Oct 3, 2020

Canadian Criminal Appeals - Week of September 14, 2020

R. v. Pawar, 2020 BCCA 251 (CanLII)

In R v Pawar, 2020 BCCA 251 the BCCA (per Fitch JA) allowed the appeal and excluded the drugs that had been admitted at trial. The warrantless search of the appellant’s home, ostensibly premised on exigent circumstances (following his arrest away from his home), was found to be objectively unreasonable and thus contrary to s. 8 of the Charter. However, the trial judge found that the police were acting in “good faith” because they subjectively (even if erroneously) believed in the existence of exigent circumstances; on this basis she admitted the evidence under s. 24(2). The BCCA held that “the judge’s factual finding that [the officer’s] subjective belief in exigent circumstances was not reasonably held precluded a finding by her that he was acting in good faith” (55). Considering the issue afresh, the BCCA noted that “there will always be a risk when the police make a public arrest in a case of this kind that drugs being kept by the arrestee at a “stash house” may be moved or destroyed” (66). However, because there was nothing in this case that raised this risk from the general to the particular, the court sought to distance itself from clearly unconstitutional conduct in order to reduce the risk that it will be “repeated in future cases…” (95). While acknowledging that Doherty JA’s formulation in McGuffie does not establish an inflexible “two‑strikes‑and‑the‑evidence‑is‑out” rule, it is a useful “rule of thumb” (98)

In R v Manrique 2020 QCCA 1170 the QCCA (per Healy JA) did a deep dive into the statutory meaning of “harass” under s. 372(3) [harassing communications by telecommunications] and whether that word should be interpreted as it is in s. 264 [criminal harassment] (19 & 31). The answer is “no”. Noting that the concept of harassment “is invoked in many statutory contexts”, the QCCA observed that its meaning is “undeniably open-textured” and does not “bear one consistent and coherent meaning” throughout these contexts, or even within the Criminal Code (19-33). Unlike criminal harassment, the offence of harassing telecommunications does not require that the communication was received by another person and does not require proof of causing fear or any other effect in another person (34-36). Adding those elements to the offence would enhance the objective gravity of the offence “in a manner contrary to Parliament’s intent” (37). As it stands, the offence of harassing telecommunications “could seemingly be charged even in the absence of a known recipient, receipt of the transmission or the effect of a transmission” (36).

In R v Perreault, 2020 ONCA 580 the ONCA (per curiam) held that “[i]f courts are left understaffed because judges are required to attend judicial education programs, this is a systemic or institutional problem, not an exceptional circumstance” under the Jordan framework (4).