Appeal raises question: How much do appeals based on technicalities advance law?

Law360 Canada (May 16, 2024, 11:13 AM EDT) --

John L. Hill

We are increasingly seeing appeals that rely on technical legal breaches rather than a client’s factual innocence to overturn convictions. We read of charges being stayed due to prosecution delays and necessary evidence being ruled inadmissible due to Charter infractions. Could it be that an accused’s defence counsel sees advancing the law by presenting cases that call for new interpretations of rights as being just as important as protecting the innocent from wrongful conviction? A case from Renfrew County in Eastern Ontario is an example.

Shortly after midnight on May 31, 2017, officers of the Killaloe detachment of the Ontario Provincial Police were notified of a break-in in a rural area near Barriy’s Bay. It had been reported that four armed masked men had been involved in a robbery. Upon approaching the house where the crime was supposed to have occurred, a Jeep vehicle made a U-turn in the driveway and attempted to leave. Police blocked the Jeep. The Jeep’s driver was Mark Cameron.

The police officers recognized Cameron as having been involved in violent crimes in the past. Police had Cameron exit the vehicle and seized his keys. He was arrested for assault. In searching Cameron’s Jeep, they found a duffle bag containing two knives, two wallets and a cellphone. Knives had been reported as some of the weapons identified in the robbery.

Eleven minutes after his arrest, Cameron was read his rights and declined the opportunity to speak with a lawyer. Later, the police obtained a warrant that allowed police to verify Cameron’s cellphone and GPS linked him to the robbery and other suspects who admitted involvement in the crime.

At trial, Cameron brought an application to exclude evidence obtained in the vehicle search and a declaration that his Charter rights were breached for failure to notify him immediately of his right to speak with counsel.

Cameron was found guilty of being an aider and abettor even though he had not participated in entering the house that was robbed. The judge relied on the GPS and cellphone evidence to convict.

On appeal, he again sought the exclusion of evidence obtained at the time of arrest, but the Ontario Court of Appeal found no Charter violations (R. v. Cameron, 2024 ONCA 231). The focus of the appeal was a violation of his rights, not a claim that he had been falsely accused of a criminal act that he did not commit.

When police seized his keys, his s. 8 Charter rights were not breached. Where an officer has reasonable grounds to believe there was an immediate danger to officer safety, removing keys ensured the accused would not flee and injure the officer. This search incidental to investigative detention was proper (R. v. Buakasa, 2023 ONCA 383).

Officer safety also justified a minor delay in notifying Cameron of the reason for his detention. A confrontation could have been provoked. A valid safety concern justified the delayed advice of the reason for the arrest (R. v. Gonzales, 2017 ONCA 543).

It was argued that the police had only suspicion because of Cameron’s past when making the arrest. The court held that in determining if a warrantless arrest contravenes s. 9 of the Charter, a holistic consideration of all the facts and circumstances shows that the grounds for arrest were proper (R. v. Storrey, (1990) 1 S.C.R. 241; R. v. Fyfe, 2023 ONCA 715 and R. v. Harvey, 2024 ONCA 47).

Was the 11-minute delay in advising Cameron of his right to counsel in violation of his 10(b) Charter right? The Supreme Court case of R. v. Suberu, 2009 SCC 33 found the guaranteed right must operate without delay and “without delay” meant “immediately.”

Despite the Supreme Court definition, the Ontario Court of Appeal has refined the interpretation to allow some delay in circumstances where police or public safety or the need to preserve evidence justifies some delay in granting access to counsel (R. v. Rover, 2018 ONCA 745).

The Court of Appeal upheld Cameron’s conviction with no new interpretation of Charter breaches. Factual innocence was not at stake. The defence should be credited for advancing the technical arguments that another bench may have interpreted differently.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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