Law Times

September 10, 2018

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Page 2 September 10, 2018 • Law timeS sion that they would dismiss Le's appeal, adding that any breach was "technical, inadvertent, and made in good faith" while the "evidence was highly reliable and the crimes very serious." "[T]he trial judge had to evalu- ate the witnesses' credibility. He found that the police officers were credible, the appellant was a liar, and some parts of the evidence of the other four young men were inaccurate," Doherty wrote. Justice Peter Lauwers dissent- ed, writing that he would allow the appeal, quash the appellant's convictions and enter acquittals on all counts. "The police entry was an un- lawful trespass and this tainted everything that followed," Lau- wers wrote. "I doubt that the po- lice would have brazenly entered a private backyard and demand- ed to know what its occupants were up to in a more aff luent and less racialized community." Samara Secter, an associate at Addario Law Group and one of the lawyers representing Le, says the case "is really about the com- peting interests of community policing versus privacy rights." "I think [the pair of major issues] plays out in two ways in the case. The first is the question about whether an invited guest in a backyard gathering has a reasonable expectation of priva- cy," she says. "And then the sec- ond issue that is underlying the entire case is whether Charter rights are being applied as thor- oughly to marginalized people as they are to other individu- als, because this case revolves around racialized youth in a so- cial housing context." A second, unrelated case, R. v. Szilagyi, 2018 ONCA 695, also deals with Charter rights and police search, says Andrew Menchynski, who represented appellant George Szilagyi before the Court of Appeal for Ontario. The decision allowed the appeal, set aside the conviction and en- tered an acquittal, concluding that evidence obtained in the police search must be excluded "in order to uphold the repute of the administration of justice." At issue in that decision was whether police "acted in good faith" in obtaining the search warrant and arresting the ap- pellant. According to the appeal deci- sion, published Aug. 24, Szilagyi was charged with drug-related offences "after police executed a search warrant for his residence for the purpose of finding an unlicensed firearm and ammu- nition." "There was neither a firearm nor ammunition, but the police found and seized illegal drugs, cash, and a cellphone in the resi- dence," said the decision, which also said that Szilagyi was ar- rested outside his home in Lon- don, Ont. The warrant to search Szila- gyi's home was based "almost entirely" on tips provided by two confidential informants, wrote Justice Kathryn Feldman, who wrote the appeal decision, with justices Mary Lou Benotto and Harriet Sachs concurring. One of the informants was "untested and unproven," and that per- son's tip was uncorroborated. Furthermore, Szilagyi alleged on appeal, the police drafted an "intentionally confusing" re- quest for a warrant, which "gave the misleading impression that the [informant] was credible and had no criminal convictions." The trial judge found that the police acted in good faith, because they sought and ob- tained a warrant and the officer has since changed his practice of omitting informants' full crimi- nal record. But the Court of Ap- peal disagreed. "In this case, the trial judge concluded that the police officer was acting in good faith. A con- clusion as to good faith cannot be grounded on a lack of bad faith. The trial judge was incorrect to equate a lack of bad faith on the officer's part to good faith con- duct," Feldman wrote, adding in later paragraphs: "It was an error by the trial judge to mitigate the seriousness of the police conduct by characterizing it as good faith, even if the police did not have the specific intent to mislead." Rick Visca, who represented the Queen, says that although the case was a very focused appeal on one aspect of the tests around Charter rights, the R. v. Szilagyi, 2018 ONCA 695 decision is really a discussion about principles es- tablished in earlier cases. He says the decision does not suggest, for instance, that an informer's full criminal record has to be dis- closed to an issuing justice. "The court is saying, 'This is why the justice ought not to have issued the warrant.' In my view, the police may be criticized where they perform warrantless search- es where they act on their own . . . but they're not to be criticized for the same degree when they pres- ent information to a legal officer for their consideration," Visca says. Menchynski says the Court of Appeal makes it clear police don't "get credit for doing what is expected," such as applying for a warrant or for being honest in their warrant application. Plus, Menchynski says, even when the police apply for a warrant, evidence may be excluded where the grounds for a search are weak or if police make some omissions or mistakes in their application, even if these mistakes or omis- sions are not done in "bad faith." "Just because the police ap- plied for a warrant and did not intentionally or negligently mis- lead an issuing justice does not automatically mean that they were acting in 'good faith,' Men- chynski says. LT jected LAO's offer and her em- ployment was terminated with- out cause." At the end of 2014, MacKinnon's notice of applica- tion said, an Oshawa criminal duty counsel alleged she was being bullied and harassed by colleagues Chris Amodeo and Yaroslav Obouhov. MacKinnon said in her fac- tum that she took the allegations of bullying and harassment seri- ously and that she informed her supervisor of the issue the same day. MacKinnon's factum says she fully and willingly partici- pated in the investigation, and both Amodeo and Obouhov were dismissed with cause. In 2016, LAO offered Mac- Kinnon entry to LAO's duty counsel panel, on the condition that she not provide duty coun- sel services in Oshawa. In doing so, MacKinnon claims in her notice application, LAO is exer- cising discretion it does not have and had denied her application based on "spurious reasoning." However, a letter from LAO suggests that there were find- ings of "both file tampering and harassment reports," although MacKinnon's factum says she was not provided with copies of those findings. LAO said in a statement that it takes panel management very seriously and plans to file a response but that it cannot comment further on issues before the court. MacKin- non says the goal of her legal ac- tion is to get legal aid to make a decision, a process that the legal aid website says takes three to six weeks but has taken MacKinnon since 2015. Although she has part-time work at a law firm, she says she's spent more than 15 years of her life doing legal aid work and hopes LAO allows her to per- form per diem duty counsel du- ties in Oshawa. Legal aid "employs lawyers who are protecting the legal rights of persons accused of criminal offences, and that's so important," MacKinnon says. Christopher Wirth, a partner at Keel Cottrelle LLP, who was not involved in the matter, says the case raises intriguing ques- tions surrounding the adminis- trative law and regulations that govern LAO. "It will be interesting to see how the court will balance that [administrative law] issue with the general obligation that all employers, including LAO, have to ensure a safe work environ- ment for their employees," he says. Obouhov told Law Times that his incident doesn't involve MacKinnon and she shouldn't be left in a limbo where her panel application is neither ap- proved nor denied. "If you are a criminal lawyer or a family lawyer or an im- migration lawyer, an ability to accept legal aid certificates, de- pending on the type of practice you run, it may be essential to your ability to make a living. The degree of procedural fair- ness that attaches to a decision to deny that should be somewhat higher," Obouhov says. LT NEWS Left in limbo? 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