ability to compare.
The
psychologists think that the chance of misidentification is reduced the most by
allowing witnesses to view photos more than once, although the sequence would
be changed between viewings. And even
if witnesses declare a decision in midsequence, they are required to view the
sequence through to the end, to assure that each picture has been seen the same
number of times.
Harold
Kasselman, deputy head of the Camden County prosecutor’s office, which has been
using the new system since December, said “Our feeling is that if they request
it, we shuffle all eight photographs again and show them again in random
order.” A witness who makes an
identification is told to sign and date the chosen photo, and to initial the
other seven. All eight photos become
evidence in the case.
Another
crucial innovation, the researchers found, was to be sure that a neutral third
party conducted the lineup, in what is called a blind test. If the detective knows which person is the
suspect, it could allow the detective, consciously or not, to guide the witness.
“Let’s
say you’re the detective and you’ve got your person in position three” in the
group of photographs, Professor Wells said.
“You show this spread to the witness and the witness says ‘Well, No. 2.’ A natural reaction is to say, ‘Be sure you look
at all the photos.’ On the other hand,
if the first words to come out of the witness’s mouth are, ‘No. 3,’ then it’s,
‘Tell me about No. 3.’”
“It’s
just a natural human reaction,” he said.
The
studies also showed that witnesses can be just as certain about a mistaken
identification as a true one. And being
told that a false identification is correct makes witnesses even more certain.
“It
is one thing to detect lying in court, but how do you figure out that one
person made a mistake in identifying a suspect and the other didn’t?” Professor Lindsay said. “Both are perfectly sincere in telling you
the truth as they know it.”
But
even though the experts are confident that they found a better way to conduct
lineups, they have had a difficult time convincing law enforcement officials.
Attorney
General Farmer said that New Jersey is unusual in that he has the power to
order a change in lineup procedures statewide.
In
New York’s less centralized law enforcement network, however, officials say
that a change to sequential lineups would most likely need to be spearheaded by
district attorneys, but in cooperation with the police and the attorney
general. District attorneys said that
while they were interested in whether sequential lineups might improve identifications,
the matter needed far more study and debate before a shift could be made.
George
A. Grasso, the New York City Police Department’s deputy commissioner in charge
of legal affairs, said that group lineups were based on long-established case
law and could be particularly complex to change in New York’s sprawling system.
New
Jersey’s new rules would allow an investigation officer to conduct the lineup
in cases where no neutral officer is available because the police department is
so small, or because it is so late at night.
Still,
as Chief Miliano pointed out, detectives talk among themselves about their
cases all the time, so even a fair-sized department like his might have a hard
time finding an officer with no knowledge of a given case to conduct the
lineup.
But
as Richard P. Rodbart, deputy first assistant prosecutor for Union County,
said, police officials know that once the new guidelines have fully gone into
effect, any other approach will become a liability that defense lawyers will
pounce on.
“I
don’t want an officer getting on a witness stand after he’s used the old way
and being asked, ‘By the way, sir, are you familiar with the order from the
attorney general that there has been a new way to do identifications?’” Mr.
Rodbart said. “And then the officer
says, ‘Yeah, I heard something about that.’
And then the defense attorney’s voice rises, ‘Did you follow that
order?’ and bang, he’s on track to knock the case down.”
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