Heard: January 18th, 2017
Judgment: January 18th, 2017
Criminal law --- Post-trial procedure — Appeal from conviction or acquittal — Right of appeal of Crown —Pre-trial procedure — Search with warrant — Duty of justice— Information — Substantive requirements — Miscellaneous
RCMP officer working the night shift applied for a warrant to investigate theft of electricity. As it was 2am and the Kelowna Court House was closed, the officer applied for a telewarrant. The judicial justice phoned the officer asking why he was seeking to utilize the telewarrant process and after hearing the officer’s reasons, he advised the officer to include them in the information to obtain. During execution of the warrant police discovered a large marijuana grow-operation. Clark was charged with production of marijuana, possession of marijuana for the purposes of trafficking and theft of electricity.
BCSC: Accused acquitted of all charges.
TJ held a voir dire and found the telewarrant invalid due to the fact that the JJ had inappropriately assisted the RCMP officer in the preparation of the ITO.
BCCA: Crown appealed. Appeal allowed. New trial ordered.
Issue: 1) Was the impartiality of the JJ compromised by a conversation he had with a police officer seeking a telewarrant? 2) Was the impracticability requirement met with respect to the telewarrant that was issued?
Analysis: 1) The JJ did no more than advice the officer to fully set out his reasons for using the telewarrant procedure. No reason to believe the presumption of judicial impartiality had been displaced because of it. 2) The impracticability requirement of the telewarrant procedure is concerned with whether it is practicable to make an in-person application at the time the application is brought and does not require an immediate need for a warrant be demonstrated. Court House was closed, obvious a JJ would not be available in-person. Impracticability requirement was met. Telewarrant was properly issued.
SCC: Accused appealed.
Held: Appeal dismissed.
For the same reasons as BCCA.
R v Oland, 2017 SCC 17
Heard: October 31, 2016
Judgment: March 23, 2017
Criminal law --- Post-trial procedure — Release pending appeal — Successive applications — Indictable offence — Factors considered — Public interest
Oland, no prior criminal background, educated, husband and devoted father, bludgeoned his father to death. He was arrested and charged with second degree murder. Following a contested hearing, Oland was released on bail pending trial. At trial Oland was convicted of second degree murder and was sentenced to life imprisonment with no chance of parole for 10 years. Oland filed a notice of appeal from conviction and applied under s.697(3) Criminal Code of Canada for bail pending the determination of his appeal.
NBCA: Dismissed the application for release pending appeal.
Appeal J found Oland discharged his onus on the first two criteria for release s.679(3)(a) and (b) Code: his appeal was not frivolous and he would surrender into custody as required. S.679(3)(c) Code Public Interest criteria J divided into 1) Public safety: Oland posed no danger to the public at large. 2) Public confidence in administration of justice: gravity and brutality of the offence weighed in favour of Oland’s detention.
NBCA Review Panel: Accused applied under s.680(1) Code for a review. Application for review dismissed.
Panel adopted a deferential approach to the review. Oland failed to show any error in the reasons of the appeal J that warranted interference and did not persuade them that his detention was clearly unreasonable.
SCC: Accused appealed.
Potential issue of mootness since Oland’s appeal from conviction was allowed, a new trial was ordered and he was granted bail pending the re-trial. However, all agreed that the Court would proceed to hear the appeal on its merits.
Appeal J should balance public interest in reviewability with public interest in enforceability. In assessing enforceability consider seriousness of the crime (the more serious, the greater risk to public confidence if accused released on bail). In assessing reviewability interest, determine the strength of an appeal and whether the grounds clearly surpass the minimal standard required to meet the “not frivolous” criterion. Where public safety or flight concerns are negligible and the grounds of appeal clearly surpass the “not frivolous” criteria, the public interest in reviewability may well overshadow enforceability interest even in the case of a serious offence.
Panel reviewing a decision of a single judge should 1) in the absence of a palpable and overriding error, show deference 2) intervene and substitute in their decision where the judge erred in law or principle and the error was material in the outcome 3) in the absence of legal error, intervene and sub in their decision where the decision of the judge was clearly unwarranted.
Chief Justice should consider a review where it’s arguable the judge committed material errors of fact or law in arriving at the decision or that the decision was clearly unwarranted in the circumstances.
Held: Appeal allowed.
Oland was not a flight risk, his offence leaned more towards manslaughter, there were no public safety concerns and his grounds of appeal were “clearly arguable”.